'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 CaseThe 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 ReportIt 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 MachineThe 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...

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

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