State vs. Oyshee Rahman: Assessment of mitigating and aggravating circumstances

Imprisonment for life. That's the choice our Judiciary made for Oyshee Rahman. But, why? One might say, after a pre-planned, brutal murder of her own parents she deserves the death penalty. Just take a minute to think. Does she really deserve death? Does killing her own parents makes her life worthless?

Have we ever asked, why she killed her parents? Have we ever wanted to know, whether there were any external factors that influenced her to perpetrate such offense? Many of us might acknowledge the judgment in State vs. Oyshee Rahman as an emotional judgment.

But just take a time to think, whether the sentencer was emotional or we? Our collective acrimony towards the convict sometimes creates an invisible external force that pressurizes our Criminal Justice System. Though Judges have the discretion to make a choice between Death sentence and imprisonment for life, still social cry for justice, sometimes, acts as an influencing factor. However, State vs.

Oyshee Rahman is certainly a rare one. Despite the fact that State vs. Oyshee Rahman was one of the sensational cases, yet, the Judiciary has taken a strong stand to balance the conflict between the interest of the victims, the right of the convict and the social cry for justice. The judgment has not only added new dimensions to our criminal justice system but has also re-called the forgotten fundamental principles of our criminal justice system.

One of the crucial features of our criminal justice system is punishment. One fundamental question is: what is the purpose of punishment? A second question could be whether the purpose is being served.  In the State vs. Oyshee Rahman [Death Reference No. 99 of 2015/Criminal Appeal No. 10281 of 2015] High Court Division (HCD) of Supreme Court of Bangladesh has re-called the faded theories that justify punishment in a criminal justice system.

The HCD recognized 5 theories followed by the countries that serve the purpose of punishment, namely, Deterrence, Incapacitation, Rehabilitation, Retribution, and Restitution. One fundamental question is, does our present penal system comply with any of the punishment theories?

One useful way to find the answer is, to analyze, firstly, how the proportionality between the gravity of the offense and the punishment award is maintained. Secondly, weigh the effect of the penal system in the society and on the convict.

Fourthly, examine how far the present penal system ensures victims interest as well as convict's rights. Lastly, inquire about the borderline of a punishment, crossing which would lead one to say that something other than punishment is taking place.

In our criminal system, the sentencing is within the sole discretion of the judges and the judges weigh the mitigating factors presented by the defense against the aggravating factors presented by the prosecution [State vs. Oyshee Rahman Death Reference No. 99 of 2015/Criminal Appeal No. 10281 of 2015].

One imperative question is: how you can weigh the mitigating aggravating factors when your criminal legislation has no exclusive list of such factors? As addressed by the HCD in State vs. Oyshee Rahman, under section 235(2) of Indian Criminal Procedure Code the convicted accused must be given an opportunity of being heard on the question of sentence.

This provision in the Indian Criminal Procedure Code provides the accused an opportunity to place the mitigating factors before the court.  Surprisingly, there is no such provision for a sentencing hearing in our criminal justice system. Then, in which phase of the trial the defense will present the mitigating factor? In which phase of the trial a Judge will weigh the mitigating factors against the aggravating factors?

In Md Yahia and others vs. State [1 MLR (HCD) 59], HCD opined, '...sentence to be awarded should be proportionate to the gravity of the offense.' The imperative question here is, how you can weigh the gravity of an offense when your criminal justice system has no mechanism to weigh the proportionality?

In the judgment of the State vs. Oyshee Rahman, HCD has clearly shown that, since there is no provision for a sentencing hearing in our criminal justice defenses lawyers don't know when to approach the court for lesser sentence. This explicitly conveys the urgency of a sentencing phrase in our criminal justice system.

In the judgment, HCD has also illustrated what factors can be considered as mitigating factors and how these factors effects in sentencing. HCD has also addressed Indian, American and Pakistan's practice in this regard. When we adhere to the HCD's observation on the practice of these countries then we can find these countries have considered 'any relevant factors' to commute the death sentence to life imprisonment.

 'Any relevant factors' namely include, mental health, family history, medical history, education and employment background, remorse, youth, childhood abuse or neglect, a minor role in the homicide, or the absence of a prior criminal record and any other element of an individual's life. In the umbrella of 'any relevant factors' practice, in the case of State vs.

Oyshee Rahman, HCD has considered Osyhee's personal history, family history, mental health, medical health, including her suicidal and drug history which was ultimately turned into five grounds for commuting Osyhee's sentence.

With the judgment of State vs. Oyshee Rahman, our criminal justice system has taken a strong step to balance between victim's interests and offenders' rights. This judgment has adhered to the precedent set out by HCD in 2014 in State vs. Bidhan Chandra Roy [66 DLR (HCD) (2014) 500]. In this cases, HCD opined that "…in sentencing process, two important factors come out which shall shape appropriate sentence (i) Aggravating factor and (ii) Mitigating factor.

 Only by weighing these two factors a sentence can be awarded which will be proportionate to the gravity of the offense. Most importantly, we cannot ignore that offenders are also the citizen of Bangladesh having all the constitutional rights.

Their rights should also be secured to ensure a fair trial. However, without the fair chance to represent such factors that would ensure a proportionate sentence, can a fair trial be ensured? And, without a fair trial can we ensure justice for the convicts? Or, justice means only victim's satisfaction?


The writer is a research assistant at Bangladesh Institute of Law and International Affairs (BILIA). She is also associated with Centre for International Sustainable Development Law (CISDL) as a legal researcher