Analysis of major judicial decision in death sentencing policy in Bangladesh: Trends and Issues
How does the judge decide to punish one criminal with the death sentence and another with life imprisonment for the same offence in a given jurisdiction, especially when there is no generally agreed measure stick on sentencing policy. To find out the answer this research mainly emphasis on the various contexts and circumstances that influence judiciary to punish a murderer with capital sentence.
In the legal framework of sentencing in Bangladesh, judges enjoy too much discretion and the decision of death sentence depends on the mood of Judge, which raise the inconsistency in sentencing practices. The analysis of case studies tries to assess the level of consistency, mainly in the treatment of different sentencing policy by the judges, when they punishing an offender.
In Bangladesh, in the past, the normative guideline for judges was such that the normal punishment for murder was the death penalty and in cases where the death penalty is not given, the reason had to be stated by the judges. That means the general punishment for murder is the death penalty and life imprisonment is an exception. This practice abstains the judges to make wise decisions and sometimes injustice occurred with the accused. However, this provision has been subsequently amended and now reasons have to be given in any event. Section 367(5) of the Code of Criminal Procedure now provides that it is left to the discretion of the Court to pass a sentence of death or a lesser sentence and a death sentence is to be justified as the same way as a sentence of life imprisonment.
Now the question is, as the judges have both discretion to punish a murderer with death penalty or life imprisonment, whether the Judges are over-enthusiastic or reluctant in giving death sentence to the criminal? In the Penal Code, 1860, there are 8 provisions which prescribe death penalty. In addition, other special laws such as the Special Powers Act, 1974, the Women and Children Repression Prevention Act, 2000, The Acid Crime Control Act 2002 also enumerate offences punishable by death. However, recent landmark judgment of the High Court Division declared the mandatory death penalty is unconstitutional. In this research 10 major cases relating to death penalty (2000 to 2017) will be discussed and the reason for the sentencing death penalty will be explained in next chapter.
Case Study-1: BLAST v Bangladesh (2010) 30 BLD (HCD) 194
In the case of State vs. Sukur Ali, decided in 1995, the High Court Division confirmed the death sentence of a minor boy who was 14 years old when he committed the rape and murder of a 7 year old girl, under section.6 of an earlier version of the Women and Children Repression Prevention Act, 1995. The Court noted that it was compelled to confirm the death sentence:
No alternative punishment has been provided for the offence that the condemned prisoner has been charged and we are left with no other discretion but to maintain the sentence if we believe that the prosecution has been able to prove the charge beyond reasonable doubt. This is a case, which may be taken as hard cases make bad laws.
The mandatory death sentence of this Act was repealed in 2000, but the repeal was not retroactive to persons already under automatic death sentences. In 2005, the BLAST brought a public interest challenge against s. 6(2) of the 1995 Act for unconstitutionally prescribing the mandatory death penalty for the offence of ‘rape and murder’ committed by ‘any person’. It was argued that the mandatory capital punishment is unconstitutional for breaching, among other rights, the constitutional right to life and liberty. The High Court Division declared unconstitutional the mandatory death penalty in the 1995 Act on the ground that the provision of mandatory death sentence interfered with the discretion of the judge and hence judicial independence. The High Court Division observed that any provision of mandatory punishment would result in prejudicing the court’s power of adjudication since the court would be prevented from considering the attenuating factors and compulsorily impose the mandatory punishment upon finding the accused guilty.
Case Study-2: Rokia Begum alias Rokeya Begum v the State 4 SCOB(2015) AD 20
Accused Rokia Begum killed her own daughter Surja Begum with the help of other accused Farid alias Reza (her adopted son). It is alleged that Rokia Begum had an illicit relationship with accused Farid and since Surja Begum disliked and protest it she was killed by strangulation. The Sessions Judge of Manikganj upon considering the evidence and materials on record convicted the accused persons under sections 302/34 of the Penal Code and sentenced them to death by his judgment. The High Court Division also accepted the death reference and later the condemned prisoners filed a criminal petition for Leave to Appeal in 2004. The Appellate Court upheld the decision of HCD under sections 302/34 of the penal code. But after considering the circumstances of the case the AD modified the death sentence of Rokia Begum into imprisonment for life.
Case Study- 3: The State v Oyshee Rahman (HCD) (2015)
This case is first sensational cases of parricide in Bangladesh. The brief fact of this case is, On August 16, 2013, the bodies of Mahfuzur and his wife Swapna were recovered from their house in Chamelibagh. Oishee, the daughter of the deceased victims told police that she killed her parents as they went too far in disciplining her. She also confessed to a magistrate that she alone killed her parents and their domestic help helped her hide the bodies. The trial Court (Speedy Trial Tribunal) found Oishee Rahman guilty of killing her parents and sentenced her to death. The Court sentenced the accused under sections 302/34 of the Penal Code with death penalty because she killed her parents in cold blood and somebody “supported” her in committing the murders. It was a heinous crime and a pre-planned murder. Later, the Appellate Court considering the circumstances commuted the death penalty to life imprisonment. The reason for extenuating circumstances will be discussed in later chapter.
Case Study-4: State v Mehadi Hasan alias Modern & others, 24 BLD (HCD) (2004), 497 (Trisha Murder Case)
The death of the 10-year-old girl, Sadia Sultana Trisha triggered widespread public protest in Gaibandha District. On the fateful day of July 17, 2002. Trisha, a student of Madyhaparha Primary School, jumped into a pond and drowned after the three youths namely Mehadi Hassan Modern, Mohammad Shahin and Ariful Islam Asha chased her in a bid to violate her when she was returning home from school. On September 30, 2002, the district and sessions judge of Gaibandha handed down the death sentence to the three convicts. In 2004 The High Court Division confirmed their death sentence awarded by the Gaibandha court for harrying to death the deceased.
Case Study-5: Alam Uddin alias Shapan v State, 62 DLR (AD)(2010),281
Khodeja Bibi alias Komola, the victim marriage to the Petitioner Alam Uddin. After the marriage, the Petitioner maltreating her for money and as a result the relationship between them became strained and on 1.12.97 the father of the Petitioner (Sadhuuddin) came to the house of victim’s father and told him that the condition of the victim was critical. Then the victim’s father rushed to Sadhuudin’s house and found the victim dead. It was said that victim committed suicide. But in viscera examination, no poison was detected and the Medical Board opined that the death of the victim was due to asphyxia resulting from exerting pressure on the throat, neck, head and facial region of the victim and it was Ante-mortem and homicidal in nature. After investigation Police submitted Charge Sheet under Section 302 of the Penal Code. At the end of the trial, the learned Sessions Judge convicted the petitioner U/S 302 of the Penal Code and sentenced him to death and the High Court Division also confirmed the sentence of death.
Case Study-6: Md.Moynul Hoque v the State, 24BLD (AD), 128 (Yasmin Tragedy)
Yasmin, aged about 18 years was on 24.8.1995, got on the wrong bus on her way to Dinajpur from Dhaka. Upon realizing her mistake, she stepped out of the bus and was looking for another way home, then a police van stopped in front of her driven by accused Amrita Lal Barman (since dead)and accompanied by A.S.I Moynul Hoque and Constable Abdus Sattar. The Police Officer assured her that they would drop her home. Probably thinking that she could trust these protectors of the law with her safety, the young teenager got in the car with them. A day later her body was found by the side of a road, bruised and battered. Three police officers were accused in the case. Two of the police officers were arrested in 1997. They were tried under Section 6(4) of Nari-O-Shishu Nirjatan (Bishes Bidhan) Act, 1995 and found guilty. The Death Reference was also confirmed by the High Court Division and dismissed the appeal. Hence, the condemned petitioners preferred the instant petitioners.
Case Study- 7: State v Mir Hossain alias Mira & Others. 56 DLR (2004), 124
The dead body of Rokeya Begum with injuries was found on a land by side of Sarwatali canal. First Information Report was filed by the father of the deceased and Shah Alam, Husband of the Deceased Rokeya Begum, Khodeja Second wife of Shah Alam, Mir Hossain alias Mira and Alamgir had been depicted as killers of deceased Rokeya Begum. Accused Shah Alam married accused Khodeja Begum as second wife without the consent of first wife Rokeya Begum. Thereafter, the relationship between deceased and accused Shah Alam had been strained. Accused Shah Alam used to torture Rokeya Begum. On account of torture, Rokeya Begum left his husband’s house and went to her father’s home. Later, Shah Alam convinced Rokeya Begum and took her into his house. On 11.1.1999 Accused Mir Hossain alias Mira said, Rokeya Begum, that Shah Alam did not go to Dhaka and he was with his second wife Khodeja and to find out the truth ask her to went with him. Then Rokeya Begum left the house with Mir Hossain and on the next day, her dead body was found. All the accused are charged with an offence under Sections 302/34 Penal Code. After trial learned Sessions Judge found them guilty of offences under Sections 302/34 the Penal Code and imposed death sentence upon them.
Case Study-8: Md.Shekhawat Hossain v the State, 25 BLD (HCD) (2005), 75
Ferdousi Begum, a fifteen years old girl is the victim of acid crime. Sprinkling of acid upon victim Ferdousi Begum had been attributed to Md. Shakhowat Hossain. Victim’s sister-in-law and aunt are also sustained acid burn injuries. A First Information Report (F.I.R) was lodged in Hakimpur Police Station for the commission of crime of dousing acid on victim. The police submitted chargesheet against Md. Shakowat Hossain, his father Fayez-Uddin and uncle Nazir Uddin under Section 5 (Ka, Kha, Uma) read with (Aa) (E) (EE) and (Ai) and section14 of the Nari-o Shishu Nirjatan (Bishes Bidhan ) Ain,1995. Bishes Adalat found accused Shakowat Hossain guilty of the offence and the Trial Court imposed death penalty upon Shakowat Hossain and acquitted other accused. The High Court Division also confirms the death reference of the convicted.
Case Study-9: State v Anowar Hossain Pintu alias Anowar Hossain & another, 61 DLR (AD) (2009)
Two minor boys plucked wood apples from tree belonging to deceased AKM Abdul Halim, Chairman of Rajapur Union Parisad. The daughter of the deceased rebuked the boys. Thereafter, the boys told about the incident to their relative and the condemn prisoner Abul Kashem and the Convict Petitioner Anowar Hossain Pintu along with other accused person came to the deceased’s house. At that time deceased Chairman was not present in his house. At 8 p.m, when Chairman is in his way of home, the condemn prisoner Abul Kashem and the convict petitioner Anowar Hossain came to the Chairman and informed him about the incident and demanded justice. Deceased Abdul Halim told them on reaching home he would settle the matter but both the Abul Kashem And Anowar Hossain denied to rely on his words. They insisted the deceased to settle the matter then and there but the deceased refused to do. Then both of them attack Abdul Halim and fled away from there. Monowara Begum, the wife of the deceased, filed F.I.R to Burichang Police Station and after investigation, the Police submitted Charge sheet. During the trial charge under Section 302/114 of the Penal Code was framed against them. The trial court convicted the condemn prisoner Abul Kashem under Section 302 of the Penal Code and sentenced him to death. But the High Court Division rejected the death reference and acquitted both the condemned prisoner Abul Kashem and the Convict petitioner Anowar Hossain Pintu. Then, an Appeal is directed against the judgment. No evidence has been proved against the Convict Petitioner, therefore Appellate division considers that the High Court Division rightly acquitted the Anowar Hossain Pintu and commuted the death sentence of Abul Kashem into imprisonment for life.
Case Study-10: State v Maku Rabi Das, 58 DLR (2004), 229
On a fateful day, accused Maku Rabi Das took temporary shelter in the house of the deceased Nainka Rabi Das. In the evening the accused Maku Rabi Das injured the deceased by inflicting Dao blows. Nanka Rabi Das has died on spot. After that, the accused Maku Rabi Das was apprehended and he disclosed the fact that, he had committed the murder as a hired man, the first cousin of the deceased Giris Rabi Das hired him. During the investigation, Giris Rabi Das died in Jail Hazat. After concluding the investigation, Charge sheet was submitted against the sole accused Maku Rabi das under Section 302 of the Penal Code. The Trial court considering the fact and circumstances of the case imposed death sentence upon Maku Rabi Das under Section 302 of the Penal Code. The case was referred to the High Court Division for confirming the death sentence. The Condemn prisoner preferred Jail appeal. Both the cases are heard together.