The Law Messenger

VOLUME– II

2017 (1)

 

 

HEAD NOTE OF CASES

 

Appellate Division of Supreme Court of Bangladesh

(Criminal & Civil Jurisdiction)


A

Accused Mir Quashem Ali charge Nos.  4 and 12 acquitted– This appeal is thus allowed in part. Accused Mir Quashem Ali is found not guilty in respect of charge Nos.  4 and 12 and he is acquitted of those charges. His conviction and sentence in respect of charge Nos. 2, 3, 7, 9, 10 and 11 is maintained. (Para-218); Mir Quasem Ali =VS= The Chief Prosecutor, ICT, Dhaka, (Criminal), 2017 (1)- [2 LM (AD) 367]

Aggravating and Mitigating Circumstances–

The 1991 Act placed these pre-existing practices on statutory foundation. English judiciary has treated (a) offences by groups or gang, (b) offences against young, elderly or otherwise vulnerable victims, (c) offences involving the abuse of trust or authority, (d) offences involving planning or organisation, (e) offences involving political murder or attempted murder or terrorism oriented offences (Al-Banna, re-Hindwai, supra), as aggravating offences.

Greater culpability is the answer where the offender commits an offence against a vulnerable victim such as an old, very young, disabled etc (re: Allen and Bennet 1988 10 Cr. App. R. (S) 466).

The Floud Committee included grave harm to justify additional imprisonment in such offences which lead to death, serious bodily injury, serious sexual assault, severe or prolonged pain or mental distress, (Floud and Young 1981 P 118-119).

In re-Fowcet (1995 16 Cr. App. R (S) 55) the Court of Appeal observed that some factors, such as irrationality of the behaviour, the selection of vulnerable persons or a particular class of person or target, unusual obsession or delusions, will naturally assume prominence.

In 1993 Practice Direction, the Lord Chief Justice stated that Judges should specify the period to be served in all but very exceptional cases which are so serious that the Judge believes that the offender should be detained for his natural life (1993 96 Cr. App. R 397).

In the UK notion of general deterrence, which is different from individual deterrence, is often invoked to justify severe sentence for crimes of high seriousness. (Paras: 869-873); Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 88]

Alibi–

Mr. Shajahan’s emphasis on this aspect of defence case was quite fervent. The reason for Mr. Shajahan’s tooth and nail effort is understandable. If it stood proved that the appellant remained away from Pirojpur until July 71, as the alibi witnesses claimed, he can not be guilty of any of the charges, as all the alleged offences took place in May ’71.

Although the standard of proof for the prosecution is “beyond reasonable doubt”, pleas, taken by the defence, including the plea of alibi, is generally to be proved with civil standard i.e. with preponderance of probability. To substantiate his claimed absence from Pirojpur and transient stay in Jessore upto mid July ‘71, the appellant (as accused) examined some five witnesses namely D.Ws. 4, 6, 8, 12 and 14. He also relied on some documents in this regard. (Paras-800 & 801); Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 84]

Appellate Division followed ICPR guidelines– It is axiomatic that in affirming death sentence, the Appellate Division followed ICPR guidelines, doctrine of just desert having proportionality and commensurability as its touch stone and the predicament the victims, their families and the country as a whole suffered, and, of course also looked at the presumed intention of the legislators. (Para – 31); Ali Ahsan Muhammad Mujahid =VS= The Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 66]

Authors with Notoricly on Death Sentence–

Sir Geoffrey Robertson Q.C. states “despite the clear modern trend in state practice towards abolition there is still not sufficient consensus for execution to be prohibited as a matter of customary International Law”. (Page 141, Crimes Against Humanity, Penguin, 3rd Edition, April 2006).

While Sir Geoffrey has expressed his disavowance for capital punishment in other parts of his book “Crimes Against Humanity”, supra, he has nevertheless stated at page 144, “Murder is the Crime for which it (death sentence) is most commonly and most appropriately (in the retributive sense) inflicted, although murders vary so much in heinousness (from enthensia and domestic crimes of passion to contract killing and hostage executions) that any automatic infliction of death sentence on all murders, or all murders within a defined category, is contrary to International Law prohibitions on arbitrary and inhuman treatment”.

The phrases “most appropriately” is significant. It suggests that subject to the reservation he expressed, including on auto infliction, he deems death sentence “most appropriate in the retributive sense in murder cases.

At page 145 he states, “The only other serious crimes for which that penalty can be justified are those assumed to involve indirect taking of life, such as by peddling heroin or by serving an enemy”.

So, in his view death penalty may also be justified in these situations as well, and as such, his opposition to death sentence is not absolute, but conditional. (Paras: 1089-1093); Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 111]

B

Benefit of doubt– In Md. Ibrahim Hossain –Vs- The State ( 14 BLD (AD) 253), the Appellate Division emphasised that benefit of doubt can not be given for minor omissions. (Para-761); Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 84]

Brief History of the (Allama Delwar Hossain Sayedee) Case– The case in question came into being on 11th July 2011 when the Chief Prosecutor, on receipt of investigation report supplied by the Investigation Agency, submitted the formal charge invoking Section 9(1) of the International Crimes (Tribunal) Act 1973, (henceforth, the Act) implicating the instant appellant (henceforth cited as the appellant) as the sole accused. As he was already in custody on the given date in conexion with same different cases, he was produced before Tribunal no. 2, (henceforth the Tribunal), a progeny of the Act on 14th July 2011, in response to a production warrant that the Tribunal issued. (Para-590);Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 80]

C

Capital punishment–While it is true that many countries have abolished death sentence, the position as it stands today, is that capital punishment prevails in as many as 55(fifty five) countries and 7(seven) countries retain death sentence for exceptional cases. (Source: Amnesty International and Penal Reform International). Countries that retain capital sentence, include the largest democracy, i.e. India, and 33 component States of the United States of America. Some countries, such as Malaysia, Singapore, Saudi Arabia, Trinidad and Tobago retain mandatory death sentence for murder, while some 13 (thirteen) countries prescribe mandatory death sentence for drug trafficking, while 33 (thirty three) countries have death as an alternative sentence for the said offence. (Penal Reform International). (Para-29); Ali Ahsan Muhammad Mujahid =VS= The Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 66]

Charge should be proved a beyond all reasonable doubt– In view of the above evidence and the facts and circumstances our considered opinion is that the prosecution could not prove the charge No. 1 against the accused appellant beyond all reasonable doubt. We therefore, find that the tribunal was not justified in finding the accused appellant guilty of the offence of killing of Moulana Kasim Uddin as stated in charge No. 1. We hold that the charge No. 1 being not proved beyond all reasonable doubt the accused appellant is entitled to get acquittal from this charge. (Para-68); Motiur Rahman Nizami =VS= The Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 447]

The Code of Criminal Procedure, 1898

Section 367 (5) read with

The Penal Code, 1860

Section 302

Capital Sentence: Bangladesh Perspective–

Bangladesh, like its neighbours and majority of the commonwealth members, retain capital punishment, though it is limited to capital offences only. Bangladesh general law, as it stands today, is slightly at variance with that in India in that a sentencing Court in Bangladesh must assign reasons whether it awards death sentence or the alternative sentence of imprisonment for life, while in India, only death sentences must be justified by special reasons.

General substantive legislation i.e. the Penal Code fixes the penalty that can be awarded, while the general procedural legislation i.e the Code of Criminal Procedure (henceforth Cr.P.C.) law down the procedure to be followed in sentencing a person convicted of an offence punishable under a penal provision of the Pena Code.

Cr. P.C. does not lay down sentencing polices. However, section 367 (5) (as amended) provides that where the Court condemns a convict with death sentence or in the alternative awards imprisonment for life or for a tem of years, the Court shall state reasons for the sentence awarded. No sentencing section in the Penal Code specify any particular sentence. They do, instead specify the maximum sentence, often with alternative, whether custodial or not, and thereby equip the Court with a great deal of discretion.

As death sentence in Bangladesh under the Penal Code is not mandatory and alternative sentence of life imprisonment can, at the discretion of the Court, as discussed above, under the heading “sentencing principles in Bangladesh”, be awarded, only in appropriate cases of murder, where aggravating factors outweigh mitigating factors, such as provocation etc. are absent death sentences are passed at the Courts’ discretion. Our Courts apply general deterrence, retribution, commensurability, proportionality rationales, motive, personal circumstances of the convict. Antecedent facts leading to the commission of the offence, play decisive role in the determination of sentence. Thus the Appellate Division in Nowsher Ali – V- State (39 DLR (AD) 194) and Dipok Kumar Sarkar –V-State (40 DLR (AD) 139) commuted death sentence in wife killingcases because the couple’s union were not “blissful” and were rather “rancorous”.

Death sentences are however deemed appropriate when the convict act in cold blood without provocation, which are so heinous that arouse judicial indignation.

Apart from the cases of murder, which are punishable under section 302 of the Penal Code, capital punishment can be awarded for gang rape, trafficking of children, women, for seriously injuring a child or a women by acid throwing under a special legislation called Women and Children Cruelty Act, 2013. While exercising their discretion, take account of all those factors as they take in sentencing a murderer under the Penal Code provisions. (Paras:1082-1087); Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 109]

Commiting those crimes in the syncronised plan and design–

The awarding to death sentences were adequate and no leniency should be shown to him. He was directly involved in those heinous crimes and his participation was intentional with motive to eliminate a religious community as a whole for political vengeance.

Accused Salauddin Qader Chowdhury has committed crimes with highest ruthlessness and extreme atrocity. He persecuted civilian and unarmed people, tortured them to death, caused disappearance of innocent people and helped in disappearing people in collaboration with the occupier Pakistani Army. He rampantly looted and assisted to plunder people’s property. The offences were not the one envisaged in the penal laws of any country, the accused in commiting those crimes in the syncronised plan and design that were developed and put into execution with cool blood. Salauddin Qader Chowdhury persecuted, killed and caused disappearance of civilian people solely on religious and political grounds. He had direct involvement in the killing of innocent people.

Brutal offences with specific intention to exterminate the Hindu religious community and his political opponents from that locality. (Paras– 70 & 71); Salauddin Quader Chowdhury =VS= The Chief Prosecutor, ICT, Dhaka, (Criminal), 2017 (1)- [2 LM (AD) 512]

The Constitution of Bangladesh

Article 39– Freedom of thought and conscience and speech– Article 39 of the Constitution has given freedom of thought and conscience to the citizens of the country but such freedom of thought and conscience is subject to reasonable restrictions imposed by law in the interest of the security of the State, decency or morality or in relation to contempt of Court. That is to say, any publication during the pendency of any matter in any Court of law, which tends to interfere with the course of justice in any substantial or real manner by prejudicing the mind of the public against persons concerned in the case before the cause is finally heard, is also contempt. In determining this effect, the intention of the printer or author in the publication is not of any consequence. What we are concerned with is that we should not permit any one to poison the fountain of justice. This would be a grave interference with the administration of justice. (Para-4); The State =VS= Mr. Swadesh Roy, (Civil), 2017 (1)- [2 LM (AD) 578]

The Constitution of Bangladesh

Article 107(3)– A litigant or Judge is not entitled to have any say in the selection of any Judge or Judges who are to constitute a particular Bench. It is the Chief Justice of Bangladesh who exercises the power under Article 107(3) of the Constitution and is to decide such constitution of Benches. (Para-6); The State =VS= Mr. Swadesh Roy, (Civil), 2017 (1)- [2 LM (AD) 578]

Contempt of Court– Sentenced to confinement–All elements of grave contempt of court are present in the impugned article. Mr. Swadesh Roy, the writer and Mr. Atiqullah Khan Masud (M.A.Khan Masud), editor, printer and publisher of the Daily Janakantha are found guilty of contempt. The contempt proceeding succeeds. Contemnors Mr. Swadesh Roy (author) and Mr. Mohammad Atiqullah Khan Masud (M.A. Khan Masud) are sentenced to confinement till rising of this Court, this day and to pay a fine of Tk.10,000/- (Ten thousand) each to be contributed to two charitable organizations within one week from date, failing which, they shall suffer seven days simple imprisonment. (Para-8); The State =VS= Mr. Swadesh Roy, (Civil), 2017 (1)- [2 LM (AD) 578]

The Criminal Appeal No.39 of 2013 is disposed of in the following terms:– Appellant-Allama Delwar Hossain Sayedee (Crl. A. No. 39 of 2013) is acquitted of charge Nos. 6, 11 and 14. Appellant-Allama Delwar Hossain Sayedee is sentenced to 10(ten) years rigorous imprisonment in respect of charge No.7. Appellant-Allama Delwar Hossain Sayedee’s death sentence in respect of charge No.8 is affirmed. Appellant-Allama Delwar Hossain Sayedee’s death sentence in respect of charge No.10 is also affirmed. Appellant – Allama Delwar Hossain Sayedee is sentenced to imprisonment for life i.e. rest of his natural life in respect of charge Nos. 16 and 19. (Para-1104); Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 112]

Cruel, gruesome and barbarous crimes warrants death sentence only– It is the solemn duty of the courts to award proper sentence commensurate with the gravity of the crimes.

In the present case the appellant has been awarded death sentences on three charges, viz mass killing, rape and other crimes against humanity.

All these crimes were extremely cruel and horrendous in nature.

The commission of these crimes- even the slightest complicity in these most cruel, gruesome and barbarous crimes warrants death sentence only. There is no mitigating circumstances to reduce the death sentences, rather there are aggravating circumstances. In this case the appellant has been found to have committed series of crimes of extremely cruel and inhuman nature during the period of Liberation War, and he has been awarded 5 separate sentences for 5 different crimes in this instant case. The commission of series of crimes of most cruel and inhuman nature by an accused may be considered as aggravating circumstances for awarding him the maximum sentence. (Para-227); Motiur Rahman Nizami =VS= The Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 449]

See also: The Code of Criminal Procedure, 1898, Section 161, 162[2 LM (AD) 84]

See also: The Code of Criminal Procedure of India, Section 354(3) [2 LM (AD) 99]

See also: Contradiction statement made by the witnesses [2 LM (AD) 3]

See also: Cognizance of the offence[2 LM (AD) 80]

D

Dalim Hotel  as the torture centre of Al-Badar forces and perpetrated  crimes against humanity– We were surprised to note that in respect of charge No.11, the accusation was torture and killing of Jasim and other 5 persons, but we do not find  sufficient evidence on record to convict and sentence him for charge relating to those 5 persons.  The prosecution was totally silent about them. In respect of all the charges  the positive version of the prosecution  is that the accused set up Dalim Hotel  as the torture centre of Al-Badar forces and perpetrated  crimes against humanity in the said centre with his force. (Para-216); Mir Quasem Ali =VS= The Chief Prosecutor, ICT, Dhaka, (Criminal), 2017 (1)- [2 LM (AD) 366]

Death Sentence Generally–

The question of the desirability of death sentence is presently a subject of extensive international debate. There are strong arguments from both sides of the fence. Those who are in favour of retaining this age old sentence believe that this prove greater protection to the society as it acts as a more effective general deterrent conveying signal to others that they would face the same eventuality should they dare committing death penalty attracting crimes and also that this form of incapacitation is a desirable form of retribution in more gruesome and frenzied cases.

Those, who, speak from the other side of the wall, assert that death sentence is an archaic, old fashioned device which has out runned its span, that it is an inhuman and cruel system which can not survive in the present days, that one wrong can not be quelled by another one.

Advent of the 20th century marked an upsurge in the demand for its abolition, terming it inconducive to human dignity and that it does not reduce crimes.

Abolitionists’ view is often more ethical than legal and it would be wrong to say that their view was or has been universally endorsed. Strongest argument of the abolitionist is based on the theme that once executed, the sentence is irreversible.

Death Sentence is no doubt mecaburous but as Tanzanian Court of Appeal in Mbusvv-V- The Republic (30th January, 1955), quite aptly observed that the mandatory death penalty; while cruel and degrading, was none the less constitutional: it was a reasonable and necessary measure to protect the right to life of law abiding citizens.

The fact that good number of countries could not be persuaded to swing to the abolitionists club vindicate the claim that it is not generally accepted that death penalty experiment has failed. Some 58 countries have still remained in the retentionist enclave while 35 others, though have been maintaining moratorium on death penalty, do in law, retain death sentence (Penal Reform International: 2014). In fact Jamaica, Papua New Guinea, Srilanka have restored death sentence, turning around previously imposed moratorium for cogent reasons. Philippines suspended it twice since 1987.

One of the abiding arguments against the death sentence is the fallibility of the human justice which may result in the execution of people innocent.

Though all West European countries along with the old Commonwealth have abolished capital punishment, it still reigns unhindered in many countries with proven success in reducing crime levels . 32 of the 50 component states of the United States of America are in the list of the retentionists. Staticts reveal that in those of US States where death sentence are prevalent, major crimes are relatively less frequent.

Malaysia, which has attained an acclaimed sophistication in the progression of democratic order, prescribes mandatory death sentence for murder and drug offences. Most of the far eastern democracies, inclusive of Philippines, Indonesia, and Thailand maintain death sentence for drug peddling. Middle east countries, inclusive of Iran, do not only retain capital punishment, but practice it day in, day out.

Although the United Kingdom had abolished death sentence generally, ostensibly after subsequently emerged evidence showing that some executed people were actually innocent, death sentence for certain very limited offences involving the monarch and the kingdom, are still in its book.

While there can be no qualm on the theological doctrine that taking of life is within the exclusive and unfettered domain of the Creator, yet if we meticulously follow the creator’s Oracles, it become obvious that the Creator allowed the human being to pass death sentence on those guilty of repulsive felonies.  With the sole exception of Budhism, all major religions endorse capital sentence for described offences. (Paras:972-982); Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 97]

Privy Council on Death Sentenced–

The most important case on which the Privy Council advised the British monarch on death sentence is that of Part and Morgan –v-Jamaica, an appeal against the decision of Jamaica’s top Court, in which case the P.C. advised that no execution can take place within the P.C’s jurisdiction of prisoner’s who are still alive more than five years after the sentence was passed.

Thus, while the P.C. ordained against execution of a prisoner who was sentenced more than five years back, it did not, as such, out law death penalty (Prat and Morgan –V-AG of Jamaica, 1994, 2 AC 1). In Patrick Reyes-v-The Queen (2000 UK PC 11), the P.C. struck down mandatory death sentence in the Commonwealth Caribbean on the ground that it is inhuman and degrading to impose the most severe punishment without considering factors which might mitigate culpability. Again there who no general proscription of death sentence, where that sentence is not mandatory. (Paras: 1094-1095); Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 111]

The US Supreme Court on Death Sentenced –

US Justice Harry Blackmun in Callins –v- Collins (1994) observed, “I feel mentally and intellectually obliged simply to concede that the death penalty experiment has failed”.

That statement notwithstanding, death penalty does not only survive in 32 of 50 US states, but according to latest Amnesty International Report the United States of America is fifth in the list of World’s top death sentencing nations.

According to the Amnesty report some ……. people were sentenced to death in the year 2014. Abolitionists argue that the US for all its executions, still has the highest murder rate in the industrialised world, while the retaintionists argue that the rate would be even higher without death penalty.

In Furman-v-Georgia (US Supreme Court, 1972) though the US Supreme Court came very close to abolish capital punish, nevertheless refrained from doing so. In that case a Judge remarked, “Death sentences are cruel and unusual in the same way that being struck by lightening is cruel and unusual”. This observation was based on the theme that the principle of equality does not operate in picking and choosing those sentenced to death. It is to be noted that the US public opinion favour death sentence by majority like in many other countries. (Paras: 1096-1099); Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 111]

Death Penalty by Allied Nations Pre and Post IMT– Before and after the IMT’s trial at Nuremberg, Allied Powers sentenced several thousand Nazi criminals in those area of Germany they respectively occupied. Of those several hundreds were sentenced to death. In the American occupied zone in Nuremberg and Dachon, some 450 people were sentenced to death by the American tribunals. The war tribunals of France which administered Justice in its zone of occupation heard the cases of 2107 Nazi War criminals. The activities of the French tribunal differed in that they issued several hundred sentences in absentia, including Klaus Barbie, who was, years later apprehended and dealt with. Dic Welt stated, “The French Judicial authorities were guided by a gross stereotyping. They sentenced to death in absentia many hundreds of soldiers of the German Wchrmacht for the reason alone that their units took part in execution by firing squad of the fighters of the French resistance. (Dentsche Richterzeitsch rift 1971 Noz p- 85 ff. Die welt, July 10 1974 P-13). Military tribunals were also established in the British Zone of occupation. In contrast with other zones, in the British zone the Special Crown Act of 14th January 1946 was considered the basic normative act for the prosecution and punishment of the Nazi perpetrators of Crimes against Humanity. The British tribunals based thereon their operations, procedural principles and pronouncement of verdicts. They treated the decisions of the IMT not as irrefutable proof, but only as arguments along with other facts and circumstances. As opposed to the tribunals of other occupying powers, the British Courts consisted of non-professional jurists and they convicted 1085 Nazi accused, of whom 240 were sentenced to death. On some points the British tribunal disregarded IMT principles. The East European socialist block waged a consistent policy of prosecuting and punishing Nazi accused. During June 1946 and August 1948 period the Supreme Peoples Tribunal of Polland heard cases of those Nazi personnel who perpetrated Crimes against Humanity on the German occupied territory of Polland. Many of the accused were sentenced to death. The German Democratic Republic sentenced some 12828 Nazi accused, under their national legislation which were enacted to bring their national law in conformity with the demands of international law. Their special part of the Criminal Code of 1968 contains sanctions for criminal responsibility for crimes against peace, war crimes and crimes against humanity. Prosecution continued to be waged by the military tribunals of the occupation authorities in their respective zones. Six branches of American military tribunals started operation in Nuremberg (The materials of the trial are published in Niurnberg skii protsess. Sbornik materialov (The Nuremberg Trial of Major War Criminals, collection of materials in 3 volumes) Moscow: Yurizdat 1966.) From 1947 to 1949 twelve trials took place. The first one dealt with 23 Nazi doctors, the second one was the case against Field Marshal Mitch, the 3rd was the case against 16 Leading Nazi Jurists and the President of the special courts, the fourth involved war crimes, crimes against humanity and membership of criminal organisation, SS. The US military tribunals through these 12 trials heard the cases against 185 Nazi accused, four of which committed suicide, cases against four were dismissed owing to illness, thirty five were acquitted, capital punishments were meted to 24 persons in the doctors cases, in the case of Pohl and in the case against Einsatzgmppen, nineteen were sentenced to suffer life imprisonment, and the others were saddled with various terms. Three were found guilty for belonging to criminal organisations namely SS. The most important aspect appears to be the practice of the US military tribunals that attests to the concurring, uniform understanding and application of the Nuremberg law. If we consider as its basic source the London Agreement, together with the charter of the IMT, its Verdict and Law No 10 of the Allied control Council of December 20, 1945, supplementary thereto. It is clear from the sentences awarded that retribution, proportionality and general deterrence were the rational the tribunals of the Allied Powers used. Large scale death sentence definitely vindicates this argument. (Para: 1088); Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 109]

Delwar Hossain Sayedee has committed no offence– We are to accept the defence plea that Delwar Hossain Sayedee has committed no offence, it would be tantamount to saying that there was no genocide by the Paki army and their native stooges i.e. Rajakars, Al-Badars, Peace Committee Members, in Bangladesh in 1971. (Para-1106); Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 112]

Duty of the Court–It is the duty of the Court to  award proper sentence having regard to the nature of the offence and depending upon the degree of criminality, the manner in which it was committed and all attended circumstances. The occurrences of killing of intellectuals were committed with the extremely cruel and beastly manner which demonstrated index of the depraved character of the perpetrators.  It will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts. The Judges are carrying out the duty under the Law. The sentence awarded by the Tribunal for intellectuals killings is not disproportionate in view of the nature of charge and evidence adduced. (Para-231); Ali Ahsan Muhammad Mujahid =VS= The Chief Prosecutor, ICT, Dhaka, (Criminal), 2017 (1)- [2 LM (AD) 3]

See also: UN and International Law on Death Sentence [2 LM (AD) 98]

See also: Death Sentence: Indian Context       [2 LM (AD) 99]

See also: Duplicate copy of the Certificate     [2 LM (AD) 571]

E

The Evidence Act, 1872

Section-32, 33 read with

International Crimes Tribunals Act, 1973

Section 19(1) read with

The International Crimes (Tribunal-1) Rules of Procedure, 2010

Rule 56(2)

Hearsay evidence–

Mr. Shajahan repeatedly complained that the Tribunal below erred in admitting hearsay evidence.

Without any insinuation I only wish to express my surprise as to how Mr. Shajahan could be oblivious of the express provision in the Act which stipulates that the tribunal shall not be bound by technical rules of evidence and may admit any evidence which is deemed to have probative value, and of the express provision in Rule 56 (2) which confers discretion on the Tribunals to accord due consideration to hearsay evidence

Again, it is not only our Act, hearsay evidences were admissible in the IMT in Nuremberg and Tokyo Tribunal as well as by other national tribunals such as US Military Tribunal in Nuremberg and Soviet Tribunals and the British Tribunal that tried war criminals before as well after the hostility ended in 1945.

Statutes of modern UN sponsored tribunals such as ICTY, ICTR, SCSL, STL and even that of International Criminal Court (ICC) do not proscribe hearsay evidence for very cogent reasons. The very nature of the crimes concerned and the manner of their commission are such that credible hearsay evidence are indispensable.

Although there is no rule governing the admissibility of hearsay evidence before the ICTY, ICTR and SCSL, the Trial Chambers of all these tribunals have refrained from adopting a practice to exclude all hearsay evidence. There is no rule declaring hearsay rule per se inadmissible. General scheme for admissibility of evidence set out in Rule 89 for ICTY, ICTR and SCSL has guided the chambers in their deliberation on hearsay evidence.

In Prosecutor-v-Galic, the Appeals Chamber of ICTY defined the scope of admissibility of hearsay evidence pursuant to Rule 89(1) saying that the said Rule “permits the admission of hearsay evidence in order to prove the truth of such statements rather than merely the fact that they were made. According to that decision a hearsay evidence may be oral i.e. where someone else had told him something out of Court or in black and white, for example when an official report, written by someone who is not called as a witness, is tendered in evidence. The Appeal Chamber expressed that Rule 89(c) clearly encompasses both these forms of hearsay evidence” (Decision on Interlocutory Appeal, June 7, 2002). The Trial Chamber of ICTY expressed in Prosecutor –v-Tadic on a defence motion on hearsay (5th August 1996), “out of Court statement that are relevant and found to have probative value are admissible”.

The same position was taken by the Trial Chamber of ICTY in Prosecutor-v-Blaskic, while deciding on the standing objection of the defence to the admission of hearsay evidence with no inquiry as to its reliability. (January 21, 1998).

It was held that hearsay evidence must have indicia of reliability in order to be admissible: reliability is not merely a matter of going to the weight of the evidence.

Similar view was also expressed in Prosecutor-v-Natelic and Martionovic, ICTY Appeal judgment, May 3, 2006, para 217 and 516, Prosecutor-v- Aleksovski, decision on prosecutor’s appeal on admission of Evidence, 16th February 1999, para 15, Prosecutor-v-Milosevic, decision on testimony of defence witness, Dragan Jasovic, April 15, 2005, page – 4, Prosecutor-v-Mihitino Vic, decision denying prosecution Second Motion for admission of evidence pursuant to Rule 92, (13th September 2006, para 5,)? Prosecutor-v-Prlic, decision on appeals against decision admitting transcript of Jadranko Prlics questioning into evidence, (23rd November, 2007, para-52).

It has been held by all these tribunals that hearsay evidence can be admitted to prove the truth of its contents, and the fact that it is hearsay does not necessarily deprive the evidence of its probative value and that the chamber must be satisfied of its reliability given the context and character of the evidence for it to be admitted (Prosecutor –V- Aleksovski- ICTY, decision on Prosecutor’s appeal on admissibility of evidence, 16th February 1999, para – 15, Prosecutor-v-Semanza, decision on the defence motion for exclusion of evidence on the basis of violations of the rules of evidence, Res Gestae Hearsay and violation of the Statute and Rules of the Tribunals, 23rd August 2000.

In the case of notorious Milosevic, though the Appeal Chamber of ICTY held that hearsay evidence will usually be given less weight than that given to the testimony of a witness who has given it under a form of oath and who has been cross examined, it nevertheless also stated, “it depends upon infinitely variable circumstances of the particular case …..”. (Prosecutor –V – Milosevic, decision on admissibility of Prosecution Investigator’s evidence, 30th September 2002, para 18.

ICTY Chamber also made it abundantly clear that the right to cross examination incorporated as part of the fair trial provisions of Article 21(4)(e) Statute and Article 20(4)(e) of ICTR statute “applies to the witness testifying before the Trial Chamber and not to the initial declarant whose statement has been transmitted to this Trial Chamber by the witness” (Prosecutor –v- Blaskic, decision on standing objection of the defence to the admission of hearsay with no inquiry as to its reliability, 21st January 1998, para 29).

The SCSL in Prosecutor-v-Brima (decision on joint defence evidence to exclude all evidence from witness, 24th May 2005, para 12) observed “it is now well settled in the practice of international tribunals that hearsay evidence is admissible”. It went on to say, “the probative value of hearsay evidence is something to be considered by the Trial Chamber at the end of the trial when weighing and evaluating the evidence as a whole, in light of context and nature of the evidence itself, including the credibility and reliability of the relevant witness”.

The Appeal Chamber in Prosecutor-v-Norman, (Fofana appeal against bail refusal, 11th March 2005, para 22) held that the relevant rule has conferred a broad discretion upon the tribunals to admit hearsay evidence.

Even the East Timore’s Special Panel for serious Crimes held hearsay evidence to be admissible, though hearsay upon hearsay will deserve little weight (Prosecutor-v-Marques, 11th December 2001).

The ICC in Prosecutor-v-Katanga of Ngudjolo (decision on the confirmation of charges, 30th September 2008, ICC-01/04-01/07-717, para 137) held that though any challenge on hearsay evidence may affect its probative value, it may not affect its admissibility. ICC further stated in that case that hearsay is admissible even if the source of the evidence is anonymous.

Whilst relying on ECHR jurisprudence propounded in Kostovski-v-The Netherlands, judgment delivered on 20th November 1989, the pre-trial Chamber of ICC, in Prosecutor-v-Katanga of Ngudjolo, supra, reiterated previous finding of the Pre-Trial Chamber in Prosecutor –v-Labanga that there is nothing in the statute or the Rules which expressly provides that the evidence which can be considered hearsay from anonymous sources is inadmissible per se. In addition, the Appeals Chamber has accepted that, for the purposes of the confirmation hearing it is possible to use items of evidence which may contain anonymous hearsay, such as redacted versions of witness statement. (Prosecutor-v-Labanga ICC-01/04-01/06-803, para 101). The Pre-Trial Chamber further stated that the probative value of anonymous hearsay evidence will be determined in the “light of other evidence”.

The International Military Tribunal in Nuremberg allowed the use of hearsay evidence through affidavits, but it also required that any such affiant to be available for cross examination.

Its charter, developed under the Moscowc Declaration 1943, provided for a criminal procedure that was closer to civil law than to common law with wide allowance for hearsay evidence.

The London Charter enunciated simple evidentiary rule repeatedly propounded in the US internal position papers, reading; “The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and non-technical procedure and shall admit any evidence which it deems to have probative value” which stands virtually reproduced in Section 19(1) of the Act. (our provisions are not dissimilar) (Paras:713-731); Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 81]

Evidence Act, 1872

Section-78(6)

Duplicate copy of the Certificate– The authenticity of the certificate has not been certified by an authorised officer of the High Commission Office of Bangladesh stationed in Pakistan– Learned Counsel wanted to give an explanation to the effect that the petitioner applied for a duplicate copy earlier but he did not receive the same until November, 2015. This claim has no basis at all since the alleged certificate was issued in 2012. More so, there is no statement at all in this regard in his application. Assuming that he applied earlier for duplicate copy of the certificate it was allegedly issued on 22nd May, 2012. There was no explanation why he did not produce it prior to 16th November, on which date, he filed it in the section. Therefore, no reliance could at all be attached on this certificate - it is a forged document which is apparently created for confusing this Court. Further, the authenticity of the certificate has not been certified by an authorised officer of the High Commission Office of Bangladesh stationed in Pakistan. (Para–07);Salauddin Quader Chowdhury =VS= The Chief Prosecutor, ICT, Dhaka, (Criminal), 2017 (1)- [2 LM (AD) 571]

The Evidence Act, 1872

Section 145 read with

The Code of Criminal Procedure, 1898

Section 161, 162

Discrepant Evidence– Discrepancies in the statement of a witness–

On factual side, Mr. Shajahan’s greatest emphasis was on what he called discrepancy in testimony.

He tried to have us to accept that those who deposed before the Tribunal, did not say many of those things when they were examined by the I.O. during the investigation stage.

Under our general criminal procedural law, i.e., Cr.P.C. Section 161 provides for the recording of statements from potential witnesses by the I.O’s. Although those statements do not form parts of evidence, they do nevertheless have great evidentiary significance in that the defence can under Section 162 Cr.P.C., read with Section 145 of the Evidence Act, 1872, use such statements to prove that as deposition made by a prosecution witness in Court is discrepant with the statement he made to the I.O. at the investigation stage, they should not be treated with credence.

Although provisions of both Cr.P.C. and Evidence Act have been explicitly excluded by the Act, sanctity of statements made to the I.O. is still of great relevance in that discrepancies in the statement of a witness at different stages on the same fact is bound to dent his credibility. (Paras:748-751); Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 84]

The Evidence Act, 1872

Section-145 read with

The International Crimes (Tribunal-1) Rules of Procedure, 2010

Rule 53(ii)

Contradiction statement made by the witnesses– it is assumed that contradiction of  the statements  of witnesses can be drawn in the manner provided under section 145  of the Evidence Act, it may best be said that the witnesses omitted to make some statements before the investigating officer as they were not asked properly, and those omissions cannot altogether  be treated or termed contradiction within the meaning of sub-rule (ii) of Rule 53 of the Rules of the Evidence. The contradiction can only be drawn from statement made by the witnesses in course of their examination-in-chief. The defence practically has failed to bring any such contradiction which affects the prosecution  case as a whole. The appellant failed to show any such vital contradiction. (Para-225); Ali Ahsan Muhammad Mujahid =VS= The Chief Prosecutor, ICT, Dhaka, (Criminal), 2017 (1)- [2 LM (AD) 3]

See also: Discrepant Evidence [2 LM (AD) 84]

G

General Principles of Legal Ethics, the moral responsibilities of a Counsel–

(a) In theory it is the King or Sovereign who presides in the Court of justice and the Judge is merely the mouthpiece and representative of the Sovereign. Respect shown to the Court is, therefore, respect shown to the Sovereign whose representative the Judge is.

(b) An advocate is like the Judge, himself, an officer of the Court and an integral part of the judicial machine. The legal profession consists of the Bar as well as the Bench and both have common aims and ideals.

(c) Not only litigants and witnesses but the general public will get their inspirations from the example of advocates. It is necessary for the administration of justice that Judges should have esteem of the people. If judges are not respected it tends to impair public confidence in the administration of justice.

(d) It is the good manners and advocates before anything else are “gentlemen of the Bar.”

(e) Even from a purely practical standpoint, there is nothing to be gained but there is much to lose by antagonizing the Court. Conflict with the Judge renders the trial disagreeable to all and has generally an injurious effect upon the interests of the client.

(f) The usual practice in modern times is to appoint Judges from among the members of the Bar and even where this rule is not strictly observed the Bench is fairly representative of the Bar.

(g) It is necessary for dignified and honourable administration of justice that the Court should be regarded with respect by the suitors and people. (Para-173); The State =VS= Mr. Swadesh Roy, (Civil), 2017 (1)- [2 LM (AD) 582]

H

Hearsay evidence under US Law Under US Federal Rules of Evidence, statements which would ordinarily be inadmissible under the hearsay rules, will nonetheless be admissible if they fall within a defined exception. Clause 804 of the Federal Rules, which is similar to Rule 89(c) of the ICTY, ICTR Rules, confers wide power upon the Federal Courts to determine issues of admissibility. In Handi –v-Rumsfeld the US Supreme Court indicated that hearsay evidence may be permissible in cases involving enemy combatants, expressing; “Hearsay, for example, may need to be accepted as the most reliable available evidence from the government in such a proceeding. Likewise, the Constitution would not be offended by a presumption in favour of the government’s evidence, so long as that presumption remains rebuttable one and fair opportunity for rebuttal were provided”.

Professor David Weissbrodt’s remark on application of hearsay evidence by international crimes tribunals are, as below;

“International Courts usually admit hearsay evidence. The hearsay rule is characteristic of common law systems. In civil law systems, where there is no jury and the Judge conducts the fact finding process, out of Court statements are usually admitted when relevant. International Criminal Courts have borrowed their rules of evidence from both common law and Civil law system, but usually favour admissibility of all evidence”. (Para-732); Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 83]

See also: Hearsay evidence [2 LM (AD) 81]

I

The International Covenant on Civil and Political Rights (ICCPR)

Article 6(2)

UN and International Law on Death Sentence–

Public International law does not prohibit death penalty. Article 6(2) of the International Covenant on Civil and Political Rights (ICCPR) provides that death penalty may be imposed only for the “most serious crimes”. Countries that retain death penalty are required to observe a number of restrictions and limitations on its use.

The UN safeguards (ECOSOC- safeguards) for cypilet connections require clear and convincing evidence leaving no room for an alterative explanation of the facts and their must be a right to appeal to a higher Court. The rules require that such capital case is carefully scrutinised by domestic Courts for defoliating possibility of error.

The UN Human Rights Committee has interpreted ‘most serious crimes’ not to include economic offences, embezzlement by officials, robbery, abduction not resulting in death, apostasy and drug related crimes. It has also excluded political offences, expressing particular concern about ‘very vague categories of offences relating to internal and external security, vaguely worded offences of opposition to order and national security violations and ‘political offences.

The UN Commission on Human Rights, a subsidiary body of the UN Economic and social Council (ECOSOC) , replaced by the Human Rights Council in 2006, interpreted ‘most serious crimes’ as not including non-violent acts such as financial crimes, religious practice or expression of conscience and sexual relations between consenting adults.

Safeguard 1 of the 1984 UN Safeguards Guaranteeing Protection of the Rights of those Facing the Death Penalty also provides that in countries which have not abolished the death penalty, capital punishment may be imposed only for the most serious crimes, it being understood that their scope should not go beyond intentional crimes with lethal or other extremely grave consequences.

The UN Special Rapporteur on extrajudicial summary or arbitrary executions stated in his 2012 report to the UN General Assembly that the death penalty should only be applied for offences of intentional killing, based on the practice of retentionist states and the jurisprudence of UN and other bodies.

Although Rome Statute does not allow ICC to pass death sentence, it does nevertheless, recognise death sentence by allowing member states to pass death sentence upon those accused of War Crimes and Crimes against Humanity if such sentence is permissible in the given states.

Its statute does, therefore, allow member states to pass death sentence on those found guilty of crimes against humanity when the national Courts in those states assume jurisdiction.

The argument that the death penalty has a strong deterrent effect on crimes, especially serious violent crimes, plays an important role in the debate in retentionist states. Often, it is the primary reason why the public and politicians shy away from abolition.

The argument assumes that would-be criminals consider the full range of consequences of committing a criminal act, anticipate getting caught, and decide not to undertake the criminal act because they have a strong belief that if caught, they will be sentenced to death.

Governments in retentionist states often invoke the argument that public opinion favours death penalty, and therefore they cannot abolish it.

Although Article 6 of the Civil Covenant is worded in a way which has led the Human Rights Committee to believe that it strongly suggests the desirability of abolition, the second optional protocol to the Civil Covenant – the treaty by which states can solemnly pledge themselves to abolish capital punishment, has not attracted many signatories. (The Second optional Protocol to the ICC PR) The UN Human Rights Committee held that while execution in a gas chamber is cruel, killing by a lethal injection is not. (Paras:983-994); Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 98]

International Crimes Tribunals Act [XIX 1973]

Section 3(2)

Cognizance of the offence–The Tribunal then took cognizance of the offence under Section 3(2) of the Act. On 3rd October 2011, and then framed as many as 20 charges engaging Sections 3(2) (a), 3(2) (C1), (g) and (h) of the Act, all of which, read with Section 3(1), are punishable under Section 20(2) of the Act. During arraignment, as the documents reveal, the charges were read over to the accused, and his pleaded “not guilty”. (Para-591); Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 80]

International Crimes Tribunals Act [XIX 1973]

Section- 3(2)(a)(g)(h)/ 4(1) and 4(2)/ 20(2)– 14 charges have been framed on the suggestion of the prosecutors.  In twelve charges, the accused appellant has been arraigned for ‘abetting and facilitating’ the commission of offences of abduction, confinement and torture and in two other charges, he has been arraigned to have tortured to death as crimes against humanity specified in Section 3(2)(a)(g)(h) of the International Crimes Tribunal Act of 1973, which are punishable under Section 20(2) of the Act. He was also charged under Section 4(1) and 4(2) of the Act. (Para-207); Mir Quasem Ali =VS= The Chief Prosecutor, ICT, Dhaka, (Criminal), 2017 (1)- [2 LM (AD) 366]

International Crimes Tribunals Act [XIX 1973]

Section 4(1) read with

The Penal Code, 1860

Section 34

A plain reading of section 4(1) of the Act, 1973 suggests that for commission of any offence by more than one person will be deemed that each of such person is liable for the offence. This section 4(1) and section 34 of the Penal Code are cognate in nature. Where a criminal offence is committed by several persons in furtherance of common intention of all, each of such person is liable for that offence in the same manner as if it were done by him alone. (Para-201); Mir Quasem Ali =VS= The Chief Prosecutor, ICT, Dhaka, (Criminal), 2017 (1)- [2 LM (AD) 366]

International Crimes Tribunals Act [XIX 1973]

Section 4(2)

A superior may be liable for the crimes committed by his subordinates– We have found that accused Motiur Rahman Nizami was ex-officio leader of Al-Badr Bahini and he had effective control over the members of Al-Badr Bahini. It has been argued from the side of the appellant that after 30th  September, 1971 the accused was no more president of All Pakistan Islami Chhatra Shanghha and as such it cannot be held that the appellant was ex-officio leader of Al-Badr Bahini and had effective control over the members of this Bahini after 30th September, 1971. We have already considered this argument of the learned Advocate for the appellant and found that the appellant retained his leadership and control over the members of Al-Badr Bahini after 30th September, 1971 also. In the above referred decision of the ICTY in Prosecution –v- Delalic it was held that a superior may be liable for the crimes committed by his subordinates whether his authority over the subordinates is de-facto or de-jure, as long as he exercises effective control. (Para-211); Motiur Rahman Nizami =VS= The Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 448]

International Crimes Tribunals Act [XIX 1973]

Section 9(4)

With the passage of this long period of 40 years the memories of these witness have faded, no doubt– As against the P.W. 18 another objection raised from the side of the appellant is that this witness was cited as a witness long after commencement of the trial of the case. But we find no illegality in it, section 9(4) of the ICT Act has allowed calling in additional witnesses with the permission of the tribunal, at any stage of the trial. The P.W. 18 was examined by the prosecution with the permission of the tribunal. Defence also cross-examined this witness at length. As against the P.W. 11 allegation from the side of the appellant is that after giving evidence before the Tribunal this witness gave a video interview, which was available in “You tube”, an online media, denying the allegations made against this appellant and stating that being pressurized he deposed before the Tribunal against him. Admittedly the P.W. 11 has denied this so-called video interview by calling a press conference. In the circumstances this alleged “Video interview” of P.W. 11 does not deserve any consideration at all. From the side of the appellant some other alleged discrepancies as to dates of some events etc in the evidence of these P.Ws have been pointed out before us. But we do not find any of this alleged discrepancies fatal at all. These witnesses have deposed before the Tribunal long 40 years after the incident narrated. With the passage of this long period of 40 years the memories of these witness have faded, no doubt. So it is most natural that there may occur some minor discrepancies in their evidence. (Para-83); Motiur Rahman Nizami =VS= The Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 447]

International Crimes Tribunals Act [XIX 1973]

Section 20(2)– Sub-Section (2) of Section 20 provides that the tribunal shall award sentence of death or such other punishment proportionate to the gravity of the crime appears to the tribunal to be just and proper. The offences of crimes against humanity or genocides are by nature serious and heinous type of offences. The tribunal awarded the sentence of death in respect of charge No.11 which according to us was ‘proportionate to the gravity of the crime.’ (Para-217); Mir Quasem Ali =VS= The Chief Prosecutor, ICT, Dhaka, (Criminal), 2017 (1)- [2 LM (AD) 367]

The International Crimes (Tribunal-1) Rules of Procedure, 2010

Rule 53 (ii)

The credibility of the witness can be inferred and taken from the evidence in Chief and not otherwise– As regards police contradiction, Appellate Division held that in view of sub-rule (ii) of rule 53 of the Rules, there is no scope to infer any contradiction between the evidence of the witness and his earlier statement made before the police. Or in the alternative, a contradiction between the statements of a witness and his evidence cannot be taken or perceived in any manner. There is no scope under the rules of evidence to infer contradiction of the statement of a witness with those stated to the investigation officer. The Rules provide that the cross-examination of a witness shall be strictly confined to the subject matter of the statement made in chief. The party, however, is at liberty to cross examine such witness on his credibility and to take contradiction of the evidence given by him. That is, the credibility of the witness can be inferred and taken from the evidence in Chief and not otherwise. (Para-163);Salauddin Quader Chowdhury =VS= The Chief Prosecutor, ICT, Dhaka, (Criminal), 2017 (1)- [2 LM (AD) 513]

The International Criminal Court (ICC) Rule of Procedure

Rule 145

Rome Statute on sentencing –

With a view to set up a permanent International Criminal Court, a draft statute was adopted by an assembly of states in July 1988, known as Rome Statute. Jurisdiction of the International Criminal Court (ICC) commenced on 1st July 2002, with its office in Hague.

On sentencing, the statute of the Court states, “In determining the sentence, the Court shall, in accordance with the Rules of Procedure and Evidence, take into account such factor as the gravity of the crime and the individual circumstances of the convicted person”.

Rule 145 of the ICCs Rule of Procedure states, “In its determination of the sentence .... the Court shall: (a) Bear in mind that the totality of any sentence of imprisonment and fine ........ must reflect the culpability of the convicted person:  (b) Balance all relevant factors, including any mitigating and aggravating circumstances both of the convicted person and the crime: (c) In addition .... give consideration, inter alia, to the extent of the damage caused, in particular, to the harm caused to the victims and their families, the nature of the unlawful behaviour and the means employed to execute the crime: the degree of participation of the convicted persons, the degree of intent: the circumstances of manner, time and location: and the age education, social and economic condition of the convicted person.

The Rules listed the following factors as constituting aggravating circumstances:

(i)          Any relevant prior conviction

(ii)        Abuse of power in official capacity

(iii)      Where the victim is particularly defenceless

(iv)       Commission of the crime with particular cruelty or where there were multiple victims

The convicted persons diminished mental capacity or duress; his conduct after the act, including any efforts to compensate the victims and any co-operation with the Court have been listed as mitigating circumstances.

Article 77(1)(a) of the Rome Statute provides that a determinate sentence for a term not exceeding 30 years may be imposed while Article 77(1)(b) says that in case of extreme gravity, and where the individual circumstances of the convicted person so warrant, a maximum of life sentence may be imposed.

It is clear from the language used in the statute of Rome and the Rules on sentencing that retribution with the touchstones of proportionality, and general deterrence are amongst the applicable rationale. (Paras: 956-962); Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)-  [2 LM (AD) 96]

Incumbit probatio qui decit, non qui negat- means:– The burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for a negative is usually incapable of proof.

The Appellate Division held that the strong admission being corroborated by documentary evidence, it can be inferred beyond reasonable doubt that the accused was present in Chittagong during the relevant time of occurrences and hence, the plea of alibi taken by the defence is concocted, false and not believable. Since the defence admitted the presence of accused at the crime sites, the prosecution has been able to prove as to whether the accused was involved in those incidents. (Para-127); Salauddin Quader Chowdhury =VS= The Chief Prosecutor, ICT, Dhaka, (Criminal), 2017 (1)- [2 LM (AD) 512]

Individual Culpability– While offence seriousness is one of the elements of proportionality, culpability of the individual offender is the other principal dimension of offence seriousness. Von Hirsch expressed harm and individual culpability as under;

“Harm refers to the injury done or risked by the criminal act. Culpability refers to the factors of intent, motive and circumstances that determines how much the offender should be held accountable for his act. Culpability, in turns, affects the assessment of harm. The consequences that should be considered in ganging the harmfulness of an act should be those that can fairly be attributed to the actors choice” (Von Hirsch 1986 P-64-65). (Para-867); Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)-[2 LM (AD) 87]

Information to the witness the place where the event took place can trigger the memory– The retrieval of the information from the witness is a vulnerable process and full of pitfalls. Investigators, prosecutors and Judges alike always want a chronological narrative of an event by the witness with sufficient focus on time, place, persons, who did, what –when, et cetera. And that is hardly ever the result of witness statement or testimony. Always the information needs to be aroused or triggered by what is called “retrieval cues”. As the psychology of a human works, this can be done by any means that arouses the sense organs. Giving pieces of information to the witness or bringing a person to the crime scene or the place where the event took place can trigger the memory; even a specific scent can do that. (Para-163);Salauddin Quader Chowdhury =VS= The Chief Prosecutor, ICT, Dhaka, (Criminal), 2017 (1)- [2 LM (AD) 513]

Inherent lacuna in conducting the prosecution case– Learned Attorney General in the opening of his argument produced a paper and submitted that the appellant Mir Quashem Ali was not only Islami Chatra Sangha Leader and Al-Badar Chief, Chittagong chapter, but also the chief financer of a big political party, which wants to frustrate the trial of offenders of crimes against humanity, war crimes and genocide and engaged a lobbyist firm on payment of US$ 25 million to influence the government of the United States with a view to postponing the trial process. (Para-199);Mir Quasem Ali =VS= The Chief Prosecutor, ICT, Dhaka, (Criminal), 2017 (1)-      [2 LM (AD) 366]

See also: International Crimes Tribunals Act [XIX 1973], Section 19(1) [2 LM (AD) 81]

See also: The International Crimes (Tribunal-1)Rules of Procedure, 2010, Rule 56(2) [2 LM (AD) 81]

See also: The International Crimes (Tribunal-1)Rules of Procedure, 2010, Rule 53(ii) [2 LM (AD) 3]

J

Judicial Ethics–

Judicial ethics is an expression which defies definition. In the literature, wherever there is a reference to judicial ethics, mostly it is not defined but attempted to be conceptualized. According to Mr. Justice Thomas of the Supreme Court of Queensland, there are two key issues that must be addressed: (i) The identification of standard to which members of the judiciary must be held; and (ii) a mechanism, formal or informal, to ensure that these standards are adhered to. A reference to various dictionaries would enable framing of a definition, if it must be framed. Simply put, it can be said that judicial ethics are the basic principles of right action of the Judges. It consists of or relates to moral action, conduct, motive or character of Judges; what is right or befitting for them. It can also be said that judicial ethics consist of such values as belong to the realm of judiciary without regard to the time or place and are referable to justice dispensation.

On the question of cross-examining the Chief Justice similar prayer was made in Venoy Chandra (Supra). The Supreme Court outright rejected the prayer observing that the criminal contempt of court undoubtedly amounts to an offence but it is an offence sui generis and hence for such offence, the procedure adopted both under the common law and the statute law, if any, has always been summary. The Court explained the summary procedure that the matter shall be disposed of by affording an opportunity to the contemnor. The Court observed “In such procedure, there is no scope for examining the Judge or Judges of the Court before whom the contempt is committed. To give such a right to the contemnor is to destroy not only the raison d’ētre for taking action for contempt committed in the face of the Court but also to destroy the very jurisdiction of the Court to adopt proceedings for such conduct.”

No further explanation is necessary in this regard. This is the accepted principle being followed in this sub-continent over a century and even if the contemnors have no knowledge, the learned Counsel having expertise of appearing before the highest Court of the country must have minimum knowledge in this regard. We are shocked in the manner of the learned Counsel has defended the contemnors and drafted the petitions and the affidavits. Normally in contempt proceedings the lawyers are cautious in the selection of words and language, and for their mistake the litigants suffer. These types of proceedings are sensitive matters and the Judges always caution the lawyers in admitting or defending the contemnors. In this case the lawyer has shown callousness. So this Court has committed no infirmity in rejecting the prayers made by the contemnors.

The second offending part of the publication is that the writer questioned how the members of Salauddin Qader Chowdhury’s family can meet one of the Judges who is in seisin of the matter? The writer did not disclose the name of the Judge but in his defence, he disclosed the name of the Judge and he was none but the Chief Justice of Bangladesh himself. This statement is also false, inasmuch as, the contemnors admitted in their affidavits that no member of the Salauddin Qader Chowdhury’s family met the Chief Justice. According to them, some one on their behalf met the Chief Justice and requested him not to keep A.H.M. Shamsuddin Chowdhury, J. in the Bench. Now the question is, how did he come to know that the family members of Salauddin Qader Chowdhury met with Chief Justice? Assuming that someone met the Chief Justice, now the question is did he commit any remotest type of misconduct only by meeting someone? The Chief Justice is the only authority to constitute benches of both the Divisions. If the litigants have any grievance against any Judge then who will decide such apprehension? If the Chief Justice did not have such power the administration of justice will collapse. Therefore, the Chief Justice is gateway to the litigants, lawyers and other interested persons. The Counsel had no semblance of idea about the functions of the Chief Justice of Bangladesh.

Besides administration of justice, being the guardian of the judiciary, the Chief Justice does administrative works relating to the entire judiciary in Bangladesh and in course of his administrative works, he sometimes takes notice of grievances of the litigants through their representatives, and in person who are unable to engage a lawyer. This is the normal business of the Chief Justice. The Constitution empowers the Chief Justice to constitute benches of both the Divisions. Sometimes the Chief Justice excludes a particular Judge from any bench and sometimes he gives power to another Judge and sometimes directs the Courts to refrain from hearing any particular matter and gives direction in which manner the particular type of case or cases should be disposed of. The contemnor questioned in which path the relatives of Salauddin Qader Chowdhury met the Chief Justice. The simple answer is, in the same path A.H.M. Shamsuddin Choudhury,J. met the Chief Justice. He questioned whether the victim’s family members met any Judge but in the affidavit he himself has admitted that someone requested the Chief Justice on his behalf. He then questioned whether it was within the ethics of a Judge? This writer has exceeded all norms. He questioned the ethics of the Chief Justice.

He then said, the Prime Minister postponed the tour program of one Justice abroad. The writer was pointing fingers at the Chief Justice. The Chief Justice in open Court declared that he postponed the program but did not explain anything. He then directed the Attorney General in open Court to make an official statement as to whether the office of the Prime Minister or the Prime Minister had prevented the Chief Justice to go abroad. The Attorney General being the chief Law Officer of the country intimated in open Court that neither the Prime Minister nor anyone from the office of the Prime Minister ever made any request to the Chief Justice preventing him from going abroad. Learned Counsel for the contemnors objected to this statement and prayed that the Attorney General should make a statement by sworn affidavit. We are astounded in the way the learned Counsel was nakedly making submissions which were beyond the norms and practice of this Court. The Court outright rejected his prayer and accepted the statement. So the writer in a calculated manner wanted to demean and undermine the power and the authority of the Chief Justice of Bangladesh and the Attorney General. He also made wild allegations against the Chief Justice of Bangladesh. He made libelous statements. These statements are not only contemptuous but they are also criminal offence.

The next statement he made is that, the tour of the Chief Justice was sponsored by the BNP-Jamat organizations. Here again how he was dared to make such statement is beyond comprehension. He then posed the question, “why a disputed businessman went abroad ahead of the tour. What was happening there?”. Of course possibly, he regained his senses and thereby could not disclose the name of the businessman, although he had the courage to disclose the name of the Chief Justice in the conversation with A.H.M. Shamsuddin Choudhury,J. wherefrom he got the information that the tour was sponsored by BNPJamat organizations. The writer used such derogatory language which stunned the Judges present in the Bench.

The contemnors did not disclose or type all the complete sentences of the conversation and intentionally delete some words. Though the contemnors produced the audio cassette, the members of the Bench did not feel any interest to listen to the conversation once they came to know that this conversation was made between the Chief Justice and A.H.M. Shamsuddin Choudhury,J. The learned Counsel submitted that Swadesh Roy did not collect the audio cassette from A.H.M. Shamsuddin Choudhury,J. He admitted that the conversation was made with none but A.H.M. Shamsuddin Chowdhury,J. He failed to notice that the Chief Justice maintains secrecy and confidentiality whenever a Judge meets him. Even if it is assumed that A.H.M. Shamsuddin Chowdhury,J. did not record the conversation, then the reporter secretly got it recorded or collected from other source but he failed to comprehend that he cannot do so far, it itself is an offence pure and simple. The subject of the discussion being related to the administration of justice and secret, it should not be made public and such publication is detrimental to public interest.

It is not a communication between two Judges. It is a conversation between a puisne Judge and the Chief Judge in confidence which imports a special degree of secrecy. It is a paramount necessity that the Judges of the highest Court should always act within the scope of their duties for the public interest and the administration of justice. And it is very greatly in the public interest that the Judges who are holding constitutional posts and concerned in every aspect of maintaining the rule of law, should act as a single unit, bound to each other by a certain loyalty to the rule of law, always of course within the scope of public interest. Where such a feeling, which may rightly be described as esprit de corps does not exist, it is clear that the process of rule of law must be gravely prejudiced. The law is conscious of this requirement and enforces it by means of laws and constitution. In this connection section 124 of the Evidence Act is relevant, which reads: “No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that public interest would suffer by disclosure.”

The purpose of this section is clearly wider the mere overcoming of such objection. Here the writer stands on the same footing and he has committed criminal offence.

The concerned Judge was very much eager to clarify some words from the lips of the Chief Justice and repeatedly kept on putting questions. So it was apparent that he was deliberately putting the questions and met the Chief Justice on previous occasions requesting him to include him in the Bench and the last one was a deliberate attempt with a view to maligning the Chief Justice.

The writer claims that he is a law abiding citizen and his statements are based on truth and bonafide. We failed to understand which statement is true. None of the statements as discussed above are true except the conversation of the Chief Justice with A.H.M. Shamsuddin Choudhury, J. The topic of the conversation was the request of Chowdhury, J. to keep him in the Bench for hearing. The Chief Judge turned down his first request and then he wanted to be included in the hearing of the appeal in respect of the property of Mr. Moudud Ahmed. So A.H.M. Shamsuddin Chowdhury, J. met the Chief Justice before hearing of Salauddin Qader’s appeal or at least in the midst of the hearing. He knows that in the midst of hearing, a Judge cannot be included in a matter.

We fail to understand why the impugned reporting was made after the conclusion of the hearing of the appeal of Salauddin Qader Chowdhury on 16th July, 2015. Why the writer chose to publish this report after the conclusion of hearing and before the delivery of the judgment? If he had the bonafide intention as claimed, what prevented him from publishing the same before hearing of the matter? Why he published such a report just before the delivery of the judgment? Who would be benefited thereby if the Chief Justice had withdrawn himself from the Bench? Certainly it was Salauddin Qader Chowdhury. The writer might have ill motive to frustrate the delivery of judgment of Salahuddin Qader Chowdhury, otherwise he could have published the same before the hearing or at least before the conclusion of hearing.

Learned Counsel appearing for the contemnors submitted that as the writer had collected materials relating to a news about movement of Salauddin Qader Chowdhury’s family members who met the Chief Justice, there was some days delay in publishing but it was published with the motive that the Judges should be cautious at the time of delivery of judgment. This itself is a serious type of contempt. This is a lame excuse for, even if it is assumed that the writer or the editor has no knowledge about the law that during the pendency of a matter, any publication is made which interferes with the administration of justice amounts to criminal contempt. Their Counsel should know about it. This publication not only interferes with the administration of justice but also scandalizes the Court and the Judges, and therefore, the writer and the editor have certainly committed criminal contempt.

A.H.M. Shamsuddin Chowdhury, J. is the junior most Judge of the Appellate Division. By a sworn affidavit the contemnors stated that Chowdhury, J has consented to become a witness on behalf of the contemnors. We thought the statement as a ridiculous one but when the learned Counsel was serious to the statement we were beyond bewilderment. (Paras:133-147); The State =VS= Mr. Swadesh Roy, (Civil), 2017 (1)- [2 LM (AD) 579]

Just Desert–

Desert theory is the modern form of retributive philosophy, and like retributism, it has various shades and hues. Andrew Von Hirsh, the leading proponent of this doctrine, who authored, “Doing Justice” in 1976 in the United States, opined that punishment has a twin justification, one of which is founded on the intuitive connection between desertand punishment, while the other one has underlying need for general deterence as its launching pad.

The main thrust and chief contribution of desert theory is to the quantum of punishment where proportionality is the touchstone, which is either ordinal or cardinal. While ordinal proportionality is concerned with the relative seriousness of offences among themselves, cardinal proportionality relates the ordinal ranking to a scale of punishments and requires that the penalty should not be out of proportion to the gravity of the crime. It is the general perception that the rhetoric of desert is likely to lead to greater severity of penalties. It is said to be based on the intuition that punishment is an appropriate or natural response to offending. Cafeteria approach is the one where the sentencer selects the sentence as this to be most appropriate to each individual case. This allows the sentencer to pursue his own idiosyncratic approach. This is obviously at odd with the rule of law and substitutes for it the rule of individual judges.

Hybrid approach, first declaring a primary rationale and then allowing it to be trumped by other rationales, has been hailed as a step forward to ensure consistency. Sweden adopts “desert” as the primary rationale. (Paras: 851-853); Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 86]

Just Desert in UK–

UK’s criminal Justice Act, 1991 the very first UK legislation to lay down sentencing principles on statutory ironshed was intended to embody desert as the primary rationale, including incapacitation (through custodial sentence) in appropriate cases. S. 2 of the Act states that the length of a custodial sentence should be commensurate with the seriousness of the offence.

Dr. David Thomas added that it is a largely irrelevant exercise in “teaching grandmother to suck eggs”, that the principle of “just desert” is not new: it has been the basis of judicial practice in the use of custodial sentence for years”.

Dr. Thomas in his path breaking book on the principle of sentencing described the tariff “as being sustained by a mixture of deterrent and desert principle: proportionality plays some part: but the judges selects a tariff sentence where he imposes, usually in the name of general deterrence, a sentence intended to reflect the offenders’ culpability” (Thomas 1979 page 8).

Lord Taylor CJ expressed, “the purpose of custodial sentence must primarily be to punish and to deter. Accordingly the phrase “commensurate with the seriousness of the offence” must mean commensurate with the punishment and deterrence which the seriousness of the offence requires” (Re Cunningham 1993 14 Cr. A.R. (s) 444).

Part of the white paper that preceded the enactment of the Criminal Justice Act, 1991, described by Dr. David Thomas as a new legislative framework for sentencing based on the seriousness of the offence or “just desert”, is reproduced below:

“If the punishment is just and in proportion to the seriousness of the offence, then the victim, the victims’ family and friends and the public will be satisfied that the law has been upheld and there will be no desire for further retaliation or private revenge”. (White paper 1990 para 2.3)  1991 Act, mandates that the sentence shall be based on the primary rational of “Just desert”.

As Ashworth states (Page 93, third edition) proportionality “has always played some role in English sentencing, and it continues to do so”.

Penal law of Finland provides that punishment shall be measured so that it is in just proportion to the damage and danger caused by the offence and to the guilt of the offender manifested in the offence.

Sweedish Criminal Code provides that sentences should be based on the penal value of the offence and the penal value is determined with regard to the harm, the conduct involved. (Paras: 854-861); Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 87]

Jyotsna Bala Chowdhury statement has not controverted by the defence– Jyotsna Bala Chowdhury stated in unison with P.Ws.12 and 13. She is an eye witness and a victim of the incident. She saw the accused in the company of the army at the time of perpetration of killing. Exhibit 29 corroborates the statement of Jyotsna Bala in material particulars. P.W.12 stated that he saw his brother’s wife with bullet injuries about one mile away south of his house whose name was Jyotsna Bala Chowdhury. His statement has not been controverted by the defence and therefore, the statement may be taken as admitted by the defence. (Para-146); Salauddin Quader Chowdhury =VS= The Chief Prosecutor, ICT, Dhaka, (Criminal), 2017 (1)- [2 LM (AD) 513]

M

The members of Badar bahini were ÒJamat-e-Islami nominated army– Admittedly, the appellant Mir Quasem Ali was  leader of ICS Chittagong town unit in 1971. It is also admitted that he became the Secretary General  East Pakistan ICS on 7th November, 1971. Admittedly, he was selected as Secretary General of ICS considering his performance and activities as leader of Chittagong ICS  and Al- Badar Bahini.   It is evident that while discharging his duties as Secretary  General of East Pakistan ICS he was given charge of Chittagong Division of ICS as well.  Such promotion and prize post were given definitely on consideration of his effective activities and performance as  leader of ICS  Chittagong town unit. In the case of Ali Ahshan Mohammad Mujahid- Vs.  the Chief Prosecutor, 20 BLC (AP)266 and in the unreported case of Motiur  Rahman Nizami, this Division held that the Al-Badar Bahini was formed with the members of ICS.  The Pakistani politicians admitted that the members of Badar bahini were ÒJamat-e-Islami nominated armyÓ. (Para-53); Mir Quasem Ali =VS= The Chief Prosecutor, ICT, Dhaka, (Criminal), 2017 (1)- [2 LM (AD) 365]

Memory of witnesses of 42 years there may be some variation– We should keep in mind that these witnesses deposed before a Tribunal about the occurrence which took place long about 42 years before. With passage of this long time of about 42 years the memory of witnesses faded. In the circumstances it is not unnatural at all that there may be some variations or discrepancies in the evidence of witnesses about a particular incident/ occurrence. To prove the charge No. 7 four witnesses have been examined by the prosecution, three of whom have rightly stated the date of killing of Sohrab Ali before Tribunal. One witness only namely P. W. 16 has stated the date of that occurrence as 4th December instead of 3rd December. We do not think that mentioning of such an incorrect date of the occurrence by a single witness raises any suspicion or doubt about the prosecution case. (Para-142); Motiur Rahman Nizami =VS= The Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 448]

Modern Sentencing Principle Generally–

As prof Andrew Ashworth, Vinerion Professor of English Law at Oxford, observed, “there is no doubt that the task of sentencing imposes a great burden on the Judges and that many of them say that it is the hardest and most disturbing of judicial tasks.

“(Sentencing and Criminal Justice: Prof Andrew Ashworth, 3rd Edition page 415). In similar vein Lord Bingham CJ also observed that the problem of dealing with cases which are on the borderline of the custody threshold as “one of the most elusive problems of criminal sentencing”. (R-V-Howells, 1999 1 WLR-307)

The principal sources of English sentencing law are legislation, and judicial decisions. In a less formal sense the work of some academic lawyers may be regarded as a source. The leading writer is Dr. David A Thomas of Cambridge University, whose commentaries is often cited by the Court of Appeal with approval.

In England, where most of the statutes, fixing maximum penalty only, leave it to the Courts’ discretion to award appropriate sentence, the Court of appeal has laid down guidelines in several cases.

But many senior judicial personages at the top of the judicial higherarchy have expressed loath against “copy cat” followance of guideline tariffs expressing that sentence in each case should be based on the facts and circumstances peculiar to it.

During an extra judicial speech Lord Taylor, CJ. expressed that guideline cases merely set the general tariff, but the Judges are free to determine the sentence on the basis of the facts and circumstances of the particular case (Taylor 1993, page 130).

The test according to Lord Taylor, C.J. is “Whether public confidence in criminal Justice could be maintained if the public were aware of the circumstances of this case and the sentence which was passed” (AGs Reference No.15 of 1992 14 Cr. A P R (S) 324). Lord Lane, CJ in Mussel (1990 12 Cr. App. R. R(s) 607) observed that each offence has to be judged individually.

Speaking extra judicially he expressed “Sentencing consists in trying to reconcile a number of totally irreconcilable facts. The Judges get very little help in this difficult matter”. (HL Deb Vol 486 col 1295).

Prof Ashworth interpreted this observation, stating; “But the great difficulty of decision in sentencing is that there are so many, often, conflicting points to be taken into account”.

Supporting Lord Lane’s view that “sentencing is not a science” (Oxford Pilot Study 1984 P-64) Ashworth observed that “maximum discretion should be left to Court and any encroachment on this is likely to lead to injustice”.

Dr. David Thomas QC, who according to some Court of Appeal Judges made major contribution to revolutionise sentencing practice in the UK, expressed that a decision making sequence should be the basis of sentencing. According to him the Court should first decide between a “tariff sentence” based on general deterrence or proportionality and an individualised sentence, usually based on rehabilitative or incapacitative consideration. (Thomas 1979 page 11)

Prof Ashworth suggested that four groups of factors, listed below may be identified;

(i)         views on the fact of the case

(ii)        views on the principle of sentencing

(a)        views on the gravity of the offence

(b)        views on the aims, effectiveness and relative severity of the available types of sentence

(c)        views on general principle of sentencing

(d)        views on the relative weight of aggravating and mitigating factors

(iii)      views and crimes and punishment

(a)        views on the aims of sentencing

(b)        views on the causes of crime

(c)        views on the function of Courts in passing sentence

(iv)      Demographic feature of sentence

(a)        age

(b)        social class

(c)         occupation

(d)        urban or rural back ground

(e)         race

(f)         gender

(g)        religion

(h)        political allegiance

According to Durkhein, sentencing has an expressive function and the best punishment is that which puts the blame in the most expensive but least costly form possible (quoted in Garland 1990 P 46, Ashworth page 61).

The Supreme Court of Victoria in Williscraft (-V-R (1975 229) observed, “The purpose of punishment are manifold and each element will assume a different significance not only in different cases but in individual commission of each crime ....... ultimately every sentence imposed represents a sentencing Judge’s instinctive synthesis of all the various aspects involved in the punitive process”. (Paras: 834-846); Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 84]

More than one person can be superior and can hold effective control on the same subordinates and more than one superior may be liable for the crime committed by the subordinates– The Appellate Division  helds that in this case sufficient evidence and facts and circumstances have come before the tribunal which have proved sufficiently that this appellant was a leader of Al-Badr Bahini and he had control on the members of Al-Badr Bahini and he had complicity also in the killing of intellectuals by the Al-Badr Bahini. In the circumstances the alleged non-implication of this appellant in the alleged earlier cases does not relieve him of the liability in intellectuals killing which has been proved in this case by sufficient evidence. The failure of the prosecution to produce any ID Card of any Al-Badr with the signature of the appellant is not fatal at all for the prosecution - specially in consideration of the fact that those ID Cards were issued long 42 years before. (Para-14); Motiur Rahman Nizami =VS= The Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 504]

N

Nation did not and shall never forget 1971–Considering the oral and documentary evidence together with the pre and post operation conduct and activities of the appellant during the war of Independence, we have no hesitation to hold that the ruthless Al-Badr Bahini, under the leadership of the appellant and being instigated, suggested, aided, provoked  and incited  by him, had kidnapped and killed the intellectuals just before the victory. It was cold blooded savagery. Such barbaric, gruesome and brutal crime which the Badr Bahini committed at the instigation of the appellant is comparable with Hitler’s gas chamber genocide. The entire world witnessed such genocide and brutality committed by Al- Badr Bahini. The people of this earth did not forget Hiroshima and Nagasaki. This Nation did not and shall never forget 1971. (Para-231); Ali Ahsan Muhammad Mujahid =VS= The Chief Prosecutor, ICT, Dhaka, (Criminal), 2017 (1)- [2 LM (AD) 3]

The non-inclusion of the name of the appellant in this exhibit-C does not prove at all that the appellant was not involved in the incident of Dhulaura village– The Appellate Division is unable to accept this argument also of the learned Advocate. This exhibit-C is an incomplete list of Rajakar, Al-Badr and Al-Shams of Pabna district. The non-inclusion of the name of the appellant in this list does not prove at all that this appellant did not collaborate with the Pakistani invading force and did not take part in the incident of Dhulaura village with them. In this case there are sufficient evidence to prove that this appellant Motiur Rahman  Nizami used to reside at Dhaka during the Liberation War of Bangladesh and he used to go to Pabna often and committed the atrocities as described in various charges framed against him. So in the circumstances the non-inclusion of the name of the appellant in this exhibit-C does not prove at all that the appellant was not involved in the incident of Dhulaura village. (Para-125);Motiur Rahman Nizami =VS= The Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 448]

P

The Penal Code of India

Section 302 read with

The Code of Criminal Procedure of India

Section 354(3)

Death Sentence: Indian Context–

Since the eclipse of the British suzerainty in 1947, Indian law and practice on death sentence went through periodic evolution.

While Section 302 of the substantive law, i.e., the Penal Code has remained static in allowing discretion in imposing either death sentence or life imprisonment, the abjective law, i.e., the Code of Criminal Procedure (Cr.P.C.) made all the differences.

Uptil 1955, death sentence was the rule while life imprisonment stood as exception, because the British made Cr.P.C. of 1898, required the Court concerned to assign reason when it opted not to pass death sentence.

During the period between 1955 and April 1974, the amended Cr.P.C. removed the requirement of assigning reason in either case, leaving it to the Court’s discretion, and the judicial view was that death sentence remained the Rule while life term, an exception.

In 1973, Indian Parliament resolved to deface the made in UK Cr.P.C. and instead go for a home baked one. Under the new Cr.P.C. (of 1973) regime a Court in passing a death sentence is obliged to assign “special reason” (Section 354(3).

Indian Supreme Court maintains that the implication of the new regime is that life imprisonment is now the rule and death sentence exception (Abraham-v-State of MP, AIR 1976 S.C. 2196).

Indian Parliament, however, found no reason to abolish death penalty, and tacitly lent support to the view, Lord Macaulay’s team expressed, when they inserted Section 302 in the draft Penal Code in 1860, which was in following terms;

“First among the punishment provided for offences by this case stands death. No argument that has been brought to our notice has satisfied us that it would be desirable wholly to dispense with this punishment. But we are convinced that it ought to be very sparingly inflicted; and we propose to employ it only in cases where either murder or the highest offence against the state has been committed”.

Indian Supreme Court also rejected the contention more than once that death sentence is ultravires the Constitution (in Jagmohan-v-State, AIR 1973 S.C. 947, before 1973 Cr.P.C. and in Bachan Singh-v-State of Punjab, AIR 1980 S.C. 898, Alauddin Miah-v-State of Bihar, AIR 1989 S.C. 1456, Swami Sharddananda (2)-v-State of Karnataka, (2008) 13 S.C.C. 767, (post 1973 Cr.P.c.)

In interpreting Section 354(3) of the new Cr.P.C. Indian Supreme Court ordained in Bachan Singh-v-State of Punjab (1980) 2 S.C.C. 684 that the new Cr.P.C. means that death sentence can only be imposed in “rarest of the rare cases”.

Until 01.04.1974 the law as regards sentencing a person found guilty of murder, was no different from ours.

In propounding the “rarest of rare” theory a Constitution Bench of the Indian Supreme Court, rejecting however the plea that the law allowing death sentence was repugnant to constitutional mandate, expressed in Bachan Singh – V-State of Punjab (1980 2 SCC 684) that legislative policy in Section 354(3) of the 1973 Code is that for a person convicted of murder, life imprisonment is the rule and death sentence, an exception, and mitigating circumstances must be given due consideration. The Supreme Court also ordained that a balance between aggravating and mitigating circumstances must be struck.

“Rarest of rare” theory came up for Supreme Court’s holistic scrutiny shortly after that Court innovated this principle in Bachan Singh in 1980. It was the hall mark case of Manchi Singh-V-State of Punjab (1983 3 SCC 470). In elaborating this theory the Supreme Court surmoned that for practical application the “rarest of rare” principle must be read and understood in the background of the five categories of murder cases enumerated in it, and thus finally standardised and classified the cases, from which two Constitution Benches, (in Jagmohan and Bachi Singh) resolutely refrained from in the past.

In quick succession Machhi Singh-V-State of Punjab came up before the Indian Supreme Court with an inundation of onerous task of penological dissection on sentencing in murder cases. Unlike Bachan Singh, vires of death sentencing provision was not challenged, it was a normal appeal case.

In Manchi Singh, affirming capital punishment, the Supreme Court put itself in the position of the community and observed that though the community revered and protected life because the very humanistic edifice is constructed on the foundation of reverence for life principle, it may yet withdraw the protection and demand death penalty (page 487-89, para 32-37), keeping, nevertheless, in mind, the “rarest of rare matrix propounded in Bachan Singh. The Apex Court observed,

“32. It may do so in rarest of rare cases when its collective conscience is so shocked that it will expect the holders of the Judicial Power Centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti social or abhorrent nature of the crime, such as, for instance: 1. Manner of commission of murder.

33. When the murder is committed in an extremely brutal, grotesque, diobolical, revolting or dastardly manner so as to arose intense and extreme indignation of the community. For instance,

i)           when the house of the victim is set aflame with the end in view to roast him alive in the house,

ii)          when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death, iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.

11. Motive for commission of murder

  1. when the murder is committed for a motive which evinces total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward, (b) a cold blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-avis whom the murderer is in a dominating position or position of trust, or (c) a murder is committed in the course of betrayal of the motherland.
  2. Anti Social or socially abhorrent nature of the crime.
  3. (a) when murder of a member of a schedule cast or minority community etc is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorise such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance.

(b)        In cases of “bride burning” and what are known as “dowry deaths” or when murder

is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation. IV) Magnitute of Crime.

  1. when the crime is enormouse in proportion. For instance when multiple murders, say all or almost all the members of a family or large number of persons of a particular caste, community or locality are committed. V. Personality of victim of murder;
  2. when the victim of murder is (a) an innocent child who could not have, as has not provided even an excuse, much less, a provocation for murder

(b)        a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-à-vis whom the murderer is in a position of domination or trust (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons”.

It will emerge from the following discussions that the number of “rarest of rare’ case have by no means remained in shallow captivity. The list is quite a flared one. (Paras:1010-1022); Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)-[2 LM (AD) 99]

Performing duty as Judge–While affirming the award of sentence of death, a person who used to work as Judge may not support the capital sentence but while performing his duty as Judge he is bound by law and fact. He is to decide the issue of awarding the sentence considering the gravity of the offence. While affirming this sentence as a Judge we must take into consideration the relevant laws, facts, evidence and situation of the relevant time. (Para-32); Ali Ahsan Muhammad Mujahid =VS= The Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 66]

Plea of alibi–

Mr. Khondker Mahbub Hossain, learned Counsel appearing on behalf of the appellant drew our attention to the  issues of some newspapers  dated 08.11.1971 , 11.11.1971, 23.11.1971, 8.12.1971 and 11.12.1971  and submitted that the appellant was in Dhaka and communication between Chittagong and Dhaka was in fact collapsed from the month of November  1971 to  16 December, 1971. Learned Counsel failed to show any evidence that the communication  was totally disrupted  at the relevant time and that  all the ways of movement from Dhaka to Chittagong were disconnected. His submission is unacceptable in view of the documentary evidence published in “The Dainik Azadi” on 04.12.1971. Contents of which were:   ÒAvR c~e© cvwK¯Ív‡bi Bmjvg QvÎms‡Ni mfvcwZi PÆMªv‡g AvMgb Ó  evZ©v  cwi‡ekK,  Ò cvwK¯Ívb Bmjvgx QvÎ ms‡Ni c~e© cvwK¯Ív‡bi kvLvi mfvcwZ Rbve Avjx Avnmvb  †gvnvg¥` gyRvnx‡`i 3 w`‡bi  md‡i AvR  XvKv ‡_‡K Avwmqv  †cuvQv‡eb| GLv‡b Ae¯nvb Kv‡j  wZwb `jxq Kgx©‡`i Ges ivR‰bwZK  †bZ„e„›`‡`i mwnZ †`‡ki eZ©gvb   cwiw¯’wZ m¤ú‡K© Av‡jvPbv Ki‡eb Ges myax mgv‡e‡k e³„Zv  Kwi‡eb ewjqv GK  †cªm   wiwj‡R ejv nBqv‡Q Ó |

From the aforesaid news item, the submission of Mr. Khandaker Mahbub Hossain is devoid of substance.   It is quite natural that since the President of EP  ICS went to Chittagong on 25.11.1971 after taking decision on 24.11.1971, the appellant, who was in Charge of Chittagong Division, ICS and  former leader of Chittagong town  unit,  ICS and local commander of Al-Badar Bahini would go and stay in Chittagong between  19th November, 1971 and 15 December, 1971.  So  the alibi, plea taken by the appellant does not carry any force. (Paras-197 & 198); Mir Quasem Ali =VS= The Chief Prosecutor, ICT, Dhaka, (Criminal), 2017 (1)- [2 LM (AD) 365]

The Proliferated List–

Following are what the Indian Supreme Court observed while sentencing those found guilty of murder: and deciding whether the case fits into the rarest category or not.

While deciding whether case falls within the rarest of rare cases category, the judges applying the law must also be alive to the needs of society and the damage which can result if a ghastly crime is not dealt with in an effective and proper manner. (Para 25). Maya Kaur Baldevsingh Sardar v. State of Maharashtra, (2007) 12 SCC 654.

Since the legislature in its wisdom though that in some rare cases it may still be necessary to impose the extreme punishment of death to deter others and to protect the society under section 354(3) CrPC the judge may visit the convict with the extreme punishment provided there exist special reason for so doing. Allauddin Mian v. State of Bihar, AIR 1989 SC 1456.  Haru Ghosh v. State of W.B. (2009) 15 SCC 551. (Death sentence confirmed)

Whether a case falls within the rarest of the rare case or not, has to be examined with reference to the facts and circumstances of each case and the court has to take note of the aggravating as well as mitigating circumstances and conclude whether there was something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for death sentence. (Paras 90 and 91). Dara Singh v. Republic of India, (2011) 2 SCC 490

Principle application of the rarest of rare dictum does not come in the way of individualised sentencing. With necessary room for sentencing, consistency has to be achieved in the manner in which the rarest of rare dictum has to be applied by courts. Bachan Singh expressly barred one-time enunciation of minute guidelines through a judicial verdict. But at the same time, it actively relied on judicial precedent in disciplining sentencing discretion to repel the argument of arbitrariness and Article 14 challenge. Sentencing discretion is also a kind of discretion and it shall be exercised judicially in the light of the precedents. (Paras 90 to 92). Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498.

To kill is to be cruel and therefore, all murders are cruel, yet such cruelty may vary in its degree of culpability and it is only when culpability assumes the proportion of extreme depravity that special reasons can legitimately be said to exist. (Para 16) State of Punjab v. Manjit Singh, AIR 2009 SC 2888.

Prima facie, a dangerous criminal who has indulged in the killing spree in an extremely brutal and horrendous manner to achieve his own selfish gains or to satisfy his physical lust or to disrupt the public order and peace, should be considered to be a menace to society and he be subjected to the extreme punishment of death. The justification behind death sentence is to respect the collective conscience of the society in relation to crimes of extreme brutality and terrorism and to impart security to the society. The element of deterrence is of course inherent in it. As pointed out in Allauddin Mian case death sentence serves a threefold purpose: (i) punitive, (ii) deterrent, and (iii) protective. (Para 15).

A holistic view has to be taken on the facts presented in each case. (Paras 16 and 15). Gyasuddin Khan v. State of Bihar, AIR 2004 SC 210.

Confirming death sentence,

Held:

For deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced in a dispassionate manner and discretionary judgment has to be exercised by the court in the particular circumstances of the case. Punishment must also respond to the society’s cry for justice against the criminal. While considering the punishment to be given to the accused, the Court should be alive not only to the right of the criminal to be awarded just and fair punishment by administering justice tempered with such mercy as the criminal may justly deserve, but also to the rights of the victims of the crime to have the assailant appropriately punished and the society’s reasonable expectation from the Court for the appropriate deterrent punishment conforming to the gravity of the offence and consistent with the public abhorrence for the heinous crime committed by the accused.

The accused was in full senses and had committed the murders of four close relatives one after the other and also attempted to commit murder of his brother’s wife and daughter in a cool and calculated manner. He did not even feel remorse. Such murders and attempt to commit murders in a cool and calculated manner without provocation cannot but shock the conscience of the society which must abhor such heinous crime committed on helpless innocent persons. In the facts and circumstances of the case, the crime committed by the accused falls in the category of rarest of rare cases for which extreme penalty of death is fully justified. Surja Ram v. State of Rajasthan, AIR 1997 SC 18.

Justifying death sentence, Indian Supreme Court held that the choice as to which one of the two punishments provided for murder is the proper one in a given case will depend upon the particular circumstances of that case and the Court has to exercise its discretion judicially and on well-recognised principles after balancing all the mitigating and aggravating circumstances of the crime. The Court also should see whether there is something uncommon about the crime which renders sentence of imprisonment of life inadequate and calls for death sentence.

Individual part played by the accused may assume some importance in some cases, but in an organised crime that kind of enquiry may not be relevant for the purpose of finding out the special reasons.

He brutally murdered six persons. The crime indulged was gruesome, cold-blooded, heinous, atrocious and cruel and he has proved to be an ardent criminal and thus a menace to the society. It is an exceptional case where the crime committed by him is so gruesome, diabolical and revolting which shocks the collective conscience of the community, Shankar v. State of T.N. (1994) 4 SCC 478.

Death Penalty is to be upheld in a case where the accused, members of a Gang, caused death of 22 persons and injuries to several others by blasting of landmines, TADA, 1987, Ss. 3, 4 and 5 – CrPC, 1973, Ss. 386 and 377

The grant of life imprisonment is the rule and death penalty an exception in the rarest of rare cases by stating “special reasons” for awarding it, but at the same time the punishment awarded must be commensurate with the crime committed by the accused. The power to enhance death sentence from life should be very rarely exercised and only for strongest – possible reasons and not only because the appellate court is of that view. The question of enhancement of sentence to award death penalty can, however, be considered where the facts are such that to award any punishment less than the maximum would shock the conscience of the court.

The court has to consider the nature of the crime as well as the accused. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. More often than not these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. In many cases the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate watertight compartments. (Paras 23, 29 and 32)

The appellants are members of a notorious gang. They must have anticipated that their activity would result in elimination of a large number of lives. As a result of criminal activities, the normal life of those living in the area has been totally shattered. It would be mockery of justice if extreme punishment is not imposed. There can hardly be a more appropriate case than the present one to award maximum sentence. The Court has to perform this onerous duty for self-preservation i.e. preservation of persons who are living and working in the area where the appellants and their group operate, Simon v. State of Karnataka, (2004) 2 SCC 694. (Sentence enhanced to capital one)

When the collective conscience of the community is so shocked, that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The community may entertain such sentiment in the following circumstances:

(1)        When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community.

(2)        When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-á-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course of betrayal of the motherland.

(3)        When murder of a member of a Schedule Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of ‘bride burning’ or ‘dowry deaths’ or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

(4)                 When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.

(5)        When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-á-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community. (Para 23)

If upon taking an overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of the test for the rarest of rare cases, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so, Lehna v. State of Haryana, (2002) 3 SCC 76: 2002 SCC (Cri) 526. (Death sentence confirmed)

In order that the sentence may be properly graded to fit the degree of gravity of each case, it is necessary that the maximum sentence prescribed by law should be reserved for ‘the rarest of rare’ cases which are of an exceptional nature. Sentences of severity are imposed to reflect the seriousness of the crime, to promote respect for the law, to provide just punishment for the offence, to afford adequate deterrent to criminal conduct and to protect the community from further similar conduct. It serves a threefold purpose (i) punitive (ii) deterrent and (iii) protective. The court must not only look to the crime and the victim but also the circumstances of the criminal and the impact of the crime on the community, Allauddin Mian v. State of Bihar, AIR 1989 SC 1456. (Death sentence confirmed)

The fact that murders in question were committed in such a diabolic manner while the victims were sleeping, without any provocation whatsoever from the victims’ side indicates the cold-blooded and premeditated approach of the accused to cause death of the victims. The brutality of the act is amplified by the grotesque and revolting manner in which the helpless victims have been murdered which is indicative of the fact that the act was diabolic of the most superlative degree in conception and cruel in execution and that both the accused persons are not possessed of the basic humanness and completely lack the psyche or mindset which can be amenable to any reformation. If this act is not revolting or dastardly, it is beyond comprehension as to what other act can be so. In view of these facts, there would be failure of justice in case death sentence is not awarded in the present case as the same undoubtedly falls within the category of the rarest of the rare cases and the High Court was not justified in commuting death sentence to life imprisonment. (Para 66). Ram Singh v. Sonia, AIR 2007 SC 1218. (Death sentence confirmed)

In a case where 13 members of his family, including small kids were killed for a flimsy reason, when victims were sleeping at the time of attack, it was not a fit case where death penalty could be commuted to life imprisonment (Para 8). Gurmeet Singh v. State of U.P., (2005) 12 SCC 107: (commutation reversed)

Where the accused, a paying guest, brutally murdered three innocent defenceless children and caused injuries to all other helpless inmates of the house without provocation or reason for committing this ghastly act at a time when children would have been sleeping and would not have been in a position to defend themselves death sentence is proper. Considering the brutality, diabolic, inhuman nature and enormity of the crime (i.e. multiple murders and attacks), the mindset of the accused could not be said to be amenable to any reformation –Therefore, it came under the rarest of rare case where not awarding a death sentence would have caused a failure of justice – Death penalty confirmed, Prajeet Kumar Singh v. State of Bihar, (2008) 4 SCC 434.

A case where the appellant amputated hands of the deceased, severed his head from the body, carried it through the road to the police station by holding it in one hand and the blood-dripping weapon in the other hand falls within the category of rarest of rare cases- In view of aggravating circumstances of the case the fact that the appellant was a young man having three unmarried sisters and aged parents would not justify lesser punishment. (Death sentence affirmed) Mahendra Nath Das v. State of Assam, AIR 1999 SC 1926.

A case of murder of 5 persons, an old man of 75 years, a woman aged 32 years, two boys aged 12 years and a girl aged 15 years, at night when they were asleep by inflicting multiple injuries to wreak vengeance –Lower part of the body of the girl denuded in a ghastly and barbaric manner can be termed as rarest of the rare cases. State of U.P. v. Dharmendra Singh, AIR 1999 SC 3789. (Death sentence affirmed)

Death sentence, is, justified for causing death of a 14-year-old girl after luring her into the house for committing criminal assault. Nathu Garam v. State of U.P. (1979) 3 SCC 366.

Death sentence justified as “Rarest of the rare” case when two appellant accused giving chase to the deceased persons and butchering five of them with axes and other weapons in a very dastardly manner and after killing three adults, entered into the victims’ house and killed two children who in no way were involved with the alleged property dispute with the appellants, as if to exterminate the entire family. (Paras 5 and 6), Karan Singh v. State of U.P., (2005) 6 SCC 342. (Death Sentence affirmed)

In a case where entire family was wiped out – Five persons had lost their lives while sole surviving lady has to lead life with 70% burn injuries, death sentence is the proper penalty as the murderer was committed in a cruel, grotesque and diabolical manner : and closing of door was the most foul act, by which accused actually intended to burn all persons inside the room and precisely that had happened –Deceased B who managed to come out was almost beheaded –Accused had gone to place of occurrence well prepared carrying jerry cans containing petrol, sword and also a pistol with two bullets which showed his premeditation and cold-blooded mind. Sunder Singh v. State of Uttaranchal, (2010) 10 SCC 61. (Death Sentence affirmed)

The offence conceived and initiated with deliberation with the object of slaughtering a defenceless woman - Death sentence is proper sentence. Rama Shankar Singh v. State of W.B., AIR 1962 SC 1239.

When offence of murder brutal, conceived and executed with deliberation upon a defenceless old woman – Death sentence, is proper. State of U.P. v. Deman Upadhyaya, AIR 1960 SC 1125.

In a triple murder case -Sentence of death is to be the only appropriate sentence which a court of law could pass. Gulab Singh v. State of M.P., Cr. A. No. 45 of 1957.

In a case of premeditated and well-planned murder, where death was caused by strangulation of four children and a woman, where the appellant killed woman with whom he lived as husband and wife, a woman who was deeply in love with him and where the appellant not only killed two children of the deceased, born from her first husband but had also killed his own two children –All four children and the woman were brought near a pond in a planned manner, strangulated to death and dead bodies of the children thrown into a pond to conceal the crime –Appellant not only killed woman but crushed her head to avoid identification, the crime has been committed in a beastly, extremely brutal, barbaric and grotesque manner which has resulted in intense and extreme indignation of the community and shocked collective conscience of society, death is proper sentence. Sudam v. State of Maharashtra, (2011) 7 SCC 125.

Award of death sentence was justified in a Cold-blooded murder case-Presence of several aggravating circumstances –No mitigating circumstance – Offence committed in pre-planned manner in broad daylight- Two victims (including a boy, aged six years) burnt to death by locking the house from outside –Third victim cut into pieces – Offence committed in most barbaric manner to deter others from challenging the supremacy of the appellant in the village- Absence of any strong motive –Victims did not provoke or contribute to the incident –Appellant was leading the gang –He had no repentance for the ghastly act he committed the entire incident shocked the collective conscience of the community, there was no mitigating circumstance to refrain from imposing death penalty –(Para 18). Holiram Bordoloi v. State of Assam, AIR 2005 SC 2059.

The object and function of criminal law, need for imposition of appropriate sentence, extent of adherence to principle of proportionality while sentencing, requirement for delicately balancing the aggravating and mitigating factors and circumstances in which crime committed and guidelines related to imposition of death sentence, restated –Murder of six members of a family, including helpless women and children, committed in a brutal, diabolic and grisly manner-Crime being one of enormous proportion which shocks conscience of law, death sentence as awarded to respondent –accused S and V on conviction was appropriate and High Court ought not to have altered it, State of U.P. v. Sattan, (2009) 4 SCC 736.

In Kehar Singh-V-Delhi Administration (AIR 1988 S.C. 1883), ie Indira Gandhi murder case, the Apex Court confirmed the death sentenceawarded by the Trial Court and maintained by the High Court of three appellants for entering into conspiracy and committing murder of SMT. INDIRA GANDHI The Court held that the murder of Mrs. Gandhi by the security guards is one of the rarest of the rare cases in which extreme penalty of DEATH is called for the assassin and his co-conspirators, it is a gruesome murder committed by the accused who were employed as security guards to protect the Prime Minister. The manner in which Mrs. Gandhi was mercilessly attacked by her own security guards on whom the confidence was reposed to give her protection repels any consideration of reduction of sentence. Even the conspirators (Kehar Singh and Balbir Singh) who inspired the persons do not deserve any leniency in the matter of sentence, it is a gruesome murder.

In Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid – V-State of Moharastra, (Criminal Appeal No. 1899-1900 of 2011), i.e. the sensational Mumbai Hotel Bombing case, the Supreme Court of India upheld the death sentence for Ajmal Kasab, the only terrorist caught alive during the 26 /11 Mumbai terror bomb attacks in 2008 which caused death of 7 people and maiming of several others. Kasab wanted his death sentence, handed to him by the Bombay High Court, to be commuted to life imprisonment.

The appellant, Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid, who was a Pakistani national, earned for himself five death penalties and an equal number of life terms in prison for committing multiple crimes of a horrendous kind in India. Charges against him included those of collecting arms with the intention of waging war against the Government of India; waging and abetting the waging of war against the Government of India; commission of terrorist acts; criminal conspiracy to commit murder; abetment; abduction for murder; with an attempt to cause death or grievous hurt; and causing explosions etc. He was found guilty of all these charges and was awarded death sentence on five counts, life-sentence on five other counts, as well as a number of relatively lighter sentences of imprisonment for the other offences.

The Supreme Court in refusing to commute death sentence, made the following observations;

“Mr. Ramachandran next submitted that the High Court has committed a serious error in balancing the aggravating and the mitigating circumstances against the appellant. … …. … Further, the High Court wrongly held the appellant “individually responsible” for the murder of seven (7) persons, including Amarchand Solanki. … … … Mr. Ramachandran submitted that the strongest reason for not giving the death penalty to the appellant was his young age; the appellant was barely twenty-one (21) years old at the time of the commission of the offences. ….. …. It is indeed correct that the appellant is quite young, but having said that one would think that nothing was left to be said for him. Mr. Ramachandran, however, thinks otherwise and he has many more things to say in the appellant’s favour. Mr. Ramachandran submitted that the Court cannot ignore the family and educational background and the economic circumstances of the appellant, and in determining the just punishment to him the Court must take those, too, into account. The learned Counsel submitted that here is a boy who, as a child, loved to watch Indian movies. But he hardly had a childhood like other children. He dropped out of school after class IV and was forced to start earning by hard manual labour. Soon thereafter, he had a quarrel with his father over his earnings and that led to his leaving his home. At that immature age, living away from home and family and earning his livelihood by manual labour, he was allured by a group of fanatic murderers seemingly engaged in social work. He thought that he too should contribute towards helping the Kashmiris, who he was led to believe were oppressed by the Indian Government. Mr. Ramachandran submitted that, seen from his point of view, the appellant may appear completely and dangerously wayward but his motivation was good and patriotic. Mr. Ramachandran further submitted that once trapped by Lashkar-e-Toiba he was completely brain-washed and became a tool in their hand. While executing the attack on Mumbai, along with nine (9) other terrorists, the appellant was hardly in control of his own mind. He was almost like an automation working under remote control, a mere extension of the deadly weapon in his hands. Mr. Ramachandran submitted that, viewed thus, it would appear wholly unjust to give the death penalty to the appellant. The death penalty should be kept reserved for his handlers, who, unfortunately, are not before a court till now. If the submission of Mr. Ramachandran is taken one step further it would almost appear …… that all those who were killed or injured in Mumbai were predestined to be visited by his violence. We have no absolute belief in the philosophical doctrine of predetermination and, therefore, we are completely unable to accept Mr. Ramachandran’s submission. In this proceeding before this Court we must judge the actions of the appellant and the offences committed by him as expressions of his free will, for which he alone is responsible and must face the punishment. We are unable to accept the submission that the appellant was a mere tool in the hands of the Lashkar-e-Toiba. He joined the Lashkar-e-Toiba around December 2007 and continued as its member till the end, despite a number of opportunities to leave it. This shows his clear and unmistakable intention to be a part of the organization and participate in its designs. Even after his arrest he regarded himself as a “watan parast”, a patriotic Pakistani at war with this country. Where is the question of his being brain-washed or acting under remote control? We completely disagree that the appellant was acting like an automaton. During the past months while we lived through this case we have been able to make a fair assessment of the appellant’s personality. It is true that he is not educated but he is a very good and quick learner, has a tough mind and strong determination. He is also quite clever and shrewd. Unfortunately, he is wholly remorseless and any feeling of pity is unknown to him. He kills without the slightest twinge of conscience. Leaving aside all the massacre, we may here refer only to the casualness with which the appellant and his associate Abu Ismail shot down Gupta Bhelwala and the shanty dwellers Thakur Waghela and Bhagan Shinde at Badruddin Tayabji Marg; the attempt to break into the wards of Cama Hospital to kill the women and children who were crying and wailing inside; and the nonchalance with which he and Abu Ismail gunned down the police officer Durgude on coming out of Cama Hospital. The saddest and the most disturbing part of the case is that the appellant never showed any remorse for the terrible things he did. … … … Fidayeen like him and follow him in his deeds. Even in the course of the trial he was never repentant and did not show any sign of contrition. The High Court, too, has noticed that the appellant never showed any remorse for the large-scale murder committed by him. … …. … The alternative option of life sentence is thus unquestionably excluded in the case of the appellant and death remains the only punishment that can be given to him”. (Paras: 1023-1058); Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 102]

Punishment barbaric gruesome brutal crimes–We held that petitioner’s ruthless ‘Badr Bahini’ being instigated, suggested, provoked and incited by the petitioner had kidnapped and killed the intellectuals which was cold blooded savagery. Such barbaric gruesome brutal crimes which are comparable with the Hitler’s Gas Chamber Genocide or Jalilianbag massacre. Does Islam permit killing of those unarmed people? While awarding the sentence, the Court must take into consideration the unbearable pains, tears rolling down the cheeks and sufferings of the widows and children of the victims who cried for getting justice for about 43 years. The barbaric gruesome and heinous crimes which under the petitioner’s leadership his ‘Badr Bahini’ committed is a revolt against the humanity. As leader of ‘Badr Bahini’ the petitioner  can not escape from the liability. It is the duty of the court to impose proper punishment depending upon the criminality and proportionate to the gravity of the offence. (Para-34); Ali Ahsan Muhammad Mujahid =VS= The Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 66]

See also: The Penal Code, 1860, Section 302 [2 LM (AD) 109]

See also: The Penal Code, 1860, Section 34   [2 LM (AD) 366]

R

Responsibility on the part of a commander or superior officer to shoulder the responsibility for commission of any crimes committed by his subordinates– It is proved that he did not participate but his subordinates committed the offence within his knowledge or that he has prepared a plan to commit any of the offences, in that case also, he cannot avoid the responsibility because law imposes a responsibility on the part of a commander or superior officer to shoulder the responsibility for commission of any crimes committed by his subordinates. (Para-202); Mir Quasem Ali =VS= The Chief Prosecutor, ICT, Dhaka, (Criminal), 2017 (1)- [2 LM (AD) 366]

Retribution in Practice–

Relevant passages from some decisions pronounced by our Appellate and the High Court Divisions, which are reproduced below, do reveal that as in India, Pakistan, Sri Lanka and indeed most other countries, whether they follow common law or civil law, retribution and general deterrence rationale are more appropriate in awarding sentence to a person guilty of such felony as murder, rape, arson etc.

“The High Court Division on consideration of the evidence found that the petitioner had killed two victims without any provocation whatsoever and the killing was result of pre-meditation and that the petitioner who has taken two lives should give his own life and rejected the plea of commutation of death sentence to imprisonment for life on the ground that petitioner was in death cell for about 3 years” (18 BLD 605).

“On going through the materials on record and the impugned judgment, we find no illegality therein to interfere with the same. We also find no ground to commute the sentence as there is no extenuating circumstance for the same”.

(Mofazzal Hossain Pramanik-V- State, 6 BLC (AD) 96).

“In a case like the present where a number of persons inflict a large number of injuries with the intention of causing death so that each is contributing towards the death of the deceased, it is not necessary for the purpose of imposing the maximum penalty to determine who gave the fatal blow. In such a case all those accused to whom the Court attribute the intention of causing death in a brutal manner, should (in the absence of some other circumstance justifying the imposition of the lesser penalty) be awarded the maximum penalty. / (Fateh Khan and others –V – State, 15 DLR (SC) 5).

“There being no extenuating circumstance, the sentence of death imposed on the condemned convict by the learned Sessions Judge, Munshiganj, was the only sentence that could be imposed” (The State-V – Siddiqur Rahman, 2 BLC (HC) 145). Application of retributive rationale is clearly implied in this judgment.

In Abed Ali-V-State (42 DLR (AD) 171), the Appellate Divisionapproved the following observation of the convicting Court; “He committed gruesome murder of 2 young men and attempt on third who however narrowly escaped. He is neither old, nor teenager and under circumstance I do not find any extenuating circumstance to save the accused from gallows. He came with a pre-determined and calculated intention to commit murder and with that end in view accosted the informant and his brothers who were unarmed and taken off / guard. We have nothing in the circumstance of the case and in the conduct of the accused to take a lenient view in the matter of the sentence inspite of our very best concur to temper Justice with mercy”.

This is yet another judgment which shows that retribution morale dominated minds of the Judges.

The following observation of the Appellate Division in the case of Dipok K Sarkar –V- State (40 DLR (AD) 139) also suggest that retributive rationaleis to be followed but the principle of commensurability must be the basis; “It is not certainly our purpose to say, however, that killing of wife by husband is to be viewed by some other standard while considering the offence of murder, but as in all other cases the circumstances attending the crime have to be taken notice of for inflicting the proper punishment prescribed under the law”. (Paras: 931-933); Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 92]

Review is not a rehearing–

The review petition has been filed against the conviction and sentence maintained by this court in respect of count Nos.2, 3, 7, 9, 10, 11 and 14, learned counsel argues that he is not inclined to press this leave petition on all counts except charge No.11. He has confined his argument in respect of charge No.11.

The petitioner’s contribution towards the economic development of the country by establishing business conglomerate and employing thousands of citizens in his business establishments which is not a legal ground to commute the sentence. It is within the jurisdiction of the executive. The court is only concerned with the culpability of the petitioner and the law governing on the sentencing principles. Crimes against humanity are taken as serious types of offence. The word ‘humanity’ signifies humanness-mankind collectively.

That a review is available if there is error apparent on the face of the record. There cannot be a ground for review if of two or more views are argued on a point, it cannot be a ground for review. A review is not a rehearing of the matter afresh. It is only a clerical mistake or mistake apparent on the face of the record that can be corrected but does not include the correction of any erroneous view of law taken by the court. The basic philosophy inherent in it is the universal acceptance of human fallibility but the points raised by the learned counsel are beyond the principles on which a review can be allowed. (Paras-2, 14 & 12); Mir Quasem Ali =VS= The Chief Prosecutor, ICT, Dhaka, (Criminal), 2017 (1)- [2 LM (AD) 438]

A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error apparent on the face of the record– The Appellate Division  helds that a finding reached by a court cannot be revisited on the reassessment of the evidence, inasmuch as, an error has to be established on the face of the judgment but where there may conceivably arise two opinions, this can hardly be said to be an error apparent on the face of the record. (Para-16); Motiur Rahman Nizami =VS= The Government of Bangladesh, (Criminal), 2017 (1)-    [2 LM (AD) 505]

No review lies except on ground of error apparent on the face of the record or miscarriage of justice–The Appellate Division held that the learned Counsel could not show any error in the decision in arriving at the conclusion that the plea of alibi has not been substituted or that the reasons assigned by the Appellate Division are contrary to the evidence on record or that there are error apparent on the face of the record. No review lies in this court except on ground of error apparent on the face of the record or miscarriage of justice. The basic philosophy inherent in it is the universal acceptance of human fallibility. The learned Counsel fails to point out any error which has been cropped up on analysis of the evidence on record. Since the learned Counsel did not argue on the merit of the 13 matter, and stresses upon the plea of alibi, which has been rejected on a full flagged hearing, at the late stage the petitioner has renewed the plea by producing a spurious document. Further, the learned Counsel having not argued on merit pointing any error in the impugned judgment, it is apparent that there is no error of law in the impugned judgment for the Appellate Division interference. The Appellate Division found no cogent ground to review our judgment. The review petition is accordingly dismissed. (Para – 08); Salauddin Quader Chowdhury =VS= The Chief Prosecutor, ICT, Dhaka, (Criminal), 2017 (1)- [2 LM (AD) 572]

Role of a Counsel– Cases are won and lost in the Court daily. One or the other side is bound to lose. The remedy of the losing lawyer or the litigant is to prefer an appeal against the decision and not to indulge in a running battle of words with the Court– No one expects a lawyer to be subservient to the Court while presenting his case and not to put forward his arguments merely because the Court is against him. In fact, that is the moment when he is expected to put forth his best effort to persuade the Court. However, if, in spite of it, the lawyer finds that the Court is against him, he is not expected to be discourteous to the Court or to fling hot words or epithets or use disrespectful, derogatory or threatening language or exhibit temper which has the effect of overbearing the Court. Cases are won and lost in the Court daily. One or the other side is bound to lose. The remedy of the losing lawyer or the litigant is to prefer an appeal against the decision and not to indulge in a running battle of words with the Court. That is the least that is expected of a lawyer. Silence on some occasion is also an argument. The lawyer is not entitled to indulge in unbecoming conduct either by showing his temper or using unbecoming language. (Para-174); The State =VS= Mr. Swadesh Roy, (Civil), 2017 (1)- [2 LM (AD) 582]

S

Securing ends of justice a review is maintainable in exercise of the inherent powers from the judgment of Appellate Division subject to the condition that where the error is so apparent to avoid miscarriage of justice and not otherwise– The Appellate Division  helds that securing ends of justice a review is maintainable in exercise of the inherent powers from the judgment of Appellate Division subject to the condition that where the error is so apparent and patent that review is necessary to avoid miscarriage of justice and not otherwise, and the execution of a sentence shall be suspended till  the disposal of the review petition if the same is  filed within the period as above. (Para-18); Motiur Rahman Nizami =VS= The Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 505]

Sentencing For Rape According to Ashworth, the features of many rapes are severe emotional and psychological trauma, sometimes involving fear of pregnancy and sexually transmitted diseases and continuing sense of insecurity. Most rapes involve violence or threat thereof and other sexual indignities. The offence, in Hirsh and Jareborg’s terms, poses a threat to physical integrity, which is compounded by humiliation and deprivation of privacy and autonomy. The typical effect on the victim is minimal well being and the culpability is generally high. (Para-866); Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 87]

Sentencing Practice: India–

All that the Indian Penal Code, enacted by the imperial Parliament in Westminster in 1860 for the whole of undivided India, states is, “Whereas it is expedient to provide a general Penal Code for India: It is enacted as follows:-” So, it indicates nothing as to the penological object or purpose of the enactment.

The adjective law, i.e. the Code of Criminal Procedure (Cr.P.C.) 1973, like its repealed predecessor, also lays down nothing like what the UK’s Criminal Justice Act, 1991, Criminal Justice Act, 1993 or Criminal Justice Act, 2003 had done to lay down sentencing objectives and policies.

However, observations recorded by Indian Supreme Court from time to time supply decisive information on the object, and purpose of punishment and the principles of sentencing they follow.

Prof Salmond’s globally acclaimed propoundment that a crime is an act that is deemed by law harmful not merely for the individual victim but for the society as a whole, has althrough been adhered to by the Judges in India.

Ashworth’s observation, “The fundamental reason for having a system of criminal law is to provide a framework for the state punishment of wrongdoers and thereby preserve an acceptable degree of social order” (“Ashworth, Belief, Intent and Criminal Liability” Oxford Essams in Jurisprudence (1987) P.1.) is also strictly followed.

Five objectives outlined in UK’s Criminal Justice Act, 2003 such as (1) punishment of the offender, (2) reduction of crime, (3) reform, (4) protection of society, (5) reparation to victims, are also give effect to.

Through scores of decisions the Indian Supreme Court made this clear, while also emphasising that as crime is a “pathological aberration”, a criminal can nevertheless, in appropriate cases be redeemed and the state has to rehabilitate him (Md. Giasuddin –V-State of AP AIR 1977 SC 1926), thereby advanced the rationale of reform and rehabilitation, but only where appropriate. Similarly, in Prakash –v-State of MP the Indian Apex Court expressed, “It is the result of the recognition of the doctrine that the object of the criminal law is more to reform the individual offender than to punish him”.

The case of State of Jharkhan – V- Saiyed Rizwan (2003 AIR Jhar HCR 513), is one of a few cases where applying the “reform” rational, deathsentence was commuted to life imprisonment on ground that probabilities of reform could be seen, in a situation where the convict with her husband killed her parents, brother and grandmother, whose corps were kept in hiding, with a motive to misappropriate their property.

The decision in the case of Omprokash – V- State of Haryana (AIR 1999 S.C. 1332) provides yet another example of Indian Supreme Court’sadherence to the “reform” rationale in sentencing policy. In that case the convict killed seven persons of a family, who tried to encroach upon the earlier’s property. The convict intimated the police several times but in vain and then finally killed them. In commuting the death sentence the Apex Court took notice of those facts.

In Public Prosecutor – V- Pothuraju Norosimharao (2003 Cr.L.J. NOC 229) also the Court followed “reform and rehabilitation” rationale and commuted death sentence because the prosecution failed to prove that the accused was a threat to society and was not amendable to reformation. In that case the accused committed murder by pouring acid on his near relatives due to some family dispute.

In Nadella Venkata Krishna Rao-v-State of AP the same Court expressed that the whole goal of punishment is curative and that accent must be more on rehabilitation rather retributive punivity inside the prison.

But these refers to cases where reformation is possible. So, the Supreme Court also observed that “social defence is the criminological foundation of punishment” and that the Courts should not confuse between correctional approach to prison treatment and nominal punishment verging on decriminalisation of serious social offences and that soft sentencing justice is gross injustice where many innocents are the potential victims” (Madhab Hayawadanrao Hoskot-v-State of Maharastra (AIR 1978 S.C. 1548)

Ramdeo Chauhan –V- State of Assam (2000 7 SCC 455) is a casewhere the retributive rationale with incapacitating consequence was certainly applied as the Supreme Court expressed that it is true that in a civilised society a tooth for tooth and a nail for nail or death for death can not be the rule but it is equally true that when a man becomes a beast and menace to the society, he can be deprived of his life, adding that the crime committed by the appellant was not only shocking but it had also jeopardised the society and the murder committed by him was most cruel, heinous, and dastardly and hence his young age at the time of the commission of the offence could not be considered.

In this case the appellant inflicted multifarious injuries on each victim that included a female baby and two helpless women, who fast asleep when killed.

It expressed that while the classical principles of retribution, deterrence, prevention and rehabilitation is in the vogue, a Judge, while considering the award of sentence, must bear in mind these principles and see with reference to the facts of the particular case as to which of them has greatest importance in the case and that the quantum of punishment should be such as deserved for the offence, no more, no less, (State of MP-v-Ganga Singh 1987 Cr. L. J 128).

It did also endorse the “Just desert” rationale (without naming it), stating that sentencing the guilty is most important, albeit a difficult chapter in trial, and that while retributive and denunciatory theories have lost their potency in the civilised nations, deterrent and preventive sentence is often necessary in the interest of the society (Saradhar Sahu-V- State of Orissa 1985 Cr.L.J. 1591). In a case of brutal murder, the same Supreme Court, before whom the propriety of death sentence was questioned, held, confirming death sentence, that failure to impose death sentence in such grave cases would bring to naught the sentence of death provided by section 302 of the Penal Code and that the Courts duty is to impose proper punishment depending on the degree of criminality and desirability to impose such punishment. (Asharfi Lal-V-State of UP, AIR 1987 SC 1721), and thereby followed the mixture of just desert (without naming it) and general deterrence rationale.

In that case the doctrines of proportionality (touch stone of just desert, supra,) and commensurability were also taken account of having regard to social necessity. In similar vein in Mahesh -v- State of MP (AIR 1987 SC 1346) the Indian Apex Court observed, “It will be a mockery of Justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give lesser punishment for the accused would be to render the justicing system of the country, suspect. The common man will lose faith in Courts. In such cases he understands and appreciates the language of deterrence more than the reformative Jargon”.

By applying the rationale of general deterrence, and public confidence test, the Supreme Court in a road accident case, enhanced the sentence of fine, observing that consideration of undue sympathy in such cases will lead to miscarriage of justice and undermine pubic confidence in the efficacy of the criminal judicial system (State of Karnataka-v-Krishna alias Raju, AIR 1987 SC 861).

Application of the mixture of just desert (without naming) and general deterrence rational touching upon proportionality and commensurability recorded a high water mark in Machhi Singh-v-State of Punjab (1983 SCc (3) 470) where the community’s response was profiled high.

Indian Courts also heavily rely on “aggravating and mitigating” circumstances as are reflected in innumerable decisions of which the cases of Bachan Singh-v-State of Punjab (1980 (2) SCC 684) and Swamy Shraddananda –v-State of Karnataka (2008 (13) SCC 767) deserves specification.

Describing that a Crime does not only affect the victim, but the conscience of the entire nation, it has been stated that the second aim of punishment is to open the eyes of the would be criminals that they would be dealt with likewise in case they dare to commit in similar crimes (surely general deterrence).

To emphasise the doctrine of commensurability, the Indian Supreme Court in Satwant Singh-V-State of Punjab, (AIR 1960 SC 266) expressed that the measure of punishment to be awarded upon conviction for an offence has to be commensurate with the nature and seriousness of the offence and that if the accused is unable to show that the sentence imposed upon him is not in any way excessive, the fact that a co-accused charged with abetment of the same offence, received a lighter sentence is not a relevant circumstance.

In numerous pre April 1974 (when new Cr.P.C. come into force) cases the Indian Supreme Court reiterated the view that in imposing sentence the main consideration should be the character and magnitude of the offence, but the Court cannot lose sight of the proportion which must be maintained between the offence and the penalty and the extenuating circumstances that may exit. The Court should also take account of the circumstances under which they were committed, degree of deliberation shown by the offender, provocation, offenders antecedents, that is while the sentence should be adequate to the offence, they should not be excessive either. (Adamji Umer Dolal-V-State of Bombay, AIR 1952 SC 14, Roghunath –V-Paria (AIR 1967 Goa 95, Sham Sundar-V-Puran AIR 1991 SC 8), by

It also ordained that a Court should weigh the sentence with reference to the crime committed and the circumstances of the case and not with reference to what may happen subsequently.

With regard to the quantum of punishment to be awarded to persons found guilty of offences dealt with in IPC, CrPC confers a wide discretion by prescribing the maximum punishment and in some cases both the maximum as well as the minimum punishment for the offence. Though no general guidelines are laid down, punishment should be commensurate with the gravity of the offence having regard to the aggravating and mitigating circumstances vis-á-vis an accused in each case. In such situation, the obligation of the court in making the choice of death sentence for the person who is found guilty of murder becomes more onerous indeed. (Para 15); State of Punjab-v-Manjit Singh, AIR 2009 SC 2888.

Ramdeo Chauhan –V- State of Assam (2000 7 SCC 455) is a casewhere the retributive rationale with incapacitating consequence was certainly applied as the Supreme Court expressed that it is true that in a civilised society a tooth for tooth and a nail for nail or death for death can not be the rule but it is equally true that when a man becomes a beast and menace to the society, he can be deprived of his life, adding that the crime committed by the appellant was not only shocking but it had also jeopardised the society and the murder committed by him was most cruel, heinous, and dastardly and hence his young age at the time of the commission of the offence could not be considered.

In this case the appellant inflicted multifarious injuries on each victim that included a female baby and two helpless women, who were fast asleep when killed To sum up, all the rationales a developed judicial regime apply, namely (1) general deterrence (2) individual deterrence (3) Just desert (in the form of retribution or otherwise (4) incapacitation and (5) rehabilitation, are followed by Indian Courts, notwithstanding absence of statutory guidelines like the UK’s Criminal Justice Acts of 1991, 1993 and 2003.

Thus, Mohammad Shamim, in his treatise, “Capital Punishment” (1989 Cr.L.J. 52 (Journal), has stated (in the context of India) that there are four aims of punishment, namely (a) deterrent (b) preventive (c) retributory (d) reformative. These four rationales have also been judicially expressed by the Indian Supreme Court in State of MP –v-Ganga Singh (1987 Cr.L.J. 128). (Paras:897-924); Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 88]

Sentencing Practice: Bangladesh–

In Abed Ali –V-State (42 DLR AD 171) our Appellate Division considered mitigating and aggravating circumstances and considering proportionality concept, refused to commute death sentence, stating that claimed extenuating factor in the form of provocation remained unproven.

The Appellate Division’s decision in Abul Khair-V-The State (44 DLR AD 225) also reveal that our Courts consider mitigating and aggravating circumstances in determining the sentence where statute allows discretion.  Our law also permits restoration and rehabilitation both for juvenile as well as adult offenders. The children’s Act, as amended in 2013 allows restorative rationale while the Probation of the Offenders Ordinance (XLV) of 1960, allows this rationale for both Juveniles and adults .

Under Ordinance XLV of 1960, if a person (irrespective of age) without previous conviction, is convicted of an offence punishable with no more than two years imprisonment, a Court can pass a probation order in the alter of inflicting punishment, or to discharge him after admonimation, or subject to condition of signing a bond, when probation order appears appropriate.

So, through a chain of high preponderant judicial pronouncement, as well as by such statutory commandments as the Probation Ordinance and Children’s Act, Bangladesh Judicial System apply all the sentencing rationales that are in prevalence in the developed judicial regimes, such as (i) deterrent, both individual and general, (2) just desert (retributive or not), (3) resorative and rehabilitory (through statutory mandate). And, in applying these sentencing rationale the Courts take account of the principles of proportionality, commensurability, aggravating and mitigating circumstances as are done in other developed judiciaries. (Paras:927-930); Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)-[2 LM (AD) 92]

Sentencing Practices in Crimes Against Humanity Cases Oberseas–

With the onset of the 2nd World War, the idea the responsibility of war criminals found expression in many international instruments.

In October 1943 the leaders of three powers published the declaration on responsibility of the Hitlerites for the atrocities committed, where it was said that the guilty will be tried on the spot by the peoples who had suffered violence in their hands. The declaration read,

 “Let those who have hitherto not imbued their hands with innocent blood beaware lest they join the ranks of the guilty, for most assuredly the three allied powers will pursue them to the uttermost ends of the earth and will deliver them to their accusers in order that Justice may be done (The Nuremberg Trial Vol. 1 P 17-21).” (This declaration surely indicated retirbutivism).

These Declaration, signed in Teharan guided the International Military Tribunal at Nuremberg, (IMT) whose charter enunciated the basic indicia of crimes against peace.

Although the theme of International Criminal Law and Courts were within the contemplation of Hugo Grotius, (1625) the recognised patriarch of international law, with the formulation of the Nuremberg Charter a new generis of crimes known as War Crimes and Crimes against Humanity came to the vogue, initially under public international law though.

Nuremberg trial was the first historical precedent for bringing to trial and punishing the most dangerous of them who committed War Crimes and Crimes against Humanity.

On 8th August 1945 the agreement between the Governments of the designated states was signed and the Nuremberg Charter was ratified.

Although crimes and punishment for murder, rape, arson, unlawful confinement had been in existence even before the Nuremberg charter, crime against Humanity, comprising murder, rape, arson, unlawful confinement etc emerged as a new concept which also permeated into the municipal law of several countries subsequently. (Declaration signed by Three Powers, (Nuremberg Trial Vol. 1 P 21).

Although co-ordinating the actions of the members of the Tribunal was not an easy task for not only the socio political but also the legal systems of the four Powers were unidentical, nevertheless, the jurists of four countries found in each instance mutually acceptable solutions, by forging a singular, in many ways, unique, procedural formula, quite effective as they all shared the common will of punishing the perpetrators harshly. (surely applying retributism)

So, the IMT widely resorted to the Soviet principle of an active Court, allowed cross examination which is more characteristic of Anglo-Saxon Law. Assessment of evidence in accordance with the inner conviction of the Judges.

Although the sentencing rationale applied by 1TM has not been spelt out in black and white, the language used in the 1943 Declaration, part of which has been reproduced above, along with other expressions that found places in other declarations, reproduced below, make it abundantly clear that retribution and just desert conjugated with general deterrent rationale played the dominant part. That they emphasised “retribution” as the foremost is reflected from the following passages, which found place in different declarations and statements; “The War criminals will be sent back to the countries in which their abominable deeds were done in order that they may be Judged and punished according to the laws of the liberated countries and of the free governments which will be created therein”(Declaration on the responsibility of the Hitlarites for the atrocities committed 1943). The Soviet Union, advocated the principle that “severe punishment must overtake all who are guilty of these most atrocious crimes against culture and humanity. (lbid P = 87).

Molotov expressly and publicly promised that the Soviet nation “would never forgive the atrocities, rape, destruction and mockery which the bestial bands of German invaders have committed and are committing against the peaceful population of our country “(lbid P-87, statement p-16).

Molotov’s statement clearly indicates that he meant retributive punishment. Encouraged by the Soviet example, the London representatives of the Captive European States, who met at the conference of January 13, 1942 at the palace of Saint-James, issued a declaration to the effect that they “place among other principal war aims, the punishment through the chanel of organised justice of those guilty or responsible for these crimes whether they have ordered them, perpetrated them or in any way participated in them”. (Text of Resolution on German War Crimes signed by Representatives of Nine Occupied Countries: Voices of History 1942-1943 by F Watts, New York 1943 page 33).

This text also indicate that the allied countries meant retributive punishment through the chanels of organised justice.

Molotov repeated his pledge, stating “Hiltar’s government and its accomplices will not escape severe responsibility and deserved punishment for all their unparalleled crimes perpetrated against the peoples of the USSR and all freedom loving people. “(Vneshniaia Politika). Again, the flavour of Retributive and “Just Desert” rationale is apparent from Molotov’s statement.

The British Prime Minister, Winston Churchill on 8th September 1942 made the following statement in British Lower House;

“I wish most particularly to inform his Majesty’s Government and the House of Commons with the Solemn words which were used lately by the President of the United States, namely, that those who are guilty of the Nazi Crimes will have to stand up before tribunals in every land where their atrocities have been committed in order that an indelible warning may be given to future ages, and the successive generations of men may say, “ So perish all those who do the like again”. (The Nuremberg Trial and International Law. Page-14) The voice of the British Prime Minister, who had a pivotal role in setting the IMT into motion, is easily discernable to the thesis that he also meant retributive punishment with element of general deterrence.

President Roosevelt of the United States also, by his reply dated 21st August 1942, to the representatives of the Governments in exile, associated himself with the idea of judicially administered retribution. (Nuremberg Trial and International Law page- 15)

Molotov advanced an additional suggestion stating;

“The Soviet Government considers it essential to handover without delay for trial before a special international tribunal and to punish according to all the severity of criminal law, any of the leaders of Fascist Germany who in the course of the war have fallen into the hands of states fighting against Hitlerite Germany”. (lbid page 52-54). The phrase “punish according to all the severity” can not be misunderstood as regards the applicable sentencing rationale.

Joseph Stalin, who had a prime role in setting up the IMT, delivered a speech on 6th November 42, part of which is reproduced below, which divulge that retributory sentence was contemplated;

“Let these butchers know that they will not escape responsibility for their crimes or elude the avenging hand of the tormented nations” (War Speeches p-48). The words “avenging hand” keep no room for qualm on the theme that retributive punishment was meant.

On 19th April 1943, the Soviet Presidium passed a decree prescribing that German-Fascist criminals guilty of grave crimes against Soviet citizens were to be punished with death by hanging and their accomplices with hard labour.

Between July 14th and 16th 1943, eleven Soviet citizens were tried pursuant to the aforementioned decree under the Soviet municipal law for atrocities committed in Soviet Union in collaboration with the German occupation authorities, and eight of them were sentenced to death notwithstanding their guilty plea. The punishment awarded was obviously retributive. This was the first instance of a trial of this kind for crimes connected with the 2nd World War. (Trial in the case of atrocities by German-Fascist invaders and their accomplices on the territory of the city of Krasnodar and the Krasnodar region during their temporary occupation – Moscow 1943) and also New York Times 30th July 1943 P-5).

Barely a week after the release of the Moscow Declaration, Stalin on 6th November 1943 stated;

“Together with our Allies, we must adopt measures to ensure that all the fascist criminals responsible for the present war and the suffering of the people, should bear stern punishment and retribution for all the crimes perpetrated by them no matter in what country they may hide” (War Speech P 82) Here the word “retribution” was actually used.

This statement was adopted by the “Commission on the Punishment of War Criminals of the London International Assembly. (History of the United Nations War Crimes Commission and the Development of the Laws of War, London 1948 page -100-1001).

Immediately after the cessation of the 2nd War, a series of public trials were conducted in Kiev, Minsk, Riga, Leningrad, Smolensk, Briansk, Velikie Luki and Nikolaev and death sentences were meted liberally. (Pravda, December 16-21, 1945, New York Times, 30th December 1945 P-6 and January 6th 1946, P-4, New York Times, 31st December 1945, Pravda, 27th December 1945 P-3). (Paras:934-955);Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 93]

See also: Rome Statute on sentencing [2 LM (AD) 96]

W

Whether failure to produce any ID Card of any Al-Badr with the signature of the appellant (Motiur Rahman Nizami) is fatal for the prosecution– The Appellate Division helds that  the failure of the prosecution to produce any ID Card of any Al-Badr with the signature of the appellant is not fatal at all for the prosecution-specially in consideration of the fact that those ID Cards were issued long 42 years before. (Para-223); Motiur Rahman Nizami =VS= The Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 449]

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