State vs Bidhan Chandra (2014) 66 DLR 500

Fact of the Case

Mahzabin Chowdhury alias Giti after the death of her husband used to reside with her mother in Dinazpur. She was a contributor to Daily Ittefaq. On 07-09-2007 she returned from Dhaka and after taking a supper meal, was busy with papers. At 10.30 PM she talked with three persons aged about 25-30 years in front of her gate. On 08-09-2007 at 4 AM she was found strangulated to death in her bedroom.

 

Issues

a) In that case, the learned Judge of the Nari-O-Sishu Nirjatan Daman Tribunal passed a death sentence to each accused and a fine tk. 100000. By this appeal, the appellant challenged the propriety and legality of the judgment and the order of conviction. They also argued that confession was taken by force and coercion.

b) While deciding this case, Appellate Division found that there was no event of rape took place according to the definition of rape articulated in Section 375 of The Penal Code, 1860. But there is clear evidence of murder. So, the question arises which court will take cognizance of the said case?

Decision

After considering all the materials, records, and evidence the Appellate Division passed its judgment reducing the death penalty to imprisonment for life. The period of imprisonment in a condemned cell shall be deducted from the total period of imprisonment according to Section 35A(1) of The Code of CriminalProcedure, 1898.

Justification

a) The learned Judge of the Nari-O-Sishu Nirjatan Daman Tribunal passed the death sentence under Section 9(3)  of ThePrevention of Oppression against Women and Children Act, 2000 and Section 302/34 of The Penal Code, 1860. But in appeal, the prosecution failed to prove the offense under section 9(3) beyond reasonable doubt. So, the sentence was passed under Section 302/34 of The Penal Code, 1860 only and the Charge under Section 9(3) is dismissed.

b) There was no corroborative evidence to prove the offense. This judgment was passed solely depending on the confession given by the accused to the Magistrate under Section 164 of The Code of Criminal Procedure, 1898. In support of this, a case law is cited. In the case of 13 BLC (AD) 81, it is now a settled principle of law that Judicial confession, if found to be true and voluntary, can form the sole basis of conviction against the maker of the same.

c) Though, Tribunal passed its judgment according to Section 9(3) of The Prevention ofOppression against Women and Children Act, 2000 the appellate court found that the death had occurred by strangulation not for the reason of rape. So, an order of conviction is made under Section 302/34 of The Penal Code, 1860.

d) While commuting the death penalty to imprisonment for life, the court considers the ages of the condemned prisoner. It also observes that they are not hard criminals.

Case Law Referred

1. State vs Md Abdur Rashid alias Abdur Rashid 7 BLD (AD) 73

2. Shaharul Islam alias Green vs State 1 BLC 524

3. State vs Raja Abdul Majid 1 BLC 144

4. Bilkis Ara Begum vs State 4 BLC 387

5. Mizarul Islam alis Dablu vs State 41 DLR (AD) 157

6. Islam Uddin vs State 13 BLC (AD) 81

7. Abdur Rashid vs State 3 BLD 206

8. Amir Hossain vs State 37 DLR (AD) 139

9. Gouranga Chandra Paul vs State 59 DLR 17

10. 29 DLR (SC) 27

11. Shajahan Ali alias Md Shahjahan vs State 59 DLR 396

12. Hazrat Ali vs State 44 DLR (AD) 51

13. State vs Abdul Kalam Azad 8 BLC 464

14. Asiman Begum vs State 51 DLR (AD) 18

15. State vs Abul Kalam 5 BLC 230

16. Shibu Pada Acharjee vs State 56 DLR 285

17. State vs Mahbur Sheikh alias Mahabur 1 LNJ 139

Written By---
Md Sajib Ali
Department of Land Management and Law
Jagannath University, Dhaka