Orissa HC on death sentence criteria

By LALMOHAN PATNAIK in Cuttack

Published 17.12.17

Cuttack: Orissa High Court has ruled that brutality of the crime committed cannot be the sole criteria for judging the case to be within the category of "rarest of rare" cases and awarding death sentence.

Orissa High Court (File Photo)

"It has to be one of extreme brutality and exceptional depravity so as to avoid the criticism that the death penalty has been taken as the norm and not exception," the single-judge bench of Justice Debabrata Dash ruled while commuting the death sentence awarded by Jajpur additional sessions court to one accused in a murder case to life imprisonment. The trial court sentenced to death 35-year-old Banabihari Behera, a truck driver, on August 27, 2014 for murdering a 16-year-old girl, who was then a first-year intermediate science student at Tomka village on April 26, 2013.

In view of the infliction of the capital punishment upon Banabihari, the judgment was sent for confirmation to the high court. Delivering judgment on it, Justice Dash concluded: "I conclude that the case in hand does not fall within the category of 'rarest of rare' cases so as to say that only adequate penalty for the offence committed by the appellant (Bananihari Behera) is death and, therefore, be hanged by the neck until he be dead." "For all the aforesaid, in my considered opinion, the sentence of death awarded to the appellant be commuted to imprisonment for life," Justice Dash ruled in his December 7 verdict.

Reducing the sentence, Justice Dash said: "The appellant, a bachelor was by avocation a driver of the truck, having the members of the family needing his support and he has no such criminal track record to his credit. The crime as committed does not appear to be premeditated which is again a mitigating factor." "The extreme fascination of the appellant towards the deceased and the failure on his part to win over her heart appears to have been the cause of frustration and that again being expressed in the last meet closing the chapter for ever is seen to have led the appellant to be greatly disturbed emotionally and psychologically to a degree beyond the range of human thermo stat," Justice Dash observed.

Justice Debabrata Dash

"The appellant has used 'kata', the sharp weapon of small size in inflicting the blows, but has not attempted in any way to harm the chastity of the deceased which is fortified from the report of the doctor who has not noticed any injury on the genitals or breasts of the deceased. The clothing of the deceased were intact as has been noticed during inquest at the spot," Justice Dash further observed. In 1980, a five-judge Supreme Court Constitution Bench had, in the Bacchan Singh case, held that death penalty should be awarded only in "rarest of rare cases" where the crime is considered to be diabolic, grotesque and has shocked the collective conscience of the society. In other words death penalty cannot be awarded merely because of media hype or what a few individuals may feel that the accused death penalty.

According to the apex court ruling in the Bacchan Singh case the courts should consider the mitigating and aggravating factors in favour of the accused persons while awarding death penalty. Since then, the Bacchan Singh case had become the law of the land in terms of awarding death penalty to murders or killings which shocks the collective conscience of the society. Subsequently, the Supreme Court and the high court in various high-profile cases had commuted the death penalties imposed by the sessions court or high courts.

Source: https://www.telegraphindia.com/states/odisha/orissa-hc-on-death-sentence-criteria/cid/1394227 (Accessed 23 December 2018)