Basanta Dehury vs State Of Odisha
2023 Latest Caselaw 8537 Ori

     IN THE HIGH COURT OF ORISSA AT CUTTACK
                   JCRLA No. 37 of 2020
                  CRLA No. 416 of 2021 &
                   CRLA No. 417 of 2021

                         ---------------
In the matter of Appeals from the judgment of conviction and
order of sentence dated 31st August, 2020 passed by the
learned Additional Sessions Judge, Keonjhar in S.T. Case No.
26/53 of 2015.

JCRLA No. 37 of 2020
Basanta Dehury                      .......            Appellant
                    - Versus -

State of Odisha                     .......       Respondent

CRLA No. 416 of 2021
Mitu Mallik                         .......            Appellant

                    - Versus -

State of Odisha                     .......       Respondent

CRLA No. 417 of 2021
Goutam Penthei                      .......            Appellant

                    - Versus -

State of Odisha                     .......       Respondent


Advocate(s) appeared in these cases:-
_________________________________________________________
  For Appellants    : M/s. Bhabani Sankar Das,
                      D. Marandi, S. Sahoo & L. Behera,
                      Advocates (In all the appeals)

   For Respondent : Mr. S.K. Nayak,
                      Addl. Government Advocate
                      (In all the appeals)
_________________________________________________________

                                                   Page 1 of 24
 CORAM:
     MR. JUSTICE D. DASH
     MR. JUSTICE SASHIKANTA MISHRA

                       JUDGMENT

th 4 August, 2023

The conviction of all the three appellants under

Sections 302/450/34 of IPC by the learned Additional

Sessions Judge, Keonjhar vide judgment dated 31.08.2020 in

S.T. Case No. 26/53 of 2015 having been confirmed by us by

our judgment dated 27.03.2023, the present order is on the

question of appropriate sentence to be imposed on them. Be

it noted that the convict-appellants having been convicted as

aforesaid were sentenced to undergo imprisonment for life

and to pay a fine of Rs.10,000/- each, in default, to undergo

rigorous imprisonment for six months each under Section

302 of IPC and to undergo rigorous imprisonment for five

years and to pay a fine of Rs.5,000/- each, in default, to

undergo rigorous imprisonment for three months each under

Section 450 of IPC with further direction that the sentences

shall run concurrently. After hearing all the three appeals

preferred by the convicts, we did not find any infirmity much

less illegality in the judgment of conviction and therefore,

confirmed the same. However, as regards the sentence, we

were not persuaded to take the view that the sentence so

imposed by the trial Court was adequate. Therefore, despite

the fact that the State had not preferred any appeal for

enhancement of the sentence, having regard to the settled

position of law as reflected in the following judgments of the

Apex Court viz., Sahab Singh and others vs. State of

Haryana, reported in (1990) 2 SCC 385 and Swamy

Shraddananda (2) v. State of Karnataka, reported in (2008)

13 SCC 767, we deemed it proper to exercise the revisional

power under Section 397 read with Section 401 of Cr.P.C.

and called upon the convicts to have their say on the

adequacy of sentence and as to why they should not be

visited with the sentence of higher degree. As such, we issued

notice to the convict-appellants through their lawyer as also

separately through the Superintendent of District Jail,

Keonjhar. We also called upon the Superintendent of District

Jail, Keonjhar to submit a report as to the conduct of these

appellants during the period of their incarceration. Pursuant

to such notice, all the three appellants have submitted their

respective submissions in writing through the

Superintendent of District Jail, Keonjhar. Further, the

Superintendent has also submitted reports regarding the

conduct of the appellants while in jail.

2. We have heard Mr. Bhabani Sankar Das, learned

counsel for the appellants and Mr. S.K. Nayak, learned

Additional Government Advocate for the State at length.

3. Before adverting to the contentions raised before us

by learned counsel for the parties we deem it proper to keep

in perspective the principle of law relating to adequacy of

punishment. It is trite that imposition of appropriate

punishment is sine qua non being the logical conclusion of a

criminal trial. At this juncture we can do no better than to

refer to the following observations of the Apex Court rendered

in the case of Ravji v. State of Rajasthan, reported in (1996)

2 SCC 175;

"xxxxxxx The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal" xxxxxxx"

In the instant case, after looking into the very nature

of the crime we entertained doubts as to if the punishment of

imprisonment for life simpliciter would be appropriate or

proportionate to the gravity of the offence. Since the offence

of murder can be visited with capital punishment, we felt

proper to first focus our attention as to if the facts of the

present case call for the extreme punishment. For this, we

shall have to refer to the very occurrence as made out from

the evidence on record.

4. The prosecution case is that one Rajendra Dehury

(one of the deceased) had gone to the Block Office on

09.10.2014 for work, where he met Gautam Penthei

(appellant in CRLA No. 417 of 2021), who quarrelled with him

and assaulted him causing injury on his face. On the same

day evening around 7.00 p.m., Gautam and two other

accused persons, namely, Bala and Pada Penthei (since

acquitted) again came to the Rajendra‟s house and quarrelled

with him. Again at about 9.00 p.m., the three appellants

along with others, who have been acquitted, came to

Rajendra‟s house being armed with sword and axe and

entered into the house and dragged Jemamani, wife of

Rajendra and the other deceased, out of the house to the

courtyard. Gautam and Basanta dealt blows on the neck of

Jemamani by means of a sword and tangia. When Rajendra

tried to rescue her, they also dealt blows on him by the said

weapons. They then beheaded Rajendra and Jemamani,

carried their heads for some distance and threw them on the

road. The entire incident was witnessed by the daughters of

the deceased couple, namely, Puja Dehury and Jharana

Dehury. The elder daughter, Puja Dehury lodged FIR, which

set the criminal law into motion.

5. The eye-witnesses, namely, the daughters of the

deceased couple gave their testimonies, which the trial court

found trustworthy and reliable. Thus, what transpires from

the evidence is, there was a quarrel between the deceased

Rajendra and Gautam Penthei in the morning of the

occurrence in the Block Office during which the accused had

also assaulted him. The quarrel resurfaced in the evening at

about 7.00 p.m. when all the three appellants came to the

house of Rajendra and abused him further and left the spot.

All of them again came to the house of the deceased and

committed the offence as described hereinbefore. It is evident

that the appellants were actuated with the desire of doing

away with the life of Rajendra for which after the two initial

quarrels they came to the house for the third time being

armed with deadly weapons. The brutality of their act is

evident from the fact that they beheaded both Rajendra and

his wife, carried their severed heads to some distance and

then threw them away. This very act shows extreme cruelty

hatred, anger and an uncontrolled desire to kill the deceased

persons. Reference to the injuries as noted by the Autopsy

Surgeon on the body of the deceased, Rajendra is also

relevant and is quoted hereinbelow:

"External Features: It is a male body, strong and stout, aged about 40 years. Rigormortis present on face and upper and lower extremities.

External injuries: Head is beheaded from the body at the level of cervical vertebra C-4 and C-5. I have kept both the cut head portion and body portion at one place after joining the same. It is found that the following injuries on the torso part and head part.

(i) 17 cm cut injury, breadth 9 cm and circumference of that injury 32 cm.

(ii) Another lacerated cut injury of size 3 cm x 3 cm x 1 cm on right side of the cheek.

The doctor deposed that after examining the cut head, he found the following injuries:

(i) Muscle of the neck i.e., sterno-mastoid, omohyoid, sterno-thyroid, thyro-hyoid are cut up at the level of C-4 & C-5.

(ii) Upper end of the oesophagus and lower end of the trachea are cut up at the level of C-4 & C-5.

(iii) Jugular vein artery, carotid artery and vein were cut up at the level of C-4 & C-5.

The doctor opined that all the above injuries are ante-mortem in nature and cut injuries are possible by heavy and sharp weapon. The doctor opined that the age of the death was within 18 to 36 hours and the death was caused due to decapitate (beheaded) at the level of C-4 and C-5 vertebra from the rest of

the body. The doctor proved the post-mortem report marked as Ext.14 and his signature thereon marked as Ext.14/1."

The injuries found on the injured, Jemamani are also

relevant.

"General examination of the head: A decapitated head of a female, eyes were partially opened, cornea were hazy, both pupils were dilated and fixed. Injuries are:

(i) laceration of size 8 Inch x 2 inch involving the full thickness of cheek extending from left angle of the mandible up to the base of the skull.

(ii) laceration of size 5 inch x 2 inch full thickness extending from right angle of the mouth involving upper lip extending towards the right ear.

(iii) There is fracture and dislocation of right half of mandible.

(iv) The tongue and structure of the floor of the mouth upper lip are avulsed into a pulpy haemorrhage mass of tissue handing down being attached to the head and neck.

(v) The cervical vertebra is cut at the level of C-3.

General examination of torso:

(i) Both hands of either side of the body are tightly clasped and empty.

(ii) There is a dark wound on the neck at the level of C-4, from where the head has been decapitated leaving behind a pulpy haemorrhage mass of tissue attached to the neck.

(iii) Abrasion 2 inch x 1/4 inch right thigh lateral aspect.

(iv) Laceration 2 inch x 1/2 inch x 1/4 inch forth web space of left hand.

(v) The length of the torso measured 54 inches.

(vi) Rigormortis is partially present over all four limbs.

On apposition of the head and the torso:

(i) There is good apposition of skin, soft tissue and bony part of the two parts visible to naked eye.

(ii) There is similarity of colour and complexion of two parts.

(iii) There is similarity of sexual features of both torso and head. Both appears to be a sexually matured female. Hence, it can be safely assumed that the head and torso belongs to same individual."

6. Killing a human being can be by several means, all of

which may or may not amount to murder. Even in case of a

murder, the means adopted by the assailant can be different.

The means adopted would certainly throw light on the

dominant thought process of the assailant at the relevant

time. In the case at hand, from the ocular and medical

evidence, which we have found to be clear, consistent and

trustworthy, it is apparent that the appellants not only had

the intention of killing the deceased persons but also to do so

in the most brutal and gruesome manner possible. Nothing

else can possibly explain the act of severing the heads,

carrying them to a distance and throwing them away. Looked

at from any angle, the act is not simply brutal, but extremely

grotesque and diabolical in nature. The degree of brutality

and depravity of the assailants is enhanced manifold when

one considers the fact that the act was committed in the very

presence of two small children of the deceased victims

prompting us to observe in our judgment dated 27.03.2023

that it was as if the children were witnessing a horror movie.

What a traumatic experience it would have been for the

children, not only at that very moment but also for the rest of

their lives can only be imagined. The act was enough to

shock our judicial conscience leading us to believe that the

punishment for imprisonment for life simpliciter would

hardly be adequate or proportionate. We hold so because,

though it has been held that imprisonment for life is meant

to be imprisonment for the duration of the natural life yet by

operation of law (Section 433 of Cr.P.C.), the convicts would

be eligible to claim remission of the remaining part of their

sentence after spending only 14 years in prison. In such

event, the punishment of imprisonment for life would be

curtailed to a period of 14 years or a little more than that.

After giving our anxious consideration we are firmly of the

view that it would not only be disproportionate viz-a-viz the

enormity of the crime but also be hardly any recompense for

the victims as well as the society for bearing with such

dastardly acts.

7. The question that now arises is, whether death

penalty should be imposed on the victim-appellants.

8. The law relating to imposition of death penalty has

been laid down in several judgments of the Apex Court

including Jagmohan Singh v. State of U.P., reported in

(1973) 1 SCC 20. In the celebrated judgment delivered by the

Constitution Bench in the case of Bachan Singh v. State of

Punjab, reported in (1980) 2 SCC 684 while upholding the

constitutionality of the death penalty, the Court recast the

observations of Jagmohan Singh (supra) in the following

manner.

"164. Attuned to the legislative policy delineated in Sections 354(3) and 235(2), propositions (iv)(a) and

(v)(b) in Jagmohan [(1973) 1 SCC 20 : 1973 SCC (Cri) 169 : (1973) 2 SCR 541] shall have to be recast and may be stated as below:

"(a) The normal rule is that the offence of murder shall be punished with the sentence of life imprisonment. The court can depart from that rule and impose the sentence of death only if there are special reasons for doing so. Such reasons must be recorded in writing before imposing the death sentence.

(b) While considering the question of sentence to be imposed for the offence of murder under Section 302 of the Penal Code, the court must have regard to every relevant circumstance relating to the crime as well as the criminal. If the court finds, but not otherwise, that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the court may impose the death sentence."

It is also held that death penalty must be inflicted only in

rarest of rare cases. The above principle was further

delineated in another Constitution Bench judgment in the

case of Machhi Singh v. State of Punjab, reported in (1983)

3 SCC 470. The following observations of the Court would be

relevant.

"32. The reasons why the community as a whole does not endorse the humanistic approach reflected in "death sentence-in-no-case" doctrine are not far to seek. In the first place, the very humanistic edifice is constructed on the foundation of "reverence for life" principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has to be realized that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it. The very existence of the rule of law and the fear of being brought to book operates as a deterrent for those who have no scruples in killing others if it suits their ends. Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by "killing" a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self-preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so "in rarest of rare cases" when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-

social or abhorrent nature of the crime, such as for instance:

I. Manner of commission of murder

33. When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. For instance,

(i) when the house of the victim is set aflame with the end in view to roast him alive in the house.

(ii) when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death.

(iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.

II. Motive for commission of murder

34. When the murder is committed for a motive which evinces total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (b) a cold- blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust, or (c) a murder is committed in the course for betrayal of the motherland.

III. Anti-social or socially abhorrent nature of the crime

35. (a) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance.

36. When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large

number of persons of a particular caste, community, or locality, are committed.

V. Personality of victim of murder

37. When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder (b) a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-a-vis whom the murderer is in a position of domination or trust (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons.

38. In this background the guidelines indicated in Bachan Singh case [(1980) 2 SCC 684 : 1980 SCC (Cri) 580 : AIR 1980 SC 898 : 1980 Cri LJ 636] will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh case [(1980) 2 SCC 684 : 1980 SCC (Cri) 580 : AIR 1980 SC 898 : 1980 Cri LJ 636] :

"(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstances of the „offender‟ also require to be taken into consideration along with the circumstances of the „crime‟.

(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck

between the aggravating and the mitigating circumstances before the option is exercised.

39. In order to apply these guidelines inter alia the following questions may be asked and answered:

(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?

(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?

40. If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so."

9. We shall now proceed to consider the contentions

put forth on behalf of the appellants in the background of the

above discussion on the settled position of law.

10. Mr. B.S. Das would argue that the present case does

not fall within the category of „rarest of rare‟ warranting

capital punishment notwithstanding the brutality of the act

committed by the appellants. Fact remains that the

mitigating circumstances of the case far outweigh the

aggravating circumstances. Moreover, the appellants have

also suffered incarceration for more than eight years and

their conduct has been such during this period as would

suggest a strong possibility of their rehabilitation and

reformation. Mr. Das would further argue that the appellants

were in tremendous mental stress because of acute illness of

their family members which they believed to have been

caused by practice of black magic by the deceased persons.

As such, they felt morally justified to wreak vengeance on the

deceased. Apart from the above, they had no personal gain in

mind while committing the act.

11. Per contra, Mr. S.K. Nayak would argue that the very

fact that the deceased was assaulted by appellant, Gautam

Penthei in course of a quarrel between them on the same day

in the morning followed by another such quarrel in the

evening prior to the occurrence clearly shows that they

harboured the intention of killing the deceased. Mr. Nayak

would further argue that the fact that the appellants being

themselves armed with deadly weapons came to the house of

the deceased and straight away assaulted his wife, Jemamani

after dragging her out from the house only fortifies the theory

that they had come solely with intention to cause the death

of both. Further, both the victims were unarmed and given

the sheer number of the assailants, they could not have

offered even a semblance of fight to protect themselves. That

apart, the manner in which the crime was committed i.e.

beheading of the deceased persons and carrying their heads

to some distance and then throwing them away reflects

extreme cruelty and depravity of their minds besides an utter

disregard for life of two unarmed human beings by the

appellants. Mr. Nayak therefore, contends that the extreme

penalty alone shall be just punishment in the facts and

circumstances of the case.

12. We have taken note of the rival contentions and have

carefully applied our judicial mind to the facts and

circumstances of the case.

13. It has come out in the evidence that the main reason

for appellants harbouring grudge against the deceased,

Rajendra was their belief that he was practicing black magic

(witchcraft) and thereby caused the family members of the

appellants to fall seriously ill. Reference may be had in this

regard to the testimonies of P.W.-2 and P.W.-7. It is also

borne out from the materials on record that the appellants

(as well as the deceased persons) belong to the marginal

section of the society in which it is not uncommon for its

members to be greatly influenced by their social norms which

strongly acknowledge superstitious beliefs like witchcraft and

its consequences. It is common knowledge that such belief is

strong enough to cause a complete loss of the sense of

proportion among the believers. The only grudge that the

appellants bore against their victims was that they genuinely

believed them to have practised black magic causing illness

of their family members. Prosecution has not proved any

other motive of the appellants for committing the crime.

Though abominable yet, from the point of view of the

appellants it was an act they felt morally justified to commit

and not for any personal gain.

14. In the case of Dilip Premnarayan Tiwari vs. State

of Maharashtra, reported in AIR 2010 SC 361 the Apex

Court observed as follows:

"In a death sentence matter, it is not only the nature of the crime but the background of the criminal, his psychology, his social conditions and his mindset for committing the offence are also relevant."

15. The appellants in their written statement through the

Superintendent of District Jail have stated that they have

accepted the sentence of life imprisonment imposed on them.

The Superintendent of District Jail has reported that the

appellants have not committed any jail offence inside the jail

and that their behaviour and conduct towards prison officers

and staff is submissive and towards their co-inmates, cordial.

They have been engaged as prison labour and getting

incentives as per rate fixed by the Government of Odisha,

Home Department. All three of them have prayed for not

enhancing the sentence already imposed on them. This

suggests a possibility of reform and rehabilitation of the

appellants, at least in the long run.

16. These are all mitigating circumstances, which

according to us, outweigh the aggravating circumstances of

the case which we have referred to earlier in paragraph-6 of

this order. As such, we are unable to persuade ourselves to

treat the case as "rarest of rare" so as to inflict death penalty

on the appellants.

17. What then should be adequate punishment?

18. In the case of Viran Gyanlal Rajput v. State of

Maharashtra, reported in (2019) 2 SCC 311, the Apex Court

held as follows:

"26. Thus, neither the circumstances of the crime nor the circumstances of the criminal i.e. the appellant, would go to show that the instant matter falls into the category of the rarest of rare cases, or that the sentence of life imprisonment is unquestionably foreclosed and grossly disproportionate. Therefore, in the totality of the facts and circumstances of this case, we find it fit to commute the death sentence of the appellant to life imprisonment.

27. At the same time, we are of the opinion that a sentence of life imprisonment simpliciter would not be proportionate to the gravity of the offence committed, and would not meet the need to respond to crimes against women and children in the most stringent manner possible. Moreover, though we have noticed above that the possibility of reform of the accused is not completely precluded, we nevertheless share the concerns of the trial court and the High Court regarding the lack of remorse on behalf of the appellant and the possibility of reoffending. In such a situation, we deem it fit to restrict the right of the appellant to claim remission in his sentence of life imprisonment for a period of 20 years."

Similar view was taken in Babasaheb Maruti

Kamble v. State of Maharashtra, reported in (2019) 13

SCC 640. The Apex Court in paragraph-6 has held as

follows:

"6. Reverting to the issue of death penalty, the learned Senior Counsel submitted that the case did not fall under the category of the rarest of rare cases and, therefore, the capital punishment was not a desirable punishment in the instant case. We have given our serious thoughts on this aspect. After examining the matter at length, we are of the opinion that the instant case would not fall in the category of the rarest of rare cases and it would be in the interest of justice if the death sentence is commuted into life imprisonment. At the same time, we are also of the opinion that life sentence should be with a cap of 20 years' rigorous imprisonment (RI) which would mean that the appellant shall not be entitled to make any representation for remission till he completes 20 years of RI. It is more so, keeping in view the age of the appellant who is at present more than 60 years of age, and has no history of any other criminal activity, possibility of reform, as the learned counsel for the respondent State could not point out blameworthy conduct depicted by him in jail."

In the case of Mohd. Firoz v. State of M.P., reported

in (2022) 7 SCC 443, the Apex Court held as follows:

"60. Considering the above, we, while affirming the view taken by the courts below with regard to the conviction of the appellant for the offences charged against him, deem it proper to commute, and accordingly commute the sentence of death for the sentence of imprisonment for life, for the offence punishable under Section 302IPC. Since, Section 376- AIPC is also applicable to the facts of the case, considering the gravity and seriousness of the offence, the sentence of imprisonment for the remainder of the appellant's natural life would have been an appropriate sentence, however, we are reminded of what Oscar Wilde has said -- "The only difference between the saint and the sinner is that every saint has a past and every sinner has a future".

61. One of the basic principles of restorative justice as developed by this Court over the years, also is to give an opportunity to the offender to repair the damage caused, and to become a socially useful individual, when he is released from the jail. The maximum punishment prescribed may not always be the determinative factor for repairing the crippled psyche of the offender. Hence, while balancing the scales of retributive justice and restorative justice, we deem it appropriate to impose upon the appellant-accused, the sentence of imprisonment for a period of twenty years instead of imprisonment for the remainder of his natural life for the offence under Section 376- AIPC. The conviction and sentence recorded by the courts below for the other offences under IPC and the POCSO Act are affirmed. It is needless to say that all the punishments imposed shall run concurrently."

19. Thus, from a conspectus of the analysis of facts of

the case and the law on the subject we hold that despite the

abominable and diabolical nature of the crime committed by

the appellants, the case would not fall under the category of

rarest of rare so as to inflict the death penalty on the

appellants. However, life imprisonment simpliciter, according

to us would also not commensurate the crime as in effect, it

may be restricted to only 14 years, which in our considered

view would hardly be the adequate punishment in the case in

hand. The observations of the Apex Court in the case of

Swamy Shraddananda (supra) are highly relevant in the

context:

92. xxxxxxxxxxx. If the Court's option is limited only to two punishments, one a sentence of imprisonment, for all intents and purposes, of not more than 14 years and the other death, the Court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed be disastrous. A far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the Court i.e. the vast hiatus between 14 years' imprisonment and death. It needs to be emphasised that the Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years' imprisonment would amount to no punishment at all.

20. In the facts and circumstances of the case, we are

led to adopt the same reasoning. We therefore, hold that the

sentence of imprisonment for life with a cap of 20 years for

the case being tabled for remission before the State Sentence

Review Board and further onward action would meet the

ends of justice.

21. Having held as above, we feel persuaded to turn our

attention to the plight of the victims of the crime who are

none other than two minor daughters who overnight became

orphans but also the rankers like tramps on the road. They

had to bear unspeakable trauma which to their misfortune,

they shall have to carry for the rest of their lives when the

crime scenario will also continue to frequently haunt them.

While adequately penalizing the offender of a crime is

important, it is equally warranted to address the plight of the

victims. We are conscious of the fact that no amount of

money can possibly be adequate recompense for the loss

suffered by these victims. We nevertheless, deem it proper to

award monetary compensation which we feel would be of

some help to them to tide over the vicissitudes of life. We,

therefore, direct the District Legal Service Authority,

Keonjhar to award a sum of Rs.5,00,000/- (Rupees five

Lakhs) each as compensation to be paid to the minor

daughters of the deceased persons as per provision under

Section 357-A of Cr.P.C. We further direct that the amount

paid towards compensation shall be kept in fixed deposit in

the names of the victims till they attain the age of majority.

Such deposits shall be unencumbered, but the victims shall

be entitled to draw the quarterly interest therefrom for their

sustenance through their next friend/guardian.

22. In the result, the order of sentence passed by the

trial Court is hereby modified and the appellants are

sentenced to imprisonment for life with the rider that they

shall not be eligible to claim remission as per law before

undergoing a minimum of 20 years of imprisonment followed

by the order of compensation as aforesaid.

(Sashikanta Mishra) (D. Dash) Judge Judge

Orissa High Court, Cuttack.

The 4th August, 2023/ A.K. Rana, P.A.

Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack