Reaction to crime has been different at different stages of human civilization and even different in various societies
Chapter 1
INTRODUCTION Reaction to crime has been different at different stages of human civilization and even different in various societies. It is well said that the attitude towards crime and criminals at a given time in a society represents the basic values of the society. The attitude towards the criminals has always been shown as extreme type of emotions displayed by the society 1. In criminal law, punishment refers to penalties that are infected by the power of the state, that is, the authority of law after a court has found the defendant guilty of a crime 2. As a result of the changing attitudes, three types of reactions can be discerned in various societies, the first is the traditional reaction of a universal nature which can be termed as a punitive approach. It regards the criminal basically as a bad and dangerous sort of person and the object is to inflict punishment on the offender in order to protect the society and make fear in people to refrain them from committing such act. The second approach, of is recent time which considers the criminals as a victim of circumstances and a product of various factors within the criminal and society. This approach regards the criminal as a sick person requiring treatment is termed as therapeutic approach. Finally, there is the preventive approach which instead of focusing attention on particular offenders, wants to eliminate those conditions which are responsible for crime causation3. Savelsberg argues that the purpose of punishment should no longer be simply to do justice, but to reduce crime and to diminish its costs to society. 1 2
3
Siddique Ahmed, Criminology, Problems & perspective, (Dhaka, Eastern Book Company), Third Edition, 1993 : 76 S.T Reid, Crime & Criminology, Mc. Graw Hill, Eighth Edition,1996:73 Siddique Ahmed, Ibid . p -77
Ferri, Glueek in late 1920, also feels that the emphasis on punishment should be on the offender, rather than on crime. He calls for treatment of the offender rather than punishment based upon the offense committed. Glueck, Further recommends the establishment of a socio-penal commission which is made up of social scientists that would determine the type of treatment and duration necessary to an offender. It is equally important that an offender must accept his punishment as a fruitful reward for his act. If he does not do so then no rehabilitative or reformative punishment would work for him. But before providing punishment the offence, degree of the offence, condition of the offender should be considered such as if one steals a car which recoverable by compensation or otherwise. But it one libels or slanders another then the act much worse than the theft. The former (theft) though morally harm a person, is not so greater degree but the libel or slander directly affect one’s reputation and self-respect which is much harmful than the theft4. In case of auto mobile driving which is risky and cause accidents any time for drunkenness, negligent driving or overtaking tendency etc. This type of offence is less strong than the former offences. The principle ‘‘Prohibit all harmful conduct’’ is much stronger than the principle ‘‘Allow all harmful conduct so long as compensation is paid’’
Chapter 2 THEORIES OF PUNISHMENT
Every civilized country is practicing to punish the criminals for centuries. And the penologists form the ancient time analyzing on punishment. Finally with the changes of periods, societies, the penologists have concerned on 4 types of theories of punishment: 2.1 Deterrent Theory This theory presupposes the prevention or discouragement of crime through fear in the mind of the offenders and others from committing further criminal acts. It may discussed in two ways – (i) Individual or specific deterrence refers to the effect of punishment in preventing a particular individual form committing additional crimes. (ii) General deterrence for the individual who are convicted of crimes provides an example to potential violators who are wishing to avoid pain, will not violate the law 5. 4 5
J.G. Murphy and J.L. Coleman, Philosophy of law, Oxford University Press, 2004: 110 S.T Reid: Crime & Criminology, Mc Graw Hill,Eighth Edition, 1996: 75
Deterrence research should be narrowed to types of crimes and types of people. Perhaps punishment or the threat of punishment is effective in deterring people from shoplifting but not necessarily from killing their spouses certain types of people are deterred by laws but others not or perhaps perception of certain punishment may have a deterrent effect on some from of common, non serious delinquency, but not other types of crime. For example, many offenders who commit murder and other violet crimes do so while under the influence of alcohol or while involved in an emotional experience, usually connected with the family or friends. Probably most of these offenders are not thinking rationally when they commit these violent crimes. In that case, the behavior will not be deterred by criminal statutes. This principle may apply also to those who violate criminal laws prohibiting driving while intoxicated. Another question is that, what type of people need stiff penalties, as compared to others who are more likely to be deterred by publicity or lesser penalties? For an executive who must drive for business and entertainment of clients, the revocation of a driver’s license and publication in the paper of the Arrest and type of punishment might be sufficient deterrence. This sanction might be sufficient to deter the professionals from driving while intoxicated. The punishment may be imposed on the offenders by the following ways which might deter them or others to commit such crimes:i.
To punish an offender in such a way that deters him or her from committing any crime in future.
ii.
Such punishment may be used on an offender that might deter others from committing such offence in fear.
iii.
Such punishments do not work then some special method can be applied such asincarnation which will incapacitate the offenders from committing any violation.
In earlier times, there are some hardened criminals who do not care this type of punishment. They prefer to live in prison rather than to live a free life in society. This was proved from the fact when a person was hanging to death in that time some wrong doers were pickpocketing, theft assaulting at the ghastly scene. In that time crime was attributed to the influence of evil spirit or free will of the offender. And for this the society preferred sever and deterrent punishment for the offenders for their act which was one kind of challenge to God. 2.2 Retributive Theory
Retribution is a punishment theory that contends that an offender should be punishment for the crimes committed because he deserves it. It is the theory of punishment based on the term vengeance, such as Eye for eye, tooth fro tooth and blood for blood. Hegel opposed the theory of retribution theory, said that – ‘‘You hurt me so I will hurt you. Indeed that is the literal meaning of retribution. And if I cannot hurt you myself, I demand that you should be hurt by others. The desire to make the offender suffer, not because it is needed so that the guilt is Purged not also because suffering might deter him from future crime, but
simply because it is felt that he deserves to suffer, if the essence of retribution. So, while punishment under deterrent theory used as means of attaining social security, the retributive theory treated it as an end in itself. It suggests that evil should be returned for evil6. Thus the pain to be inflicted on the offender by way of punishment was to outweigh the pleasure derived by him from the crime. Sir Walter Moberly observed, ‘‘the drama of wrong doing and its retribution has indeed been an unending fascination for the human mind. This theory is closely related with the notion of expiation which means blotting out the guilty by suffering an appropriated punishment. To suffer punishment is to pay a debt due to the law that has been violated. The mathematical equation of crime provides that – Guilt + Punishment = Innocence. And punishment on this basis is also unjustifiable because ‘‘two wrongs do not make a right. Punishment gratifies the feeling of pleasure experienced by individuals at the though that the criminal has been brought to justice. That desire ought to be vengeance. The penalty of wrong doing is a debt which the offender owes to his victim, when punishment has been suffered, the debt is paid and the legal bond forged by crime is dissolved. The object of true punishment must be to substitute justice for injustice. To compel the wrongdoer to restore to the injustice person that which is his own by such restoration and repentance, the spirit of vengeance of the victim is to be satisfied7. The retributive theory of punishment is the promotion of the moral feelings of the community. The first object of punishment is to make satisfaction to outraged law. Moreover, retribution is only a subsidiary purpose served by punishment. 2.3 Preventive theory
6 7
N.H Jhabvala, The elements of Jurisprudence, C.Jamnades & Co.Twenty-Third Edition:53 V.D. Mahajan, Jurisprudence & legal theory 5th ed. (Allahbad; Estern Book Company), 2003, p.- 147
This theory aims to prevent a crime by disabling the criminal himself. The philosophy behind this punishment is based on the proposition not to avenge crime but to prevent it. In punishing a criminal, the community protects itself against anti-social acts which endanger social order in general or person or property of its members. Fichte observed, ‘‘the end of all penal laws in that they are not to be applied’’ giving an illustration, ‘‘when a land owner puts up a notice trespassers will be prosecuted have be does not want an actual trespasser and to have the trouble and expense of setting the law in motion against him. He hopes that the threat will render any such action unnecessary, his aim is not to punish trespass but t prevent it. If trespass still taken place, he undertakes prosecution. Thus, the instrument which he devised originally consisted in the general thereat and in particular connections. Thus, the object of this theory is to make the threat and not to execute the threat occasionally which makes the preventive theory realistic and humane. And it is effective in discouraging the criminals in anti-social conduct. The preventive theory is to prevent the repeating of crime by incapacitating the offenders. And for this prisonisation is the best mode as punishment to prevent crime and eliminate offenders from society and disabling them from committing crime further. In the past maiming was considered as an effective method of preventing the wrong-doer from committing crime further. In the past maiming was considered as an effective method of preventing the wrong-doer from committing the same crime in the future. Prevention would accordingly seem to be the chief only universal purpose of punishment. The law threatens certain pains if one does certain things, intending thereby to give one a new motive for not doing them. If one persists in doing them, it has to inflict the pains in order that its threats may continue to be believed. The main object in the case of the preventive theory of punishment is to desirable the wrongdoer from repeating the crime. Over all this theory does not act so much on the motive of the wrong-doer, but it desirable his physical power to commit the offence? 2.4 Reformative theory The rationale for reformation of offenders, based on the premise that human behaviour is the result of antecedent causes that may be known by objective analysis and permit scientific control of human behaviour. A crime is committed as a result of the conflict between the character and the motive of the criminal. It is because one may commit a crime because his power of the motive is stronger or because the restraint imposed by character is weaker. So that individualized treatment has became the Cardinal principle for reformation of offenders.
Punishment under the reformative approach is to change the bahaviour of the offender and to rehabilitate him as a law abiding member of society. Under this theory punishment is used to reclaim the offender and not to torture or harass him. It condemns all of corporal punishment. Some criminologists talked about repenting and emphasized religious training as a pre-requisite. Criminals were kept in solitary confinement so that they would not be corrupted by others and would have time to contemplate their actions. The prisoners is trained in such a way that they can adjust with the society after their release from the institution. And for this some penologists urge parole and probation which might have the great effect to make an offender as a social entity. This theory is applicable to the juvenile and first offenders, sometimes sexual offenders are also amendable then others. However this theory can not be applied on the hardened offenders and for this it is observed by salmon that though general substitution of reformation for deterrence my seem disastrous, it is necessary in certain cases especially for abnormals and degenerates who have diminished responsibility. Retribution and deterrence were emphasis on ‘‘let the punishment fit the crime and its purpose is to transform offenders from idlers and hooligans into good, industrious citizens’’. This theory maintains that ‘‘you cannot cure by killing8’’ It is well known that the punishment always carries with it a stigma in as much as it fetters the normal liberty of individual. Investigations reveal that it is the mental depravity of the offenders which makes them delinquent. Therefore, a clinical treatment system seems useful for the correction of such offenders. Thus, punishment should be a sort of social surgery since criminal is essentially product of conflict between the interests of society.
Chapter 3 APPLICATION OF THEORIES OF PUNISHMENT IN THE COURTS OF BANGLADESH In Bangladesh, offenders are punished under the penal law. And in case of punishment judges have to apply the theories of punishment. But in practicing of theories of punishment in Bangladesh only Deterrent and retributive theories of punishment is also practiced but reformative theory as hardly spoken is not practiced. Under the penal law of Bangladesh in one sentence three types of punishment is available:- (i) Death sentence (ii) Imprisonment 8
N.H. Jhabrala, The elements of Jurisprudence, 23rd ed. C. Jamnadas & Co., p. – 54
(iii) Fine, Death sentence is imposed for grievous offences such as murder. Imprisonment includes rigorous imprisonment and general imprisonment such as for Robbery. And fine is imposed as public dues and non-payment of it, imprisonment may be disposed of. In Bangladesh judges in practicing of criminal cases mostly apply the theories of punishment of deterrent and retributive. In the case of Baszlu Talukder 9, the accused petitioner Bazlu Talukder along with other accused armed with deadly weapons kidnapped Mahinur Begum aged 132yrs at about mid night. After 3 days of the occurrence she was given back to her step further Abdur Rashid she complained that she was raped by other accused person including the present petitioner. And for that the Court held the accused 14 yrs rigorous imprisonment and fine of 5,000 taka in default to suffer rigorous imprisonment for further one year. Another case named Hafiz Abul Khair10 case, where the accused appellant’s were the collaborator of Pakistan Army during the period of liberation war, 1971 and in furtherance of their common intention did commit murder of Md. Yusuf in the near Guly Mohammed Jute Mills and D.D.T Factory within Sitakunda Police station. For that the court sentences them 10 years imprisonment and 1,000 tk fine in default 3 months rigorous imprisonment. In the case of Ratan Kha11, the appellant with his 10 partners on 7 th October 1978 went for dacoity in north, east and west zohite hut and took more than 23000 tk of homesteads. And in that time Ratan kha along with his three partners were recognized by P.W 1. Noor Mohammed Hossain along with some other villagers And in I.I parade Noor Mohammed Hossain, Rasheda and others identified the various articles of homestead. After proving as dacoity the Ratan Kha and other were sentenced for 7 years rigorous imprisonment. And, in Abul Kalam12 case the accused Abul Kalam killed his wife for dowry and tries to plead that his wife was died by snake bitting but the victim’s mother and sister saw mark of injury in the neck and also found that blood was coming out from the nose, mouth and eyes of her. And though the lower court sentence for death but finally the Higher Court altered the sentence into imprisonment for life. Another recent famous case which carries both the different & retributive theories of punishment where the accused Bangla bhai and Shikh Abdur Rahman and others members of JMB a terrorist organization, on 17th August 2005 made a bomb blast all over Bangladesh at
9
N.H. Jhabrala, Ibid, p. - 5
10 11
12
State v Bazlu Talukdar & others (20 BLD 227) State v Hafiz Abul Khair 29 DLR (SC) State v Ratan Kha 40 DLR 116
a time and killed thousand of people. And for this heinous crime the court sentenced the accused to be hanged till death. In Bangladesh the deterrent and retributive theories of punishment is applied on the grievous and hardened criminals. But it sometimes applies those theories, on not so furious cases where the court can apply the reformative theory of punishment. It doesn’t look on to the gravity, circumstances of the crime. It is not necessary that the reformative theory should be applied on the juvenile offenders only; it can also be applied to the first time offenders. And on applying such the court can examine the gravity circumstance, social status, prerecord of the offender, such in case of Trisha murder case though the offender attain puberty but he hasn’t such pre-record of crime he just proposed her of love he hadn’t the intention to kill her even he didn’t touch her when she drown into the water. But the court sentenced him to death. It is applicable to the offender of Rumi murder case who was a hardened criminal and have many pre-records of crime. The courts of Bangladesh doesn’t apply the ordinance that named the probation of offenders ordinance, 1990 which can be applied as a reformative theory of Bangladesh. Probation means to give persons of a particular type a chance of refromation. Which they would not get if sent to prison and it may for one to three years under the supervision of the probation officer. This type of punishment can be used to juvenile and in case of the offender of Trisha murderer, to pick-pockets. Few days ago the court applied a punishment well known as parole to the teachers of Dhaka University which is also one kind of reformative theory of punishment. In practicing preventive theory of punishment in Bangladesh is seen in case of cancellation of driving licenser prevent him drive further (In Bangladesh under section 54 of the code of the court) So, in practicing of theories of punishment in Bangladesh deterrent and retributive is always prevailed. Whereas, now a days other countries give emphasis on reformative theory of punishment other than the deterrent and retributive theories of punishment such as – in a case of Buttalo. New York, forty five years old man video tapped his rape of a thirteen years old girl and was sentenced to thirty weekends in jail. The judge admitted that he imposed that it was a light sentence but explained that he imposed that penalty that he imposed that penalty because if the defendant were sent to prison, his children would be placed in foster care. The offender was placed on five years probation, ordered not to drink alcohol and to apologize to the victim. Though it is a heinous crime in Bangladesh but some lower grades of crime can be experienced under the reformative theory of punishment. More over the courts of Bangladesh shouldn’t focus on the crime only it should see the situation, status,
background which will ensure the proper application of the theories of punishment and also ensure the ends of justice.
Chapter 4 STATISTICS OF THE DECISIONS OF THE COURTS OF BANGLADESH OF LAST TEN YEARS
Samad Sikdar @ Samed Sikdar vis State Nurul Huq alias Md. Nurul Hoque vs State Abul Hossain Mollah alias Abu Mollah vs State Altaf Hossain vs State Mahbubul Alam vs State Abdur Rahman & others vs State
DLR No. Vol – XLIX Vol – XLIX Vol – XLIX Vol - L
Vol - L Vol - L Vol - L Vol - L
Conviction in Trial Court Transportation for life One year rigorous imprisonment Six moths rigorous imprisonment & 5,000 Tk. fine Four years Rigorous Imprisonment & to respondent 1 & 2 and one year rigorous imprisonment & five Tk. 5,000 to Respondent 3 Rigorous Imprisonment & to respondent for life & Tk. 5,000 in default one year rigorous imprisonment One year Rigorous Imprisonment & fine Tk. 1,000 in default three months rigorous imprisonment Four years Rigorous Imprisonment & a fine Tk. 10,000 in default three moths rigorous imprisonment Rigorous Imprisonment for life & a Tk. 10,000 in default rigorous imprisonment for 6 months
Conviction in Appeal Court Acquittal Acquittal Six moths rigorous imprisonment & 5,000 Tk. fine Acquittal Rigorous imprisonment & to respondent for life & Tk. 5,000 in default one year rigorous imprisonment Conviction allowed Two years rigorous imprisonment Acquittal
Rigorous imprisonment for one year Vol - L
Conviction allowed One year’s Rigorous imprisonment
Vol - L II
Acquittal
14
Case Name State Vs Golan Mostafa & Others) Md. Rezauddin Ahmed vs State & other Sorbesh Ali and another vs Jarina Begum & other 1997 State – vs – Raihan Ali Khondkar & others
Mawlana Abdul Hye vs State Lutfur Rahman alias Arju and another vs State State vs Md. Minhazzuddin Khan Mirza Abdul Hakim, son of Zainal Mondal and others vs State Abdul Khaleque Master and others vs State Abdul Hashem (Md.) @ Bachu Fakir and others vs State Mahmudul Islam alias Ratan vs State Rajib Kamrul Hasan and 3 other vs State
DLR No. Vol - L
Conviction in Trial Court Rigorous imprisonment for two year and a fine of Tk. 10,000 in default three months rigorous imprisonment
Conviction in Appeal Court Conviction allowed
Rigorous imprisonment for 10 year Vol - L
Vol - LI
Vol - L II
Vol - L II Vol - L II Vol - L III Vol - L III
Conviction allowed Rigorous imprisonment for four year and a fine of Tk. 60,000 in default three months rigorous imprisonment Rigorous imprisonment for 4 year and a fine Tk. 5,000 in default 6 months rigorous imprisonment Rigorous imprisonment for life and a fine of Tk. 10,000 in default one year rigorous imprisonment to accused No. I and rigorous imprisonment for three years and fine Tk. 10,000 in default rigorous imprisonment for 3 months to 2-9 accused petitioner. Rigorous imprisonment for life Imprisonment for life and a fine of Tk. 5,000 in default rigorous imprisonment for one year Rigorous imprisonment for 10 years and fine Tk. 5,000
Acquittal
Acquittal
Conviction allowed Conviction allowed Conviction allowed Conviction allowed
15
Case Name
DLR No.
Conviction in Trial Court
Vol – LIII
Imprisonment for life and fine Tk. 5,000
Vol – LIII
Imprisonment for life and a fine of Tk. 15,000 in default to rigorous imprisonment for 3 years
Conviction in Appeal Court Rigorous Imprisonment for 10 years and fine of Tk. 500 in default to rigorous imprisonment for 1 months Acquittal
Vol – LIV
Death sentence
Conviction allowed
Vol – LIV
Imprisonment for life
Conviction allowed
Vol – LIV
Imprisonment for life and a fine of Tk. 3,000 in default rigorous imprisonment for 3 moths and sentenced to death to others
Conviction allowed
16
Case Name Abdul Khaleque vs State Nibir Chandra Chowdhury and others vs State State vs Monu Miah and others Ilias Hussain (Md) vs State Delwar Hossain Khan vs State Giasuddin and others vs State Mobarak Hossain alias Mobarak vs State Moinul Haque (Md) another vs State Ershad Ali Sikdar vs State Pannu Mollah & another vs State
Vol – LIV
Death sentence
Conviction allowed
Vol – LVI
Imprisonment for life
Conviction allowed
Vol – LVI
Death Sentence
Conviction allowed
Vol – LVI
Death Sentence
Conviction allowed
Vol – LVI
Rigorous imprisonment for 10 years
Acquittal
DLR No. Vol – LVI
Conviction in Trial Court Imprisonment for life and a fine of Tk. 5,000 in default rigorous imprisonment for 2 years
Conviction in Appeal Court Conviction allowed
Vol – LVI
Death Sentence
Conviction allowed
Vol – LVI
Rigorous Imprisonment for 13 years
Conviction allowed
Vol – LVII
Imprisonemnt for 2 years and a fine Tk. 500
Conviction allowed
Vol – LVII
Death
Conviction allowed
17
Case Name Haider Ali and others vs State Abdul Bashir alias Baschu vs State Jashimuddin vs State Mushur Mia @ Iqbal vs State Ershad Ali Sikdar (Md) vs State Atiquzzaman Khan (Md) vs State ASI Md. Ayub Ali Sardar and another vs State Abul Kalam Azad alias Ripon (Md) vs State Yogeshwar Gope vs State
Vol – LVII
Rigorous Imprisonment for 2 years and a fine of Tk. 20,000
Fine reduced to Tk. 5,000
Vol – LVIII
Death Sentence
Conviction allowed
Vol – LVIII
Death Sentence
Conviction allowed
Vol – LVIII
Death Sentence
Conviction allowed
CHAPTER 5
CASE STUDY Samad Sikdar @ Somed Sikder & Md. Abdul Mannan Sikdar -Accused Petitioner V State -Respondents 50 (1998) DLR (AD) Fact The accused petitioners along with others on 11.9.89 at about 8.00 A.M being armed with deadly weapons by forming an unlawful assembly came to cut a away jute from land of deceased Haem Sikdar who tried to resist the accused persons. At this accused Abdul Mannan Sikdar dealt a katra blow on the right side of the chest of deceased an a result of which he fell down on the ground. The other accused persons also assaulted the deceased causing serious bleeding injuries on different parts of the body subsequently the deceased died in Jazira Hospital. Decision The accused petitioners were sentenced to suffer rigorous imprisonment for life and also to fine of Taka 5,000 each, in default to suffer rigorous imprisonment for one year more by the trail court and the sentence also maintained by the appellate division. Reasoning (i)
The accused persons being armed with deadly weapons formed an
unlawful assembly and came to cut away jute form the land of deceased Hatem Sikder. (ii)
The accused Abdul Mannan Sikdar gave a katra blow on the right side
of the chest of deceased Hatem Sikder and accused Samad Sikder also dealt a ram dao blow on the back of the victim. (iii)
The others accused persons also assaulted the victim causing serious
bleeding injuries on different parts of the body and caused death.
Azizul Hoque (Md) -Petitioner V State -Respondents 51 (1999) DLR. (AD) 217, Fact The petitioner was Bench Assistant in the Court of Thana Magistrate, Kurigram in 1985. In that Court, a certificate case bearing No. 156 of 1985 under section 406 of the penal code started against Khijuruddin and on the basis of process issued by the Court in that case Khijuruddin was arrested on 8.11.87. After his arrest his wife Nurun Nahar Begum came to the court of the Magistrate and talked to the accused petitioner and handed over Taka 3,093.00 to him for the depositing the money in the certificate case. The accused-petitioner after accepting the amount prepared a recall order under section 248 of the code of criminal pricedure and gave a photocopy of that order to Nurun Nahar. Khijiruddin got release from the thana on the basis of that false order. No file was put up before the learned Magistrate by another bench
Assistant, fresh warrant was issued and again
Khijiruddin was arrested and then the recall order was shown and in this way thee forgery of the accused was detected. Decision The accused petitioner was sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Taka 3,093, in default to suffer rigorous imprisonment for another 2 months by the Trial Court and the Higher Court also hold the same decision of the Trail Court. Reasoning (i) The accused after accepting the amount of Taka 3,093 prepared a recall order under section 248 of the code of criminal procedure and gave photocopy of that order to Nurun Nahar.
Abdul Bashir alias Bashu -Petitioner V State - Respondent 56 (2004) DLR. (AD) 207 Fact On September 16, 1995 in the morning the condemned prisoner with his tractor tried to cross PW 1’s land which was made ready for transplanting of paddy saplings and transplanting of paddy saplings was going on, he was stopped by PW 1 and thereupon prisoner left his tractor by the side of the land of the PW 1 and went to his house and the informant went to the west to see the land where paddy saplings earlier transplanted by him. The condemned prisoner being armed with a ‘Dao’ arrived at the land where PW I’s son, Hazrat Ali was transplanting paddy saplings and upon attacking him inflicted prisoner and another and thereupon they were put on trial. Decision The condemned prisoner was sentenced to death by the Trial Court and the Higher Courts also maintained the sentence. Reasoning (i)
The dispute arisen when the condemned prisoner Abdul Bashir was
stopped by PW 1 who was tried to cross PW1’s land which was ready for transplantation of paddy saplings and transplanting of paddy. (ii)
The condemned prisoner attacked Hazrat Ali and gave dao blows on
different places of his body and caused his death. (iii)
He also inflicted DAO blows on Jhulekha Khatun and injured her so
badly and caused her death. (iv)
He also gave DAO blows on several place of Zaynab Bibi’s body and
injured her.
Jashimuddin -Petitioner V State -Respondent 56 (2004) DLR (AD) 223 Fact Sukur Ali, Sub-Inspector of police being the informant lodged a first information report with Delkuchi Police Station on 28.3.2000 alleging that he along with others at the time of the petrol duty at night in Mukul bazaar found that two persons were going at Moshpati. They challenged them, then they tried to flee away but one of them was caught and after integration he told that his name was Jashimuddin of Shaik para, PS. Ramganj, District Noakhali and on searching his body they recovered one bomb and four bullets from his pocket. He also stated that they have committed docoity in the market and others fled away. Decision The accused petitioner was sentenced to rigorous imprisonment for 13 years by the trail court and by the Higher Courts Reasoning (i)
The accused persons committed dacoity in the market and tried to fled.
(ii)
The informant Sukur Ali is a sub-inspector recovered one bomb and
four bullets from the accuser’s pocket.
ASI Ayub Ali Sardar and another -Petitioner V State -Respondent 58 (2006) DLR. (AD) 13 Fact On 21.9.1990 Abdul Aziz, brother of Abdul Kader Mirdha, PW1 and his son went to cultivate their land while co-accused Mokbul Mirdha and other forcibly entered into the land of plot No 216 with the help of some police personnel and attacked Abdul Aziz and his son came back home and that thereafter accused Shamsul Huq and others including accused petitioners Ayub Ali and Sagir Ahmed along with Sanoo and others into his house and then Amzad Khan forbade them to enter inside the house and then accused Sanoo asked petitioners Ayub Ali and Sagir Ahmed to open fire and finish and then accused petitioner Ayub Ali fired at Abdul Aziz and Sagir Ahmed fired at Amjad Khan form their rifles and Aziz and Amzad died instantly and the accused Sattar and others tried to remove the dead bodies but the neighbors came forward and on their resistance the accused could not succeed to remove the dead bodies and the Abdul Kader Mridha informed the matter to the superintendent of police. Decision The accused petitioners were sentenced to death in trial court as well as in appellate Division. Reasoning (i)
Accused Mokbul Midha and others forcibly entered into the land of
Abdul Aziz with the help of some police personnel and attacked Abdul Azia and his son. (ii)
The accused petitioners with raided deadly weapons the house of
Abdul Kader and fired at Abdul Aziz and Amjad Khan and they died instantly. (iii)
The police are for to maintaining the law and order but they commit a
heinous crime.
Jogeshwar Gope -Petitioner V State -Restitoner 58 (2006) DLR. (AD) 73 Fact Susanta Gope, son of Zayanta Gope, was sleeping in his house on the 8 th Baishak 1404 at about 3.00 A.M. while the accused petitioner along with other accused went to his house and then the petitioner and other called him and then the inmates viz Susanata his father Jayanta Gope, mother Shandha Rani Gope and sister Protima Gope and Shulekha gope woke up and kupi light was lit and that when they opend the door the accused petitioner and co-accused shiraj Gope wanted to enter the house by force and while Shanda Rani Gope obstructed she was assaulted by accused Jogeshwar and accused shajal gope also assaulted her with dagger causing bleeding injuries and accused Subash and Shajal Gope assaulted Zayanata Gope with dagger and when Susanta Gope came out of the house the accused petitioner Yogeshwar assaulted him with dagger and Susanta gope then fell down and on hearing the hue and cry raised by the inmates. Neighbors came forward thereafter Susanta gope was taken to Hobligonj and was declared dead. Decision The accused petitioner was sentence to death in trail court but the sentence was modified by higher court to imprisonment for life. Reasoning (i)
The accused petitioner along with others forcibly entered into the
house of the victim, Susanta gope. (ii)
They assaulted Sanda Rani Gope and Jayanta Gope with dagger and
caused bleeding injuries. (iii)
The accused petitioner assaulted Susanta Gope with dagger and he fell
down and on the way of hospital he died.
Saidur Rahman Neuton and others. -Accused petitioner V State -Respondent 45 (1993) DLR. (AD) 66 Fact On 4.12.1998 at about 8.00 P.M. the informant victim PW 4 Sultana Begum was returning to her husband’s house at Monipuri Para and when she reached near ‘‘Soni Cinema Hall’’ four persons stopped her rickshaw and forcibly abducted her after holding her mouth tight. She was kept confined in a room for an hour after breaking open the lock of that room. There they switched on a TV with blue film and they forcibly ravished her one after another. On being resisted by her one of her teeth and causing bleeding form her mouth. In the morning they let her go away. From the said room police seized TV, VCR, three cassettes and air gun. Decision The Trail Court sentenced the accused appellants to suffer rigorous imprisonment for seven years and to pay a fine of Taka 500, in default to suffer rigorous imprisonment for three month more each. And the Higher Court affirm the sentence. Reasoning (i)
The victim, Salma Begum was abducted forcibly holding her mouth
tight by the accused persons. (ii)
She was kept in a room for an hour. They took her another place from
that place where they switched on a TV with blue film and they forcibly ravished her one after another. (iii)
One of them of being resisted by her, struck on her cheek by a gun and
pulled one of her teeth and caused bleeding form her mouth
Hazrat Ali and others -Condemned Prisoners-Appellants V State -Respondent 44 (1992) DLR. (AD) 51 Fact This case arises out of a suo motu first information report filed by Tapani Kumar Sub- inspector of police, Bamna police station while investigating the police station case No. 2 dated 23.5.85 lodged by accused Shamsul Haque, wherein he alleged that his step-mother deceased Johura Khatun was murdered by some unknown persons in the night following 22.3.85 at her dwelling hut, During the course of investigation the police officer found the case filed by accused Shamsul Haque as false and consequently filed this suo motu FIR Tapan Kumar piplai interrogated Shamsul Haque, his elder brother Hazral Ali and his sisters husband Abdul Khaleque who stated to him that they in furtherance of their common intention committed the murder of Zahura Khatun at about 8.00 P.M. in the night following 22.3.85 while she was offering her Esha prayer. Decision Appellant No. 3 Shamsul Haque was set free and appellant No. 2 Hazrat Ali sentenced to imprisonment for life and appellant No. 1 Abdul Khaleque was sentenced to death. Reasoning (i)
The accused Hazrat Ali confessed that he and other accused made a
conspiracy to murder Zahura Khatunand was standing outside room at the time of incident. (ii)
The accused Abdul Khaleque confessed that he inflicated dao blows
on the face and neck Zahura Khatun. (iii)
The shasul Haque confessed that at the time of occurrence he was
taking his evening meal in the courtyard according to other accuseds instruction he show them torchlight and after the occurrence according to the dictation of the co-accused he cried out.
CHAPTER 6
CONCLUSION Application of the theories of punishment is an integral part of a judicial system. Day-by-day its application is developing all over the world. Most of the countries are utilizing the proper theory on the proper offender and offenders. But with the changes of the judicial systems of other countries on application of the theories of punishment, courts of Bangladesh are far away from them.
In that modern
century the courts of Bangladesh is still practicing only the deterrent and retributive theory. Moreover, it depends upon the fact, circumstance, intention or motive injury or degree of the offence. Though those factors only can be used on the gravity of the offence but it can not be used as the ends of justice. To ensure justice there should be a proper investigation of the offender, where the offender is habitual or first time offender, social status, race, age and sex of the offender. And for this, theories of punishment play an important role to convict an offender which is cordially acceptable by the society.
It is the object of the law and the society to abolish the crime not the criminals. It might be took place to convict an offender by deterrent or retributive theory. But sometime it is applied upon such offender who can be convicted by reformative theory. General it is the ignorance of the justices of Bangladesh about the theories of punishment. They do not know the proper utilization of the theories of punishment. And this situation can be changed by providing judicial training on the application of the theories of punishment. By which they can convict an offender in a right way. Lastly, it can be said that a proper application of the theories of punishment can give justifiable decisions in judicial arena.
REFERENCES Books 1. Tureen Afroz, Bangladesh Journal of Law, Sentencing Practices, Bangladesh Institute of Law and International Affairs, November 2007. 2. Noshiiruan H. Jhabvala, The administration of Justice, The elements of jurisprudence, C. Jamnades & Co. Twenty-third edition. 3. V.D. Mahajan, Administration of Justice, Jurisprudence and legal theory, Eastern Book Company, fifty edition, 2003. 4. Jeffire G. Murphy, Crime and Punishment, Philosophy of Law, an introduction to jurisprudence Oxford University Press, 2004. 5. Prof. N.V. Paranjape, Theories of Punishment, Criminology and Penology, Central Law Publications, Twelfth Edition, 2007 6. Sue Titus Reid, Crime & Criminology, Mc. Graw Hill, Eighth Edition, 1996. 7. Ahmed Siddique, Criminology: Problems & perspective, Eastern Book Company, Third Edition, 1993. 8. Salmond, Jurisprudence, Twelfth edition, 1966. Judicial Decisions 1. Bazlue Talukdar & others vs. State (20 BLD 227) 2. Hafiz Abdul Khair Vs State (29 DLR (Sc) 2) 3. Ratan Kha vs State (40 DLR 116) 4. Abdul Kalam vs State (5 BLC 230) 5. Nature of conviction in last ten years (1997-2006) DLR.
Table of Cases Samad Sikdar @ Somed Sikder & Md. Abdul Mannan Sikdar V State 50 (1998) DLR (AD) Azizul Hoque (Md) V State 51 (1999) DLR. (AD) 217 Abdul Bashir alias Bashu V State 56 (2004) DLR. (AD) 207 Jashimuddin V State 56 (2004) DLR (AD) 223 ASI Ayub Ali Sardar and another V State 58 (2006) DLR (AD) 13 Jogeshwar Gope V State 58 (2006) DLR (AD) 73 Saidur Rahman Neuton and others V State 45 (1993) DLR. (AD) 66 Hazrat Ali and others V State 44 (1992) DLR (AD) 51 Abdul Hakim @ Lokman Hakim V State 41 (1989) DLR (AD) 126 Lal Miah alias Lalu V State 41 (1989) DLR (AD) 1