The State vs Md. Roushan Mondal @ Hashem
Citation : 26BCR (2006) (HCD)275
Jurisdiction : Bangladesh
Appellant : Md. Roushan Mondal @ Hashem (Defendant, in the court of first instance)
Respondent : State (Plaintiff, in the court of first instance)
Facts :
An 8-year-old girl named Rikta Khatun went missing on the night of 15 October 1999. Her body was discovered the following morning in a turmeric field near her home. Her father filed an FIR, but no accused was named. During investigation, police arrested Md. Roushan Mondal, who was only 15 years and 21 days old at the time. A man named Kamal handed him over to the police but he (Kamal) wasn’t examined, even though they had a prior land dispute and clash.
During the investigation, Roushan gave a confessional statement before a Magistrate. Then, the police submitted a charge sheet under Section 6(2) of the Nari-o-Shishu Nirjatan Daman Ain, 1995. Here, the Sessions Judge determined Roushan’s age to be 15 years and 21 days. Consequently, he transferred the case to the Nari-o-Shishu Nirjatan Daman Tribunal, where the presiding judge then purported to act as a Juvenile Court and framed charges.
Although he was formally determined to be a child under Section 66 of the Children Act, 1974, the Nari-o-Shishu Nirjatan Daman Tribunal wrongly tried him under the special law without adhering to juvenile procedures. The prosecution had no eyewitnesses and relied solely on a confessional statement. It was recorded three days after an arrest following an illegal detention and police torture, which rendered the confession involuntary. Relying mainly on the questionable confession and weak circumstantial evidence, the Tribunal convicted the boy under Section 6(2) of the Nari-o-Shishu Nirjatan Daman Ain-1995 and sentenced him to death. The matter then came before the High Court.
Issues :
1. Whether the trial and conviction were lawful when the accused was a minor and the Nari-o-Shishu Nirjatan Daman Tribunal tried him without complying with the mandatory procedures of the Children Act, 1974.
2. Whether the conviction and death sentence could be sustained when the confessional statement was involuntary and there was no eyewitness or reliable circumstantial evidence.
Decisions :
The High Court Division held that the entire trial was without lawful jurisdiction. Since the accused was found to be a minor under 16, the case had to be tried exclusively by a Juvenile Court under the Children Act, 1974. The Nari-o-Shishu Nirjatan Daman Tribunal had no authority to try a child. Moreover, it could not exercise the role of a Juvenile Court especially. Concomitantly, the High Court Division held that Juvenile Court cannot impose the death penalty. This made the conviction and sentence legally invalid.
The court noted that 11 prosecution witnesses were examined during the original trial, while the defence called none, indicating that the defence considered the prosecution’s case weak. Again, from the cross-examination and the accused’s Section 342 statement under the Code of Criminal Procedure, 1898, it was clear that he reiteratively claimed innocence. The Court further found that the confessional statement was involuntary. It also mentioned that the confessional statement was obtained after illegal detention and police torture. Therefore, it could not be relied upon. Most importantly, the victim’s father never named or suspected Roushan at any stage neither in the FIR nor in his testimony. He even stated that the accused had no involvement in his daughter’s murder. This further weakened the prosecution’s case.
As there was no eyewitness and no circumstantial evidence connecting the accused to the crime, the prosecution failed to prove his guilt. The Court observed that remanding the case for a fresh juvenile trial would be meaningless, as no new admissible evidence could possibly emerge. Ultimately, the High Court Division set aside the conviction and the death sentence and allowed the appeal. The Court then acquitted Roushan of all charges and directed that he be released at once.
Relevant Laws :
- The Code of Criminal Procedure, 1898
- Section : 342
- The Children Act, 1974 (Repealed)
- Section: 66
- Nari-o-Shishu Nirjatan Daman Ain, 1995 (Replaced by the Nari-o-Shishu Nirjatan Daman Ain, 2000)
- Section: 6(2)
Author :
1. Farah Arifin
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