'Disproportionate & Unwarranted': Orissa High Court Commutes Death Penalty Of Man Convicted For Triple Murder

The Orissa High Court on Wednesday commuted the death penalty imposed upon a man convicted by the trial Court for commission of murder of three members of a family, including two women, in order to wreak vengeance relating to a landed property dispute.

While handing down life imprisonment to the condemned prisoner so also to the co-accused, the Division Bench of Justice Sangam Kumar Sahoo and Justice Chittaranjan Dash held–

“We are of the view that public opinion or the society's expectation may be to confirm the death sentence of appellant Nabin Dehury since it is a case of triple murder and two deceased were ladies, but it must be remembered that such opinion or expectation is neither an objective circumstance relating to crime, nor the criminal, and therefore, this Court must exercise judicial restraint and play a balancing role.”

Prosecution Case

The appellant Nabin Dehury was accused of committing murder of the deceased Giridhari Sahu by giving him fatal blows by means of a 'tangia' (axe). After such assault, he proceeded to the second spot of occurrence where he committed the murder of the deceased Pirobati Behera and Sabitri Sahu by means of axe blows.

The appellant Hemananda Dehury was accused of aiding the appellant Nabin Dehury by restraining the deceased Sabitri Sahu while she was attempting to rescue the deceased Pirobati Behera. He was further accused of dragging Sabitri Sahu by her hair, which facilitated the fatal assault on her by the appellant Nabin Dehury.

Getting information about the occurrence, the police took up the investigation and upon its completion, the police filed charge-sheet against the appellants under Section 302/34 of the IPC. The trial Court, after analyzing the evidence on record, found both the appellants guilty of the offence charged and sentenced appellant Nabin Dehury to death and appellant Hemananda Dehury to imprisonment for life.

The trial Court referred the matter to the High Court, as per the provision under Section 366 of the CrPC, for confirmation of the death penalty imposed upon one of the appellants. The appellant Nabin Dehury filed a jail criminal appeal and appellant Hemananda Dehury filed a criminal appeal challenging their respective convictions.

Discrepancy vis-à-vis Inquest Report

It was highlighted on behalf of the appellant that the witness, who saw the infliction of assault on the deceased Giridhari Sahu, did not mention anything about involvement of appellant Hemananda Dehury in the murder of Giridhari Sahu. However, the name of appellant Hemananda Dehury was recorded as an assailant in the inquest report, in which the said witness was a signatory.

But the Court opined that the even though the appellant Hemananda Dehury was recorded as an assailant in the inquest report, the same in itself cannot lead to a conclusion that the witness has in fact not witnessed the incident. Such discrepancy happened, the Court observed, as the columns of inquest report were not filled by the said witness.

Trial Court Not A Recording Machine

The Court underlined that the defence counsel confronted the said witness in the cross-examination regarding statement made by him in the statement made before the police under Section 161 and before the Magistrate under Section 164 of the CrPC. The defence counsel had stressed that the witness did not state that appellant Nabin Dehury gave blows after blows by means of an axe to the deceased Giridhari Sahu.

But surprisingly, when the High Court inspected the case records, it was found that the witness had in fact stated about the assault in his statement recorded under Section 161 of the CrPC. Thus, the Court was perturbed by the fact that the trial Court did not point out absence of contradiction in both the statements.

“Therefore, a trial Judge is not expected to be a mute spectator or a recording machine during trial. He has to be active and dynamic so that errors can be minimized and justice can be done to the parties concerned. He has to monitor the proceedings in the aid of justice…Even if the Public Prosecutor is remiss or lethargic in some ways, the trial Court should control the proceedings effectively so that the ultimate objective, i.e. the truth is arrived at.”

The Bench further observed that when the Prosecutor or the defence counsel confronts the previous statement of a witness to that witness which might have been recorded under Section 161 or 164 CrPC, it is the duty of the Court to peruse such previous statement at the time of confrontation so that error is minimized.

Accordingly, the Court found the statement of the witness to be reliable and trustworthy. It was of the considered view that the trial Court correctly placed reliance upon such testimony.

So far as the murder of deceased Pirobati Behera and Sabitri Sahu is concerned, the Court examined the testimonies of three eye-witnesses, including the evidence of two minor children of deceased Giridhari Sahu and Sabitri Sahu.

Though certain contradictions in their evidence were flagged by the Amicus Curiae appearing for the appellants, the Court found their testimonies to be reliable.

Premeditation & Leading To Discovery

From the evidence on record, it came to the light that there was a long-standing civil dispute between the deceased Pirobati and the appellant Nabin Dehury. P.W.5 also deposed in that respect and stated that two to three civil suits were instituted in which deceased Pirobati had got favourable decrees.

The Court noted some peculiar features of the case which clearly indicate towards culpable mental state and premeditation on the part of the appellant Nabin Dehury. It stressed that the appellant chose a weapon of offence which was heavy and deadly in nature. Further, he inflicted the wounds on the vital parts of the bodies of the deceased.

Furthermore, the appellant Nabin Dehury made a very vital declaration after committing the murders. He shouted and declared to have killed deceased Giridhari Sahu before coming to kill the rest two deceased. Moreover, the weapon of offence, i.e. 'tangia' was recovered by the police from a straw heap on the basis of recovery evidence rendered by the appellant under Section 27 of the Evidence Act.

Safe Custody Of Weapon & Ante-timing Of FIR

The counsel for the appellant, however, argued that the recovery evidence has no value as there is no proof as to where the said weapon was kept after the same was dispatched by the doctor and before the same was produced before the forensic laboratory for chemical examination. But the Court discarded such contention considering the fact that the weapon was produced for chemical examination in a sealed condition with the seal of the Court.

A further argument was made that the FIR was ante-timed to suit the prosecution case. But the Court also rejected this contention observing that the investigating officer rightly proceeded for investigation on receipt of the written report and did not wait for the registration of the formal FIR as it was a case of triple murder and immediate action was needed.

Common Intention Of Appellant Hemananda Dehury

It was argued on behalf of the appellant Hemananda Dehury that he was not involved in the commission of the murder as no evidence suggests that he was present at the crime scene when the murder of deceased Giridhari Sahu took place. Also, as per the testimony of the eye-witnesses, he merely restricted/restrained the deceased Sabitri Sahu while she was proceeding to rescue her mother, i.e. deceased Pirobati Behera.

But the Court was of the opinion that the act of the appellant Hemananda Dehury contributed to the culpable act of the appellant Nabin Dehury and accordingly, observed –

“The contributory acts of the appellant Hemananda are no less significant. He had adequate knowledge what offence his father is likely to commit. His presence, his support, his overt act are sufficient to hold that he shared common intention with his father in the assault of the deceased Pirobati Behera and deceased Sabitri Sahu.”

Consequently, the Court found both appellants guilty for the commission of offence under Section 302/34 of the IPC and upheld the life imprisonment imposed upon the appellant Hemananda Dehury.

Justifiability Of Death Sentence

After upholding the guilt of the appellant Nabin Dehury, the Court discussed as to the justifiability of the extreme sentence of death imposed upon him by the trial Court. It lamented that the trial Court did not consider mitigating circumstances while sentencing the appellant.

During the course of argument, the Court had directed the Senior Superintendent, Circle Jail to collect all relevant information regarding the past life of the appellant-convict, psychological condition and post-conviction conduct. It had also directed him to take the assistance of the Probation Officer and also of a Psychologist/Jail Doctor to assess the mental state of the appellant.

In pursuance of such order, the concerned official had submitted a report which suggested that the appellant had good relations with the co-villagers and his post-conviction conduct also remains satisfactory.

It, however, came to light that due to the long-standing ancestral property dispute between the two families, the appellant used to remain 'upset' and was also taking medications for combating mental trauma.

“…the mitigating circumstances, including the psychological distress, the appellant's mental health issues, his good attitude, conduct and behaviour prior to the imprisonment, his good behaviour in jail suggest that the death penalty may be disproportionate. While appellant Nabin Dehury‟s mental health issues do not constitute a credible ground for complete exoneration, still it remains a crucial mitigating circumstance,” the Court observed.

The Bench further observed that the appellant comes from a rural and economically poor background. As he lost the legal battle relating to his landed-property, he committed the murder of the three deceased.

“In view of the foregoing discussions and giving our anxious consideration to the facts and circumstances of the case and striking a balance between the aggravating and mitigating circumstances in the case, we are of the humble view that death penalty would be disproportionate, unwarranted and life imprisonment would be a more appropriate sentence,” it held.

Before parting, the Court clarified that the life imprisonments shall mean the remainder of natural lives of the appellants without any remission or commutation. It also directed the State Government to pay compensation to the children and kin of the deceased under the relevant provisions of the Odisha Victim Compensation Scheme, 2018.

Case Title: State of Odisha v. Nabin Dehury & tagged matters

Case No: DSREF No. 01 of 2023, JCRLA No. 118 of 2023 & CRLA No. 693 of 2024

Date of Judgment: August 28, 2024

Counsel for the Appellants: Mr. Debasis Sarangi, Amicus Curiae; Mr. Pranaya Kumar Dash, Advocate

Counsel for the State: Mr. Janmejaya Katikia, Addl. Govt. Advocate; Mrs. Sushama Rani Sahoo, Addl. Standing Counsel; Ms. Gayatri Patra, Advocate

Citation: 2024 LiveLaw (Ori) 71

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