Orissa High Court
- vs - on 21 June, 2024
Bench: S.K. Sahoo, Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
DSREF No. 1 of 2023
State of Odisha ....
Mr. Janmejaya Katikia,
Addl. Govt. Advocate
-versus-
Nabin Dehury .... Condemned
Prisoner/Accused
Person
Mr. Debashis Sarangi, Amicus Curiae
JCRLA No. 118 of 2023
Nabin Dehury .... Appellant
Mr. Debashis Sarangi., Amicus Curiae
-versus-
State of Odisha .... Respondent
Mr. Janmejaya Katikia,
Addl. Govt. Advocate
CORAM:
THE HON'BLE MR. JUSTICE S.K. SAHOO
THE HON'BLE MR. JUSTICE CHITTARANJAN DASH
ORDER
Order No. 21.06.2024
04. 1. The hearing in DSREF is resumed today.
2. In course of his argument, on the point of sentence, the
learned counsel for the Appellant advanced argument to the effect
that while imposing death sentence, the trial Court did not take
// 2 //
into consideration the mitigating factors vis-à-vis the Appellant,
Nabin Dehury as the justification given by the learned trial Court
in reaching the conclusion with respect to the crime to be one of
rarest of rare case seems not in accordance with the dictum of the
Apex Court and the learned trial Court has simply held the crime
to be one of extremely brutal in nature because three innocent
persons amongst whom two were women found to have been
murdered. The learned trial Court found to have focused
extensively on the aggravating circumstances without adequately
allowing the Appellant to present mitigating circumstances saying
that those factors manifest the case against the Appellant to be an
act of extreme brutality holding the magnitude of the cruelty
thrust in committing the crime bringing it to the category of one
'rarest of rare' case. This Court having delved into the impugned
judgment too finds that the trial Court while convicting the
Appellant although fixed a separate date for hearing on the
quantum of sentence but has not at all taken into account the
mitigating circumstances. As also appears from the case record,
no such material is available with the Court to consider the
mitigating circumstances of the Appellant in this appeal.
3. The Honourable Supreme Court, in Sundar @Sundarrajan
Vs. State by Inspector of Police reported in 2023 LiveLaw (SC)
217, wherein it held that -
"77. The law laid down in Bachan Singh requires
meeting the standard of 'rarest of rare' for award of the
death penalty which requires the Courts to conclude that
the convict is not fit for any kind of reformatory and
rehabilitation scheme. As noted in Santosh Kumar
Satishbhushan Bariyar v State of Maharashtra, this
// 3 //
requires looking beyond the crime at the criminal as
well:
"66. The rarest of rare dictum, as discussed
above, hints at this difference between death
punishment and the alternative punishment of life
imprisonment. The relevant question here would be
to determine whether life imprisonment as a
punishment will be pointless and completely devoid
of reason in the facts and circumstances of the case?
As discussed above, life imprisonment can be said
to be completely futile, only when the sentencing
aim of reformation can be said to be unachievable.
Therefore, for satisfying the second exception to the
rarest of rare doctrine, the Court will have to provide
clear evidence as to why the convict is not fit for
any kind of reformatory and rehabilitation scheme.
This analysis can only be done with rigour when the
Court focuses on the circumstances relating to the
criminal, along with other circumstances. This is not
an easy conclusion to be deciphered, but Bachan
Singh sets the bar very high by introduction of the
rarest of rare doctrine."
××× ××× ×××
81. The duty of the Court to enquire into mitigating
circumstances as well as to foreclose the possibility of
reformation and rehabilitation before imposing the death
penalty has been highlighted in multiple judgments of
this Court. Despite this, in the present case, no such
enquiry was conducted and the grievous nature of the
crime was the only factor that was considered while
awarding the death penalty.
82. During the course of the hearing of the review
petition, this Court had passed an order directing the
counsel for the state to get instructions from jail
authorities on the following aspects: (i) the conduct of
the petitioner in jail; (ii) information on petitioner's
involvement in any other case; (iii) details of the
petitioner acquiring education in jail; (iv) details of
petitioner's medical records; and (v) any other relevant
information."
// 4 //
4. This precedent underscores the necessity for Courts to
conduct a thorough enquiry into both mitigating circumstances
and the potential for the convict's reformation and rehabilitation
before deciding to impose the death penalty. The trial Court,
apparently found to have not considered the aforesaid aspect. The
grievous nature of the crime alone was considered, without
exploring whether the appellant could be reformed or
rehabilitated.
5. Law is well settled that hearing on the question of sentence
has to be real and effective and not a mere formality; if a
meaningful hearing is not taken up by a Court while considering
the sentence to be imposed and inflicted upon the convict, it is
likely to cause severe prejudice to him. Either there is a need for
considering the mitigating circumstances already on record
received as evidence during trial or besides such evidence, further
opportunity should be provided to a convict to bring on record all
such circumstances favourable to him at the time of hearing on
sentence. While addressing the apprehensions relating to absence
of a framework at the time of considering sentence, the Apex
Court in Manoj and Others Vs. State of Madhya Pradesh (2022)
SCC Online SC 677 held the importance of a separate hearing
and the necessity of background analysis of the convict with
reference to the social milieu, age, educational qualification and
whether, he has faced any trauma in life, family circumstances,
psychological evaluation and post-conviction conduct being the
relevant factors while taking a call, whether, death penalty should
be imposed or otherwise.
// 5 //
6. Being satisfied that the learned trial Court not to have had
hearing on question of sentence with respect to the Appellant in
the manner it was expected to and law envisages with the
aggravating and mitigating circumstances to be either on record or
with such further opportunity to furnish the necessary information
or data thereon, the Court is of the humble view that before
considering the appeals on merit and irrespective of its outcome,
in view of the settled position of law discussed herein before, for a
purposeful and meaningful hearing on sentence, the Appellant
should be afforded an opportunity at present inviting from them
such data to be furnished in the shape of affidavits and also to
direct the Jail Authority to do the needful in that regard. The
Court is hence of the view that there is a need for a direction to
the Senior Superintendent, Circle Jail at Sambalpur to collect all
such information on the past life of the convicts, psychological
conditions of the Appellant and also their conduct post-conviction
obtaining reports accordingly by taking service and necessary
assistance from the Probation Officer and such other officers
including a Psychologist or Jail doctor or any Medical Officer
attending the prison. Such an exercise is considered to be
absolutely expedient in order to advance the cause of justice, the
intent and purpose being to provide a fair amount of opportunity
for the Appellant to bring on record all such mitigating
circumstances to be weighed against the aggravating
circumstances since a balance is to be struck while taking a final
decision on sentence in juxtaposition to the sentences imposed by
the Trial Court. Hence, it is ordered.
// 6 //
7. In view of the fact that the Appellant is represented by the
Amicus Curiae, the learned counsel for the State (AGA) is
directed to furnish all such materials on mitigating circumstances
and ensure collection of detailed information with reports on the
past life, psychological conditions and post-conviction conduct of
the Appellant and such other materials by filling affidavits
through competent persons stating therein the particulars for the
consideration of the Court. It is to be informed to the Appellant,
Nabin Dehury that he is at liberty to file affidavit and produce any
material on mitigating circumstances It is further directed that all
the materials shall reach this Court well on or before 10th of July,
2024.
8. At the end, it is clarified that the Court has not expressed
anything on merits of the appeals as the Appellant should not pre-
judge and be on any such apprehension for the above exercise
being undertaken, which is in relation to the sentencing aspect to
be examined finally, while disposing it of with the death
reference.
List this matter for further hearing on 24th of June, 2024. A
free copy each of the above order be immediately supplied to the
learned counsel for the respective parties for its early compliance.
(S.K. Sahoo)
Judge
Digitally Signed (Chittaranjan Dash)
Judge
Location: HIGH COURT OF ORISSA
Date: 21-Jun-2024
Bijay 18:57:35
