10 Death Sentence Awarded, Convicts Acquitted by HC : A Wrongful Conviction or Wrongful Acquittal?
Sadiya S. Silvee, Research Assistant, Bangladesh Institute of Law and International Affairs, BILIA :
According to Section 374 of the CrPC, “when the Court of Session passes sentence of death, the proceedings shall be submitted to the High Court Division, and the sentence shall not be executed unless it is confirmed by the High Court Division.” Hence, the Death Reference No. 41 of 2011 had to wait till 4th April 2017 for its confirmation which leads the condemned-prisoner to suffer in jail for 6 years.
The facts of the case, in brief, is that an FIR was lodged by the informant in Raipur Police Station on 4th June 1992, alleging he, along with 10 other people, at noon on 2nd June 1992 went to the Meghna river with an engine boat for fishing. On their way back after fishing at about 7 p.m. near Char Holland, 12/13 dacoits attacked them. Blasting 8/10 cocktails, the dacoits took control of their boat, and they jumped into the river out of fear. On their outcry, another fishing boat researched and rescued 9 of them, but the deceased with them was missing. 2 dacoits were recognized by them, and one of the dacoits was under their custody.
The Criminal Investigation Department (CID) received the case on 13th October 1992 for investigation. On 13th June 1993 charge sheet was submitted against 18 accused under section 396 and 412 of the Penal Code (PC). The record of the case was then transmitted to the Session Judge, Laksmipur, for trial. After examining 16 witnesses, 5 confession statements, and considering the evidence and materials on record the learned Session judge by the judgment and order convicted 10 convicts under section 396 of the PC and 2 other convicted under section 412 of the PC, however, discharged for their death during the trial but acquitted the remaining 4. Being aggrieved by the judgment, the 4 condemned-prisoner and 2 other convicts preferred Jail and Criminal Appeal. Other 4 convicts who were awarded death penalty were absconding.
After studying the fact of the case, it is understood that the case concerns dacoity with murder. Although the Learned Session Judge, Laksmipur, convicted 12 accused and awarded 10 convicts with a death sentence, all the convicts were acquitted by the HC. This was appalling and indicates towards the miscarriage of justice and violation of right fair trial. In acquitting all the convicts the HC has made few observation.
Firstly, without examining the concerned medical officer who held autopsy, the post mortem report was considered by the Learned Session Judge, Laksmipur. Secondly, though the post-mortem report was not formally produced before the court, the Learned Session Judge, Laksmipur, has relied upon. Thirdly, in a case of dacoity with murder, the recovered and seized looted goods or booty is required to be produced was missing. No article taken during the dacoity was recovered from the possession of any accused. Fourthly, the witnesses failed to identify the dacoits. Hence, the HC has acknowledged the case as “a case of no evidence.” The emerging question is if the case was “a case of no evidence” then on what basis the Learned Session Judge has convicted the accused persons.
In this regard, the Division stated that “the Learned Session Judge convicted and sentenced the accused persons on mere surmise and conjecture without any legal evidence against them.” Additionally, the Division stated that “where there is absence of legal evidence against the accused, their absconsion or their being fugitive or on the cause that they are still absconding cannot be the basis of conviction. The case is hand is practically a case of no evidence.” Hence, the Division has rejected the DR case by stating, “the judgment and order of conviction and sentence passed by the Learned Session Judge cannot be sustained in law. [..] All the convicts are hereby acquitted from the charges levelled against them. ” It is noteworthy to ask – Whether the accused persons were wrongfully convicted by the Learned Session Judge?
According to Philip Rosen, a person is wrongfully convicted when the person is punished for an offence he or she did not commit, and the actual perpetrator of the crime goes free [Philip Rosen, 1992]. Though the Division has acquitted all the convicted persons, but the suffering they went through due to the wrongful conviction was not reimbursed.
The acquittal of all the convicts indicates that the actual perpetrator is free, but the Division’s assertion that ‘the prosecution has hopelessly failed to prove the charges brought against the accused” also indicates towards the possibility of wrongful acquittal. In fact, when an accused is acquitted due to the benefit of the doubt or lack of evidence it raises questions towards the credibility of the Investigation Officer (IO) and the prosecution.