Orissa High Court Takes Suo Motu Cognizance Of Need For Background Analysis Of Convicts In Death Penalty Cases

The Orissa High Court has taken suo motu cognizance of need for background analysis of the convicts, so as to ascertain mitigating circumstances in their favour, before imposing the extreme sentence of death.

Emphasizing the importance of providing real and effective hearing on the question of sentence, the Division Bench of Justice Sangam Kumar Sahoo and Justice Radha Krishna Pattanaik observed –

“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.”

Case Background

The Court was hearing a death reference made by the State for confirmation of the capital sentence imposed by the trial Court on two persons accused of committing gang rape of a minor girl and subsequently hacking her to death.

During the course of hearing, it was brought to the notice of the Court that the trial Court has not only convicted the accused persons on 29.11.2022 but also it passed the sentence of death on the same date without giving a reasonable and meaningful opportunity to the accused persons to highlight mitigating circumstances.

Thus, the Court decided to take cognizance of such procedure followed by the trial Court and as to whether the same is tenable in the eyes of law, particularly taking into account the fact that the backgrounds of the accused persons were not duly taken into consideration before passing the sentence.

Observations On 'Meaningful Sentence Hearing'

The Court, at the outset, noted that the Apex Court has taken suo moto cognizance in reference to framing of guidelines regarding potential mitigating circumstances need to be considered while imposing the extreme sentence of death. Therein the top Court had referred to the larger Bench the question as to whether the sentence of death should be imposed on the same day of conviction. It had further observed:

“The question of what constitutes 'sufficient time' at the Trial court stage, in this manner appears not to have been addressed in the light of the express holding in Bachan Singh. This, in the Court's considered opinion, requires consideration and clarity.”

The Division Bench, upon going through a catena of decisions of the Supreme Court, observed that there was a lack of uniform framework on sentencing. In Dagdu v. State of Maharashtra, it was held that error on the part of the Court to hear the convict on the question of sentence can be remedied by affording him due opportunity to point out mitigating circumstances.

In Bachan Singh v. State of Punjab, emphasis was laid on affording a separate hearing on sentencing to the accused/convict as it works as an important safeguard against arbitrary imposition of capital punishment.

“…in all cases where imposing of capital punishment is a choice of sentence, aggravating circumstances would always be on record and part of the prosecution evidence leading to conviction, whereas, the accused can scarcely be expected to place mitigating circumstances for the reason that the stage for doing so is after conviction, as it would place him at a hopeless disadvantage tilting the scales heavily against him”

Having regard for the aforesaid position of law and taking into account the facts of the present case, the Court was of the considered view that no proper and meaningful hearing was rendered to the appellants as they were hardly afforded any opportunity to present any mitigating circumstance in their favour as both the orders of conviction and sentence were passed on the same day.

“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.”

Necessity for Background Analysis of the Convict

The Court referred to Manoj & Ors. v. State of Madhya Pradesh where the Apex Court had underlined 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.

Thus, the Court directed the Senior Superintendent, Circle Jail, Cuttack at Choudwar to collect information on the past life of the convicts, psychological conditions of both the appellants and also their conduct post-conviction by taking 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 appellants 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,” it added.

Case Title: State of Odisha v. Sk. Asif Alli @ Md. Asif Iqbal & Ors. and tagged cases

Case No: DSREF No. 01 of 2022 & tagged matters

Date of Order: May 02, 2024

Counsel for the State: Mr. Bibhu Prasad Tripathy, Addl. Govt. Advocate

Counsel for the Condemned Prisoners: Mr. Sk. Zafarulla, Advocate

Citation: 2024 LiveLaw (Ori) 33

Click Here To Read/Download Order