Wednesday, December 12, 2018 | ePaper

Delay in disposal cannot be a ground for commuting sentence

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Appellate Division (Criminal) :
Surendra Kynar  Sinha CJ
Syed Mahmud Hossain J
Hasan Foez Siddique J
Shahidul Islam @
Shahid ………….
………………..Petitioner
vs
State ……………
............ Respondent
Judgement
March 5th, 2017
Code of Criminal Procedure (V of 1898)
Section 374
Delay in the disposal of the case cannot by itself be a ground for commuting the sentence of death to one of imprisonment for life since the crime committed by the petitioner was premeditated senseless, dastardly and beyond all human reasonings. .. .... (8)
Sections 374 and 376
From the nature of the offence it appears to us that the petitioner is not anyway entitled to get any sympathy. We do not find any mitigating or extenuating circumstances on record for commutation of the sentence of death…………(8)
Laxman Naik vs State of Orissa, AIR 1995 SC 1387 and Molai vs State of Modhya Pradesh, AIR 2000 SC 177 ref.
Nikhil Kumar Saha, Senior Advocate, instructed by Sufia Khatun, Advocate-on-Record-For the Petitioner:
Khondaker Diliruzzaman, Deputy Attorney General instructed by Haridus Paul/, Advocate-on-Record-For the Respondent.
Judgment
Hasan Foez Siddique J : This criminal review petition is directed against the judgment and order dated 2-8-2016 passed by this Division in Jail Petition No.13 of 2006 dismissing the petition,
2. Mr, Nikhil Kumar Saha, learned Senior Counsel appearing for the petitioner, submits that the petitioner is in death cell for about 14 years which is a circumstance to commute the sentence so death sentence awarded to him may be commuted to one of imprisonment for life.
3. Mr. Diliruzzaman, learned Deputy Attorney-General appearing for the State, submits that in view of the evidence and nature of offence committed by the petitioner, this Division rightly upheld the sentence of death of the petitioner and that there is no error of law apparent on the face of the record in the judgment of this Division.
4. At about 10-00 pm on 23-4-1998 Shajneen, an unfortunate girl of 15 years, was killed most inhumanly and brutally after rape in her bedroom which was her most secured place. This Division, upholding the findings of the tribunal and High Court Division observed that it has been proved all reasonable doubt that victim Shajneen was raped before murder. Confessional statement of the petitioner recorded under section 164 of the Code of Criminal Procedure, post-mortem report, evidence and statement of the appellant made before the tribunal at the time of his examination under section 342 of the Code of Criminal Procedure there is no doubt that not only this vulture pounced upon the body of the victim but it had jeopardised the victim's parents her other family members and conscience of the society at large. It was a cold-blooded murder and where rape was committed on an innocent and helpless girl, which was a treacherous and cowardly act of the petitioner.
5. It is not possible to catalogue the reasons which may justify the pass of death sentence but when the murder has been committed in a brutal manner on a helpless child the same may be awarded. It is a crime against society and the brutality of the crime shocks the judicial conscience that the Court has the duty to impose the death sentence. The petitioner was servant of PW I whose duty was to defend and protect the family members instead he, out of his sexual lust, did not bother to kill a child of 15 years old assaulting mercilessly. It was gruesome murder so dilution of sentence would be a case of misplaced sympathy and gross miscarriage of justice. The crime committed by the petitioner was grotesque, diabolical and revolting, Since heinous crime was committed in cruel and diabolical manner, death sentence is justified punishment. It is true death for death may be, to some extent, inhuman but it is equally true that when a man becomes a beast and menace to the society, he can be deprived of his life. The nature of the crime reveals that the petitioner is a menace to the society and sentence of imprisonment would be altogether inadequate.
6. In the case of Laxmon Naik vs State of Orissa repoted in AIR 1995 SC 1387 the accused committed rape on his brother's daughter aged 7 years in a lonely place in forest and thereafter killed her. Supreme Court of India observed that the evidence on record indicated how diabolically the accused had conceived of his plan and brutally executed it and such a calculated, cold-blooded and brutal murder of a girl of a very tender age after committing rape on her would undoubtedly fall in the category of rarest of the rare case attracting no punishment other than the capital punishment.
7. In the case of Molai vs State of Modhya Pradesh reported in AIR 2000 SC I77 Supreme Court of India expressed similar view. In the said case victim, a 16 year old girl alone in house preparing for her examination. Both accused, taking advantage of she being alone, committed rape on her and then killed her. It was observed.
"We have very carefully considered the contentions raised on behalf of the parties. We have also gone through various the decisions of this Court relied upon by the parties in the Courts below as well as before us and in our opinion the present case squarely falls in the category of one of the rarest of rare cases, and if this be so, the Courts below have committed no error in awarding capital punishment to each of the accused. It cannot be overlooked that Naveen, a 16 year old girl, was preparing for her 10th examination at her house and suddenly both the accused took advantage of the being alone in the house and committed a most shameful act of rape. The accused did not stop there but they strangulated her by using her under-garment and thereafter took her to the septic tank along with the cycle and caused injuries with a sharp edged weapon. The accused did not even stop there but they exhibited the criminality in their conduct by throwing the dead body into the septic tank totally, disregarding the respect for a human dead body. Learned counsel for the accused (appellants) could not point any mitigating circumstance from the record of the case to justify the reduction of sentence of either of the accused. In a case of this nature, in our considered view, the capital punishment to both the accused is the only proper punishment and we see no reason to take a different view than the one taken by the Courts below."
8. From the nature of the offence it appears to us that the petitioner is not anyway entitled to get any sympathy. We do not find any mitigating or extenuating circumstances on record for commutation of the sentence of death. Delay in the disposal of this case cannot by itself be a ground for commuting the sentence of death to one of imprisonment for life since the crime committed by the petitioner was premeditated senseless, dastard by and beyond all human reasonings.
Accordingly, we do not find any substance in the petition. Thus, the review petition is dismissed.

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