Authored By: Abdullah Al Fahim
Bangladesh University of Business and Technology
Case Title
Syed Sajjad Mainuddin Hasan vs. State (Criminal Appeal No. 38 of 2009)[1]
Citation
70 DLR (AD) 2018
Court’s Name
Appellate Division
Bench
Five Judges
Chief Justice Surendra Kumar Sinha, Justices Nazmun Ara Sultana, Md Imman Ali, Hasan Foez Siddique, and Mirza Hussain Haider.
Date of Judgment
August 2nd, 2016
Parties Involved
Appellant
Syed Sajjad Mainuddin Hasan
Respondent
State
Facts of the Case
Shajneen Tasnim Rahman (victim), a Class IX student and the youngest daughter of distinguished businessman Latifur Rahman, was raped and murdered. At the same time, she slept in her ground-floor bedroom because a dinner party was being hosted in their house on the first floor. She was raped and murdered from 8:00 to 10:15 PM on 23 April 1998. Latifur Rahman lodged the first FIR (Gulshan PS Case No. 73) that night, suspecting a house servant, Shahidul Islam alias Shahid (accused), who was then missing, and some others.[2]
The investigation was finally initiated by CID Assistant Superintendent Md Mojibur Rahman (PW 1). After his initial inquiry, he submitted a charge sheet against seven suspects, including Shahid. Notably, he had also submitted an independent FIR (Gulshan PS Case No. 12) under the Nari-o-Shishu Nirjatan (Bishesh Bidhan) Act, 1995, against the same suspects for the same incident.[3]
The primary conspiracy charge of Syed Sajjad Mainuddin Hasan, a diploma engineer who was a staff member of the building, formed the core of the prosecution’s charges in the second FIR. The motive lay in an “April 1, 1998, bathroom incident” when Hasan supposedly made a forcible advance on Shajneen. Threats by Shajneen to report her parents ensued, and thus, Hasan felt insulted and opted to kill her. Shajneen only disclosed the episode to her elder sisters and their husbands on a trip. They decided to inform their parents on 24 April 1998, after their mother had recovered from a sickness on their return from India. Satisfied that the tide of revelation was about to turn, Hasan is reported to have ordered the rest of the accused, all the employees/servants, to carry out the plot on the evening of 23 April 1998, at the dinner party. The CID officer also inquired and filed a charge sheet against all the accused mentioned in the second case.[4]
Trial Court’s Decision
The trial took place before the Nari-o-Shishu Nirjatan Daman Bishesh Adalat, which preferred the charges under sections s: 6(1)/6(2) and s: 6(1)/14 / 6(2)/14 of the Nari-o-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995. The Adalat heard 22 witnesses for the prosecution and, on September 2, 2003, held Shahid guilty under Section 6(2) and the other five accused under Section 6(2)/14 and sentenced all six to death.[5]
The Adalat forwarded a Death Reference to the High Court Division. The convicted inmates also filed a Jail Appeal and a Regular Appeal (by Hasan). The High Court Division heard all the issues together and maintained the conviction and death verdicts against all except Shaniram Mondal. The court found the charges proved beyond a reasonable doubt, relying on the key prosecution witnesses and Shahid, Minu, and Parvin’s confession statements.[6]
Issues Raised
(i) Whether a rape was committed before the murder or not?
(ii) Whether the case started based on the second FIR can proceed further or not?
Arguments of the Parties
Appellante’s Argument
Senior Advocate Mr. Khondkar Mahbub Hossain claimed that the convictions of Hasan and the co-accused individuals were unlawful, based on unreliable evidence. His first plea rested on the use of a withdrawn confession: The courts inexplicably relied on co-accused Shahid’s second confessional statement (made months after the crime and later withdrawn as involuntary/torture), over his original statement and his section 342 CrPC statement, which implicated Shahid alone. The defense had claimed that this second confession was uncorroborated, since a co-accused’s confession by itself was not enough for conviction.
The defense also vigorously attacked the prosecution’s motive narrative, the “bathroom incident.” They contended this incident was a later fabrication meant only to frame Hasan. Evidence of this, they contended, was the unimaginable non-disclosure; Shajneen, her sisters, and their husbands did not inform her parents for a considerable period of time, even after the murder, making the entire saga “unbelievable.”
The defense also questioned the credibility of key prosecution witness PW 12, Sufia. Her claim of prior knowledge of the conspiracy was dismissed as unreliable because she did not disclose it until a “very belated stage,” which signified that she was a police-primed witness hired to corroborate Shahid’s second confession fraudulently. The Advocate also concluded that the charge of rape was unfounded (citing lack of spermatozoa in the post-mortem report and Shahid’s section 342 statement that he had not raped) and that the convictions were legally incorrect because the accused had been convicted under a more serious section of the law than on which they had been indicted.[7]
Mr. Mahbub has concluded his argument, submitting to the effect that the accused appellant Hasan, despite being innocent, has been languishing in the condemned cell for a long 18 years.[8]
Respondent’s Argument
The Informant and State, on behalf of the Attorney-General, Mr. Mahbubey Alam, and Mr. Nozrul Chowdhury, upset the defense, indicating that the rape and murder of Shajneen were proved beyond a reasonable doubt.
They contended that Shahid’s confession statement was voluntary, honest, and well-substantiated by the testimonies of PWs 2, 3, 4, 5, 12, and 13, which proved that Hasan’s conspiracy was motivated by Shajneen’s threat to expose his unwanted advance (the bathroom incident). The delayed revelation of the bathroom incident was adequately explained by the witnesses and substantiated by the indignant outbursts of Shajneen against Hasan on April 21 and 23, 1998.
They contended that PW 12 Sufia had postponed her revelation for fear of Hasan and Badal, hence her subsequent testimony cannot be questioned. Moreover, accused Minu’s confession and the 23 injuries on the victim (suggesting multiple perpetrators) proved the truthfulness of Shahid’s second confession. Hasan’s question to Shahid at the CID office also lent strength to the conspiracy. They maintained that the High Court Division rightly sustained the convictions.[9]
Judgment/ Final Decision
(i) The prosecution’s strong argument in this case is that Shajneen was raped before being murdered. In this instance, it has also been established beyond a reasonable doubt that the accused Shahid raped the victim Shajneen. When the victim attempted to resist, the accused Shahid used a sharp cutting weapon to injure her multiple times, which ultimately led to her death right away.[10]
(ii) The accused-petitioner Shahidul Islam Shahid, son of Siddique Molla, is nonetheless found guilty and given the death penalty.[11]
(iii) Let the convict-appellant Hasan be acquitted of the charge and be set at liberty forthwith if not wanted in connection with any other case.[12]
(iv) Sessions Case No. 98 of 1999, which was ongoing in the 1st Court of Metropolitan Additional Sessions Judge, Dhaka, should be withdrawn due to its duplicate nature.[13]
(v) However, it is decided that the Code of Criminal Procedure (V of 1898) Criminal Appeal No. 38 of 2009 is permitted in light of the aforementioned observations, conclusions, and rulings.[14]
Legal Reasoning / Ratio Decidendi
(i) Sec: 342 of the Code of Civil Procedure, 1898: Shahid attempted to conceal the rape in his section: 342 statement; however, his confessions made in two earlier statements described the crime. This was the basis upon which the tribunal and the High Court rejected his late endeavor to deny the rape. It has been proven beyond a reasonable doubt that the victim, Shajneen, was raped before being murdered.
It was also observed by the Court that the lack of spermatozoa does not negate the possibility of rape, as it is not necessary to establish this charge.[15] The apex court has held that full penetration is not necessary; instead, partial penetration suffices. The ‘Nari-o-Shishu Ain’ embraces the notion that the mere act of penetration constitutes rape, and Section 375 of the Penal Code also affirms that penetration in any capacity constitutes rape.
(ii) Sec: 6(2) of the Nari-o-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995: The crime of rape followed by the murder of a victim shall fall under Nari-o-Shishu Ain (S 6(2)). In the present case, evidence has established that Shajneen was raped before she was murdered, and this is a punishable offense.[16]
(iii) Sec: 32(1) of the Evidence Act, 1872: A statement by a deceased person about facts that lead to their death is admissible evidence. The prosecution has asserted that the deceased victim Shajneen’s statement about the “bathroom incident” amounts to evidence of her rape and murder conspiracy. The defense contends that because there was a delayed disclosure of the witnesses, the evidence can no longer be given great weight, and this must be assessed.[17]
(iv) Art: 104 of the Constitution of Bangladesh, 1972: The original case, section: 302/334 Penal Code, based on the First Information Report (FIR) and Shahid’s confession of rape and murder is clearly noted within the Nari-o-Shishu Ain, 1995. The investigating officer committed a crime by writing a charge sheet under section 302 and by filing a separate FIR under the special law, delaying and wasting court proceedings.[18]
The court judgments failed to convert the original section 302 sessions case Complaint to the Nari-o-Shishu Ain as a result of the illegal second FIR. However, given that almost 18 years have passed since the commencement of the section 302 sessions case and appellate court, and our case has now run its full course and formed a conviction, the Court will not quash the entire proceeding in conclusion. The court will maintain the existing case proceeding, under Article 104, to achieve complete justice.[19]
Conclusion and Observation
The final verdict established that Shahidul Islam, alias Shahid, was guilty of the rape and murder of Shajneen Tasnim Rahman, and he was sentenced to death. The conclusion that rape occurred was accepted based on Shahid’s prior admissions of guilt and the principle that penetration was sufficient. Syed Sajjad Mainuddin Hasan was released with an acquittal of conspiracy after 18 years in the condemned cell. The text noted the strength of the defense’s argument that the courts relied on co-accused Shahid’s second confession, which was eventually withdrawn, stating it was unlawful and uncorroborated; however, it explicitly stated Hasan was acquitted. The defense contested the prosecution’s motive as a narrative, the “bathroom incident”, as baseless and a means to frame Hasan, saying it was not credible in reference to the testimony of witnesses delaying the report of the incident. While the overarching case regarding Shahid’s guilt in rape and murder was maintained under Article 104, Hasan’s failure to be proven guilty of conspiracy beyond a reasonable doubt led to his acquittal after an extended period of incorrect incarceration.
Reference(S):
Cases
Moinul Haque v State 56 DLR (AD) 81
Syed Sajjad Mainuddin Hasan 70 DLR (AD) (2018)
Statutes
The Constitution of Bangladesh, 1972
The Code of Criminal Procedure, 1898
The Evidence Act, 1872
The Penal Code, 1860
Nari-o-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995
[1] 70 DLR (AD) 2018
[2] Para 3
[3] Para 4
[4] Supra Note 2
[5] Para 5
[6] Para 6
[7] Para, 9
[8] Para, 10
[9] Para, 11
[10] Para, 77
[11] Para, 87
[12] Para, 85
[13] Para, 82
[14] Para, 83
[15] Moinul Haque vs State 56 DLR (AD) 81
[16] Supra Note 1, para 77
[17] Ibid, para 31, 32
[18] Ibid, para 80
[19] Ibid, para 81
