Orissa High Court
– vs – on 15 January, 2025
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
DSREF No.01 of 2021
From judgment and order dated 21.10.2022 passed by the
Sessions Judge -cum- Special Court, Rayagada in Criminal Trial
No.08 of 2020.
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State of Odisha
-Versus-
1. Dengun Sabar
2. Dasunta Sabar
3. Aajanta Sabar
4. Padhantu Sabar
5. Dalasa Sabar
6. Malku Sabar
7. Bubuna Sabar
8. Lakiya Sabar
9. Iru Sabar ....... Condemned Prisoners/
Accused
For Condemned
Prisoners/Accused: - Mr. Himansu Bhusan Dash
Advocate
CRLA No.750 of 2021
1. Dengun Sabar
2. Dasunta Sabar
3. Aajanta Sabar
4. Padhantu Sabar
5. Dalasa Sabar
6. Malku Sabar
7. Bubuna Sabar
Page 1 of 144
8. Lakiya Sabar
9. Iru Sabar ....... Appellants
-Versus-
State of Odisha ....... Respondent
For Appellants: - Mr. Manas Kumar Chand
Advocate
For State of Odisha: - Mr. Arupananda Das
Addl. Govt. Advocate
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
AND
THE HONOURABLE MR. JUSTICE R.K. PATTNAIK
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Date of Judgment: 15.01.2025
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S.K. Sahoo, J: In the words of great scholar, Swami Vivekananda,
"Drive out the superstition that has covered your minds. Let us
be brave. Know the truth and practice the truth. The goal may
be distant, but awake, arise, and stop not till the goal is
reached."
Even though we are in 21st century, the old
superstitions of witch-hunting are still alive in some parts of rural
areas of our country mainly on account of lack of education and
it leads to innocent individuals, often women, fall prey to the
Page 2 of 144
practice, publicly targeted, face persecution, torture and even
gruesome murders on unfounded accusations of practising
witchcraft.
The case in hand is depicts sordid state of affairs
where accusations of practising witchcraft led to commission of
triple murder of Asina Sabar, Amabaya Sabar and Ashamani
Sabar in village Kitum in the evening hours of 9th September
2016 under Puttasing police station in the district of Rayagada.
The nine condemned prisoners in DSREF No.01 of
2021 who are also the appellants in CRLA No.750 of 2021
initially faced trial in the Court of learned Addl. Sessions Judge,
Gunupur, Rayagada in Criminal Trial No.07 of 2017 for
commission offences punishable under section 302, 201, 342,
506 read with section 34 of the Indian Penal Code (hereafter for
short „I.P.C.‟) and section 4 of the Odisha Prevention of Witch
Hunting Act, 2013 (hereafter „OPWH Act‟) and vide judgment
dated 11.04.2018, they were found guilty under sections 302,
201, 365, 342, 506 read with section 34 of I.P.C. and section 4
of OPWH Act and vide sentence dated 13.04.2018, they were
awarded different sentences under different charges, inter alia,
death sentence for the offence under section 302 of the I.P.C.
The case records were submitted to this Court for confirmation of
death sentence under section 366 of Cr.P.C. and accordingly,
Page 3 of 144
DSREF No.01 of 2018 was registered. The appellants also
preferred JCRLA No.46 of 2018 challenging the aforesaid
judgment dated 11.04.2018 and sentence dated 13.04.2018
passed by the learned trial Court. Both the matters i.e., DSREF
No.1 of 2018 and JCRLA No.46 of 2018 were heard analogously
and this Court vide judgment and order dated 05.11.2019, set
aside the judgment and order of conviction and remanded the
matter to the learned trial Court with a direction to add charges
under sections 364 and 365 of I.P.C. and to proceed keeping in
view the provision under section 217 of Cr.P.C.
After remand of the case, the case was tried in the
Court of learned Sessions Judge -cum- Special Judge, Rayagada
and it was renumbered as C.T. Case No.08 of 2020 and charges
were framed against the nine appellants for commission of
offences under sections 342, 364, 365, 302, 201, 506 read with
section 34 of I.P.C. and section 4 of OPWH Act and the learned
trial Court vide judgment and order dated 21.10.2021 found the
appellants guilty of all the offences charged and sentenced each
of them to undergo R.I. for six months each and to pay a fine of
Rs.500/- (rupees five hundred), in default, to undergo R.I. for
one month each for the offence under section 342/34 of I.P.C.,
to undergo R.I. for five years each and to pay a fine of
Rs.5,000/- (rupees five thousand), in default, to undergo R.I. for
Page 4 of 144
six months each for the offence under section 364/34 of I.P.C.,
to undergo R.I. for five years each and to pay a fine of
Rs.5,000/- (rupees five thousand), in default, to undergo R.I. for
six months each for the offence under section 365/34 of I.P.C.,
to undergo R.I. for five years each and to pay a fine of
Rs.5,000/- (rupees five thousand), in default, to undergo R.I. for
six months each for the offence under section 201/34 of I.P.C.,
to undergo R.I. for two years each and to pay a fine of
Rs.2,000/- (rupees two thousand), in default, to undergo R.I. for
two months each for the offence under section 506/34 of I.P.C.,
and to undergo R.I. for one year each and to pay a fine of
Rs.1,000/- (rupees one thousand) each, in default, to undergo
R.I. for one month each for the offence under section 4 of the
OPWH Act, 2013 and sentenced to death with a further direction
that they be hanged by neck till they are dead with a further
direction to pay a fine of Rs.40,000/- (rupees forty thousand)
each, in default, to undergo further R.I. for two years each for
the offence under section 302/34 of I.P.C. and all the sentences
were directed to run concurrently.
Since the DSREF and CRLA arise out of the same
judgment, with the consent of learned counsel for both the
parties, those were heard analogously and are disposed of by
this common judgment.
Page 5 of 144
Prosecution Case as per F.I.R.:
2. The prosecution case, as per the first information
report (hereinafter F.I.R.) (Ext.1) lodged by P.W.1 Melita Sabar,
in short, is that the deceased Asina Sabar was her father,
deceased Amabaya Sabar was her mother and deceased
Ashamani Sabar was her elder sister. On 09.09.2016 in the
evening hours, P.W.1 had been to the house of one Anito Sabar
with some corn and half an hour thereafter when she returned to
her house, she found that none of her family members was
present in the house. She could know from one Damanta Sabar
that some of her co-villagers had tied her parents and elder
sister in the cowshed of Girijana Sabar (P.W.2). She immediately
rushed to that place, where she was also tied by the accused
persons in a stump. The nine appellants along with one Jamsu
Sabar (child in conflict with law) were present there. It is further
stated in the F.I.R. that the appellants assaulted her father,
mother and elder sister (who were tied up) and were accusing
against them that they had killed the co-villagers Jamjam and
Biranti Sabar by practising sorcery and the co-villagers Ajanta,
Ghunguri and Bubuna were not getting relief from fever and that
the deceased Asina Sabar and Amabaya Sabar, the parents of
the informant were responsible for the same and they were
compelled to tell the truth or else they would kill their family
Page 6 of 144
members and burn them to ashes. At that time, Dasunta Sabar
(A-2) brought out a syringe filled with medicine in it, pierced its
needle in the mouth, cheek and eyes of her elder sister
Ashamani Sabar and asked her to tell the truth or else he would
kill her. At that time, the other nine accused persons were
mercilessly assaulting her parents by means of lathis. Some of
them were also dealing kick blows, fist blows and slaps to her
parents by making mockery and soon thereafter, the appellants
also assaulted her elder sister by means of lathi. P.W.1
witnessed the entire occurrence in the tied up condition and
thereafter the appellants took her elder sister, mother and father
in a moribund state (almost in dead condition) one after another
from the cowshed of P.W.2 to the burial ground, who were again
assaulted there, killed and buried. P.W.1 was threatened that
she had been spared but if she would divulge the incident before
anyone or to the police, they would kill her and her brothers and
send them to the place where her parents and elder sister had
been sent. Out of fear, P.W.1 did not report the matter in the
police station. On 15.09.2016 she came to know that those ten
accused persons exhumed the dead bodies from the place of
burial and cremated it. The accused persons also threatened
P.W.1 that even if they would be incarcerated, the other co-
villagers would kill her and if the co-villagers would not kill her,
Page 7 of 144
after returning from jail, they would kill her. She stated that
after gathering courage, she lodged the F.I.R. (Ext.1) on
16.09.2016 in the evening hours after secretly escaping from the
village.
Registration of F.I.R. and Investigation:
3. The F.I.R. was scribed by Janardana Lima and
presented before P.W.11 Jnanendra Kumar Sahu, Inspector in-
charge of Puttasing police station, who registered Puttasing P.S.
Case No.17 dated 16.09.2016 under sections 302, 201, 342, 506
read with section 34 of I.P.C. and section 4 of OPWH Act.
P.W.11 himself took up investigation of the case. He
examined P.W.1, the informant and other witnesses, sent
requisition to the Sub-Collector, Gunupur to depute an Executive
Magistrate to remain present at the time of spot visit to be
conducted on the next day as there was possibility of recovery of
dead bodies and a requisition was also sent for the scientific
team from D.F.S.L, Koraput to visit the spot for collection of
physical clues. During the course of investigation, P.W.11
apprehended appellants nos.1 to 6 i.e., Dengun Sabar (A-1),
Dusanta Sabar (A-2), Aajanta Sabar (A-3), Padhuntu Sabar (A-
4), Dalasa Sabar (A-5) and Malku Sabar (A-6) from village Kitum
and brought them to the police station. During examination of
those appellants, all of them confessed their guilt.
Page 8 of 144
The statement of appellant Dengun Sabar (A-1) was
recorded in presence of P.W.7 and P.W.9 and in his statement,
he stated to have thrown the lathi used by him for assaulting the
deceased persons on the eastern side of the burial ground inside
the bush and offered to show the same if he would be taken to
that place. The Scientific Officials along with the Executive
Magistrate and P.W.11 proceeded to the scene of occurrence on
17.09.2016 with the appellant Dengun Sabar (A-1) who gave
recovery of weapon of offence i.e. „lathi‟ used by him after
bringing out the same from the place of hiding, i.e. a bush and
produced the same before P.W.11, who seized the same under
seizure list Ext.5/1. The appellant Dengun Sabar (A-1) also
showed the investigating team first the cow shed of P.W.2 and
thereafter the cremation ground for collection of evidence and
preparation of spot map. The Scientific Officials seized the
charred bones and ashes from the spot where those three bodies
were cremated as per seizure list Ext.4/2 and the I.O. also seized
thirty five nos. of bones as per seizure list Ext.3/2. At the police
station, the six appellants were re-examined and their
statements were recorded by P.W.11 and they were arrested.
Their wearing apparels were seized, they were medically
examined and their nail clippings were collected by the doctor
Page 9 of 144
and those were sent to the I.O. in sealed vials, which were
seized as per seizure list Ext.20.
On 17.09.2016, all the six appellants i.e. A-1 to A-6
were forwarded to the Court. On 18.09.2016 Bubuna Sabar (A-
7), Lakiya Sabar (A-8) and on 19.09.2016 Iru Sabar (A-9) was
apprehended and their statements were recorded. Their wearing
apparels were seized, they were medically examined, their nail
clippings which were collected by the Medical Officer were seized
and they were forwarded to Court on 19.09.2016. The other
accused Jamsu Sabar is a child in conflict with law, whose case
was dealt separately.
On 21.09.2016 and 25.09.2016, P.W.11 examined
some other witnesses and sent a requisition to obtain FTA card
for collection of blood sample of son of the deceased Asina for
DNA profiling of charred bones and DNA report was obtained as
per Ext.21. The I.O. then made a prayer to the Court of learned
S.D.J.M., Gunupur for sending all the seized exhibits to R.F.S.L.,
Berhampur for chemical analysis and report.
On receipt of chemical examination report as per
Ext.23, charge sheet has been submitted against the appellants
on 12.01.2017 along with Jamsu Sabar, the CCL under the
aforesaid offences to face their trial.
Page 10 of 144
Framing of Charge:
4. After submission of charge sheet, the case was
committed to the Court of Session after complying due
formalities. The learned trial Court framed charges against the
appellants as aforesaid and since the appellants refuted the
charges, pleaded not guilty and claimed to be tried, the sessions
trial procedure was resorted to prosecute them and establish
their guilt.
Prosecution Witnesses, Exhibits & Material Objects:
5. During the course of trial, in order to prove its case,
the prosecution examined as many as eleven witnesses.
P.W.1 Melita Sabar is the daughter of the deceased
Asina Sabar and Amabaya Sabar and younger sister of deceased
Ashamani Sabar. She is the informant in the case. She narrated
the facts as the incident unfolded on the date of occurrence and
supported the prosecution case.
P.W.2 Girijan Sabar, who is a co-villager of the
informant has not supported the prosecution case, rather he
stated that both the parents and sister of the informant died due
to cholera and no other co-villagers died of cholera during that
period.
Page 11 of 144
P.W.3 Irgam Sabar who is a co-villager of the
informant has not supported the prosecution case, rather she
stated that all the three deceased died due to cholera.
P.W.4 Suman Sabar who is a co-villager of the
informant has not supported the prosecution case, rather he
stated that all the three deceased died due to cholera. He has
stated that he had not seen any seizure of partially burnt bones
and ashes from his village cremation ground, but he had given
his signature on a paper at the instance of police and he proved
Ext.3 to be his signature.
P.W.5 Darsing Sabar and P.W.6 Gona sabar also did
not support the prosecution cases and they were declared
hostile.
P.W.7 Lugu Sabar who is a co-villager of the
informant and ward member of village Kitum has not supported
the prosecution case as a seizure witness, rather he stated that
all the three deceased died due to cholera.
P.W.8 Srinath Sabar who is a co-villager of the
informant has not supported the prosecution case, rather he
stated that all the three deceased died due to cholera. He further
stated that he was not present at the time of incident.
Page 12 of 144
P.W.9 Jisaya Raito is the maternal uncle of the
informant and he has supported the prosecution case. He is a
witness to the recording of the statement of appellant Dengun
Sabar under section 27 of the Evidence Act and recovery of lathi
(M.O.I) at his instance, which was seized by the I.O. as per
seizure list Ext.5/1.
P.W.10 Jayakrushna Nayak was working as a
constable attached to Puttasing police station on the date of
occurrence. He is a witness to the seizure of the wearing
apparels of the appellants as per seizure lists Exts.7 to 16. He is
also a witness to the seizure of nail clippings of the accused
appellants as per seizure lists Exts.17 and 18.
P.W.11 Jnanendra Kumar Sahu was posted as the
Inspector-in-Charge of Puttasing police station and he is the
investigating officer of the case.
The prosecution exhibited twenty four documents.
Ext.1 is the F.I.R., Ext.2 is the 164 Cr.P.C. statement of the
informant (P.W.1) recorded by the J.M.F.C., Gunupur, Exts.3/2,
4/2, 5/1, Exts.7 to 18 and 20 are the seizure lists. Ext.6/1 is the
statement of the appellant Dengun Sabar, Ext.19 is the spot visit
report of the Scientific Officer, Ext.21 is the DNA report, Ext.22 is
Page 13 of 144
the requisition, Ext.23 is the report from RFSL, Berhampur and
Ext.24 is the spot map.
The prosecution also proved fifteen material objects.
M.O.I is the charred bones (Packet A), M.O.II is the sample earth
(packet B), M.O.III is the blood stained saya, M.O.IV is the
charred bones in ten sealed while packets, M.O. V is the pant
and M.O.V-I is the shirt of appellant Dengun Sabar, M.O. VI is
the pant with belt, M.O.VI-1 is the half inner pant, M.O. VI-2 is
the banian, M.O.VI-3 is the check shirt of appellant Dasanta
Sabar, M.O.VII is the full pant and M.O. VII-1 is the half shirt of
appellant Ajanta Sabar, M.O.VIII is the blue colour jean pant
with brown colour belt and M.O.VIII-1 is the full shirt with checks
of black, white and yellow colour of appellant Padantu Sabar,
M.O.IX is the jean pant and MN.O.IX-1 is the half track pant and
M.O.IX-2 is the half banian and M.O.IX-3 is the full check shirt of
appellant Dalasa Sabar, M.O.X is the jean pant, M.O.X-1 is the
half banian and M.O.X-3 is the full shirt of appellant Malku
Sabar, M.O.XI is the full pant, M.O. XI-1 is the banian of
appellant Bubuna Sabar, M.O.XII it eh full pant and M.O.XII-1 is
the banian of appellant Lakia Sabar, M.O.XIII is the full jean pant
and M.O.XIII is the half track pant and M.O.XIII-2 is the full shirt
of appellant Iru Sabar and M.O.XIV series are the nail clippings
kept in nine vials of the appellants and M.O.V is the lathi.
Page 14 of 144
Defence Plea:
6. The defence plea of the appellants is one of complete
denial and false implication on account of previous dispute. The
defence did not examine any witness nor proved any document.
Findings of the Trial Court:
7. The learned trial Court after analysing the oral as
well as the documentary evidence on record came to hold that
the informant (P.W.1) has explained the delay in lodging the first
information report satisfactorily and such delay cannot by itself
be a ground for disbelieving and discarding the entire
prosecution case. It was further held that on examining the
testimony of P.W.1 and the narrations made in the F.I.R. (Ext.1),
it can be safely said that she gave the narration of events in a
cogent and convincing manner and the non-examination of
Damanta Sabar was held not fatal to the prosecution case. It
was further held that the scribe of the F.I.R. was not an eye
witness to the occurrence and as such no prejudice could be
caused to the accused persons and no adverse inference can be
drawn against the prosecution for non-examination of the scribe.
It was held that there are no eye witnesses to the second scene
of occurrence and the incident which took place at the second
Page 15 of 144
scene of occurrence is based on circumstantial evidence. It was
further held that the prosecution could be able to prove
successfully that the accused persons abducted, confined and
assaulted the parents and elder sister of the P.W.1 in the
cowshed of P.W.2 and shifted him in a moribund condition to the
second spot of occurrence in the presence of P.W.1. The learned
trial Court observed that taking into account the documents
available on record and the evidence adduced on behalf of the
prosecution, the following circumstances are available on
record:-
(i) The accused persons after assaulting the three
deceased persons in the cow shed of Girjan Sabar
(P.W.2), took all the three deceased one after
another to a different place (i.e. the second scene of
occurrence) in a moribund state and the informant
(P.W.1) is an eye witness to the first part of the
occurrence;
(ii) The accused persons were last seen with the
deceased persons on 09.09.2016 at about 8 p.m. to
which the informant (P.W.1) is an eye witness when
they shifted the deceased persons to another place
and the accused persons again came in contact with
Page 16 of 144
the informant (P.W.1) after about one hour, but
thereafter the three deceased were never seen alive;
(iii) The proximity of time between the company of
both the parties and the death of the deceased
persons is so small that the possibility of others
intervening in the killing of the deceased persons can
be ruled out;
(iv) The recovery and seizure of bones of the
deceased persons from the burial ground consequent
upon disclosure of statement of accused Dengun
Sabar;
(v) Motive of the accused persons suspecting the
death of Biranti and Jamjam by way of witchcraft
practised by the deceased Asina Sabar and Amabaya
Sabar.
It was held that the story narrated in the F.I.R. and
fully corroborated by the informant (P.W.1) in her evidence
before the Court is sufficient to connect the accused persons to
be the real culprits, who were last seen together with the
deceased persons. It was held that the evidence of the informant
(P.W.1) not being demolished by the defence and the accused
persons having failed to discharge their onus, it can be well said
Page 17 of 144
that the prosecution could be able to establish the circumstances
nos.(i), (ii) & (iii) successfully. The accused persons offered no
explanation as to when and as to how they left the company of
the deceased persons and also the whereabouts of the deceased
persons after 8.00 p.m. of 09.09.2016. The appellants shifted
the deceased persons one after another from the first place of
occurrence to another place in a moribund condition and the
deceased persons were never seen alive thereafter and thus, the
prosecution has well proved through the evidence of P.W.1 that
the appellants were the perpetrators in killing the deceased
persons. When the prosecution could able to prove that the
charred bones were the bones of the deceased persons, who
were murdered by the appellants and the death of the deceased
persons was homicidal in nature, the failure of the I.O. (P.W.11)
in comparing the D.N.A. profiling is of no consequence. No
prejudice could be caused to the accused persons by non-
examination of the tenants of the land where from the charred
bone pieces were recovered. Non-examination of the Executive
Magistrate, a Government Officer, who was present at the time
of spot visit on being requisitioned by P.W.11, the I.O. is a
lacuna in the prosecution case. The improved version in the
statement of P.W.1 in her statement made before the I.O.
(P.W.11) and the Magistrate, are not fatal to the prosecution
Page 18 of 144
case. It was held that in view of the statement of the informant
(P.W.1) so also before the Magistrate, which corroborates her
previous statement, it can be said that the guilt of the appellants
has been established under the OPWH Act and accordingly, it
was held that offence under section 4 of the OPWH Act has been
proved by the prosecution against the appellants. The learned
trial Court ignoring minor discrepancies which appear in the
evidence of P.W.1 came to hold that the prosecution has
successfully established the charges under sections
342/364/365/302/201/506/34 of the I.P.C. read with section 4
of the OPWH Act against all the appellants. On the question of
sentence, the learned trial Court came to hold that life
imprisonment would be inadequate sentence for the convicts and
aggravating circumstances are outweighing the mitigating
circumstances. The crime was committed with extreme brutality
and the collective conscience of the society was shocked and as
such the case comes within the category of „rarest of rare cases‟
and accordingly, imposed death sentence on all the appellants
for the conviction under section 302/34 of the I.P.C. and also
imposed different sentences for different offences as already
indicated in the first paragraph of this judgment.
Page 19 of 144
Submission of Parties:
8. Mr. Himanshu Bhusan Dash, learned counsel
appearing for the condemned prisoners in DSREF No.01 of 2021
contended that the conviction of the appellants/condemned
prisoners is mainly based on the solitary testimony of the
informant (P.W.1) who is not only related to all the three
deceased but also an interested witness. She has developed her
case from stage to stage and due to such improvement in the
story, her evidence is not free from doubt and therefore, it is
difficult to accept her as a truthful witness and to place implicit
reliance on it. It is argued that P.W.1 was informed by one
Damant Sabar about the confinement of the three deceased
family members in the cow shed of P.W.2 and the said Damant
Sabar also guarded her along with accused Paranta inside the
cow shed of P.W.2 when the appellants took away the three
deceased from the cow shed and Damant Sabar also threatened
her not to disclose the incident before anyone or else to face dire
consequence and therefore, there was no reason as to why
Damant Sabar was not arrayed as an accused in the case nor he
was examined as a witness by the prosecution. According to the
learned counsel, the finding of the learned trial Court that the
non-examination of Damant Sabar would not cause any
prejudice to the appellants is not proper.
Page 20 of 144
With regard to the delay in lodging the F.I.R., it is
argued that the same is fatal to the prosecution case as no
satisfactory explanation has been offered by P.W.1 for such
delay. The threatening stated to have been given by the
appellants and the conduct of P.W.1 at the time of alleged
occurrence in the cow-shed of P.W.2 so also after the occurrence
is very suspicious. Learned counsel further argued that the
prosecution has failed to prove as to whether the informant
(P.W.1) or any of her relatives were restrained by the appellants
with a threat to do away with their lives in case the F.I.R. is
lodged. There is no explanation as to why P.W.1 waited till the
cremation of the dead bodies of the three deceased persons to
lodge the F.I.R., as from 09.09.2016 to 15.09.2016, all the
deceased persons were stated to have been put underneath the
earth in a ditch. It is argued that the evidence of P.W.1 that she
could gather courage only after she heard about cremation of the
dead bodies of the deceased persons is very difficult to be
believed since it appears that there was no restriction on the
movement of P.W.1 and she was staying in the house of Darsing
Sabar (P.W.5) from 10.09.2016 to 15.09.2016 and on
16.09.2016, she accompanied Lugu Sabar (P.W.7) to the police
station to lodge the F.I.R. Learned counsel further argued that
Janathan Lima, the scribe of the F.I.R. having not been
Page 21 of 144
examined by the prosecution, the lodging of F.I.R. becomes a
suspicious feature.
Learned counsel urged that the whole evidence of
P.W.1 except the statement that she was informed by Damant
Sabar that her parents and sister were being tied in the cow-
shed and all the appellants were assaulting to the deceased
persons by lathi, stick and crowbar till they lost their
consciousness, were confronted to her and the same are proved
through the I.O. (P.W.11) as contradictions. Learned counsel
further argued that there are no material on record to
corroborate the evidence of P.W.1 rather all the prosecution
witnesses except P.W.1 have categorically stated that the
deceased persons died due to cholera, which fact has also been
proved through evidence that some of the other villagers have
also died due to cholera during the said period.
Learned counsel further submitted that during the
trial of child in conflict with law Jamsu Sabar in JCL No.8 of 2017,
the informant (P.W.1) has not stated in her deposition on the
following aspects:
(i) that she cried seeing her parents and
sister tied;
Page 22 of 144
(ii) that the deceased persons were assaulted
by crowbar;
(iii) that the appellants were accusing that her
parents and sister practised witchcraft on the
co-villagers as a result of which co-villagers
Biranti and Jamjam died;
(iv) that the assault to the deceased persons
were made till they lost their consciousness;
(v) that the appellant No.2 Dasanta Sabar
brought pesticides used for cotton crops in a
bucket and administered to her deceased sister
by syringe on her body parts for which she cried
loudly;
(vi) that hearing her cry, appellant no.7
Bubuna Sabar came and threatened her on the
point of knife;
(vii) that the appellant no.3 Aajanta Sabar
came with the gold necklace of her sister and
after giving to her, left the spot;
Page 23 of 144
(viii) that Damanta (not arrayed as an accused)
and appellant No.4 Padhantu Sabar threatened
her;
(ix) that she slept in the house of the appellant
no.7 Bubuna Sabar;
(x) that the appellants came with cooked food
to throw into water;
(xi) that the appellant no.9 Iru Sabar and
appellant no.2 Dasanta Sabar came and called
her to the meeting place;
(xii) that the appellants confessed in the
meeting about killing of the deceased due to
witchcraft and that on 16.09.2016 she came to
know that the accused persons brought out the
dead bodies from the ditch and set fire by
pouring kerosene.
Learned counsel further argued that in view of such
serious contradictions in the deposition of P.W.1 as given in this
case vis-à-vis as given in the trial of child in conflict with law
Jamsu Sabar in JCL No.8 of 2017, she cannot be said to be a
reliable and truthful witness on whom implicit reliance can be
placed. He further argued that since there is lack of cogent
Page 24 of 144
evidence as to what happened to the three deceased after they
were taken out of the cowshed, the overt act committed by the
appellants may at best attract the ingredients of offence under
section 325 of I.P.C. and not under section 302 of I.P.C. He
argued that it is not proved to be a rarest of rare case and
moreover in view of the mitigating circumstances, the death
sentence should be commuted to imprisonment for life. In
support of such submission, he has placed reliance on the
decisions of the Hon‟ble Supreme Court reported in Sangeet
and another -Vrs.- State of Haryana reported in (2013) 2
Supreme Court Cases 452 and State of Maharashtra -Vrs.-
Damu reported in (2000) 6 Supreme Court Cases 269.
9. Mr. Manas Kumar Chand, learned counsel appearing
for all the appellants in CRLA No.750 of 2021 contended that the
presence of P.W.1 Dengun Sabar in the cowshed of P.W.2 at the
time of first occurrence is a doubtful feature. According to him,
the so-called threatening given by the appellants to P.W.1 which
was the reason shown for delayed lodging of the F.I.R., has not
been satisfactorily proved by adducing clinching evidence.
According to Mr. Chand, the extra judicial confession of the
appellants on the next day of the occurrence in the hill top is also
doubtful. The leading to discovery of a lathi at the instance of
Page 25 of 144
appellant no.1 from the place of hiding is not acceptable so also
collection of bones, suspected blood stained saya, ashes etc. by
P.W.11 as per confessional statement of appellant no.1. The
version of P.W.1 in the F.I.R. and that given in Court during trial
are highly discrepant and therefore, it would too risky to accept
the solitary testimony of P.W.1 to hold the appellants guilty.
Learned counsel further argued that it appears from the F.I.R.
(Ext.1) that one Janardan Lima scribed the F.I.R., however he
has not been examined during trial. No stumps and robes were
seized from the cowshed by the I.O. where the three deceased
persons so also P.W.1 was stated to have been tied. One Damant
Sabar who stated to be present at the time of occurrence has not
been examined. According to P.W.1, P.W.7 accompanied her to
the police station at the time of lodging of the F.I.R., but P.W.7
has not supported the prosecution case. P.W.1 stated to have
informed her brothers about the occurrence but they have not
been examined. It is argued that no pesticide or injection was
seized from the spot at the time of spot visit by the I.O. and
even the shopkeeper from whom the pesticide was purchased
has not been examined. The corpus delicti was not found, the
bones recovered from the cremation ground were not proved to
be human bones and the C.E. report is also silent. There was
previous enmity between the parties and therefore, at a belated
Page 26 of 144
stage, P.W.1 presenting a concocted version of the occurrence
before police to take revenge upon the appellants cannot be
completely ruled out and as such, it would not be proper to
accept the solitary evidence of P.W.1 to be truthful and reliable
to convict the nine appellants and that too passing death
sentence on them. It is argued that the prosecution has utterly
failed to prove the ingredients of the offence under section 4 of
the OPWH Act, 2013 and therefore, benefit of doubt should be
extended in favour of the appellants. Though on the date of
closing of argument, Mr. Chand took one week time to file the
written note of argument but he has not filed the same.
10. Mr. Arupananda Das, learned Addl. Government
Advocate on the other hand supported the impugned judgment
and argued that it was a small village as there were only twenty
five houses and there was hostile atmosphere against the family
of the informant (P.W.1) as everyone was under impression that
the parents of the informant were practising witchcraft for which
some co-villagers were suffering from different ailments and
some of them died. P.W.1 is a lady and she was tied in the
cowshed and forced to see the brutal assault on her parents and
elder sister by the appellants whereafter they were taken out of
the cowshed one after another and she was threatened with dire
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consequences even to the extent of commission of murder of her
another sister and two brothers in case she disclosed the incident
before anyone and after some time she was also told about the
murder of all the three deceased and therefore, she must be in a
state of panic and under constant vigil by the appellants and in
such a scenario, it was not expected of her to be courageous
enough to go and immediately report the matter before the
police station. He argued that while appreciating the delay in
lodging the F.I.R., these aspects cannot be totally ignored and
therefore, the explanation offered by the prosecution in that
regard is quite satisfactory. He placed reliance in the case of
Munshi Prasad and others -Vrs.- State of Bihar reported in
(2002) 1 Supreme Court Cases 351 and Shanmugam -Vrs.-
State reported in (2013) 12 Supreme Court Cases 765. He
further argued that the evidence of extra judicial confession
which has been made on the next day of the occurrence before
P.W.1 and others by the appellants on the hill top is quite
convincing and the same cannot be brushed aside on the ground
that there is no corroboration to the evidence of P.W.1 on this
aspect and that the F.I.R. is silent about it. According to him, the
first information report not being the encyclopedia or be all and
end all of the prosecution case, extra judicial confession part
being found mentioned in the 164 Cr.P.C. statement of P.W.1
Page 28 of 144
which was recorded three days after the lodging of the first
information report, the evidence of P.W.1 in the Court on that
score has been rightly accepted by the learned trial Court.
Learned counsel for the State submitted that there is no bar in
acting upon the sole testimony of the witness if his evidence
appears to be clinching, trustworthy, reliable and aboveboard
and merely because she was related to the three deceased, the
same cannot be a ground to disbelieve her testimony. Reliance
was placed on the decision of the Hon‟ble Supreme Court in the
case of Namdeo -Vrs.- State of Maharashtra reported in
(2007) 14 Supreme Court Cases 150 and Anil Phukan
-Vrs.-State of Assam reported in (1993) 3 Supreme Court
Cases 282. According to Mr. Das, when the appellants carried
away the three deceased persons from the cowshed and
returned after sometime and informed P.W.1 to have killed the
deceased persons and thereafter the deceased persons were not
seen alive, even though there is no direct evidence to the second
phase of occurrence, since the appellants have failed to explain
as to what happened to the deceased persons after they were
taken out of the cowshed and when they parted with the
company of the three deceased and the proximity of time
between the carrying of three deceased from the cowshed and
return of the appellants to the cowshed, in view section 106 of
Page 29 of 144
the Evidence Act, it can be said that the appellants are the
authors of the crime. Reliance has been placed on the decisions
of the Hon‟ble Supreme Court in the case of Soma Sundaram
-Vrs.- State reported in (2020) 7 Supreme Court Cases
722. The learned counsel argued that even though there are
contradictions in the evidence of P.W.1 in her F.I.R. version and
161 Cr.P.C. version vis-a-vis the statement recorded under
section 164 Cr.P.C. and the evidence given in Court during trial,
but the contradictions are not of such a magnitude that it go to
the root of the matter and completely destroy the evidence of
P.W.1. Keeping in view the trauma that might have been faced
by P.W.1 after the occurrence which might have been reduced to
a great extent and she must be feeling secured when she came
to give her statement in Court before the Magistrate under
section 164 Cr.P.C. as by that time, all the appellants had
already been arrested and forwarded to the Court and as such,
no importance can be attached to the contradictions. He argued
that non-examination of the scribe of the F.I.R. is not fatal to the
prosecution case nor the non-examination of Damant Sabar so
also non-supporting of the case by P.W.7 Lugu Sabar. It is
argued that since the F.I.R. was lodged about a week after the
date of occurrence and the appellants were taking all the steps in
causing disappearance of evidence even to the extent of
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cremating the dead body, therefore, it was not expected of the
Investigating Officer to find any incriminating articles in the
cowshed of P.W.2 where the occurrence took place. Merely
because the corpus delicti was not found, the same cannot be a
ground to disbelieve the prosecution case. Reliance has been
placed in the case of Sevaka Perumal -Vrs.- State of Tamil
Nadu reported in (1991) 3 Supreme Court Case 471 and
Ram Gulam Chaudhury and others -Vrs.- State of Bihar
reported in (2001) 8 Supreme Court Cases 311. It is argued
that the manner in which the deceased persons were taken to
the cowshed and tied, assaulted and then taken to a place where
they were first buried and then the bodies were exhumed and
cremated shows that it was done in a pre-planned way and
diabolically and cruelly executed and there was motive behind
the commission of murder as the appellants were suspecting the
parents of the deceased to be practising witchcraft and
therefore, the learned trial Court is quite justified in holding that
it was a rarest of rare case and any other sentence than the
death sentence would be inappropriate. Reliance has been placed
on the decisions of the Hon‟ble Supreme Court in the Case of
Bachan Singh -Vrs.- State of Punjab reported in (1980) 2
Supreme Court Cases 684 and Machhi Singh -Vrs.- State of
Punjab reported in (1983) 3 Supreme Court Cases 470.
Page 31 of 144
While concluding his argument, Mr. Das submitted that even
though certain mitigating circumstances have been brought on
record in view of the reports received from the Senior
Superintendent of Circle Jail, Koraput, but it is a fit case where
death sentence should be confirmed.
Whether the solitary evidence of P.W.1 can be acted upon:
11. There is no dispute that the star witness on behalf of
the prosecution is P.W.1 Melita Sabar, the informant of the case,
who is the daughter of the deceased Asina Sabar and Amabaya
Sabar and younger sister of deceased Ashamani Sabar.
P.W.1 deposed that on the date of occurrence, she
had been to the house of co-villager Anito to deliver corn and on her
return after half an hour, she found no one was present in her
house. She looked for her family members. Her co-villager
Damanta Sabar informed her that her parents and sister were
being tied up in the stump inside the cow shed of Girjana (P.W.2).
She rushed to that spot and found her family members were tied
up by the accused persons, who were all present there, for which
she started crying. She stated that the accused persons tied up
her also in another stump by means of rope and all of them were
assaulting the deceased persons by means of lathi, stick and
crowbar alleging that due to their witchcraft activities, the co-
Page 32 of 144
villagers Biranti and JamJam died. The accused persons
continued to assault the three deceased till they lost
consciousness. At that time, appellant Dasunta (A-2) brought
pesticide meant for cotton crops in a bucket and administered
the same by means of an injection syringe on different parts of
her sister Ashamani's body i.e. eye, nose, mouth, chest and
breast. When she cried loudly, appellant Bubuna (A-7) came
near her and threatened her with knife point saying that if she
would continue to cry, she would meet similar consequence.
Saying so, appellant Bubuna (A-7) pointed injection syringe and
touched it on the neck of P.W.1. Then, the appellant Dasunta (A-
2), after completing administration of injection on deceased
Ashamani, dealt lathi blows on the three deceased. Appellant
Dasunta (A-2) then unfastened the rope by means of which her
sister (deceased Ashamani) was tied up and then they took her
to some other location. Half an hour thereafter, rest of accused
persons took her mother (deceased Amabaya Sabar) away and
after ten to fifteen minutes, they took away her father (deceased
Asina Sabar). Then they instructed Damanta and Paranta to
guard her and not to allow her to leave till their return. She
further stated that then the appellant Aajanta (A-3) came with
the gold necklace of her sister and handed over to her. Both
Damanta and Paranta threatened her asking not to disclose the
Page 33 of 144
incident before anyone otherwise they would kill her and rest of
her siblings i.e. her another sister and two brothers. They also
threatened to bring back her brothers from the school on the
pretext of sickness of her parents due to fever, kill them on the
way and would produce the knife with blood stain before her.
Ten to fifteen minutes thereafter, the rest of the accused persons
returned back and called her to accompany them to take bath in
the spring as after killing human beings, they were not supposed
to go straight to their houses without taking bath. They insisted
and forced P.W.1 to take bath, but she did not agree to take
bath. After the accused persons took bath, they returned back to
their village and it was night time, they asked P.W.1 not to
return back home and to take shelter in the house of any of
them. P.W.1 then slept in the house of appellant Bubuna (A-7).
P.W.1 further stated that about half an hour of her
stay in the house of appellant Bubuna (A-7), Paranta, Bubuna
(A-7), Dengu and Aajanta (A-3) came to her with cooked food of
their houses meant for the dinner and asked her to accompany
them to destroy the same by throwing into water from a bridge
as they apprehended that not taking of dinner in the night might
go to the notice of their family members. Then they decided to
convey a meeting on the next day. They returned back and
P.W.1 slept in the house of appellant Bubuna (A-7) in that night.
Page 34 of 144
P.W.1 further stated that in the morning, accused Iru
(A-9) and Dasunta (A-2) came and called her to go to a meeting
convened urgently as they apprehended that villagers might get
up early and notice about the occurrence. At that time, her
paternal uncle Ghana came to her and she cried by holding him
but as the accused persons insisted them to join and to go to the
hill top where meeting was to be organized, she along with her
paternal uncle Ghana accompanied them. On the hilltop, the
ward member Lugu Sabar (P.W.7), husband of Samiti member
Darsing Sabar and other co-villagers were present before whom
the accused persons confessed that they had killed the parents
and sister of P.W.1 as due to their witchcraft activities, two of
their co-villagers had already died and three others were not
getting cured from fever for so many days. They threatened
P.W.1 in the meeting that if she would submit any report to the
police or give evidence in the Court, it would not take second for
them to kill her and if they would be kept in jail, other villagers
would not spare her and her family. She stated that because of
such threat, considering danger to her life, she stayed in the
house of P.W.5 from the day of meeting held on 10.9.2016 till
15.9.2016. She further stated that on 16.9.2016, she came to
know that accused persons exhumed the dead bodies of her
parents and sister from the place of burial and then cremated
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the bodies by setting fire by pouring kerosene on it on the
preceding day. Hearing about such incident, she came to the
police station and reported the matter which was scribed by one
Janardana Lima as per her dictation. She proved the F.I.R.
(Ext.1) and also her 164 Cr.P.C. statement recorded by the
learned J.M.F.C., Gunupur on 19th September 2016 vide Ext.2.
Learned counsel for the State urged that conviction
of accused can be based on the solitary testimony of an eye
witness. In support of such contention, he has relied upon the
decision of the Hon‟ble Supreme Court in Namdeo (supra),
wherein it has been held that Indian legal system does not insist
on plurality of witnesses. Neither the legislature (Section 134,
Evidence Act, 1872) nor the judiciary mandates that there must
be particular number of witnesses to record an order of
conviction against the accused. Our legal system has always laid
emphasis on value, weight and quality of evidence rather than
on quantity, multiplicity or plurality of witnesses. It is, therefore,
open to a competent court to fully and completely rely on a
solitary witness and record conviction. Conversely, it may acquit
the accused in spite of testimony of several witnesses if it is not
satisfied about the quality of evidence. The bald contention that
Page 36 of 144
no conviction can be recorded in case of a solitary eye witness,
was held to have no force and negatived.
In the case of Anil Phukan (supra), the Hon‟ble
Supreme Court observed as follows:
"3......Indeed, conviction can be based on the
testimony of a single eyewitness and there is no
rule of law or evidence which says to the
contrary provided the sole witness passes the
test of reliability. So long as the single
eyewitness is a wholly reliable witness, the
Courts have no difficulty in basing conviction on
his testimony alone. However, where the single
eyewitness is not found to be a wholly reliable
witness, in the sense that there are some
circumstances which may show that he could
have an interest in the prosecution, then the
Courts generally insist upon some independent
corroboration of his testimony, in material
particulars, before recording conviction. It is
only when the courts find that the single
eyewitness is a wholly unreliable witness that his
testimony is discarded in toto and no amount of
corroboration can cure that defect."
Thus, no particular number of witnesses is required
for proving a certain fact. The time honoured principle is that it is
the quality and not the quantity of the witnesses that matters.
Page 37 of 144
Evidence is weighed and not counted. Evidence of even a single
eye witness, cogent, credible, wholly reliable, truthful, consistent
and inspiring confidence is sufficient for maintaining conviction.
In other words, there is no legal impediment in convicting a
person on the testimony of a single witness. This is the logic
behind section 134 of the Indian Evidence Act, 1872 (section 139
of Bharatiya Sakshya Adhiniyam). If there are doubts about his
testimony, the Courts shall insist for corroboration.
Whether evidence of P.W.1 to be discarded on the ground
of her relationship with three deceased:
12. The evidence of P.W.1 was attacked, firstly on the
ground that she being related to all the three deceased is a
highly interested witness. We are not inclined to accept such
submission as „related‟ is not equivalent to „interested‟. The
witness may be called „interested‟ only when he or she has
derived some benefit from the result of a litigation in the decree
in a civil case, or in seeing an accused person punished. A
witness, who is a natural one and is the only possible eye
witness in the circumstances of a case, cannot be said to be
`interested'. (Ref: State of U.P. -Vrs.- Kishanpal and Ors. :
(2008) 16 Supreme Court Cases 73). In the case of Raju
and Ors. -Vrs.- State of Tamil Nadu reported in (2012) 12
Page 38 of 144
Supreme Court Cases 701, it is held that a Court should
examine the evidence of a related and interested witness having
an interest in seeing the accused punished and also having some
enmity with the accused with greater care and caution than the
evidence of a third party disinterested and unrelated witness.
Therefore, relationship of P.W.1 with the three
deceased cannot be the sole ground to discard her version.
Scribe of F.I.R. not examined:
13. Evidence of P.W.1 was attacked on the ground that
as the scribe was not examined, the lodging of F.I.R. by P.W.1
becomes a suspicious feature and it is fatal to the prosecution.
The F.I.R. indicates that Janardana Lima was the
scribe of the F.I.R. P.W.1 has stated in her examination in-chief
that one Janardana Lima scribed the report to her dictation and
she had submitted the same with her signature. She proved the
written report as Ext.1 and her signature on it as Ext.1/1. She
further stated that she had given her signature as Ext.1/2
beneath the endorsement of the scribe which was scribed to her
dictation. Of course in the cross-examination, she has stated that
she did not know the scribe earlier and she had also not seen his
residence, but if the scribe was available to P.W.1 when she
decided to lodge the F.I.R., there is nothing to doubt regarding
Page 39 of 144
the conduct of P.W.1 in securing his help to scribe the F.I.R.
Though the defence has suggested to P.W.1 that the scribe
wrote the F.I.R. as per the dictation of I.I.C., Puttasing police
station and that she had signed on it, she specifically denied
such suggestion. Thus, the defence has not disputed that the
F.I.R. was scribed by Janardana Lima.
The role of the scribe of F.I.R. is very limited; he has
to write it as per the version of the informant and to read over
and explain the contents to the informant whereafter the
informant has to put his signature/L.T.I. finding it to be correct.
The name of the scribe is ordinarily mentioned in the F.I.R. at
the end. It is not necessary that the informant should have prior
acquaintance with the scribe or one should not try to take the
help of an unknown person to scribe the F.I.R. If P.W.1 who had
read upto class 7th being panic-stricken had taken the help of an
unknown person like Janardana Lima to scribe the F.I.R. and the
said scribe of the F.I.R. is not examined during trial, in our
considered opinion, the same cannot be a ground to doubt that
the lodging of F.I.R. is a suspicious feature and it is not that fatal
to doubt the prosecution story or the evidence of P.W.1. It can at
best be treated as a mere irregularity which can be cured if it is
otherwise proved. Since P.W.1 has duly proved the F.I.R., non-
Page 40 of 144
examination of scribe becomes inconsequential. Of course, it is
the duty of the I.O. to examine the scribe during investigation to
verify whether the correct version of the informant had been
noted down in the written report presented or the scribe on his
own added something or deleted some material information. It is
also the choice of the Public Prosecutor to examine the scribe.
We are of the view that if there are laches either on
the part of the I.O. in not examining the scribe during
investigation or that of the Public Prosecutor in not examining
the scribe during trial, the evidence of the informant cannot be
doubted or disbelieved on that score, if it is otherwise believable.
Delay in lodging the F.I.R.:
14. Delay in lodging the F.I.R. was also attacked as one
of the grounds to disbelieve the evidence of P.W.1.
Learned counsel for the appellants urged that as per
the prosecution case, the occurrence in question took place on
09.09.2016 in the evening hours and the F.I.R. was lodged in the
evening hours on 16.09.2016 i.e. seven days after the
occurrence, even though the place of occurrence is just 7 Kms.
away from Puttasing police station which would be evident from
the formal F.I.R. According to the learned counsel for the
appellants, the only explanation that has been given by the
Page 41 of 144
prosecution is that P.W.1 was threatened by the appellants not
to disclose before anyone not only on the date of occurrence, but
also on the next day in the place of meeting. It is the contention
of the learned counsel for the appellants that though P.W.1
stated that she stayed in the house of P.W.5, who was the
husband of the panchayat samiti member from 10.09.2016 to
15.09.2016, but P.W.5 has not supported the prosecution case
and he was declared hostile. Moreover, there is no evidence on
record that any of the appellants was keeping close watch on the
movement of P.W.1 or there was any kind of restraint on her for
movement. If fearing the threat of the appellants given on the
date of occurrence so also on the next day, she decided not go
to the police station on 10th September 2016, then after coming
to know that the appellants have exhumed the dead bodies from
its buried place and set fire to those bodies, the fear factor must
have gone up. If she was apprehensive about the safety of her
other family members including her two school going brothers
and another sister whom the appellants had threatened to kill in
the event she would disclose before anyone, then how she
overcame such fear and got the courage to report the matter in
the police station. According to the learned counsel for the
appellants, it appears that at a belated stage, P.W.1 cocked up a
story regarding the involvement of the appellants in the killing of
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her parents and elder sister and accordingly, lodged a false F.I.R.
and gave false statement not only before police but also before
the Magistrate.
Learned Additional Government Advocate appearing
for the State of Odisha, on the other hand, contended that mere
delay in lodging of F.I.R., cannot be fatal to the prosecution
case, if there is a plausible explanation. He argued that the
evidence of P.W.1 does not suffer from any infirmity and when a
lady like her who belonged to a tribal community and came from
a poor family, was forced to see as to how in a brutal manner,
her parents and elder sister were assaulted by the appellants in
the cowshed of P.W.2 and were taken one after another from the
cowshed and subsequently, she was informed about their murder
and was also threatened by the appellants not to disclose before
anyone and not to lodge report before police, it could not be
expected from her to gather courage immediately to go to the
police station and lodge the report there. She must have been
quite conscious about the safety of her rest of the family
members including her school going minor brothers who were
threatened to be killed by the appellants. It is argued that when
on 16.09.2016 she came to know that after exhuming the dead
bodies from its burial place, the appellants cremated the bodies
by setting it on fire by pouring kerosene, she might have
Page 43 of 144
gathered courage to report the matter before the police.
Therefore, there was nothing unusual in the conduct of P.W.1 in
reporting the matter at a belated stage in view of the situation in
which she was placed and her state of mind after three of her
family members were brutally killed. It is submitted by the
learned counsel for the State that it was a small village
consisting of 25 houses and therefore, it would have been very
easy on the part of the appellants to keep an watch on the
movement of P.W.1 after the date of occurrence even though
there is no direct evidence to that effect and therefore, the
prosecution has successfully established the reason for delay in
lodging of the F.I.R.
Learned counsel for the appellants placed reliance in
the case of Satpal Singh -Vrs.-State of Haryana reported in
(2010) 8 Supreme Court Cases 714, wherein the Hon‟ble
Supreme Court observed as follows:
"14. This Court has consistently highlighted the
reasons, objects and means of prompt lodging of
FIR. Delay in lodging FIR more often than not,
results in embellishment and exaggeration,
which is a creature of an afterthought. A delayed
report not only gets bereft of the advantage of
spontaneity, the danger of the introduction of a
coloured version, an exaggerated account of the
Page 44 of 144
incident or a concocted story as a result of
deliberations and consultations, also creeps in,
casting a serious doubt on its veracity. Thus, FIR
is to be filed more promptly and if there is any
delay, the prosecution must furnish a
satisfactory explanation for the same for the
reason that in case the substratum of the
evidence given by the complainant/informant is
found to be unreliable, the prosecution case has
to be rejected in its entirety."
Learned counsel for the State on the other hand
placed reliance on the decision of the Hon‟ble Supreme Court in
the case of Munshi Prasad (supra) wherein it was held as
follows:
"7. Fabricated and delayed F.I.R. as a matter of
fact has been the basic submission in support of
the appeal. It is now, however, well settled and
we need not dilate on this score over again that
mere delay cannot be said to be fatal to a
criminal prosecution. First Information Report
cannot but be termed to be the starting point
and thus sets in motion of a criminal
investigation.
In the case of Shanmugam (supra), it is held that
delay in the lodging of the F.I.R. is not by itself fatal to the case
of the prosecution nor can delay itself create any suspicion about
the truthfulness of the version given by the informant just as a
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prompt lodging of the report may be no guarantee about its
being wholly truthful. So long as there is cogent and acceptable
explanation offered for the delay, it loses its significance.
Whether or not the explanation is acceptable will depend upon
the facts of each case. There is no cut and dried formula for
determining whether the explanation is or is not acceptable.
Having said that, Courts need to bear in mind that delay in
lodging of the F.I.R. deprives it of spontaneity and brings in
chances of embellishments like exaggerations and distortions in
the story which if narrated at the earliest point of time may have
had different contours than what is eventually recorded in a
delayed report about the occurrence. On the flipside, a prompt
lodging of the report may not carry a presumption of truth with
it. Human minds are much too versatile and innovative to be
subject to any such strait-jacket inferences. Embellishments,
distortions, and false implication of innocence may come not only
out of deliberation which the victim party may hold among
themselves or with their well-wishers and supporters, but also on
account of quick thinking especially when all that it takes to do
so is to name all those whom the informant or his advisors
perceive to be guilty or inimical towards them.
Page 46 of 144
Adverting to the contentions raised by the learned
counsel for the parties, we find that in the first information
report (Ext.1), it is mentioned that the place of occurrence is
situated seven kilometers away from Puttasing police station.
The I.O. (P.W.11) has also stated that distance between the spot
and the P.S. is six kilometers. He further stated that on the date
of occurrence i.e. 09.09.2016 in the evening hours, BSNL
Network was available within one to two kilometers radius of
Puttasing area. He further stated that village Kitung is
surrounded by small hills and concrete road is available between
Kitung and the police station and by walk, the distance can be
covered within an hour or so and further stated that the F.I.R.
was lodged almost seven days after the alleged occurrence.
These questions have been put to the I.O. by the learned
defence counsel to show that if the police station was so close to
the informant‟s village, why the first information report was not
lodged earlier by P.W.1 and therefore, the delay in lodging the
F.I.R. is fatal to the prosecution case.
There is no dispute about the proposition of law that
in case of extraordinary delay in lodging the F.I.R. and failure of
the prosecution to explain the delay, the F.I.R. should be viewed
with suspicion as delay sometimes affords opportunity to the
informant to make deliberation, embellishment and fabrications
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and the Court in such case looks for satisfactory explanation, in
absence of which the delay is treated as fatal to the prosecution
case.
The question that now crops up for consideration is
whether there is satisfactory explanation in delay in lodging of
the F.I.R. P.W.1 has stated as to how she was threatened by the
appellants after committing the crime for which she could not
report the matter earlier due to fear. She further stated that
when she came to know that the dead bodies were cremated
after exhuming from the buried place, she could gather courage
and came to the police station on 16.09.2016 in the evening
hours secretly and lodged the F.I.R. P.W.1 has stated in the
cross-examination that there were about 25 houses in the
village. When the learned defence counsel put a pertinent
question regarding specific overt act committed by each of the
appellants during the occurrence, she stated that she was
frightened and crying for which she could not recollect the
specific acts of the appellants. According to us, it is very natural
on the part of P.W.1 not to recollect specific overt act of each
appellant as to who assaulted on which part of the body of the
deceased and by which weapon, as there were ten accused who
were stated to be participating in the assault which was made on
the three deceased. The defence has not disputed that P.W.1 has
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a sister and two school going minor brothers and therefore,
when the appellants threatened her on the date of occurrence
not to disclose the incident before anyone otherwise they would
kill her and the rest of her siblings and that they threatened her
to bring back her brothers from the school on the pretext of
sickness of her parents due to fever and kill them on the way
and produce the blood stained knife before her, the state of mind
of a girl like P.W.1 could easily be visualized. On the one hand,
she was forced to see the brutal attack on her parents and elder
sister and was informed by the appellants that they had been
killed, on the other hand she was threatened on the date of
occurrence as well as on the next day in a meeting in presence
of the ward member (P.W.7) and Samiti member and other co-
villagers not to report the matter to the police. Merely because
P.W.5 in whose house she was staying from 10.09.2016 to
15.09.2016 did not corroborate her evidence in that respect and
was declared hostile, the same cannot be a ground to doubt that
she was staying in the house of P.W.5, who was none else than
the Samiti member. It is pertinent to mention here that even
though in the presence of P.W.5, the meeting was convened on
the next day of occurrence on the hill top, where the appellants
confessed their guilt, but P.W.5 could not venture to go to the
police station and report the matter. Therefore, without getting
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any support from any source, it was but natural on the part of
P.W.1 not to immediately report the matter before the police
station being under the pressure of threat and also security to
her siblings. As rightly submitted by the learned counsel for the
State, since it was a small village consisting of only 25 houses
and she was staying in the house of the Samiti member, she can
be said to be under the close watch of not only the appellants
but also the Samiti member who appears to have closeness with
the appellants. She specifically stated that after coming to know
that the appellants exhumed the dead bodies from the burial
place and set those bodies on fire by pouring kerosene, she
came to the police station.
In the case of Apren Joseph @ Current
Kunjukunju & others -Vrs.- The State of Kerala reported in
(1973) 3 Supreme Court Cases 114, the Hon‟ble Supreme
Court observed thus:
"11.....First information report under section 154
is not even considered a substantive piece of
evidence. It can only be used to corroborate or
contradict the informant's evidence in Court. But
this information when recorded is the basis of
the case set up by the informant. It is very
useful if recorded before there is time and
opportunity to embellish or before the
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informant's memory fades. Undue or
unreasonable delay in lodging the FIR, therefore,
inevitably gives rise to suspicion which puts the
Court on guard to look for the possible motive
and the explanation for the delay and consider
its effect on the trustworthiness or otherwise of
the prosecution version. In our opinion, no
duration of time in the abstract can be fixed as
reasonable for giving information of a crime to
the police, the question of reasonable time being
a matter for determination by the Court in each
case. Mere delay in lodging the first information
report with the police is, therefore, not
necessarily, as a matter of law, fatal to the
prosecution. The effect of delay in doing so in
the light of the plausibility of the explanation
forthcoming for such delay accordingly must fall
for consideration on all the facts and
circumstances of a given case."
We are of the view that the explanation furnished by
P.W.1 regarding delay in lodging the F.I.R. is quite satisfactory
and plausible and therefore, the learned trial Court has rightly
not placed any importance on this aspect.
Whether P.W.1 has developed her case from stage to
stage:
15. It is argued by the learned counsel for the appellants
that P.W.1 has developed her case from stage to stage and due
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to such improvement, her evidence is not free from doubt and
therefore, it is difficult to act upon it.
No doubt, in the statement of P.W.1 recorded under
section 164 Cr.P.C., there are detailed elaboration of the
occurrence than what she had narrated in the F.I.R. and also
stated before police in her statement recorded under section 161
Cr.P.C., however there are no such discrepancies in the 164
Cr.P.C. statement vis-à-vis the evidence given during trial. It
seems F.I.R. was lodged containing a cryptic narration of events.
In a state of panic and disturbed mind, escaping from the village
in the evening hours, P.W.1 lodged the F.I.R. on 16.09.2016 and
on the same day, her statement was recorded under section 161
Cr.P.C. by the I.O. (P.W.11). In such a state of mind, it was not
expected of her to give all the details of the occurrence and what
happened afterwards. By passage of time, she must have
regained her composure and when she came before the
Magistrate to give her statement, her fear must have been
reduced and that might be the reason as to why she gave the
164 Cr.P.C. statement in a comprehensive manner. Moreover,
the Hon‟ble Supreme Court in the case of R. Shaji -Vrs.- State
of Kerala reported in (2013) 14 Supreme Court Cases 266
has held that in a case where the Magistrate has to perform the
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duty of recording a statement under section 164 of Cr.P.C., he is
under an obligation to elicit all information which the witness
wishes to disclose, as a witness who may be an illiterate, rustic
villager may not be aware of the purpose for which he has been
brought, and what he must disclose in his statements under
section 164 of Cr.P.C. Hence, the Magistrate should ask the
witness explanatory questions and obtain all possible information
in relation to the said case. Therefore, if in case of P.W.1, while
recording her 164 Cr.P.C. statement on 19.09.2016, the learned
Magistrate elicited all the information from her relating to the
occurrence finding the witness to be an illiterate and rustic
villager, the same cannot be a ground to doubt her testimony on
the ground that she had developed her case from stage to stage.
It is the settled law that first information report is not
the encyclopedia or be all and end all of the prosecution case. It
is not a verbatim summary of the prosecution case. The principal
object of the first information report is to set the criminal law
into motion. Non-mentioning of some facts or details or
meticulous particulars is not a ground to reject the prosecution
case. Every improvement in the statement of a witness is not
fatal to the prosecution case. In cases, where an improvement
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creates a serious doubt about the truthfulness or credibility of a
witness, the defence may take advantage of the same.
Learned counsel for the appellants argued that during
the trial of Jamsu Sabar in JCL No.8 of 2017, P.W.1 has not
stated that she cried seeing her parents and sister tied, that the
deceased persons were assaulted by crowbar, that the appellants
were accusing that her parents and sister practised witchcraft on
the co-villagers as a result of which co-villagers Biranti and
Jamjam died, that the assault to the deceased persons were
made till they lost their consciousness, that the appellant No.2
Dasanta Sabar brought pesticides used for cotton crops in a
bucket and administered to her deceased sister by syringe on
her body parts for which she cried loudly, that hearing her cry,
appellant Bubuna Sabar (A-7) came and threatened her on the
point of knife, that the appellant Aajanta Sabar (A-3) came with
the gold necklace of her sister and after giving to her, left the
spot, that Damanta (not arrayed as an accused) and appellant
Padhantu Sabar (A-4) threatened her, that she slept in the house
of the appellant Bubuna Sabar (A-7), that the appellants came
with cooked food to throw into water, that the appellant Iru
Sabar (A-9) and appellant Dasunta Sabar (A-2) came and called
her to the meeting place and that the appellants confessed in the
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meeting about killing of the deceased due to witchcraft and that
on 16.09.2016 she came to know that the accused persons
brought out the dead bodies from the ditch and set fire by
pouring kerosene.
On 03.05.2024 learned counsel for the appellants
filed an application under section 391 of Cr.P.C. vide I.A.
No.1036 of 2024 in CRLA No.750 of 2021 for recording additional
evidence of P.W.1 by way of further cross-examination and
allowing the questions mentioned in the questionnaire to be put
to P.W.1. The main ground taken is that the evidence which
P.W.1 adduced before the J.J.B. was completely contrary to her
evidence in the trial of the appellants. This Court vide order
dated 03.05.2024 has been pleased to allow the I.A. and
permitted the defence counsel to put only the questions which
were mentioned in the questionnaire to P.W.1 and liberty was
also granted to the prosecution to re-examine P.W.1, if
necessary and accordingly P.W.1 was cross-examined further in
the trial Court on 15.05.2024. When the learned defence counsel
put the questionnaire to P.W.1 with reference to her statement
made in the trial of Jamsu Sabar in JCL No.8 of 2017, she stated
that in JCL No.8 of 2017, only Jamsu Sabar was facing trial and
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she was under the impression to depose against his culpability
only and she was not asked about any other accused persons.
In view of the explanation offered by P.W.1 in the
further cross-examination dated 15.05.2024, we are of the view
that no importance can be attached to such contradictions or
basing on such contradictions, it cannot be said that she has
developed her case from stage to stage and therefore, she is an
unreliable witness.
Whether extra-judicial confession evidence is acceptable:
16. P.W.1 has stated that on the next day of the
occurrence in the morning, appellant Iru (A-9) and Dasunta (A-
2) came and called her to go to the meeting place urgently and
she along with her paternal uncle Ghana and others came to the
hill top where the meeting was organized. She further stated
that the Ward Member Lugu Sabar (P.W.7), husband of Samiti
Member Darsinga Sabar and other co-villagers were present
there. The appellants confessed before them that they had killed
the three deceased as on account of their witchcraft activities,
two of the co-villagers had already expired and three others
were not recovering from fever for a number of days. Appellant
Dasunta Sabar (A-2) stated that he brought pesticide from a
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shop about a week back after he expressed his desire to the
shop keeper to purchase poison in order to kill pigs.
P.W.7 Lugu Sabar has not supported the prosecution
case regarding extra-judicial confession of the appellants for
which he was declared hostile by the prosecution and cross-
examined. He stated that the three deceased died of cholera in
the same night of the relevant day and after their death, the
bodies were kept unattended in their house for which he along
with other co-villagers took those dead bodies and buried it in
the village near a hill. No other witness has stated about the
extra-judicial confession of the appellants.
The learned counsel for the appellants contended
that when numbers of persons were present in the meeting place
before whom extra-judicial confession was made by the
appellants, except P.W.1, no other witness has been examined to
prove this aspect and therefore, it would not be proper to act
upon the evidence of P.W.1 on this aspect.
In the case of Jagroop Singh -Vrs.- State of
Punjab reported in (2012) 11 Supreme Court Cases 768, it
has been held that if the extra-judicial confession is true and
voluntary, the same can be relied upon by the Court to convict
the accused for the commission of the crime alleged. Despite
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inherent weakness of extra-judicial confession as an item of
evidence, it cannot be ignored when shown that such confession
was made before a person who has no reason to state falsely
and his evidence is credible. The evidence in the form of extra-
judicial confession made by the accused before the witness
cannot be always termed to be a tainted evidence. Corroboration
of such evidence is required only by way of abundant caution. If
the Court believes the witness before whom the confession is
made and is satisfied that it was true and voluntarily made, then
the conviction can be found on such evidence. The aspects which
have to be taken care of are the nature of circumstances, the
time when the confession was made and the credibility of the
witnesses who speak for such a confession. That apart, before
relying on the confession, the Court has to be satisfied that it is
voluntary and it is not the result of inducement, threat or
promise as envisaged under section 24 of the Evidence Act.
There is no evidence that the appellants made the
extra-judicial confession under any kind of threat, inducement or
promise. A meeting was convened and P.W.1 was taken to the
meeting where not only the confession was made but she was
also threatened there with dire consequences in case she
reported to the police or gave evidence in Court. It seems that
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other persons present in the meeting were either supporting the
appellants or they were in a fear state to raise any kind of
protest as the appellants had already killed three persons of their
village. The meeting was so arranged by the appellants to show
their power and to justify their misdeeds and also to create a
fear psychosis in the minds of the persons attending the meeting
not to divulge it before anyone or to face serious consequences.
Nothing has been brought out in the cross-examination to
disbelieve the extra-judicial confession, even it has not been
suggested to P.W.1 that there was no such meeting held on the
hill top on the next day of the occurrence in the morning and
that no such confession has been made by the appellants. The
confession appears to be voluntary and the evidence of P.W.1 on
this score is acceptable and therefore, the contentions raised by
the learned counsel for the appellants that it would be unsafe to
act upon the extra-judicial confession is not acceptable.
Corpus Delicti not found:
17. The learned counsel for the appellants submitted that
P.W.1 had seen only the assault part inside the cowshed of
P.W.2, but there is no evidence as to what happened to the three
deceased after they were taken out of the cowshed. The death of
the deceased persons has not been proved and the bodies of the
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deceased persons were not found and the report submitted by
the State F.S.L., Rasulgarh after examining the burnt bone
pieces no way helps the prosecution to establish the homicidal
death of the deceased persons.
The learned counsel for the State, on the other hand,
argued that after the deceased persons were carried away by the
appellants from the cowshed one after another, not only it was
informed to P.W.1 that the deceased persons were killed but
thereafter nobody has seen the deceased persons alive. Even
though there is no direct evidence to the second phase of
occurrence but in absence of any explanation offered by the
appellants as to what happened to the deceased persons after
they were taken from the cowshed and when they parted with
the company of the three deceased, the proximity of time
between the carrying of three deceased from the cowshed and
return of the appellants to the cowshed, even if the corpus delicti
is not found, in view of 106 of the Evidence Act, it can be said
that the prosecution has established that the appellants were the
authors of the crime.
In the case of Ramachandra and Ram Bharosey
-Vrs.- State of Uttar Pradesh reported in A.I.R. 1956
Supreme Court 381, it was held that in law, a conviction for an
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offence did not necessarily depend upon the corpus delicti i.e.
the dead body, is being found. However, there must be reliable
evidence, direct or circumstantial, of commission of murder,
though corpus delicti is not traceable.
In the case of Mani Kumar Thappa -Vrs.- State of
Sikkim reported in (2002) 7 Supreme Court Cases 157, it
was held that in a trial for murder, it is neither an absolute
necessity nor an essential ingredient to establish corpus delicti,
but the factum of death of the deceased concerned must be
established like any other fact. In some cases, it would not be
possible to trace or recover corpus delicti owing to a number of
possibilities such as dead body might have been disposed of
without trace. If the recovery of the dead body is held to be
mandatory to convict an accused, in many cases, the accused
would manage to see that the dead body is destroyed which
would afford the accused a complete immunity from being held
guilty or from being punished. What is required in law to base a
conviction for an offence of murder is that there should be
reliable and plausible evidence, like any other fact, that death
was committed and it could be proved by direct or circumstantial
evidence albeit the dead body could not be traced.
Page 61 of 144
In the case of Prithipal Singh and others -Vrs.-
State of Punjab and others reported in (2012) 1 Supreme
Court Cases 10, it has been held that in a murder case, it is not
necessary that dead body of the victim should be found and
identified, i.e. conviction for offence of murder does not
necessarily depend upon corpus delicti being found. The corpus
delicti in a murder case has two components - death as result,
and criminal agency of another as the means. Where there is a
direct proof of one, the other may be established by
circumstantial evidence.
In the case of Ram Gulam Chaudhury (supra), it
has been held that it is not at all necessary for a conviction for
murder that the corpus delicti be found. Undoubtedly, in the
absence of corpus delicti, there must be direct or circumstantial
evidence leading to the inescapable conclusion that the person
had died and that the accused are the persons who had
committed the murder.
In the case of Rishi Pal -Vrs.- State of
Uttarakhand reported in (2013) 12 Supreme Court Cases
551, it is held that in the absence of corpus delicti, what the
Court looks for, is the clinching evidence that proves that the
victim has been done to death. If the prosecution is successful in
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providing cogent and satisfactory proof of the victim having met
a homicidal death, absence of corpus delicti will not by itself be
fatal to the charge of murder. Failure of the prosecution to
assemble such evidence will, however result in failure of the
most essential requirement in a case involving a charge of
murder.
In view of the principles laid down in the aforesaid
decisions of the Hon‟ble Supreme Court, we are of the humble
view that a conviction for an offence does not necessarily depend
upon the corpus delicti being found. In the absence of the corpus
delicti, there must be direct or circumstantial evidence leading to
the inescapable conclusion that the person has died and that the
accused are the persons who had committed the murder. If the
prosecution is successful in providing clinching evidence and
cogent and satisfactory proof of the victim having met a
homicidal death, absence of corpus delicti will not by itself be
fatal to a charge of murder. Where a homicidal death is sought
to be established by circumstantial evidence alone, the
circumstances must be of a clinching and definitive character
unerringly leading to the conclusion that the victim had met with
a homicidal death. When the body of the person said to have
been murdered is not forthcoming, the prosecution is required to
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adduce strongest possible evidence as to the fact of the murder.
If it is established clearly that a particular person was
intentionally killed, in absence of discovery or production of the
body of the murdered person, a conviction can be sustained.
Therefore, before convicting a person of the charge of murder,
the Court must be satisfied that the person alleged to have been
murdered is actually dead.
In the case in hand, there is no direct evidence that
the deceased persons were killed after being taken from the
cowshed of P.W.2 and buried and thereafter, their dead bodies
were exhumed and cremated and the learned trial Court has
rightly held that so far as the second scene of occurrence and
the incident which took place at the second scene of occurrence
is based upon circumstantial evidence.
The I.O. (P.W.11) has stated that the scientific team
and Executive Magistrate and the police proceeded to the spot
and appellant Dengun Sabar (A-1) showed the cremation ground
which was visited by the scientific team for collection of
evidence. The spot visit report of the scientific team was
produced before the I.O. which has been marked as Ext.19. He
further stated that on the basis of confession of Dengun Sabar
(A-1), recovery and seizure of charred bone and ashes from the
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spot where those three bodies were cremated, scientific team
collected the same and analyzed and handed over to him after
making necessary packing and sealing. He further stated that he
collected 35 bones from the spot and seized and the scientific
officers collected 8 bones which were also seized as per seizure
list Ext.4/2. The report of the State F.S.L. indicates that 25 nos.
of sealed packets containing 25 burnt bone pieces of three
deceased persons marked as Exts.F1 to F25 were received but
the D.N.A. profile could not be generated from the burnt bone
pieces and D.N.A. profile was not possible to be generated from
the Exhibits as the bones were burnt completely and required
quantity of D.N.A. could not be extracted from the Exhibits
marked as F2, F4, F11, F12 and F25.
Evidence of P.W.1 indicates that after the assault on
the deceased persons were over, appellant Dasunta Sabar (A-2)
and Iru Sabar (A-9) unfastened the rope by which her sister
(deceased Ashamani Sabar) was tied up and they took her to
some other location. Half an hour thereafter, rest of the
appellants took away her mother (deceased Amabaya Sabar)
and ten to fifteen minutes after, they took away her father
(deceased Asina Sabar). She further stated that some of the
appellants returned back and called her to accompany them to
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take bath in the spring and returned back home as after killing
human beings, they were not supposed to go straight to their
homes without taking bath.
Thus, apart from the extra-judicial confession which
was made by the appellants in the meeting to have killed the
parents and sister of P.W.1, the conduct of the appellants on the
date of occurrence in taking the three deceased from the
cowshed one after another and returning within a short time and
also what they stated before P.W.1 also proves that they had
killed the three deceased persons.
The deceased persons in the moribund condition
were taken out of the cowshed of P.W.2 one after another by the
appellants and thereafter no one had seen any of the deceased
alive. Specific questions in that respect have also been put to the
appellants in their accused statements, however they have
simply stated that it was false. In other words, the appellants
have not explained as to when they parted with the company of
the three deceased persons whom they took from the cowshed
and what happened to the deceased persons.
In the case of Somasundaram @ Somu (supra),
the Hon‟ble Supreme Court held that the abduction followed by
murder in appropriate cases can enable a Court to presume that
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the abductor is the murderer. The principle is that after
abduction, the abductor would be in a position to explain what
happened to the victim and if he failed to do so, it is only natural
and logical that an irresistible inference might be drawn that he
has done away with the hapless victim. Section 106 of the
Evidence Act would come to the assistance of the prosecution.
Section 106 of the Evidence Act states that when any
fact is especially within the knowledge of any person, the burden
of proving such fact is upon him. The last seen theory comes into
play where the time gap between the point of time when the
accused and the deceased were last seen alive and when the
deceased is found dead is so small that the possibility of any
person other than the accused being the author of the crime
becomes impossible.
In the case of Sucha Singh -Vrs.- State of Punjab
reported in A.I.R. 2001 Supreme Court 1436, the Hon‟ble
Supreme Court while dealing with burden of proof under section
106 of the Evidence Act held as follows:
"20. We pointed out that Section 106 of the
Evidence Act is not intended to relieve the
prosecution of its burden to prove the guilt of
the accused beyond reasonable doubt, but the
Section would apply to cases where the
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prosecution has succeeded in proving facts for
which a reasonable inference can be drawn
regarding the existence of certain other facts,
unless the accused by virtue of special
knowledge regarding such facts failed to offer
any explanation which might drive the court to
draw a different inference."
In the case of State of Rajasthan -Vrs.- Kashi
Ram reported in (2006) 12 Supreme Court Cases 254, it
has been held whether an inference ought to be drawn under
section 106 of Evidence Act is a question which must be
determined by reference to the facts proved. It is ultimately a
matter of appreciation of evidence and therefore, each case must
rest on its own facts. If a person is last seen with the deceased,
he must offer an explanation as to how and when he parted
company. He must furnish an explanation which appears to the
Court to be probable and satisfactory. If he fails to offer an
explanation on the basis of facts within his special knowledge, he
fails to discharge the burden cast upon him by section 106 of the
Evidence Act. In a case resting on circumstantial evidence, if the
accused fails to offer a reasonable explanation in discharge of
the burden placed on him, that itself provides an additional link
in the chain of circumstances proved against him. Section 106 of
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the Evidence Act, however, does not shift the burden of proof in
a criminal trial, which is always upon the prosecution.
In the case in hand, we are of the view that when the
three deceased persons were last seen alive in the company of
the appellants being carried in a moribund condition from the
cowshed of P.W.2 in the evening hours on 09.09.2016 and
thereafter no one has seen any of the deceased alive and the
appellants have failed to explain as to how and when they parted
with the company of the deceased persons rather taken a plea of
denial, it can be said that the appellants have failed to discharge
the burden cast upon them by section 106 of the Evidence Act
and apart from the clinching evidence of P.W.1 relating to their
participation in the assault of the three deceased inside the
cowshed, this lack of explanation would provide an additional link
in the chain of circumstances proved against them.
Conduct of the appellants on the date of occurrence:
18. Another important aspect which cannot be lost sight
of by this Court is that after the appellants took the three
deceased from the cowshed of P.W.2 one after another,
appellant Aajanta Sabar (A-3) came with the gold neck chain of
deceased Ashamani Sabar and gave it to P.W.1 and then P.W.1
was threatened by two of the accused persons not to disclose
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about the incident before anyone. Then some of the appellants
came and called P.W.1 to accompany them to take bath in the
spring and thereafter to return back home as after killing human
beings, they were not supposed to go straight to their houses
without taking bath. Though the appellants forced P.W.1 to take
bath but she did not agree for which they took bath and retuned
back to their village and when she stayed in the house of
appellant Bubuna Sabar (A-7), the appellants Dengun (A-1),
Aajanta (A-3), Padhantu (A-4) and Bubuna (A-7) came to her
with cooked food of their houses meant to be taken in dinner and
asked her to accompany them to destroy the same by throwing
into the water from a bridge.
Section 8 of the Evidence Act is very appropriate to
be discussed here as it makes the conduct of an accused
relevant, if such conduct influences or is influenced by any fact in
issue or relevant fact. It could be either previous or subsequent
conduct. The conduct in order to be admissible must be such
that it has close nexus with a fact in issue or relevant fact.
In the case in hand, the conduct of the appellants is
not only relevant under section 8 of the Evidence Act but is also
one of the major circumstances to arrive at a conclusion of their
guilt in view of other evidence available on record.
Page 70 of 144
Whether place of occurrence is doubtful:
19. The contention of the learned counsel for the
appellants is that since no stumps and ropes were seized from
the cowshed of P.W.2 by the I.O. (P.W.11) where the three
deceased persons so also P.W.1 were stated to have been tied,
no pesticide or injection was seized from the cowshed at the time
of spot visit by the I.O. and even P.W.2 has not stated that any
occurrence took place inside his cowshed, the place of
occurrence becomes a doubtful feature.
We are not at all impressed by such submissions
inasmuch as P.W.2 has not supported the prosecution case for
which he has been declared hostile. The I.O. (P.W.11) has stated
that from the cattle shed, he had seized a petty coat suspected
to be containing blood stain as it was hanging from the roof. No
injection syringe, bucket, pesticide, cotton, crowbar, kati (large
knife) or blood stained soil were found from the spot. He further
stated that he had not seized the stumps in which P.W.1 and
three deceased were tied up as those were fixed on the floor. He
further stated that he had not removed those stumps and seized
those as he did not feel it proper to do so. When the F.I.R. was
lodged seven days after the occurrence and in the meantime, the
appellants had taken steps to cremate the dead bodies, it was
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not expected that they would have left some incriminating
materials at the spot of crime to be noticed by others and there
was every possibility of causing disappearance of the evidence
on their part from the spot.
In view of the evidence of P.W.1, we are not inclined
to accept the contentions raised by the learned counsel for the
appellants that the place of occurrence is a doubtful feature.
20. In the case in hand, we find that the solitary
evidence of P.W.1 Melita Sabar, the informant of the case is
wholly reliable, truthful and inspiring confidence. Neither her
evidence can be discarded on the ground of her relationship with
the three deceased nor can the lodging of the first information
report by her be doubted merely because the scribe of the F.I.R.
was not examined. She has given satisfactory explanation
regarding the delay in lodging the first information report and we
are convinced with such explanation. Her evidence in Court is
consistent with her statement recorded under section 164
Cr.P.C. and the defence has failed to bring any contradictions
between the two. Of course, there are some improvements in
her version when she gave her 164 Cr.P.C. statement than what
she mentioned in the F.I.R. or stated before police in her 161
Cr.P.C. statement, but as rightly argued by the learned counsel
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for the State that after the lodging of the F.I.R. and giving her
161 Cr.P.C. statement before the I.O. in a state of panic, when
she came to Court after three days to give her statement on
19.09.2016 which was recorded by none else than the Judicial
Magistrate First Class, she must be feeling secured as by that
time the appellants had already been arrested and forwarded to
the Court and therefore, she elaborately narrated the incident
before the Magistrate. Her evidence is getting corroboration from
the extra-judicial confession of the appellants made in the hill
top on the next day of occurrence. The conduct of the appellants
after the occurrence is another relevant feature in this case
which also lays support to the evidence of P.W.1.
Even though P.Ws. 2 to 7 have not supported the
prosecution case and they have been declared hostile and the
evidence of P.W.8 and P.W.9 are in no way helpful to the
prosecution case and the remaining two witnesses i.e. P.Ws.10
and 11 are official witnesses, but in our humble view P.W.1 is a
wholly reliable witness and therefore, her evidence can be safely
acted upon to come to the irresistible conclusion that the
appellants are the authors of the crime and they have committed
the murder of the three deceased, namely, Asina Sabar,
Amabaya Sabar and Ashamani Sabar.
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Non-examination of Damant Sabar as a witness/non-
proceeding against him as an accused :
21. The contentions raised by the learned counsel for the
appellants/condemned prisoners that Daman Sabar should have
been arrayed as an accused or he should have at least been
examined as a witness and in absence of his evidence, the
evidence of P.W.1 should not be accepted as gospel truth to
convict the appellants, is not acceptable.
P.W.1 has stated that she was informed by the co-
villager Daman Sabar that her parents and sister were being tied
up in the stump inside the cow shed of P.W.2. She has further
stated that when the appellants took away the three deceased,
they instructed Damanta Sabar and Paranta to guard her and not
to allow her to leave till their return. She further stated that both
Damant Sabar and Paranta threatened her not to disclose the
incident before anyone or else they would kill her and rest of her
siblings. She stated that Damanta Sabar is not an accused in the
case.
The best person to say as to why Damanta Sabar
was not arrayed as an accused is P.W.11, the Investigating
Officer. Strangely, not a single question has been put to the I.O.
by the learned defence counsel in the cross-examination in that
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respect. The learned trial Court has put a question to the I.O.
(P.W.11) and accordingly, it has been elicited that Damant Sabar
has been shown as a witness for the prosecution. The I.O. has
also stated the address of Damanta Sabar as per case records.
Of course, the prosecution has not taken any step to examine
Damanta Sabar as a witness during trial and no step has also
been taken under section 319 of Cr.P.C. to proceed against him
but in our humble view, the same cannot be a ground not to act
upon the evidence of P.W.1 or doubt her evidence or to hold that
the non-examination of Damanta Sabar has caused prejudice to
the appellants. Therefore, the learned trial Court has rightly not
placed any importance on such submission.
Discussions of evidence on record offence-wise :
22. At this stage, it would be profitable to discuss the
evidence on record offence-wise.
(i) Section 342/34 of I.P.C. :
Learned trial Court has found the appellants guilty
under section 342 read with section 34 of the I.P.C.
Charge has been framed against the appellants that
they in furtherance of their common intention wrongfully
confined P.W.1 and the three deceased in the cattle shed of
P.W.2 on 09.09.2016 evening at about 8.00 p.m.
Page 75 of 144
Section 342 of the I.P.C. deals with punishment for
„wrongful confinement‟, which has been defined under section
340 of I.P.C. and it states that whoever wrongfully restrains any
person in such a manner as to prevent that person from
proceeding beyond certain circumscribing limits, is said
„wrongfully to confine‟ that person. Thus, this section requires
two essentials i.e. wrongful restraint of a person and such
restraint must prevent that person from proceeding beyond
certain circumscribing limits. Wrongful confinement keeps a
person within limits out of which he/she cannot go.
In the case in hand, P.W.1 has specifically stated
when she came inside the cow shed of P.W.2, she found her
parents and elder sister were tied up by the appellants who were
also present there. She was also tied in another stump by means
of a rope. After the deceased persons were assaulted, the ropes
were unfastened and they were taken by the appellants one after
another to some other location. The evidence of P.W.1 on this
aspect is consistent throughout and it has not been shattered in
the cross-examination. Therefore, the prosecution has
successfully established the charge under section 342 read with
section 34 of the I.P.C. against the appellants.
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(ii) Section 364/34 of I.P.C. :
Learned trial Court has found the appellants guilty
under section 364 read with section 34 of I.P.C.
Charge has been framed against the appellants that
in furtherance of their common intention, they abducted P.W.1
and the three deceased and tied them in rope in the cattle shed
of P.W.2 and again removed the three deceased from the cattle
shed to one unknown place in order that those three deceased
be put in danger of being murdered and that P.W.1 was also
threatened in order that she might be murdered.
Section 364 of I.P.C. deals with offence of kidnapping
or abducting in order to murder. It states that whoever kidnaps
or abducts any person in order that such person may be
murdered or may be so disposed of as to be put in danger of
being murdered shall be punished with this offence.
„Kidnapping‟ is of two kinds i.e. kidnapping from
India and kidnapping from lawful guardianship as per section 359
of I.P.C. „Kidnapping from lawful guardianship‟ has been defined
under section 361 of I.P.C. Taking or enticing away a minor
under the age of sixteen years, if a male or under eighteen years
of age, if a female or a person of unsound mind so as to keep
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such person of the lawful guardianship and that too without the
consent of such guardian attracts the ingredients of the offence.
In view of the age of P.W.1 at the time of
occurrence, which was twenty-two years as well as the age of
her parents and elder sister (three deceased persons), offence of
kidnapping from lawful guardianship would not be attracted.
So far as abduction is concerned, the same is defined
under section 362 of I.P.C. The ingredients of the offence of
abduction are (i) forcible compulsion or inducement by deceitful
means and (ii) the object of such compulsion or inducement
must be the going of a person from any place.
P.W.1 has stated as to how the appellants had tied
up her parents and elder sister in the stump inside the cow shed
of P.W.2 and how they also tied her up. She has further stated
that after assaulting the three deceased persons, the appellants
unfastened the rope and took away the deceased persons one by
one to some other location. The deceased persons were not
found alive thereafter and in view of the evidence on record, it is
apparent that the appellants committed murder of the three
deceased. Therefore, the ingredients of the offence under section
364 read with section 34 of the I.P.C. are satisfied.
Page 78 of 144
(iii) Section 365/34 of I.P.C. :
Learned trial Court has found the appellants guilty
under section 365 read with section 34 of the I.P.C.
Charge has been framed against the appellants that
in furtherance of their common intention, they abducted P.W.1
and the three deceased with intent to cause them to be secretly
and wrongfully confined.
Section 365 of I.P.C. deals with offence of kidnapping
or abducting with intent secretly and wrongfully to confine
person. It states that whoever kidnaps or abducts any person
with intent to cause that person to be secretly and wrongfully
confined, shall be punished with this offence. The prosecution
has to prove that the accused kidnaped or abducted a person
and thereby intended that such person should be kept in
wrongful or secret confinement.
The evidence of P.W.1 as has already been discussed
clearly proves wrongful confinement so also abduction of the
three deceased persons. P.W.1 has also stated as to how when
she returned back to her house, she found no one was there and
when she was looking for her family members, she was informed
by Damanta Sabar about the three deceased persons being tied
up in the stump inside the cow shed of P.W.2. Therefore, there
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are materials on record that the appellants abducted the three
deceased persons and wrongfully confined them inside the cow
shed of P.W.2 and thereafter assaulted them and took them to
some unknown location whereafter they were not found alive.
Therefore, the ingredients of the offence under section 365 read
with section 34 of the I.P.C. are satisfied.
(iv) Section 201/34 of I.P.C. :
Learned trial Court has found the appellants guilty
under section 201 read with section 34 of the I.P.C.
Charge has been framed against the appellants that
in furtherance of their common intention, knowing or having
reason to believe that the offence of murder of three deceased
persons has been committed, they cremated the dead bodies of
the three deceased to disappear evidence with an intention to
screen themselves and other offenders from legal punishment of
such murder.
Section 201 of I.P.C. deals with causing
disappearance of evidence of offence, or giving false information
to screen the offender. At this stage, it is apposite for us to
reproduce the provision which reads as follows:
"Whoever, knowing or having reason to believe
that an offence has been committed, causes any
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evidence of the commission of that offence to
disappear, with the intention of screening the
offender from legal punishment, or with that
intention gives any information respecting the
offence which he knows or believes to be false."
To bring home an offence under section 201 of the
I.P.C., the prosecution is required to establish the following
ingredients:
(i) an offence has been committed;
(ii) person charged with the offence under
section 201 of the I.P.C. must have the
knowledge or reason to believe that an offence
has been committed;
(iii) person charged with the said offence should
have caused disappearance of evidence; and
(iv) the act should have been done with the
intention of screening the offender from legal
punishment or with that intention he should have
given information respecting the offence, which
he knew or believed to be false.
It is plain that the intent to screen the offender
committing an offence must be the primary and sole aim of the
accused. It hardly needs any emphasis that in order to bring
home the charge under section 201 of the I.P.C., a mere
suspicion is not sufficient. There must be on record cogent
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evidence to prove that the accused knew or had information
sufficient to lead him to believe that the offence had been
committed and that the accused has caused the evidence to
disappear in order to screen the offender, known or unknown.
In the case of Sukhram -Vrs.- State of
Maharashtra reported in (2007) 7 Supreme Court Cases
502, the Hon'ble Supreme Court has elaborately discussed the
necessary ingredients of offence under section 201 of the I.P.C in
the following words:
"The first paragraph of the section contains the
postulates for constituting the offence while the
remaining three paragraphs prescribe three
different tiers of punishments depending upon
the degree of offence in each situation. To bring
home an offence under Section 201 IPC, the
ingredients to be established are: (i) committal
of an offence; (ii) person charged with the
offence under Section 201 must have the
knowledge or reason to believe that an offence
has been committed; (iii) person charged with
the said offence should have caused
disappearance of evidence; and (iv) the act
should have been done with the intention of
screening the offender from legal punishment or
with that intention he should have given
information respecting the offence, which he
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knew or believed to be false. It is plain that the
intent to screen the offender committing an
offence must be the primary and sole aim of the
accused. It hardly needs any emphasis that in
order to bring home an offence under Section
201 IPC, a mere suspicion is not sufficient.
There must be on record cogent evidence to
prove that the accused knew or had information
sufficient to lead him to believe that the offence
had been committed and that the accused has
caused the evidence to disappear in order to
screen the offender, known or unknown."
In the case of Hanuman and Ors. -Vrs.- State of
Rajasthan reported in (1994) 2 Supp. Supreme Court
Cases 39, the Hon'ble Supreme Court held that the mere fact
that the deceased allegedly died an unnatural death could not be
sufficient to bring home a charge under section 201 of the I.P.C..
Unless the prosecution was able to establish that the caused
person knew or had reason to believe that an offence has been
committed and had done something causing the offence of
commission of evidence to disappear, he cannot be convicted.
The evidence of P.W.1 makes it clear that after
assaulting the three deceased persons inside the cow shed of
P.W.2, the appellants took them to some unknown place one by
one whereafter the deceased persons were not found alive. The
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evidence on record indicates about burying the dead bodies,
exhuming the dead bodies after some days and cremating the
same. The appellants have not offered any explanation in their
accused statements as to what they did with the three deceased
persons after they were taken out of the cow shed of P.W.2.
Thus, the act of the appellants squarely attracts the ingredients
of the offence under section 201 read with section 34 of the
I.P.C. and the learned trial Court is quite justified in convicting
the appellants under such offence.
(v) Section 506/34 of I.P.C. :
Learned trial Court has found the appellants guilty
under section 506 of I.P.C. read with section 34 of the I.P.C.
Charge has been framed against the appellants that
in furtherance of their common intention, they committed
criminal intimidation by threatening P.W.1 with injury to her
person, reputation and property with intent to cause alarm to
her.
Section 506 of I.P.C. deals with punishment for
criminal intimidation, which has been defined under section 503
of the I.P.C. The offence is attracted when threat is given to a
person with an injury to him, to his reputation or to his property
or to the person or reputation of any one in whom that person is
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interested. Similarly, threatening a person with an injury to
cause alarm to that person or to cause the person to do any act
which is not legally bound to do as the means of avoiding the
execution of such threat or to cause that person to omit to do
any act which that person is legally entitled to do as the means
of avoiding the execution of such threat, also attracts the
ingredients of the offence.
P.W.1 has stated as to how the appellants threatened
her with the knife point when she started crying, how the
appellants threatened her not to disclose the incident before any
one otherwise they would kill her and rest of the siblings i.e. her
sister and two brothers, how she was threatened at the meeting
place not to submit the report to the police or to give evidence in
Court, otherwise, they would kill her. The evidence of P.W.1
clearly makes out the ingredients of the offence under section
506 read with section 34 of the I.P.C. and thus, we find no fault
with the trial Court in convicting the appellants for such offence.
(vi) Section 4 of O.P.W.H. Act, 2013 :
Learned trial Court has found the appellants guilty
under section 4 of the O.P.W.H. Act, 2013.
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Charge has been framed against the appellants that
they along with others committed witch-haunting by killing the
three deceased claiming them to be practising witchcraft.
Section 4 of the O.P.W.H. Act, 2013 deals with
penalties for „witch-haunting‟. Sub-section (1) of section 4 of the
O.P.W.H. Act, 2013 states that whosoever, except as provided in
sub-section (2) commits witch-haunting or abets or provokes for
witch haunting, shall be punished for this offence. Similarly, sub-
section (2) of section 4 of the O.P.W.H. Act, 2013 states that if
any one forces any woman, branding her as witch, to drink or
eat any inedible substance or any other obnoxious substance or
parade her with her painted face or body or commits any similar
acts, which is derogatory to human dignity or displaces from her
house can be punished for witch-haunting.
On the face of the evidence of P.W.1, there is no
such material to attract the ingredients of sub-section (2) of
section 4 of the O.P.W.H. Act, 2013 as neither the two lady
deceased nor the informant (P.W.1) were forced by the
appellants, branding them as witches, to drink or eat any
inedible substance or any other obnoxious substance or were
paraded with painted face or body or any such similar acts were
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committed, which were derogatory to human dignity or they
were displaced from their house .
So far as witch-haunting is concerned, the same has
been defined under section 2(d), which means, any act of
omission, commission or conduct on the part of any person (i)
identifying, accusing or defaming a woman as a witch, or (ii)
harassing, harming or injuring such woman whether mentally or
physically or damaging her property.
P.W.1 has stated in her evidence that the villagers
castigated alleging witchcraft activities by her father (deceased
Asina Sabar) for which she had to discontinue her study in the
year 2009 after passing 7th class examination. She further stated
that on many occasions in the preceding years, ever since the
grandmother of the appellant Dasunta (A-2) had fallen sick,
allegations were made against her father by the grandmother of
the appellant Dasunta that she had dreamt of witch crafting by
deceased Asina Sabar that caused her sick. She stated that the
villagers had tortured them and imposed penalty in terms of
money on her father. She further stated that it might be okay for
the villagers to take revenge against her father, but there was no
point in killing her mother and sister, who were also innocent
people in the eyes of the villagers. In the cross-examination, she
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has stated that in respect of previous incident, no report was
lodged at the police station though they were planning to
intimate the police.
Therefore, there is no evidence on record that the
appellants committed any act of omission or commission in
identifying, accusing or defaming the two lady deceased,
namely, Amabaya Sabar and Ashamani Sabar as witch or
harassed or harmed or caused injury to the two lady deceased
whether mentally or physically or damaging the property in that
connection.
Learned trial Court has given emphasis on the
statement made by P.W.1 in the examination in chief that while
assaulting the three deceased by means of lathi, stick and crow
bar, the appellants were alleging that the deceased persons
witch-crafted the co-villagers as a consequence Biranti and
Jamjam of their village died. The definition of „witch-craft„ as per
section 2(b) of O.P.W.H. Act, 2013 is different than the definition
of witch-haunting in section 2(d) of the said Act and section 4 of
the O.P.W.H. Act, 2013 as already stated deals with penalty for
„witch-haunting‟ not for „witch-crafting‟. Learned trial Court has
further relied on what P.W.1 has mentioned in the F.I.R. (Ext.1)
or in 164 Cr.P.C. statement in connection with the offences
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under the O.P.W.H. Act, 2013, but the same being not a
substantive piece of evidence, we cannot accept the same to
arrive at a conclusion that the offence under section 4 of the
O.P.W.H. Act, 2013 are made out. Thus, the ingredients of the
offence under section 4 of the O.P.W.H. Act, 2013 are not
attracted.
Accordingly, the appellants are acquitted of the
charge under section 4 of the O.P.W.H. Act, 2013.
(vii) Section 302/34 of I.P.C. :
Learned trial Court has found the appellants guilty
under section 302 of I.P.C. read with section 34 of the I.P.C.
Charge has been framed against the appellants that
in furtherance of their common intention, they committed
murder of the three deceased intentionally.
As has already been discussed above, in view of the
overwhelming evidence of P.W.1, which we found to be truthful,
reliable, cogent, trustworthy and above board, the prosecution
has successfully established that the appellants are the authors
of the crime and they have committed murder of the three
deceased, namely, Asina Sabar, Amabaya Sabar and Ashamani
Sabar. Thus, the conviction of the appellants under section 302
read with section 34 of the I.P.C. is quite justified.
Page 89 of 144
Sentences awarded by trial Court under sections 342/34,
364/34, 365/34,201/34, and 506/34 of the I.P.C.:
23. The duty of every Court is to award proper sentence
having regard to the nature of the offence and the manner in
which it was executed or committed. The criminal law adheres in
general to the principle of proportionality in prescribing liability
according to the culpability of each kind of criminal conduct. It
ordinarily allows some significant discretion to the Judge in
arriving at a sentence in each case, presumably to permit
sentences that reflect more subtle considerations of culpability
that are raised by the special facts of each case. Judges in
essence affirm that punishment ought always to fit the crime;
yet in practice, sentences are determined largely by other
considerations. Sometimes it is the correctional needs of the
perpetrator that are offered to justify a sentence and sometimes
the desirability of keeping him out of circulation and sometimes
even the tragic results of his crime. Inevitably these
considerations cause a departure from just desert as the basis of
punishment and create cases of apparent injustice that are
serious and widespread. Proportion between crime and
punishment is a goal respected in principle, and in spite of errant
notions, it remains a strong influence in the determination of
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sentences. Anything less than a penalty of greatest severity for
any serious crime is unwarranted and unwise. Disproportionate
punishment has some very undesirable practical consequences.
In our humble view, the sentences awarded by the
learned trial Court to the appellants for commission of offences
under sections 342/34, 364/34, 365/34,201/34, and 506/34 of
the I.P.C. are quite justified.
Whether Death Sentence awarded for the offence under
section 302/34 of the I.P.C. needs interference?:
24. The learned trial Court after pronouncing the verdict
of guilty against the appellants on 21.10.2021, posted the case
on the same day for hearing on the question of sentence and
later at 2.00 p.m. after hearing the learned Special Public
Prosecutor so also the learned defence counsel, came to hold
that the aggravating circumstances are in favour of the
prosecution and against the convicts and in the facts and
circumstances of the case, there is no alternative punishment left
for the convicts than the one which is death sentence. The
learned trial Court held that there appears no material on record
to justify that there was possibility of reformation of the convicts.
It was further held that the conduct of the convicts showed that
they had committed the ghastly act by killing three innocent
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persons of one family including two females and instead of
showing repentance, they gave threats to the informant (P.W.1)
to kill her and her brothers. The aggravating circumstances are
outweighing the mitigating circumstances. The age of the
convicts was around 27 to 41 years and the crime was
committed with extreme brutality and the collective conscience
of the society was shocked and thus, the case comes within the
category of „rarest of rate cases‟ and warrants the only deterrent
punishment i.e. the capital punishment/death sentence.
It is thus clear that the learned trial Court after
convicting the appellants has not given adequate opportunity to
them to produce the mitigating circumstances in their favour nor
it tried to collect the same nor discussed what the mitigating
circumstances are available in favour of the appellants, but
merely stated that the aggravating circumstances were
outweighing the mitigating circumstances.
In the case of Allauddin Mian and Others -Vrs.-
State of Bihar reported in (1989) 3 Supreme Court Cases
5, the Hon‟ble Supreme Court held that since the choice is
between capital punishment and life imprisonment, the
legislature has provided a guideline in the form of sub-section
(3) of section 354 of Cr.P.C. It is held that as a general rule, the
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trial Court should after recording the conviction adjourn the
matter to a future date and call upon both the prosecution as
well as the defence to place the relevant materials bearing on
the question of sentence before it and thereafter pronounce the
sentence to be imposed on the offender. The Presiding Officer
must show a high degree of concern for the statutory right of the
accused and should not treat it as a mere formality to be crossed
before making the choice of sentence. If the choice is made,
without giving the accused an effective and real opportunity to
place his antecedents, social and economic background,
mitigating and extenuating circumstances, etc., before the Court,
the Court's decision on the sentence would be vulnerable. The
sentencing Court must approach the question seriously and must
endeavour to see that all the relevant facts and circumstances
bearing on the question of sentence are brought on record. Only
after giving due weight to the mitigating as well as the
aggravating circumstances placed before it, it must pronounce
the sentence.
A „mitigating circumstance‟ is a factor that lessens
the severity of an act or culpability of the accused for his action.
If the mitigating circumstances outweigh the aggravating
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circumstance, the Judge is likely to be less aggressive in the
ruling/sentencing.
As per order dated 20th September 2024, after going
through the paragraphs on hearing on sentence of the learned
trial Court, we feel it just and proper that the appellants should
be provided an opportunity to file affidavits for consideration of
materials on mitigating circumstances and also to direct the
Superintendent of Prison to collect detailed information with
reports on the past life, psychological condition and post-
conviction conduct of the appellants and such other relevant
materials which might be taken cognizance of at the time of final
hearing necessarily obtained with the assistance of the
concerned officials. Accordingly, this Court allowed the appellants
to file affidavits indicating therein the materials as regards the
mitigating circumstances and also directed the Superintendent of
Prison to submit the reports.
In the case of Jarnail Singh -Vrs.- State of
Punjab reported in (2009) 3 Supreme Court Cases 391, it
is held that the evidence of a single witness may sustain a
sentence of death whereas a host of vulnerable witnesses may
fail to support a simple charge of hurt.
Page 94 of 144
In the case of Manoj and others -Vrs.- State of
Madhya Pradesh reported in (2023) 2 Supreme Court
Cases 353, the Hon‟ble Supreme Court gave emphasis on the
practical guidelines to collect mitigating circumstances, which are
as follows :
"248. There is urgent need to ensure that
mitigating circumstances are considered at the
trial stage, to avoid slipping into a retributive
response to the brutality of the crime, as is
noticeably the situation in a majority of cases
reaching the appellate stage.
249. To do this, the trial Court must elicit
information from the accused and the State,
both. The State must for an offence carrying
capital punishment at the appropriate stage,
produce material which is preferably collected
beforehand, before the Sessions Court disclosing
psychiatric and psychological evaluation of the
accused. This will help establish proximity (in
terms of timeline), to the accused person's
frame of mind (or mental illness, if any) at the
time of committing the crime and offer guidance
on mitigating factors (1), (5), (6) and (7)
spelled out in Bachan Singh. Even for the other
factors of (3) and (4), an onus placed squarely
on the State conducting this form of psychiatric
and psychological evaluation close on the heels
of commission of the offence, will provide a
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baseline for the appellate Courts to use for
comparison i.e. to evaluate the progress of the
accused towards reformation, achieved during
the incarceration period.
250. Next, the State, must in a time-bound
manner, collect, additional information
pertaining to the accused. An illustrative, but
not exhaustive list is as follows:
(a) Age;
(b) Early family background (siblings,
protection of parents, any history of
violence or neglect);
(c) Present family background (surviving
family members, whether married, has
children, etc.);
(d) Type and level of education;
(e) Socio-economic background (including
conditions of poverty or deprivation, if
any);
(f) Criminal antecedents (details of offence
and whether convicted, sentence served,
if any);
(g) Income and the kind of employment
(whether none, or temporary or
permanent, etc.);
(h) Other factors such as history of unstable
social behaviour, or mental or
psychological ailment(s), alienation of the
individual (with reasons, if any), etc.
This information should mandatorily be available
to the trial Court, at the sentencing stage. The
accused too, should be given the same
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opportunity to produce evidence in rebuttal,
towards establishing all mitigating
circumstances.
251. Lastly, information regarding the
accused's jail conduct and behaviour, work done
(if any), activities the accused has involved
themselves in, and other related details should
be called for in the form of a report from the
relevant jail authorities (i.e. Probation and
Welfare Officer, Superintendent of Jail, etc.). If
the appeal is heard after a long hiatus from the
trial Court's conviction, or High Court's
confirmation, as the case may be, a fresh report
(rather than the one used by the previous court)
from the jail authorities is recommended, for a
more exact and complete understanding of the
contemporaneous progress made by the
accused, in the time elapsed. The jail authorities
must also include a fresh psychiatric and
psychological report which will further evidence
the reformative progress, and reveal post-
conviction mental illness, if any.
252. It is pertinent to point out that this Court
in Anil -Vs.- State of Maharashtra : (2014) 4
Supreme Court Cases 69 has in fact directed
criminal courts to call for additional material:
(SCC p. 86, para 33)
"33....Many a times, while determining the
sentence, the courts take it for granted,
looking into the facts of a particular case,
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that the accused would be a menace to the
society and there is no possibility of
reformation and rehabilitation, while it is
the duty of the Court to ascertain those
factors, and the State is obliged to furnish
materials for and against the possibility of
reformation and rehabilitation of the
accused. The facts, which the courts deal
with, in a given case, cannot be the
foundation for reaching such a conclusion,
which, as already stated, calls for additional
materials. We, therefore, direct that the
criminal courts, while dealing with the
offences like section 302 I.P.C., after
conviction, may, in appropriate cases, call
for a report to determine, whether the
accused could be reformed or rehabilitated,
which depends upon the facts and
circumstances of each case."
We hereby fully endorse and direct that this
should be implemented uniformly, as further
elaborated above, for conviction of offences that
carry the possibility of death sentence."
In the case of Sundar -Vrs- State by Inspector of
Police reported in (2023) 5 SCR 1016, taking into account
the observation made by the Hon‟ble Supreme Court in Anil
(Supra) observed that neither the trial Court nor the appellate
Court looked into any factors to conclusively state that the
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petitioner cannot be reformed or rehabilitated. The State must
place all materials and circumstances on record bearing on the
probability of reform. Many such materials and aspects are
within the knowledge of the State, which has had the custody of
the accused both before and after the conviction. Moreover, the
Court cannot be an indifferent by-stander in the process. The
process and powers of the Court may be utilized to ensure that
such material is made available to it to form a just sentencing
decision bearing on the probability of reform.
In the case in hand, since in the trial Court no such
enquiry was conducted to ascertain the mitigating circumstances
as well to foreclose the possibility of reformation and
rehabilitation and the gruesome and merciless nature of the act
of the appellants was the only factor that was considered while
awarding the death penalty, we passed the order on 20 th
September 2024 as aforesaid.
We should not forget that the criminal, however
ruthless he might be, is nevertheless a human being and is
entitled to a life of dignity notwithstanding his crime. It is for the
prosecution and the Court to determine whether such a person,
notwithstanding his crime, can be reformed and rehabilitated. To
obtain and analyse this information is certainly not an easy task,
but must nevertheless be undertaken. Life imprisonment can be
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said to be completely futile, only when the sentencing aim of
reformation can be said to be unachievable.
As per the aforesaid order dated 20th September
2024, the learned counsel for the State produced the affidavit of
Senior Superintendent of Circle Jail, Koraput which contained
social reports of all the appellants, their health reports including
mental status and their conduct and behaviour in jail. The
appellants though were allowed to file affidavits indicating
therein the materials as regards the mitigating circumstances,
did not file any affidavit. On the last day of hearing of the case,
the appellants appeared through virtual mode to watch the
proceeding and when we asked them as to whether they intend
to file any affidavit, they declined to file the same.
In the affidavit filed by the Senior Superintendent of
Circle Jail, Koraput, it is mentioned that he instructed the Prison
Welfare Officer (in-charge District Probation Officer, Koraput),
Circle Jail, Koraput to enquire about the past life of the
condemned prisoners and submit reports and accordingly, the
said Prison Welfare Officer visited the village of the condemned
prisoners on 26.09.2024 and after due enquiry about their past
lives, submitted the reports.
Similarly, the Senior Superintendent of Circle Jail,
Koraput has stated in the affidavit that he intimated
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Superintendent, S.L.N. Medical College and Hospital, Koraput
and the C.D.M. and P.H.O., Koraput through separate letters to
examine the psychological condition of the condemned prisoners
by the psychiatric doctors and accordingly, the Superintendent of
S.L.N. Medical College and Hospital, Koraput and C.D.M. and
P.H.O., Koraput constituted a team of doctors, who examined
the condemned prisoners and submitted the reports on
25.09.2024.
The Superintendent of Circle Jail, Koraput also
personally conducted enquiry about the conduct of the
condemned prisoners inside the jail and interacted with them
and filed the detailed reports along with the affidavits.
Appellant Dengun Sabar (A-1):
In the social report of the appellant Dengun Sabar, it is
mentioned that he belonged to a very poor tribal family and
coming under low income group. He was a daily wage earner at
Gunpur local area and was earning Rs.120/- per day. He had lost
his parents from his childhood and was brought up by his
relatives. He is a married person and his wife, who is aged about
35 years is staying in her in-laws‟ house. His wife is managing
the family by working as a daily wage earner and earning
Rs.250/- per day. He is having one daughter and two sons. His
only daughter is aged about eighteen years and studying in +2
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Arts in a Government College and staying in a hostel so also his
elder son, who is aged about sixteen years and studying +2 Arts
in Government College and staying in the hostel. His younger
son is thirteen years old who is an illiterate and residing in the
house. The social background of his family is not conducive and
their economic condition is also not good and they are struggling
for their livelihood. He is an illiterate person and the family is
getting 35 kgs. of rice per month as members of BPL category
and he belongs to Soura tribal community of Rayagada district.
He was maintaining a peaceful life with his wife and his children
and having cordial relationship with his neighbours and other
village people. He is having no criminal antecedent and none of
his family members are indulged in any criminal activities or
having any criminal background. He was showing good conduct
and behaviour towards his co-inmates and staffs inside the
prison. He was found in a stable condition and there was no
symptom of any mental depression of the appellant and there is
also no history of post-conviction mental illness during his
confinement at Circle Jail, Koraput. In his health report, it is
mentioned that as per the records, there is no psychiatric
problems noted and on examination, no active psychopathology
seen. In the conduct and behaviour report in the jail of the
appellant, it is mentioned that his conduct and behaviour inside
Page 102 of 144
the prison is good and his behaviour and attitude towards other
co-prisoners as well as to the jail staff is cordial. He is
maintaining every discipline of the jail administration and no
adverse report is forthcoming against him during his entire
period of confinement in prison and no prison offence has been
committed by the appellant inside the jail during the period of
his imprisonment. He is in regular touch with his family
members, relatives and advocate over jail telephone and during
interview with his family members, his behaviour was quite
normal as reported by the Officer-in-charge of the interview and
he is much disciplined, well behaved inside the prison. His
conduct and behaviour as well as his post-conviction conduct
inside the prison are satisfactory.
Appellant Dasunta Sabar (A-2):
In the social report of appellant Dasunta Sabar, it is
mentioned that he belonged to a very poor tribal family and
coming under low income group. He was a daily wage earner at
Gunpur local area and is earning Rs.120/- per day. He had lost
his mother since long and his father is now aged about seventy
three years old suffering from paralysis for more than three
years. He is an unmarried person and the social background of
the family is not conducive and their economic condition is also
not good and they were struggling for their livelihood. He had
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read up to class-VI and he belonged to below poverty line and of
Soura tribal community. He was having a cordial relationship
with his neighbours and other village people. He is having no
criminal antecedent and none of his family members are
indulged in any criminal activities or having any criminal
background. He was showing good conduct and behaviour
towards his co-inmates and staffs inside the prison. He was
found in a stable condition and there was no symptom of any
mental depression of the appellant and there is also no history of
post-conviction mental illness during his confinement at Circle
Jail, Koraput. In his health report, it is mentioned that as per the
records, there is no psychiatric problems found and on
examination, no active psychopathology noted. In the conduct
and behaviour report in the jail of the appellant, it is mentioned
that his conduct and behaviour inside the prison is good and his
behaviour and attitude towards other co-prisoners as well as to
the jail staff is cordial. He is maintaining every discipline of the
jail administration and no adverse report is forthcoming against
him during his entire period of confinement in prison and no
prison offence has been committed by him inside the jail during
the period of his imprisonment. He is in regular touch with his
family members, relatives and advocate over jail telephone and
during interview with his family members, his behaviour was
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quite normal as reported by the Officer-in-charge of the
interview and the appellant is much disciplined, well behaved
inside the prison. His conduct and behaviour as well as his post-
conviction conduct inside the prison are satisfactory.
Appellant Aajanta Sabar (A-3):
In the social report of appellant Aajanta Sabar, it is
mentioned that he belonged to a very poor tribal family and
coming under low income group. He was a daily wage earner at
Gunpur local area and was earning Rs.120/- per day. His father
is aged about seventy five years and mother is aged about sixty
five years and they are suffering from old age related diseases
and staying with their elder son in their native village. His wife is
aged about thirty three years and his only son is aged about
eleven years and now studying in Class-VI and staying in hostel.
The social background of his family is not conducive and their
economic condition is also not good and they are struggling for
their livelihood. He is an illiterate person and the family is getting
15 kgs. of rice per month as BPL card holder and he belongs to
Soura tribal community of Rayagada district. He was maintaining
a peaceful life with his wife and his son and having cordial
relationship with his neighbours and other village people. He is
having no criminal antecedent and none of his family members
are indulged in any criminal activities or having any criminal
Page 105 of 144
background. He was showing good conduct and behaviour
towards his co-inmates and staffs inside the prison. He was
found in a stable condition and there was no symptom of any
mental depression of the appellant and there is also no history of
post-conviction mental illness during his confinement at Circle
Jail, Koraput. In his health report, it is mentioned that as per the
records, there is no psychiatric problems found and on
examination, no active psychopathology noted. In the conduct
and behaviour report in the jail of the appellant, it is mentioned
that his conduct and behaviour inside the prison is good and his
behaviour and attitude towards other co-prisoners as well as to
the jail staff is cordial. He is maintaining every discipline of the
jail administration and no adverse report is forthcoming against
him during his entire period of confinement in prison and no
prison offence has been committed by him inside the jail during
the period of his imprisonment. He is in regular touch with his
family members, relatives and advocate over jail telephone and
during interview with his family members, his behaviour was
quite normal as reported by the Officer-in-charge of the
interview and the appellant is much disciplined, well behaved
inside the prison. His conduct and behaviour as well as his post-
conviction conduct inside the prison are satisfactory.
Page 106 of 144
Appellant Padhantu Sabar (A-4):
In the social report of appellant Padhantu Sabar, it is
mentioned that he belonged to a very poor tribal family and
coming under low income group. He was a daily wage earner at
Gunpur local area and was earning Rs.120/- per day. He had lost
his parents from his childhood and he was brought up by his
relatives. His wife is aged about thirty years and his elder son is
aged about fourteen years and reading in Class-VII in a
Government school and staying in the hostel and his younger
daughter is aged about eleven years and studying in Class-VI
and staying in the hostel. His two brothers are married and living
separately from each other along with their family. The social
background of his family is not conducive and their economic
condition is also not good and they are struggling for their
livelihood. The appellant had read up to Class-VIII and the family
is getting 35 kgs. of rice per month as BPL card holder and he
belongs to Soura tribal community of Rayagada district. He was
maintaining a peaceful life with his wife and his children and
having cordial relationship with his neighbours and other village
people. He is having no criminal antecedent and none of his
family members are indulged in any criminal activities or having
any criminal background. He was showing good conduct and
behaviour towards his co-inmates and staffs inside the prison.
Page 107 of 144
He was found in a stable condition and there was no symptom of
any mental depression of the appellant and there is also no
history of post-conviction mental illness during his confinement
at Circle Jail, Koraput. In his health report, it is mentioned that
as per the records, there is no psychiatric problems found and on
examination, no active psychopathology noted. In the conduct
and behaviour report in the jail of the appellant, it is mentioned
that the conduct and behaviour of the appellant inside the prison
is good and his behaviour and attitude towards other co-
prisoners as well as to the jail staff is cordial. He is maintaining
every discipline of the jail administration and no adverse report
is forthcoming against him during his entire period of
confinement in prison and no prison offence has been committed
by the appellant inside the jail during the period of his
imprisonment. He is in regular touch with his family members,
relatives and advocate over jail telephone and during interview
with his family members, his behaviour was quite normal as
reported by the Officer-in-charge of the interview and he is much
disciplined, well behaved inside the prison. His conduct and
behaviour as well as his post-conviction conduct inside the prison
are satisfactory.
Page 108 of 144
Appellant Dalasa Sabar (A-5):
In the social report of appellant Dalasa Sabar, it is
mentioned that he belonged to a very poor tribal family and
coming under low income group. The appellant was a daily wage
earner at Gunpur local area and was earning Rs.120/- per day.
He had lost his parents from his childhood and he was brought
up by his relatives. His wife is aged about thirty years and his
elder son is aged about fourteen years and reading in Class-VII
in a Government School and staying in the hostel and his
younger daughter is aged about eleven years and studying in
Class-VI and staying in the hostel. His two brothers are married
and living separately from each other along with their family.
The social background of his family is not conducive and their
economic condition is also not good and they are struggling for
their livelihood. He has read up to Class-VIII and his family is
getting 35 kgs. of rice per month as BPL card holder and he
belongs to Soura tribal community of Rayagada district. He was
maintaining a peaceful life with his wife and his children and
having cordial relationship with his neighbours and other village
people. He is having no criminal antecedent and none of his
family members are indulged in any criminal activities or having
any criminal background. He was showing good conduct and
behaviour towards his co-inmates and staffs inside the prison.
Page 109 of 144
He was found in a stable condition and there was no symptom of
any mental depression of the appellant and there is also no
history of post-conviction mental illness during his confinement
at Circle Jail, Koraput. In his health report, it is mentioned that
as per the records, there is no psychiatric problems found and on
examination, no active psychopathology noted. In the conduct
and behaviour report in the jail of the appellant, it is mentioned
that his conduct and behaviour inside the prison is good and his
behaviour and attitude towards other co-prisoners as well as to
the jail staff is cordial. He is maintaining every discipline of the
jail administration and no adverse report is forthcoming against
him during his entire period of confinement in prison and no
prison offence has been committed by him inside the jail during
the period of his imprisonment. He is in regular touch with his
family members, relatives and advocate over jail telephone and
during interview with his family members, his behaviour was
quite normal as reported by the Officer-in-charge of the
interview and he is much disciplined, well behaved inside the
prison. His conduct and behaviour as well as his post-conviction
conduct inside the prison are satisfactory.
Appellant Malku Sabar (A-6):
In the social report of appellant Malku Sabar, it is
mentioned that he belonged to a very poor tribal family and
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coming under low income group. The appellant was a daily wage
earner at Gunpur local area and was earning Rs.120/- per day.
He had lost his parents from his childhood and he was brought
up by his relatives. His wife is aged about thirty seven years and
soon after conviction, his wife married another person and living
in her in-laws house. His elder brother is married and staying
with his family members. The social background of his family is
not conducive and their economic condition is also not good and
they are struggling for their livelihood. The appellant is an
illiterate person and he belonged to below poverty line and of
Soura tribal community. He was maintaining a peaceful life with
his wife and his children and having cordial relationship with his
neighbours and other village people. He is having no criminal
antecedent and none of his family members are indulged in any
criminal activities or having any criminal background. The
appellant was showing good conduct and behaviour towards his
co-inmates and staffs inside the prison. He was found in a stable
condition and there was no symptom of any mental depression
of the appellant and there is also no history of post-conviction
mental illness during his confinement at Circle Jail, Koraput. In
his health report, it is mentioned that as per the records, there is
no psychiatric problems found and on examination, no active
psychopathology noted. In the conduct and behaviour report in
Page 111 of 144
the jail of the appellant, it is mentioned that his conduct and
behaviour inside the prison is good and his behaviour and
attitude towards other co-prisoners as well as to the jail staff is
cordial. He is maintaining every discipline of the jail
administration and no adverse report is forthcoming against him
during his entire period of confinement in prison and no prison
offence has been committed by him inside the jail during the
period of his imprisonment. He is in regular touch with his family
members, relatives and advocate over jail telephone and during
interview with his family members, his behaviour was quite
normal as reported by the Officer-in-charge of the interview and
he is much disciplined, well behaved inside the prison. His
conduct and behaviour as well as his post-conviction conduct
inside the prison are satisfactory.
Appellant Bubuna Sabar (A-7):
In the social report of appellant Bubuna Sabar, it is
mentioned that he belonged to a very poor tribal family and
coming under low income group. The appellant was a daily wage
earner at Gunpur local area and was earning Rs.120/- per day.
He had lost his parents since long. He is a married person and
his wife, who is aged about thirty five years is staying in her in-
laws house. His wife is managing the family by working as a
daily wage earner and earning Rs.250/- per day. The appellant is
Page 112 of 144
having three daughters and one son. His elder daughter is aged
about twenty years and studying in Class-X, his second daughter
is aged about fifteen years and studying in Class-VIII in the
Government school and both are staying in the hostel, his
younger son is aged about ten years and studying in Class-IV
and younger daughter, who is aged about eight years is studying
in Class-II in the Government school and both are staying in the
hostel. His three younger brothers are married and living
separately from each other along with their family. The social
background of his family is not conducive and their economic
condition is also not good and they are struggling for their
livelihood. He is an illiterate person and belonged to below
poverty line and of Soura tribal community. He was maintaining
a peaceful life with his wife and his children and having cordial
relationship with his neighbours and other village people. He is
having no criminal antecedent and none of his family members
are indulged in any criminal activities or having any criminal
background. He was showing good conduct and behaviour
towards his co-inmates and staffs inside the prison. He was
found in a stable condition and there was no symptom of any
mental depression of the appellant and there is also no history of
post-conviction mental illness during his confinement at Circle
Jail, Koraput. In his health report, it is mentioned that as per the
Page 113 of 144
records, there is no psychiatric problems found and on
examination, no active psychopathology noted. In the conduct
and behaviour report in the jail of the appellant, it is mentioned
that his conduct and behaviour inside the prison is good and his
behaviour and attitude towards other co-prisoners as well as to
the jail staff is cordial. He is maintaining every discipline of the
jail administration and no adverse report is forthcoming against
him during his entire period of confinement in prison and no
prison offence has been committed by him inside the jail during
the period of his imprisonment. He is in regular touch with his
family members, relatives and advocate over jail telephone and
during interview with his family members, his behaviour was
quite normal as reported by the Officer-in-charge of the
interview and he is much disciplined, well behaved inside the
prison. His conduct and behaviour as well as his post-conviction
conduct inside the prison are satisfactory.
Appellant Lakiya Sabar (A-8):
In the social report of appellant Lakiya Sabar, it is
mentioned that he belonged to a very poor tribal family and
coming under low income group. He was a daily wage earner at
Gunpur local area and was earning Rs.120/- per day. He had lost
his parents since his childhood and he was brought up by his
relatives. His wife is aged about thirty five years staying in her
Page 114 of 144
in-laws house. His wife is managing the family by working as a
daily wage earner and earning Rs.250/- per day. He is having
two sons. His elder son is aged about twelve years and studying
in Class-VI and his younger son is aged about nine years and
studying in Class-IV in the Government school and both are
staying in the hostel. His two elder brothers are married and
living separately from each other along with their family. The
social background of his family is not conducive and their
economic condition is also not good and they are struggling for
their livelihood. He is an illiterate person and he belonged to
below poverty line and of Soura tribal community. He was
maintaining a peaceful life with his wife and his children and
having cordial relationship with his neighbours and other village
people. He is having no criminal antecedent and none of his
family members are indulged in any criminal activities or having
any criminal background. He was showing good conduct and
behaviour towards his co-inmates and staffs inside the prison.
He was found in a stable condition and there was no symptom of
any mental depression of the appellant and there is also no
history of post-conviction mental illness during his confinement
at Circle Jail, Koraput. In his health report, it is mentioned that
as per the records, there is no psychiatric problems found and on
examination, no active psychopathology noted. In the conduct
Page 115 of 144
and behaviour report in the jail of the appellant, it is mentioned
that his conduct and behaviour inside the prison is good and his
behaviour and attitude towards other co-prisoners as well as to
the jail staff is cordial. He is maintaining every discipline of the
jail administration and no adverse report is forthcoming against
him during his entire period of confinement in prison and no
prison offence has been committed by him inside the jail during
the period of his imprisonment. He is in regular touch with his
family members, relatives and advocate over jail telephone and
during interview with his family members, his behaviour was
quite normal as reported by the Officer-in-charge of the
interview and the appellant is much disciplined, well behaved
inside the prison. His conduct and behaviour as well as his post-
conviction conduct inside the prison are satisfactory.
Appellant Iru Sabar (A-9):
In the social report of appellant Iru Sabar, it is
mentioned that he belonged to a very poor tribal family and
coming under low income group. He was a daily wage earner at
Gunpur local area and was earning Rs.120/- per day. He had lost
his parents since long. His wife is aged about twenty five years
and soon after conviction, his wife married another person and
living with her husband. The social background of his family is
not conducive and their economic condition is also not good and
Page 116 of 144
they are struggling for their livelihood. He is an illiterate person
and he belonged to below poverty line and of Soura tribal
community. He was maintaining a peaceful life with his wife and
his children and having cordial relationship with his neighbours
and other village people. He is having no criminal antecedent
and none of his family members are indulged in any criminal
activities or having any criminal background. He was showing
good conduct and behaviour towards his co-inmates and staffs
inside the prison. He was found in a stable condition and there
was no symptom of any mental depression of the appellant and
there is also no history of post-conviction mental illness during
his confinement at Circle Jail, Koraput. In his health report, it is
mentioned that as per the records, there is no psychiatric
problems found and on examination, no active psychopathology
noted. In the conduct and behaviour report in the jail of the
appellant, it is mentioned that his conduct and behaviour inside
the prison is good and his behaviour and attitude towards other
co-prisoners as well as to the jail staff is cordial. He is
maintaining every discipline of the jail administration and no
adverse report is forthcoming against him during his entire
period of confinement in prison and no prison offence has been
committed by him inside the jail during the period of his
imprisonment. He is in regular touch with his family members,
Page 117 of 144
relatives and advocate over jail telephone and during interview
with his family members, his behaviour was quite normal as
reported by the Officer-in-charge of the interview and he is much
disciplined, well behaved inside the prison. His conduct and
behaviour as well as his post-conviction conduct inside the prison
are satisfactory.
25. Law is well settled that in order to make out a case
for imposition of death sentence, the prosecution undoubtedly
has to discharge a very onerous burden by demonstrating the
existence of aggravating circumstances and the consequential
absence of mitigating circumstances. The case must fall within
the category of „rarest of rare cases‟ warranting imposition of
death sentence. The special reasons as mentioned in section
354(3) of Cr.P.C. has put sufficient safeguard against any kind of
arbitrary imposition of the extreme penalty. Unless the Court is
of opinion that the nature of crime and circumstances against the
offender is such that the sentence of life imprisonment would be
wholly inadequate, inappropriate and against all norms of ethics,
lesser punishment should ordinarily be imposed.
Aggravating Circumstances:
Let us first discuss as to what are the aggravating
factors in the case. The commission of three murders out of
which two are ladies is no doubt a significant aggravating factor.
Page 118 of 144
According to the principles outlined by the Constitution Bench of
the Hon‟ble Supreme Court in the case of Bachan Singh
(supra), the enormity of the crime and the number of victims are
critical factors in determining the severity of the sentence. When
the culpability assumes the proportion of extreme depravity that
„special reason‟ can legitimately be said to exist.
The brutal manner in which the murders were
committed, dead bodies were buried and then exhumed and
cremated is another aggravating factor. The use of violence not
only reflects a high degree of culpability but also underscores the
severity of the crimes.
The emotional and psychological impacts on the
families of the deceased persons also constitute an aggravating
factor. The three murders must have caused immense suffering
to the families of deceased including P.W.1 and her sister and
minor school going brothers and they were left orphaned. This is
highlighted in Machhi Singh (supra), where the Hon‟ble
Supreme Court considered the impact of occurrence on the
victims‟ families as a critical aspect of the sentencing process.
As noted in the case of State of Rajasthan -Vrs.-
Kheraj Ram reported in (2003) 8 Supreme Court Cases
224, the heinous nature of the act and the brutality involved are
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significant considerations in determining the appropriate
sentence, which is as follows:-
"35. A convict hovers between life and death
when the question of gravity of the offence and
award of adequate sentence comes up for
consideration. Mankind has shifted from the
state of nature towards a civilized society and it
is no longer the physical opinion of the majority
that takes away the liberty of a citizen by
convicting him and making him suffer a
sentence of imprisonment. Award of punishment
following conviction at a trial in a system
wedded to the rule of law is the outcome of cool
deliberation in the court room after adequate
hearing is afforded to the parties, accusations
are brought against the accused, the prosecuted
is given an opportunity of meeting the
accusations by establishing his innocence. It is
the outcome of cool deliberation and the
screening of the material by the informed man
i.e. the Judge that leads to determination of the
lis.
36. The principle of proportion between crime
and punishment is a principle of just deserts that
serves as the foundation of every criminal
sentence that is justifiable. As a principle of
criminal justice, it is hardly less familiar or less
important than the principle that only the guilty
ought to be punished. Indeed, the requirement
Page 120 of 144
that punishment not be disproportionately great,
which is a corollary of just desert, is dictated by
the same principle that does not allow
punishment of the innocent, for any punishment
in excess of what is deserved for the criminal
conduct is punishment without guilt.
37. The criminal law adheres in general to the
principle of proportionality in prescribing liability
according to the culpability of each kind of
criminal conduct. It ordinarily allows some
significant discretion to the Judge in arriving at a
sentence in each case, presumably, to permit
sentences that reflect more subtle
considerations of culpability that are raised by
the special facts of each case. Judges in essence
affirm that punishment ought always to fit the
crime; yet in practice sentences are determined
largely by other considerations. Sometimes it is
the correctional needs of the perpetrator that
are offered to justify a sentence. Sometimes the
desirability of keeping him out of circulation, and
sometimes even the traffic results of his crime.
Inevitably these considerations cause a
departure from just deserts as the basis of
punishment and create cases of apparent
injustice that are serious and widespread.
38. Proportion between crime and punishment
is a goal respected in principle, and in spite of
errant notions, it remains a strong influence in
the determination of sentences. The practice of
Page 121 of 144
punishing all serious crimes with equal severity
is now unknown in civilized societies, but such a
radical departure from the principle of
proportionality has disappeared from the law
only in recent times. Even now a single grave
infraction that is thought to call for uniformly
drastic measures. Anything less than a penalty
of greatest severity for any serious crime is
thought then to be a measure of toleration that
is unwarranted and unwise. But in fact quite
apart from those considerations that make
punishment unjustifiable when it is out of
proportion to the crime, uniformly
disproportionate punishment has some very
undesirable practical consequences."
Learned counsel for the State submitted that an
organized crime or mass murders of innocent three persons
would call for imposition of death sentence as deterrence. In
support of such submission, he has placed reliance on the
decision of the Supreme Court in the case of Sevaka Perumal
(supra), wherein it has been held as follows:
"9. The law regulates social interests, arbitrates
conflicting claims and demands. Security of
persons and property of the people is an
essential function of the State. It could be
achieved through instrumentality of criminal law.
Undoubtedly, there is a cross-cultural conflict
where living law must find answer to the new
Page 122 of 144
challenges and the courts are required to mould
the sentencing system to meet the challenges.
The contagion of lawlessness would undermine
social order and lay it in ruins. Protection of
society and stamping out criminal proclivity
must be the object of law which must be
achieved by imposing appropriate sentence.
Therefore, law as a cornerstone of the edifice of
order should meet the challenges confronting
the society. Friedman in his Law in Changing
Society stated that, "State of criminal law
continues to be - as it should be - a decisive
reflection of social consciousness of society."
Therefore, in operating the sentencing system,
law should adopt the corrective machinery or the
deterrence based on factual matrix. By deft
modulation of sentencing process be stern where
it should be, and tempered with mercy where it
warrants to be. The facts and given
circumstances in each case, the nature of the
crime, the manner in which it was planned and
committed, the motive for commission of the
crime, the conduct of the accused and all other
attending circumstances are relevant facts which
would enter into the area of consideration. For
instance a murder committed due to deep
seated personal rivalry may not call for penalty
of death. But an organised crime or mass
murders of innocent people would call for
imposition of death sentence as deterrence.
Page 123 of 144
In the case of Mahesh -Vrs.- State of M.P.
reported in (1987) 3 Supreme Court Cases 80, the Hon‟ble
Supreme Court while refusing to reduce the death sentence
observed thus:
"It will be a mockery of justice to permit the
accused to escape the extreme penalty of law
when faced with such evidence and such cruel
acts. To give the lesser punishment for the
accused would be to render the justicing system
of the country suspect. The common man will
lose faith in courts. In such cases, he
understands and appreciates the language of
deterrence more than the reformative jargon."
In the case of Bachan Singh (supra), it has held as
follows:
"199. Pre-planned, calculated, cold-blooded
murder has always been regarded as one of an
aggravated kind. In Jagmohan : (1973) 1 SCC
20, it was reiterated by the Hon‟ble Supreme
Court that if a murder is "diabolically conceived
and cruelly executed", it would justify the
imposition of the death penalty on the
murderer..."
In the said case, the Hon‟ble Supreme Court has laid
down the following propositions while imposing death sentence:
Page 124 of 144
"(i) The extreme penalty of death need not be
inflicted except in gravest cases of extreme
culpability.
(ii) Before opting for the death penalty, the
circumstances of the „offender‟ also require to be
taken into consideration along with the
circumstances of the „crime‟.
(iii) Life imprisonment is the rule and death
sentence is an exception. In other words, death
sentence must be imposed only when life
imprisonment appears to be an altogether
inadequate punishment having regard to the
relevant circumstances of the crime, and
provided, and only provided, the option to
impose sentence of imprisonment for life cannot
be conscientiously exercised having regard to
the nature and circumstances of the crime and
all the relevant circumstances.
(iv) A balance sheet of aggravating and
mitigating circumstances has to be drawn up
and in doing so the mitigating circumstances
have to be accorded full weightage and a just
balance has to be struck between the
aggravating and the mitigating circumstances
before the option is exercised."
Page 125 of 144
Mitigating Circumstances:
The Hon‟ble Supreme Court in the case of Bachan
Singh (supra), while discussing the suggestions of Dr. Chitale
relating to the mitigating factors, wherein it is observed that if
there is a probability that the accused can be reformed and
rehabilitated, the same can be considered as mitigating
circumstance and the State shall by evidence prove that the
accused does not satisfy this condition, observed that this
circumstance along with other circumstances as given in the
suggestions of Dr. Chitale, are undoubtedly relevant
circumstances and must be given great weight in the
determination of sentence. It is further held that the scope and
concept of mitigating factors in the area of death penalty must
receive a liberal and expansive construction by the courts in
accord with the sentencing policy writ large in section 354 (3) of
Cr.P.C. Judges should never be bloodthirsty. Hanging of
murderers has never been good for them. The Hon‟ble Court
further held that it is imperative to voice the concern that courts,
aided by the broad illustrative guidelines indicated, will discharge
the onerous function with evermore scrupulous care and humane
concern, directed along the highroad of legislative policy outlined
in section 354(3), viz, that for persons convicted of murder, life
imprisonment is the rule and death sentence an exception. A real
Page 126 of 144
and abiding concern for the dignity of human life postulates
resistance to taking a life through law's instrumentality. That
ought not to be done save in the rarest of rare cases when the
alternative option is unquestionably foreclosed.
As per the reports submitted by the Senior
Superintendent of Circle Jail, Koraput, there are certain common
features in case of all the appellants i.e. they come from very
poor tribal families and low income groups. They were daily wage
earners and having families. The social background of their
respective family is not conducive and economic condition is also
not good. Their families belong to BPL category and are
struggling for their livelihood. They are illiterate persons, but
maintaining peaceful lives with their families and they are having
cordial relationship with their neighbours and other villagers. The
appellants are having no criminal antecedents and their family
members are also having no criminal background. Inside jail, the
appellants are showing good conduct and behaviour towards co-
inmates and jail staff. They are found mentally stable and having
no mental depression and there are no history of post-conviction
mental illness in jail. No psychiatric problem was noted in any of
the appellants and they are maintaining every discipline in jail
administration. No adverse report was found in the entire period
of confinement. The appellants are much disciplined and well
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behaved and they are having regular touch with their families
and relatives over jail telephone.
The Supreme Court in the case of Santosh Kumar
Satishbhushan Bariyar -Vrs.- State of Maharashtra
reported in (2009) 6 Supreme Court Cases 498 highlighted
that the possibility of reform and rehabilitation should be a
pivotal consideration, stressing that the death penalty should not
be imposed if the convict shows potential for reformation.
In the case of Rajendra Prasad -Vrs.- State of
Uttar Pradesh reported in A.I.R. 1979. S.C. 916, it is held
that it is a mechanistic art which counts the cadavers to sharpen
the sentence oblivious of other crucial criteria shaping a
dynamic, realistic policy of punishment. Three deaths are
regrettable, indeed, terrible, but it is no social solution to add
one more life lost to the list. It is further held that a family feud,
an altercation, a sudden passion, although attended with
extraordinary cruelty, young and malleable age, reasonable
prospect of reformation and absence of any conclusive
circumstance that the assailant is a habitual murderer or given to
chronic violence are the catena of circumstances tearing on the
offender call for the lesser sentence.
In the case of A. Devendran -Vrs.- State of T.N.
reported in (1997) 11 Supreme Court Cases 720, which was
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a case of triple murder, it is held that the number of persons
died in the incident is not the determinative factor for deciding
whether the extreme penalty of death could be awarded or not.
In the case of Manoj (supra), in a case of triple
murder, the Hon‟ble Supreme Court on the sentencing of the
accused held as follows:-
"253. This Court is of the opinion, that there can
be no doubt that the crime committed by the
three accused was brutal, and grotesque. The
three defenceless victims were women of
different age groups (22, 46, 76 years) who
were caught off-guard and severely physically
assaulted, resulting in their death, in the safety
and comfort of their own home. To have killed
three generations of women from the family of
P.W.1, is without a doubt, grotesque. The
manner of the offence was also vicious and
pitiless - Ashlesha and Rohini, were stabbed
repeatedly to their death, while Megha was shot
point blank in the face. The post-mortem (Ex. P-
44) reflects that the stab wounds were
extensive-ranging across the bodies of the
victim. The extensive bleeding at the crime
scene further reflects cruel and inhumane
manner of attack, against the three women. The
crime in itself, could no doubt be characterised
as "extremely brutal, grotesque, diabolical,
revolting or dastardly manner so as to arouse
Page 129 of 144
intense and extreme indignation of the
community" as defined in Machhi Singh. These
are the aggravating circumstances."
The Hon‟ble Court however took into account the
mitigating circumstances and considered the Psychological
Evaluation Report, Probation Officer's Report and Prison Report
including material on the conduct of each accused produced by
the State and work done so also material placed by each accused
before the Court and held as follows:-
"262. The reports received from the
Superintendent of Jail reflect that each of the
three accused, have a record of overall good
conduct in prison and display inclination to
reform. It is evident that they have already,
while in prison, taken steps towards bettering
their lives and of those around them, which
coupled with their young age unequivocally
demonstrates that there is in fact, a probability
of reform. On consideration of all the
circumstances overall, we find that the option of
life imprisonment is certainly not foreclosed.
263. While there is no doubt that this case
captured the attention and indignation of the
society in Indore, and perhaps the State of
Madhya Pradesh, as a cruel crime that raised
alarm regarding safety within the community - it
must be remembered that public opinion has
Page 130 of 144
categorically been held to be neither an
objective circumstance relating to crime, nor the
criminal, and the courts must exercise judicial
restraint and play a balancing role.
264. In view of the totality of facts and
circumstances, and for the above stated
reasons, this Court finds that imposition of death
sentence would be unwarranted in the present
case. It would be appropriate and in the overall
interests of justice to commute the death
sentence of all three accused, to life
imprisonment for a minimum term of 25 years."
In the case of Mofil Khan and another -Vrs.-
State of Jharkhand reported in (2021) 20 Supreme Court
Cases 162, while dealing with the earlier judgment in which the
petitioners were sentenced to death for commission of offence
under section 302 read with section 34 of I.P.C., the Hon‟ble
Supreme Court held as follows:-
"13. Taking note of the petitioners' culpability
in the gruesome murders which assumed "the
proportion of extreme depravity", the High Court
refused to interfere with the death sentence
imposed by the trial court. This Court dismissed
the criminal appeal taking note of the manner in
which the offence was committed against the
helpless children and others and concluded that
the petitioners would be a menace and threat to
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harmony in the society. Putting an end to the
lives of innocent minors and a physically infirm
child, apart from other members of the family, in
a pre-planned attack, was taken note of by this
Court to hold that the case falls under the
category of "rarest of the rare" cases.
xx xx xx xx xx
16. It is well-settled law that the possibility of
reformation and rehabilitation of the convict is
an important factor which has to be taken into
account as a mitigating circumstance before
sentencing him to death. There is a bounden
duty cast on the Courts to elicit information of all
the relevant factors and consider those
regarding the possibility of reformation, even if
the accused remains silent. A scrutiny of the
judgments of the trial court, the High Court and
this Court would indicate that the sentence of
death is imposed by taking into account the
brutality of the crime. There is no reference to
the possibility of reformation of the petitioners,
nor has the State procured any evidence to
prove that there is no such possibility with
respect to the petitioners.
17. We have examined the socio-economic
background of the petitioners, the absence of
any criminal antecedents, affidavits filed by their
family and community members with whom they
continue to share emotional ties and the
certificate issued by the Jail Superintendent on
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their conduct during their long incarceration of
14 years. Considering all of the above, it cannot
be said that there is no possibility of reformation
of the petitioners, foreclosing the alternative
option of a lesser sentence and making the
imposition of death sentence imperative.
Therefore, we convert the sentence imposed on
the petitioners from death to life. However,
keeping in mind the gruesome murder of the
entire family of their sibling in a pre-planned
manner without provocation due to a property
dispute, we are of the opinion that the
petitioners deserve a sentence of a period of 30
years."
In the case of Bhagchandra -Vrs.- State of
Madhya Pradesh reported in (2021) 18 Supreme Court
Cases 274, the Hon‟ble Supreme Court held as follows:-
"47. In view of the settled legal position, it is
our bounden duty to take into consideration the
probability of the accused being reformed and
rehabilitated. It is also our duty to take into
consideration not only the crime but also the
criminal, his state of mind and his socio-
economic conditions. The deceased as well as
the appellant are rustic villagers. In a property
dispute, the appellant has got done away with
two of his siblings and a nephew. The State has
not placed on record any evidence to show that
Page 133 of 144
there is no possibility with respect to
reformation or rehabilitation of the convict. The
appellant has placed on record the affidavits of
Prahalad Patel, son of appellant and Rajendra
Patel, nephew of appellant and also the report of
the Jail Superintendent, Central Jail, Jabalpur.
The appellant comes from a rural and
economically poor background. There are no
criminal antecedents. The appellant cannot be
said to be a hardened criminal. This is the first
offence committed by the appellant, no doubt, a
heinous one. The certificate issued by the Jail
Superintendent shows that the conduct of the
appellant during incarceration has been
satisfactory. It cannot therefore be said that
there is no possibility of the appellant being
reformed and rehabilitated foreclosing the
alternative option of a lesser sentence and
making imposition of death sentence imperative.
48. We are therefore inclined to convert the
sentence imposed on the appellant from death
to life. However, taking into consideration the
gruesome murder of two of his siblings and one
nephew, we are of the view that the appellant
deserves rigorous imprisonment of 30 years."
In the case of Anshad -Vrs.- State of Karnataka
reported in (1994) 4 Supreme Court Cases 381, the Hon‟ble
Supreme Court held that the number of persons murdered is a
Page 134 of 144
consideration but that is not the only consideration for imposing
death penalty unless the case falls in the category of "rarest of
rare cases". The Courts must keep in view the nature of crime,
the brutality with which it was executed, the antecedents of the
criminal, the weapon used etc. It is neither possible nor desirable
to catalogue all such factors and they depend upon case to
case.ws potential for reformation.
In the case of Sangeet (supra), it has been held as
follows:
"81. Given these conclusions, we are of the
opinion that in cases such as the present, there
is considerable uncertainty on the punishment to
be awarded in capital offences-whether it should
be life imprisonment or death sentence. In our
opinion, due to this uncertainty, awarding a
sentence of life imprisonment, in cases such as
the present is not unquestionably foreclosed.
More so when, in this case, there is no evidence
(contrary to the conclusion of the High Court)
that Seema's body was burnt by Sandeep from
below the waist with a view to destroy evidence
of her having been subjected to sexual
harassment and rape. There is also no evidence
(again contrary to the conclusion of the High
Court) that Narender was a professional killer."
In the case of Damu (supra), the Hon‟ble Supreme
Court held as follows:
Page 135 of 144
"49.....The question is whether this case can be
regarded as rarest of rare cases in which the
lesser alternative is unquestionably foreclosed.
Looking at the horrendous acts committed by
the accused, it can doubtlessly be said that this
is an extremely rare case. Nonetheless, a factor
which looms large in this case is that the
accused genuinely believed that a hidden
treasure trove could be winched to the surface
by infantile sacrifice ceremoniously performed. It
is germane to note that none of the children
were abducted or killed for ransom or for
vengeance or for committing robbery. It was due
to utter ignorance that these accused became so
gullible to such superstitious thinking. Of course,
such thinking was also motivated by greed for
gold. Even so, we persuade ourselves to choose
the normal punishment prescribed for murder as
for these accused. Accordingly, while restoring
the sentence passed by the trial court in respect
of other counts of offences, we order that the
accused shall undergo imprisonment for life for
the offence under Section 302 read with Section
34 of the I.P.C."
In the case of Sundar @ Sundarrajan (supra), the
Hon‟ble Supreme Court while commuting the death sentence to a
life imprisonment, has held as follows:
Page 136 of 144
"89.....the „rarest of rare‟ doctrine requires that
the death sentence not be imposed only by
taking into account the grave nature of crime
but only if there is no possibility of reformation
in a criminal."
In the case of Mohinder Singh -Vrs.- State of
Punjab reported in (2013) 3 Supreme Court Cases 294, the
Hon‟ble Supreme Court observed thus:
"25. It is well-settled law that awarding of life
sentence is a rule and death is an exception. The
application of the "rarest of rare" cases principle
is dependent upon and differs from case to case.
However, the principles laid down and reiterated
in various decisions of this Court show that in a
deliberately planned crime, executed
meticulously in a diabolic manner, exhibiting
inhuman conduct in a ghastly manner, touching
the conscience of everyone and thereby
disturbing the moral fibre of the society, would
call for imposition of the capital punishment in
order to ensure that it acts as a deterrent. While
we are convinced that the case of the
prosecution based on the evidence adduced
confirms the commission of offence by the
appellant, however, we are of the considered
opinion that still the case does not fall within the
four corners of the "rarest of rare" cases."
Page 137 of 144
As we have already observed that in the impugned
judgment of the learned trial Court, there is no reference to the
discussions on mitigating circumstances and possibility of
reformation and rehabilitation of the appellants. In fact, there
was no endeavour on the part of the learned trial Court to find
out mitigating circumstances, if any in respect of appellants. On
the other hand the learned trial Court observed that the learned
defence counsel was not in a position to point out any mitigating
circumstance. Failure on the part of the learned trial Court to
consider such vital aspects before imposing death sentence,
added to our duty and responsibility to carefully collect such
materials, to elicit information of all the relevant factors and to
take into consideration not only the crime but also the criminal,
the state of mind and the socio-economic conditions of the
appellants keeping in view the golden principle that life
imprisonment is the rule and death sentence is an exception. It
reveals from the impugned judgment that at 2.00 p.m. on the
date of pronouncing the verdict of guilty against the appellants,
the learned trial Court started hearing on the question of
sentence. Not a single decision was cited either by the learned
Special Public Prosecutor or by the learned defence counsel.
However, the learned trial Court discussed the ratio laid down by
Page 138 of 144
the Hon‟ble Supreme Court in 11 decisions and wrote 22 pages
on awarding death sentence.
We are of the view that public opinion or the society's
expectation may be to confirm the death sentence awarded to
the appellants since it is a case of triple murder and two of the
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. The
appellants come from very poor tribal families and low income
groups and they were daily wage earners and having families.
The social background of their respective family is not conducive
and economic condition is also not good. Their families belong to
BPL category and are struggling for their livelihood. They are
illiterate persons, but maintaining peaceful lives with their
families and they are having cordial relationship with their
neighbours and other villagers. The appellants are having no
criminal antecedents and their family members are also having
no criminal background. This is the first offence committed by
the appellant, no doubt, a heinous one. The State has not placed
on record any evidence to show that there is no possibility with
respect to reformation or rehabilitation of the appellants rather
the reports furnished by Jail Superintendent in which the
Page 139 of 144
appellants have been lodged for more than eight years show that
the conduct of the appellants during incarceration has been
satisfactory. They are much disciplined and well behaved and
maintaining every discipline in jail administration and showing
good conduct and behaviour towards co-inmates and jail staff
and no adverse report was found in the entire period of
confinement. They are found to be mentally stable and having no
mental depression and having no history of post-conviction
mental illness in jail. No psychiatric problem was noted in any of
the appellants. They are having regular touch with their
respective families and relatives over jail telephone.
The observation of the learned trial Court that there
appeared no material on record to consider the possibility of
reformation of the convicts is totally misconceived. When the
Court made no endeavour to find out the mitigating
circumstances, regarding possibility of reformation, such
observation ought not to have been given. We are of the humble
view that it cannot be said that there is no possibility of the
appellants being reformed and rehabilitated foreclosing the
alternative option of a lesser sentence and making imposition of
death sentence imperative or in other words, life imprisonment
would be completely inadequate and would not meet the ends of
justice.
Page 140 of 144
In view of the foregoing discussions and giving our
anxious consideration to the facts and circumstances of the case
and striking a balance between the aggravating and mitigating
circumstances in the case, we are of the humble view that death
penalty would be disproportionate, unwarranted and life
imprisonment would be a more appropriate sentence.
26. Accordingly, we commute the death sentence
imposed on the appellants for the offence punishable under
section 302/34 of I.P.C. to life imprisonment. The appellants are
sentenced to life imprisonment for each of the three murders
committed by them and the sentences so awarded are directed
to run concurrently in view of the ratio laid down in the five-
Judge Bench decision of the Hon‟ble Supreme Court in case of
Muthuramalingam and others -Vrs.- State reported in
(2016) 8 Supreme Court Cases 313 and it is made clear that
life imprisonment awarded shall mean the remainder of his
natural life, without remission/commutation under sections 432
and 433 of Code of Criminal Procedure.
Victim Compensation:
27. The learned trial Court while imposing fine for
different offences with default sentences, has directed that in the
event the fine amount is realized, the same is to be paid to the
Page 141 of 144
informant (P.W.1) and her two brothers equally. No
recommendation of victim compensation was made as it was
found that the DLSA, Rayagada had already awarded the same.
The State Govt. of Odisha in exercise of powers
conferred by the provision of section 357-A of Cr.P.C. has
formulated the Odisha Victim Compensation Schemes, 2017
(hereafter „2017 schemes‟) which was amended by virtue of
Odisha Victim Compensation (Amendment) Scheme, 2018 and it
came into force with effect from 02.10.2018. Schedule-II of the
Scheme, which was inserted as per the amended scheme of
2018, inter alia, deals with compensation for the survivors in
case of crime in which death/loss of life takes place. The
minimum limit of compensation payable is Rs.5,00,000/- (rupees
five lakhs) and the maximum limit of compensation payable is
Rs.10,00,000/- (rupees ten lakhs) in such cases. In the factual
scenario and particularly taking into account the young age of
P.W.1 and her sister and brothers and their future liabilities, the
maximum compensation amount i.e. Rs.10,00,000/- (rupees ten
lakhs), for each of the death as provided under Schedule-II is
awarded i.e. in total Rs.30,00,000/- (rupees thirty lakhs) which
is to be paid to P.W.1, her sister and her brothers in equal
proportion. The D.L.S.A., Rayagada shall take immediate steps
Page 142 of 144
for payment of the balance amount of compensation within four
weeks from today.
Conclusion:
28. In view of the foregoing discussions, the appellants
are acquitted of the charge under section 4 of the O.P.W.H. Act,
2013. The conviction and sentences awarded by the learned trial
Court to the appellants for commission of offences under
sections 342/34, 364/34, 365/34, 201/34 and 506/34 of the
I.P.C. are upheld. The conviction of the appellants for
commission of offence under section 302/34 of the I.P.C. is also
upheld, however, the death sentence awarded to them is
commuted to life imprisonment. All the appellants are sentenced
to life imprisonment for each of the three murders committed by
them and the sentences so awarded shall run concurrently. It is
made clear that such life imprisonment shall mean the remainder
of their natural lives, without remission/commutation under
sections 432 and 433 of Code of Criminal Procedure. The fine
amount imposed by the learned trial Court on the appellants for
commission of offences under sections 342/34, 364/34, 365/34,
201/34 and 506/34 of the I.P.C. and the default sentence passed
thereunder stands confirmed.
Page 143 of 144
Accordingly, the death sentence reference is
answered in negative.
Before parting with this case, we would like to put on
record our deep appreciation to Mr. Himansu Bhusan Dash and
Mr. Manas Kumar Chand, learned counsel for the appellants for
the preparation and presentation of the case and assisting the
Court in arriving at the decision above mentioned. This Court
also appreciates the able assistance provided by Mr. Arupananda
Das, Addl. Govt. Advocate.
The trial Court records along with a copy of the
judgment be sent forthwith to the Court concerned and a copy of
the judgment be communicated to the D.L.S.A., Rayagada for
compliance.
...........................................
S.K. Sahoo, J.
R.K. Pattnaik, J. I agree.
…………………………………….
R.K. Pattnaik, J.
Orissa High Court, Cuttack
The 15th January 2025/PKSahoo/RKMishra/Sipun
Signature Not Verified
Digitally Signed
Signed by: PRAVAKAR NAYAK
Designation: AR-cum-Senior Secretary
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 15-Jan-2025 11:02:35
Page 144 of 144