একজন শাজনীনের বিষন্ন দৃষ্টি, বিচারের গল্প এবং শাস্তি নির্ধারণ

“Multiple scratches/abrasions of different sizes and shapes on whole of the right breast”.

“Vagina-congested. Abrasion present in RT & LT lateral wall of vagina.

Labia Majora-congested & bruised(both).Hymen-ruptured,

High vaginal swab examination-No SP seen.RM present.”

“19. The observations in the postmortem examination report to the effect that no spermatozoa was found in the vaginal swab of the victim does not prove at all that victim was not raped before her murder, because presence of Spermatozoa is at all not necessary to prove rape.”

“It has been settled by so many decisions of the apex courts of this region that even complete penetration is not essential to constitute an offence of rape and even partial penetration with or without emission of semen and rupture of hymen is sufficient to constitute rape. ”

At about 10-00 Pm on 23/04/1998 Shajneen, an unfortunate girl of 15 years, was killed most inhumanly and brutally after rape in her bedroom which was her most secured place. This Division, upholding the findings of the Tribunal and High Court Division observed that it been proved all reasonable doubt that victim Shajneen was raped before murder. Confessional statement of the petitioner recorded under section 164 of the Code of Criminal Procedure, post-mortem report, evidence and statement of the appellant made before the Tribunal at the time of examination under section 342 of the Code of criminal Procedure there is no doubt not only this vulture pounced upon the body of the victim but it had jeopardized the victim’s parents, her other family members and conscience of the society at large. It was a cold-blooded murder where rape was committed on an innocent and helpless girl, which was a treacherous and cowardly act of the petitioner.

It is not possible to catalogue the reasons which may justify the pass of death sentence. But, when the murder has been committed in a brutal manner on a helpless child, the same may be awarded. It is a crime against society and the brutality of the crime shocks the judicial conscience that the court has the duty to impose the death sentence. The petitioner was servant of the PW-1 whose duty was to defend and protect the family members instead he, out of his sexual lust, did not bother to kill a child of 15 years old assaulting mercilessly. It was gruesome murder. So, dilution of sentence would be a misplaced sympathy and gross miscarriage of justice. The crime committed by petitioner was grotesque, diabolic and revolting. Since heinous crime was committed in cruel and diabolic manner, death sentence is justified sentence. It is true death for death may be, to some extent, inhuman. But it is equally true that when a man becomes a beast and menace to the society, he can be deprived of his life. The nature of the crime reveals that the petitioner is a menace to the society and sentence of imprisonment would be altogether inadequate.

In the case of Laxman Naik vs state of Orissa reported in AIR 1995 SC 1387 the accused committed rape on his brother’s daughter aged 7 years in a lonely place of forest and thereafter killed her. Supreme Court of India observed that the evidence on record indicated how diabolically the accused had conceived of his plan and brutally executed it and such a calculated murder of a girl of a very tender age after committing rape on her would undoubtedly fall in the category of rarest of the rare case attracting to punishment other than the capital punishment.

In the case of Molai vs State of Madhya Pradesh reported in AIR 2000 SC 177 Supreme Court of India expressed similar view. In the said case victim, a 16 year old girl alone in house preparing for her examination. Both accused, taking advantage of she being alone, committed rape on her and then killed her. It was observed-

“We have very carefully considered the contentions raised on behalf of the parties. We have also gone through the various decisions of this court relied upon by the parties in the courts below as well as before us and in our opinion the present case squarely falls in the category of one of the rarest of the rare case, and if this be so, the courts below have committed no error in awarding capital punishment to each of the accused. It cannot be overlooked that Naveen, a 16 years old girl, was preparing for her 10th examination at her house and suddenly both the accused took the advantage of she being alone in the house and committed a most shameful act of rape .The accused did not stop there but they strangulated her by using her under-garment and thereafter took her to the septic tank along with the cycle and caused injuries with a sharp edged weapon. The accused did not even stop there but they exhibited the criminality in their conduct by throwing the dead body into the septic tank totally disregarding the respect for a human dead body. Learned counsel for the accused (appellants) could not point any mitigation circumstances from the record of the case to justify the reduction of the sentence of either of the accused. In a case of this nature, in our considered view, the capital punishment to both the accused is the only proper punishment and we see no reason to take a different view than the one taken by the Courts below”.

From the nature of the offence it appears to us that the petitioner is not anyway entitled to get any sympathy. We do not find any mitigating or extenuating circumstances on record for commutation of the sentence of death. Delay in the disposal of this case cannot by itself be a ground for commuting the sentence of death to one of imprisonment for life since the crime committed by the petitioner was premeditated, senseless, dastardly and beyond all human reasonings.

Accordingly, we do not find any substance in the petition. thus, the review petition is dismissed.

There is no guidance to the Judge in regard to selecting the most appropriate sentence of the cases. The absence of sentencing guidelines is resulting in wide discretion which ultimately leads to uncertainly in awarding sentences. A statutory guideline is required for the sentencing policy. Similarly, a properly crafted, legal framework is needed to meet the challenging task of appropriate sentencing. The judiciary has enunciated certain principles such as deterrence, proportionality, and rehabilitation which are needed to be taken account while sentencing. The proportionality principle includes factors such as mitigating and aggravating circumstances. The imposition of these principles depends on the fact and circumstances of each case. The guiding considerations would be that the punishment must be proportionate. The unguided sentencing discretion led to an unwarranted and huge disparity in sentences awarded by the courts of law. The procedure prescribed by law, which deprives a person of life and liberty must be just, fair and reasonable and such procedure mandates humane conditions of detention preventive or punitive. The main aim of punishment in judicial thought, however, is still the protection of society and the other objects frequently receive only secondary consideration when sentences are being decided. While deciding on quantum of sentence as accused getting away with lesser punishment would have adverse impact on society and justice system. Sentencing for crimes has to be analyzed on the touchstone of three tests viz. crime test, criminal test and comparative proportionality test.

150. The legislature defines the offence with sufficient clarity and prescribes the outer limit of punishment and a wide discretion in fixing the degree of punishment within that ceiling is allowed to the Judge. On balancing the aggravating and mitigating circumstances as disclosed in each case, the Judge has to judiciously decide what would be the appropriate sentence. In judging an adequate sentence, the nature of the offence, the circumstances of its commission, the age and character of the offender, the injury to the individuals or to the society, whether the offender is a habitual, casual or a professional offender, affect of punishment on the offender, delay in the trial and the mental agony suffered by the offender during the prolonged trial, an eye to correction and reformation of the offender are some amongst many factors that have to be taken into consideration by the Courts. In addition to those factors, the consequences of the crime on the victim while fixing the quantum of punishment because one of the objects of the punishments is doing justice to the victim. A rational and consistent sentencing polices requires the removal of several deficiencies in the present system. An excessive sentence defects its own objective and tends to undermine the respect for law.” (emphasis/underline supplied)”