Reference: 59 DLR(HCD) 72
The reference under section 374 of the Code of Criminal Procedure for death penalty of Roushan Mondal was submitted before the High Court Division and also an appeal on the penalty was made. Roushan Mondal was sentenced to Death penalty for the rape and murder of one girl named Rikta. The High Court declared that the sentence was illegal due to want of jurisdiction of the court and also there was lack of substantial evidence for the case to be send back on remand.
Facts of the case:
A girl named Rikta Khatun was raped and killed by an anonymous person in the night she went to watch Television in the neighbor’s house. The F.I.R was filed by the victim’s father without naming anyone as accused. But in the investigation process, the police arrested Roushan Mondal. Rousan Mondal confessed to the crime and it was recorded by a Magistrate. During trail, Rousan Mondal was adjudged as juvenile and the case was transferred to the Additional Session Judge. But the charge sheet was given under section 6 of Nari-o-Shishu Nirjaton Domon Ain, 1995. Upon evidence submitted by the prosecution side and depending on the confessional statement Roushan Mondal was sentenced to Death Penalty.
The High Court declared that the sentence is illegal due to want of jurisdiction of the court and also there was lack of substantial evidence for the case to be send back on remand.
It was adjudged that the accused was a juvenile and thus the case was transferred to Additional Session Judge, who assumed the role of Juvenile Court. But then the charge sheet was give under Nari-o-Shishu nirjaton Domon Ain and also a sentence of death penalty was awarded, which under the Children Act, 1974 is not possible. The HCD observed that the lower court while deciding this case was not itself clear as to which role it was playing while deciding this case.
It was also proved that the confession was given under influence, which the prosecution side accepted. And as the judgment was delivered without any jurisdiction, they wanted the case to be send back to a Juvenile Court for re-adjudication.
In this case not all the witnesses were not cross examined. Again the statements given by the prosecution witnesses were conflicting. Police did not arrest Roushan Mondal on its own rather one person named Kamal captured him and handed him to the police, with whom Rousha Mondal’s family had a land related conflict. But despite all these deficiencies, Rouson Mondal was given Death Penalty.
The defence side argued that the accused was juvenile and the case should have been tried by the Juvenile Court. So as there is no ground for the judgment and the accused should be acquitted of all charges.
The court also did not see any reason for the case to be resend on remand as there was no substantial evidence and no chance of new evidence to come up was present either.
In this case there were few important directions were given regarding trail procedure of juveniles in conflict with law. These directions had a lot of influence in the child policy making in Bangladesh.
This case also clarified the relevant date for determining the age of the accused. The date of the offence would be considered as the cause of action which was later inserted in the Children Act 2013.