Abolish Death Penalty India: Banabihari Behera

Sunday, December 23, 2018

High court takes killer off gallows (Orissa)

By Lalmohan Patnaik in Cuttack

Published 18.01.18

Cuttack: Orissa High Court has converted the death sentence awarded to a murder accused to life imprisonment after two division bench judges differed over capital punishment awarded by trial court.

The final verdict came after the matter had been placed before five judges - first a two judge bench, then a single judge bench - and then again, a two judge bench. The trial court convicted and sentenced to death Banabihari Behera, 35, a truck driver, on August 27, 2014, for killing a 16-year-old girl, who was then a first-year student of intermediate science. The incident occurred at Tomka village on April 26, 2013. As the court had ordered capital punishment, the judgment was sent for confirmation to the high court.

But when judges of a division bench delivered two judgments on the trial court verdict, the matter was laid before a single judge bench. While pronouncing the judgment on November 19, 2015, both the judges of the division bench upheld Banabihari's conviction. However, on the question of sentence, there was a difference of opinion. While one of the judges confirmed the death sentence, the other judge said appropriate punishment in the case was life imprisonment.

In such background, the matter was placed before a third judge, who on December 7, 2017, opined for commutation of death sentence to imprisonment for life. Subsequently, the matter was again placed before a two judge division bench for confirmation. The two judges discharged the death reference. "In view of the opinion expressed by a majority of two judges, this court disposes of the death reference and jail criminal appeal commuting the death sentence awarded to the convict, Banabihari Behera, to one of life imprisonment," the division bench of Justice Indrajit Mohanty and Justice Biswajit Mohanty ruled in its January 2 order.

"The award of sentence of fine of Rs 50,000 and in default in making payment of the same, the direction to undergo rigorous imprisonment for three years more, remains undisturbed," the order said. Earlier, while opining for commuting death sentence to life imprisonment, the singlejudge bench had 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 single judge bench said in its order.

Source: https://www.telegraphindia.com/states/odisha/high-court-takes-killer-off-gallows/cid/1406206 (Accessed 24 December 2018)

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)

The Death Penalty Scenario in India

India is one of 193 countries that retains the death penalty. Some judges have delivered landmark verdicts upholding the rights of death row prisoners, while debates continue advocating abolition or reform of sentencing policies. The Indian government remains committed to retention, asserting executions occur only in “rarest of rare” cases. The death penalty applies to crimes including murder, kidnapping, terrorism, desertion, inducement to suicide of a minor or mentally-retarded person, and in certain cases of rape. Outrage over child rape and murder has intensified these discussions. After an unofficial eight-year moratorium, the government executed Ajmal Kasab (Mumbai attacks) in 2012 and Afzal Guru (Parliament attack) in 2013, both covertly and immediately after mercy petitions were rejected. Prior to this, Dhananjoy Chatterjee was executed in 2004 after 13 years on death row. Following these, many mercy petitions have been rejected, creating fear among death row convicts. Courts continue to hand down death sentences at an increasing rate. Empirical studies highlight the plight of death row prisoners. The India Exclusion Report 2017-18 found fair trial rights largely denied, with convicts often marginalized by caste, religion, poverty, and education. The Death Penalty Research Project (2015) documented socio-economic profiles and experiences of death row prisoners. Dr. Reena Mary George’s studies (2014, 2009) emphasized poverty, social exclusion, and dignity as central to death row experiences, and examined the human rights impact of the penalty. According to the National Crime Records Bureau 2015, 101 prisoners were on death row, with many sentences commuted to life. The “rarest of rare” doctrine introduced by the Supreme Court in the 1980s has not substantially limited death sentences, which have increased over the decades. Justice Joseph (2018) reaffirmed the Bachan Singh judgment but urged restriction of the death penalty to only those cases meeting its criteria. While updating the blog and conducting my own empirical studies, I observed the heinous nature of the crimes that were committed and thought about the families, about their loss, about the victims who for no fault of their own died. If I lost my relative or a dear friend, would I still oppose death penalty and would I still advocate to abolish the death sentence? Having worked in the criminal justice system and also having the seen the other side, where often it is the marginalized, vulnerable and oppressed who are on death row makes me want to advocate for abolition of this punishment. Victims should definitely get justice for their loss, for their pain. No one should escape the rule of law. As long as humanity exists; crime will exist. Should we not re-consider our sentencing policies? Reena Mary George