After 6 years of condemned-prison, the convict got acquitted
Sadiya S. Silvee : The learned Additional Sessions Judge, Khulna referred the Death Reference No. 15 of 2011 to the High Court Division (HCD) under Section 374 of the Code of Criminal Procedure (CrPC) for the confirmation of death sentence awarded on 28.03.2011 under Section 302/34 of the Penal Code (PC).
The prosecution case, in short, was that the informant lodged the F.I.R with Batiaghata Police Station against the condemned-prisoner and other alleging inter alia that the victim was his younger brother who went to Joypurhaat for shopping on 04.09.2003. While returning home in the evening with 4 others, 8 terrorists obstructed their way. The terrorist pulled the victim by the collar of the vest and took him about 15 cubits away from the main road where the victim was shoot by the condemned-prisoner and his accompanies with a rifle and consequently the victim fell on the ground. The condemned-prisoner and his accompanies blasted a bomb on the victim’s chest causing severance of his nose and a part of his body. Moreover, after ascertaining the death the condemned-prisoner and his accompanies ran away.
Thereafter the Investigating Officer (IO) on completion of the investigation submitted the charge sheet against the condemned-prisoner for the commission of an offense punishable under Section 302/34 of the PC on 27.06.2005 against 13 accused including the condemned-prisoner.
On receipt of the record, the Trial Court framed the charge against the condemned-prisoner, and 12 other also read over the same to them who pleaded not guilty. During the trial, the prosecution adduced 18 witnesses as PWs; of them 2 were tendered and defence declined to cross-examine both;5 were declared hostile and cross-examined by the prosecution, and remaining 11 were cross-examined by the defence. On the conclusion of the trial, the Trial Court for the second time framed charge against the condemned-prisoner under Section 303 of PC, to which he again claimed to be innocent. He was examined under Section 342 of CrPC to which he reiterated his innocence and demanded justice. The Trial Court on considering the evidence and material on record convicted and sentenced him on 28.03.2011 since then the convict was in condemned-prison until was acquitted by the HCD on 20.07.2017. This raises fingers towards the trial procedure. And definitely raises the question – Why the HCD did not commute the punishment rather choose to acquit the accused, convicted by the Trial Court?
Adhering to Section 367 (5) of CrPC HCD has stated a few reasons supporting the judgment of acquittal. Firstly, after considering the fact and circumstances, the HCD stated, the evidence brought before the Court was “embellished and afterthought.”
Secondly, the considering the time place and manner of occurrence the HCD stated, “the recognition of the accused by moonlight or by the focus of torch is doubtful and unbelievable. The prosecution by the evidence of those ocular witnesses failed to prove the charge of murder against the condemned-prisoner beyond any shadow of a doubt.”
Thirdly, the HCD stated, “where the eyewitnesses depose contradictorily to another and describe complicity of an accused differently, it would be unsafe to maintain the conviction replying on such evidence.”
Fourthly, stated, “ after examination of the prosecution witnesses, the trial Judge again framed charge against the condemned-prisoner on 24.04.2011 under Section 303 of the PC, on the reason that in the meantime he had been convicted in Session Case No. 512 of 2007 on 20.10.2010. The trial Judge has gone wrong in the law of Section 303 of PC and convicted and sentenced the condemned-prisoner there under to death.” Additionally, the HCD stated, the Trial Judge could have convicted and sentenced him under Section 302 of the same Code, if the charge so brought against him was proved by the evidence and other materials on record.”
Lastly, the HCD stated, “we have already found that the prosecution failed to bring home the charge of committing murder [..] against the appellant beyond any shadow of a doubt. Thus the conviction under either of section 302 or section 303 of PC, does not stand against him. The appeal thus bears merit.” Consequently, the HCD rejected the Death Reference and acquitted the condemned-prisoner from the charge leveled against him.
In this case, the condemned-prisoner had to be in death prison for more than 6 years facing death in every moment. This leaves with two questions, firstly, whether this case is an example of wrongful conviction or wrongful acquittal. Secondly, whether it is just to transfer a convict in condemned-prison before the proceedings under Section 374 of the CrPC is completed.
The writer is a Research Assistant at Bangladesh Institute of Law and International affairs (BILIA) and Adjunct Lecturer at Green University of Bangladesh.