- (1.) The facts involved herein are somewhat peculiar and has a distinctive characteristic. According to the petitioners, it was a case under Section 376 as the respondent Nur Mohammed committed rape upon the victim being the wife of the complainant/ petitioner above named. According to the respondent, he was attacked by a group of which the petitioner was a party and during scuffle he was hit by a sharp weapon causing injury to his back. Hence, the petitioner was guilty of the offence committed inter alia under Section 326 read with Section 307. Both of them lodged separate complaints. The Police initiated two cases on the basis of the said complaints. The case, where the petitioner group was involved as accused, resulted in conviction before the Trial Court. In the other case where the respondent was accused of committing rape, he got acquittal from the trial Court. From the order of conviction, the petitioner group preferred an appeal where they were successful. The accused in the said case Tohid Ali and Nazel Haque were acquitted by this Court. Against the acquittal of Nur Mahammad the petitioner filed the instant application which was heard by me on the above mentioned dates.
(2.) It was not in dispute that both the cases arose from one single incident occurred on July 31, 1992. According to the petitioner, Nur Mohammed ravished Sultana (not real name) the legally married wife of petitioner herein Md. Jahiruddin. On the date of occurrence, the accused managed to enter first floor room through an open window and ravished Sultana against her will. Earlier the accused wrote love letters to Sultana. Sultana did not respond. Initially, Sultana tried to resist when she was overpowered. She raised alarm. Nearly four hundred people assembled and surrounded whole area so as to apprehend the wrong doer but the accused managed to escape and at that time Sultana with the help of a Chopper (Kathari) injured Nur Mohammed on his back. During scuffle, Sultana s wearing apparels were completely torn. Sultana did not lodge complaint contemporaneously as her husband was out of station. Fact remains, the complaint was lodged after about twenty one days.
(3.) In the other case, Tohid Ali and Nozel Haque were convicted under Section 326 for assaulting Nur Mohammed on his shoulder by means of a Chopper (Hasua). Tohid assaulted by Tangi on his shoulder whereas Nozel assaulted him on his thaigh by Tangi. It was the case of the defence that Nur Mohammed got injury through Sultana when he committed sexual intercourse with her by entering her bed room through the open window. The learned Judge of this Court in appeal set aside the conviction by observing that seizure of the weapon and the wearing apparel of Sultana could not support the case of the prosecution of the alleged assault of Nur Mohammed by Tohid and/or Nozel. The learned Judge of this Court allowed the appeal and set aside the conviction.;