- vs - on 28 August, 2024

[Cites 18, Cited by 0]

Orissa High Court

- vs - on 28 August, 2024

Bench: S.K. Sahoo

IN THE HIGH COURT OF ORISSA, CUTTACK

DSREF No.01 of 2023

From judgment and order dated 07.08.2023/09.08.2023 passed
by the Additional Sessions Judge, Kuchinda in S.T. Case No.25 of
2020.
---------------------

State of Odisha

-Versus-

Nabin Dehury ....... Condemned Prisoner/
Accused

For Condemned
Prisoner/Accused: - Mr. Debasis Sarangi
Amicus Curiae

JCRLA No.118 of 2023

Nabin Dehury ....... Appellant

-Versus-

State of Odisha ....... Respondent

For Appellant: - Mr. Debasis Sarangi
Amicus Curiae

CRLA No.693 of 2024

Hemananda Dehury ....... Appellant

-Versus-

State of Odisha ....... Respondent
For Appellant: - Mr. Pranaya Kumar Dash
Advocate

For State of Odisha: - Mr. Janmejaya Katikia
Addl. Govt. Advocate
Mrs. Susamarani Sahoo
Addl. Standing Counsel
Ms. Gayatri Patra
Advocate
---------------------

P R E S E N T:

THE HONOURABLE MR. JUSTICE S.K. SAHOO
AND
THE HONOURABLE MR. JUSTICE CHITTARANJAN DASH

------------------------------------------------------------------------
Date of Hearing: 30.07.2024 Date of Judgment: 28.08.2024
------------------------------------------------------------------------

By the Bench: The reference under section 366 of the Code of

Criminal Procedure, 1973 has been submitted to this Court by

the learned Additional Sessions Judge, Kuchinda (hereinafter „the

trial Court‟) in S.T. Case No.25 of 2020 for confirmation of death

sentence imposed on condemned prisoner/accused Nabin Dehury

(hereinafter „the appellant Nabin Dehury‟) by the judgment and

order dated 07.08.2023/09.08.2023 and accordingly, DSREF

No.01 of 2023 has been instituted.

JCRLA No.118 of 2023 and CRLA No. 693 of 2024

have been filed by the appellant Nabin Dehury and appellant

Page 2 of 107
Hemananda Dehury respectively challenging the self-same

judgment and order of conviction passed by the learned trial

Court.

Appellant Nabin Dehury along with his son appellant

Hemananda Dehury faced trial in the trial Court for commission

of offence under section 302/34 of the Indian Penal Code

(hereinafter „the I.P.C.‟) on the accusation that on 21.10.2020 at

about 2.30 p.m. in village Lapada under Mahulpali police station,

they committed murder of Giridhari Sahu, Pirobati Behera and

Sabitri Sahu in furtherance of their common intention.

The learned trial Court vide impugned judgment and

order dated 07.08.2023/09.08.2023 found the appellants guilty

under section 302/34 of I.P.C. and sentenced appellant

Hemananda Dehury to undergo imprisonment for life and to pay

a fine of Rs.1,00,000/- (rupees one lakh), in default, to undergo

further R.I. for one year. The appellant Nabin Dehury was

sentenced to death with a further direction that he be hanged by

neck till he is dead and he was also directed to pay a fine of

Rs.1,00,000/- (rupees one lakh), in default, to undergo further

R.I. for one year.

Since the DSREF, JCRLA and CRLA arise out of the

same judgment, with the consent of learned counsel for both the

Page 3 of 107
parties, those were heard analogously and are disposed of by

this common judgment.

Prosecution Case:

2. The prosecution case, as per the first information

report (hereinafter F.I.R.) (Ext.P-1) lodged by P.W.1 Manikya

Pruseth, in short, is that the deceased Pirobati Behera was her

mother, deceased Sabitri Sahu was her elder sister and deceased

Giridhari Sahu was her brother-in-law (being the husband of

deceased Sabitri Sahu). On 21.10.2020 at about 3.00 p.m., the

deceased Giridhari, Pirobati and Sabitri proceeded to the paddy

field for reaping paddy crops. After a while, P.W.1 came out of

the house and found the deceased Pirobati was pressing the

handle of the tube well and deceased Sabitri was collecting water

in a bottle from that tube well. At that time, all on a sudden,

both the appellants assaulted the deceased Pirobati by „tangia‟.

Hearing the cries of the two lady deceased, P.W.1 came out to

the village road and noticed that both the appellants were

chasing the deceased Sabitri and dealing „tangia‟ blows on her.

Both the appellants were also telling loudly to have killed

„Kiramiria‟ (deceased Giridhari) on the way. At that time, the wife

of appellant Nabin was also following the two appellants. On

being frightened, P.W.1 came inside her house, bolted the door

Page 4 of 107
and shouted for help. Hearing her outcry, villagers came and

congregated and then P.W.1 came out of her house and she

along with the villagers searched for the deceased Giridhari and

found his dead body was lying in the field with cut injuries. It is

further stated in the F.I.R. that Sachin Sahu (P.W.3) and Sapna

Sahu (P.W.4) were the minor son and daughter of the deceased

Giridhari and Sabitri respectively.

P.W.8 Kalyan Behera scribed the written report as

per the version of P.W.1 which was read over and explained to

her and on the written report, P.W.1 put her signature which was

presented to P.W.20 Jyotchna Rani Behera, Inspector in-charge

of Mahulpali police station at the spot who had arrived there on

receiving telephonic communication from one unknown person

regarding commission of murder of three persons at village

Lapada while she was on patrolling duty.

Without waiting for the formal registration of the

F.I.R. at the police station, P.W.20 commenced investigation of

the case. She examined P.W.1, the informant and other

witnesses and also called for the scientific team from D.F.S.L,

Sambalpur to visit the spot for collection of physical clues. She

conducted inquest over the three dead bodies and prepared the

inquest reports. The scientific officials arrived at the scene of

Page 5 of 107
occurrence on the same day i.e. 21.10.2020 at about 8.15 p.m.

and collected material objects from the spot. In the intervening

night of 21/22.10.2020, P.W.20 dispatched all the three

cadavers to S.D.H, Kuchinda for post-mortem examination. She

also took the custody of both the appellants from their house and

brought them to Mahulpali police station. After arrival at the

police station, P.W.20 registered Mahulpali P.S. Case No.175

dated 22.10.2020 under section 302/34 of I.P.C.

During interrogation of appellant Nabin Dehury by

the I.O. (P.W.20), he not only confessed his guilt but also stated

to have concealed the weapon of offence i.e. „tangia‟ inside a

straw heap of his house and accordingly, his statement was

recorded under section 27 of the Evidence Act vide Ext.P-14 in

presence of two independent witnesses and thereafter, appellant

Nabin Dehury led the police party and the witnesses to his house

and gave recovery of „tangia‟, which he had concealed, from

inside the straw heap and accordingly, P.W.20 seized the same

as per seizure list Ext.P-15. P.W.20 returned to the police station

with the appellant Nabin Dehury and seized the wearing apparels

of both the appellants under separate seizure lists. She sent

them for medical examination to S.D.H., Kuchinda. The police

staff also returned to the police station with the biological

Page 6 of 107
samples of the three deceased in sealed envelopes and their

wearing apparels, which were seized by P.W.20 as per seizure

list Ext.P-20. S.I. Dillip Kumar Behera of Mahulpali police station,

who had taken the appellants to S.D.H., Kuchinda also returned

with the biological samples of the appellants in sealed envelopes

which were seized as per seizure list Ext.P-19 and then the

appellants were forwarded to Court.

P.W.20 revisited the spot on 23.10.2020, prepared

three spot maps where the three dead bodies were lying

separately and also sent the wearing apparels of the appellants

and the weapon of offence (tangia) to D.F.S.L, Sambalpur for

necessary test, which were examined on the very day by the

Scientific Officer & Asst. Chemical Examiner, D.F.S.L, Sambalpur.

After examination, the exhibits were dried, sealed and packed

properly and handed over to P.W.20, the I.O. on 24.10.2020

with instruction to send all the exhibits to the R.F.S.L.,

Sambalpur through Court. P.W.20 sent requisition to Tahasildar,

Bamra on 24.10.2020 for demarcation of the spot. The

documents relating to the land dispute between the parties were

seized as per the seizure list Ext.P-5 on the production of Udaya

Chandra Pruseth (P.W.2), which were also left in his zima. After

receipt of the post mortem reports of the three deceased, on

Page 7 of 107
03.11.2020 P.W.20 produced the weapon of offence (tangia)

before the Medical Officer, who conducted post mortem

examination to ascertain regarding possibility of the injuries

sustained by the three deceased with such weapon and received

the opinion on the very day in affirmative. On 09.11.2020 she

also sent the material objects, the weapon of offence, the

biological materials of the deceased so also that of the appellants

to R.F.S.L., Sambalpur for necessary examination. She received

the spot demarcation report from the Tahasildar, Bamra.

On 19.11.2020 on completion of investigation,

P.W.20 submitted charge sheet against the appellants under

section 302/34 of the I.P.C.

Framing of Charge:

3. After submission of charge sheet, the case was

committed to the Court of Session after complying due

formalities. The learned trial Court framed charge against the

appellants as aforesaid and since the appellants refuted the

charge, pleaded not guilty and claimed to be tried, the sessions

trial procedure was resorted to prosecute them and establish

their guilt.

Page 8 of 107
Prosecution Witnesses, Exhibits & Material Objects:

4. During the course of trial, in order to prove its case,

the prosecution examined as many as twenty witnesses.

P.W.1 Manikya Pruseth is the sister-in-law, younger

sister and daughter of the deceased persons Giridhari, Sabitri

and Pirobati respectively. She is the informant of the case. She

narrated the facts as the incident unfolded on the date of

occurrence and supported the prosecution case.

P.W.2 Udaya Chandra Pruseth is the husband of the

informant (P.W.1). He stated to have received a telephonic call

from P.W.4 who informed him that the appellants have

committed the murder of the three deceased. Upon receiving

such information, he rushed to the village of the deceased and

saw a huge gathering. He was told about the incident by P.W.1.

He also stated to have seen severe cut injury on the neck of the

deceased Pirobati and many cut injuries on different parts of the

body of the deceased Sabitri. He was also informed by P.W.1

that the appellants were telling that they had killed the deceased

Giridhari. He proceeded to the paddy field and found the dead

body of the deceased Giridhari lying with marks of injuries on his

head, neck and hand. He is a witness to the preparation of the

Page 9 of 107
inquest reports vide Exts.P-2, P-3 and P-4. He is also a witness

to the seizure of the original R.O.R. and the copies of the decrees

of the cases as per seizure list Ext.P-5.

P.W.3 Sachin Sahu and P.W.4 Sapna Sahu are the

son and daughter of the deceased Giridhari and Sabitri

respectively and they are eye witnesses to the occurrence.

P.W.5 Prafulla Kumar Nayak is a co-villager who is

also an eye witness to the assault on the deceased Giridhari. He

is also witness to the preparation of the inquest reports vide

Exts.P-2, P-3 and P-4.

P.W.6 Dr. Satya Prakash Dora was working as the

Medicine Specialist at S.D.H., Kuchinda, who on police

requisition, conducted post-mortem examination over the three

dead bodies of the deceased and he proved his reports vide

Exts.P-7, P-8 and P-9. He examined the weapon of offence

produced before him by the I.O. regarding possibility of injuries

sustained by the three deceased with such weapon and gave his

opinion.

P.W.7 Dibyaraj Naik is a co-villager who is a post

occurrence witness, who noticed the dead bodies of Pirobati and

Page 10 of 107
Sabitri lying at two different places. He is a witness to the

preparation of the inquest reports vide Exts.P-2, P-3 and P-4.

P.W.8 Kalyan Behera is the uncle of the deceased

Giridhari who is a post occurrence witness and came to the spot

on receipt of information regarding the death of the deceased

and noticed the three dead bodies with injuries at three different

places. He is the scribe of the written report, which was prepared

as per the version of P.W.1 and the same was subsequently

treated as F.I.R.

P.W.9 Gobinda Naik is a co-villager and a post

occurrence witness. He came to the spot on hearing the shout

and noticed three dead bodies lying at three different places. He

is a witness to the preparation of the inquest reports vide Exts.P-

2, P-3 and P-4. He is also a witness to the seizure of the land

records and documents relating to the cases over the landed

property as per seizure list Ext.P-5.

P.W.10 Bijayalaxmi Tirkey was the Scientific Officer

at D.F.S.L., Sambalpur who visited the spot with her team as per

the direction of the Superintendent of Police, Sambalpur. She

collected blood of the three deceased persons by means of gauge

clothes which were marked as A, B and C respectively and

Page 11 of 107
handed over same to the I.O. which were seized as per seizure

list Ext.P-11. She also proved the chemical examination report

vide Ext.P-13.

P.W.11 Alekha Sahu is the uncle of the informant

(P.W.1) who on receipt of telephonic call from P.Ws.3 & 4 came

to the spot and found three dead bodies lying at three different

places with bleeding injuries. He is also a witness to the seizure

of land records of the deceased Pirobati as per seizure list

Ext.P-5.

P.W.12 Sanjaya Kumar Nayak is a co-villager who is

a witness to the recording of the statement of appellant Nabin

Dehury under section 27 of the Evidence Act and recovery of

„tangia‟ (M.O.I) at his instance, which was seized by the I.O. as

per seizure list Ext.P-15.

P.W.13 Parameswar Khadia is a co-villager who is

also a witness to the recording of the statement of appellant

Nabin Dehury under section 27 of the Evidence Act and leading

to discovery of „tangia‟ and its seizure as per seizure list

Ext.P-15.

P.W.14 Cicilia Zina Lakra was working as a constable

attached to Mahulpali police station on the date of occurrence.

Page 12 of 107
She is a witness to the seizure of the wearing apparels of the

appellants as per seizure lists Exts.P-16 and P-17.

P.W.15 Sunita Patel was posted as a constable at

Mahulpali police station. She, as per the direction of the I.O.,

proceeded to the Court and collected the exhibits and deposited

the same in R.F.S.L., Sambalpur for chemical examination.

P.W.16 Dillip Kumar Behera was working as the Sub-

Inspector of Police at Mahulpali police station. He took the

appellants to S.D.H., Kuchinda for collection of the biological

samples of the appellants, which were accordingly collected and

produced before the I.O. and seized as per seizure list Ext.P-19.

P.W.17 Jayadeb Majhi was posted as a constable

attached to Mahulpali police station who took the dead bodies of

three deceased to S.D.H., Kuchinda for post-mortem

examination. After the post-mortem examination, the wearing

apparels of the deceased along with their nail clippings, blood

samples and hairs were collected by the Medical Officer and were

handed over to him in three separate packets and he produced

the packets before the I.O., which were seized as per the seizure

list Ext.P-20.

Page 13 of 107
P.W.18 Petrus Xalxo was posted as the Assistant

Sub-Inspector of Police at Mahulpali police station. He is a

witness to the seizure of the biological samples of the three

deceased and their wearing apparels as per the seizure list

Ext.P-20. He is also a witness to the seizure of biological samples

of the appellants as per seizure list Ext.P-19.

P.W.19 Suchit Topno was working as a constable at

Mahulpali police station who is a witness to the seizure of four

sealed envelopes containing sample of blood stained earth and

one blood stained cloth, on production by the Scientific Officer,

D.F.S.L., Sambalpur, as per seizure list Ext.P-11.

P.W.20 Jyotchna Rani Behera was posted as the

Inspector-in-Charge of Mahulpali police station and she is the

investigating officer of the case.

The prosecution exhibited thirty one documents.

Ext.P-1 is the F.I.R., Ext.P-2 is the inquest report of deceased

Pirobati, Ext.P-3 is the inquest report of deceased Sabitri, Ext.P-

4 is the inquest report of deceased Giridhari, Exts.P-5, P-11, P-

15, P-16, P-17, P-19 and P-20 are the seizure lists, Ext.P-6 is the

zimanama, Ext.P-7 is the post mortem report of deceased

Sabitri, Ext.P-8 is the post mortem report of deceased Pirobati,

Page 14 of 107
Ext.P-9 is the post mortem report of deceased Giridhari, Ext.P-10

is the requisition along with opinion on query, Ext.P-12 is the

spot visit report, Ext.P-13 is the Chemical Examination Report,

Ext.P-14 is the statement of appellant Nabin Dehury recorded

under section 27 of the Evidence Act, Ext.P-18 and Ext.P-21 are

command certificates, Ext.P-22, Ext.P-23 and Ext.P-24 are the

dead body challans, Ext.P-25 is the crime detail form, Ext.P-26 is

the spot map, Ext.P-27 is the requisition to Tahasildar, Bamra for

demarcation of the spot, Ext.P-28 is the exhibit forwarding report

for the chemical examination, Ext.P-29 is the prayer made by the

I.O. to the Court for dispatching the exhibits for chemical

examination, Ext.P-30 is the spot demarcation report received

from Tahasildar, Bamra and Ext.P-31 is the chemical

examination report of R.F.S.L., Sambalpur.

The prosecution also proved seventeen material

objects. M.O.I is the tangia, M.O.II is the lungi, M.O.III is the

ganjee, M.O.IV is the half pant, M.O.V is the t-shirt, M.O.VI is

the saree of deceased Sabitri, M.O.VII is the saree of deceased

Pirobati, M.O.VIII is the lungi of deceased Giridhari, M.O.IX is the

pant of deceased Giridhari, M.O.X is the T-shirt of deceased

Giridhari, M.O.XI is the vest of deceased Giridhari, M.O.XII is the

chapal of deceased Pirobati, M.O.XIII is the saya of deceased

Page 15 of 107
Sabitri, M.O.XIV is the blouse of deceased Sabitri, M.O.XV is the

blood stained napkin of deceased Giridhari, M.O.XVI is the blue

colour blouse of deceased Pirobati and M.O.XVII is the black

colour panty of deceased Sabitri.

Defence Plea:

5. The defence plea of the appellants is one of complete

denial and it is stated that the two lady deceased died coming in

contact with a machine which was used to cut paddy crops and

deceased Giridhari died during fighting with bullocks as the horn

of bullocks pierced inside his body and due to long standing civil

dispute between the parties, they have been falsely implicated.

The defence did not examine any witness nor proved any

document.

Findings of the Trial Court:

6. The learned trial Court after analysing the oral as

well as the documentary evidence on record came to hold that

the prosecution has successfully established that the three

deceased persons met with homicidal death.

The evidence of P.W.1 Manikya Pruseth, the

informant as an eye witness to the occurrence, was found to be

Page 16 of 107
quite clear, elaborate and corroborating to the prosecution case

and it is held that there was no reason to cast doubt over the

truthfulness in her evidence.

The evidence of P.W.3 and P.W.4, who are the two

minor children of deceased Giridhari and Sabitri, as eye

witnesses to the occurrence, was also accepted.

It was further held that the prosecution case on

leading to discovery of weapon of offence i.e. tangia at the

instance of appellant Nabin Dehury in application to section 27 of

the Evidence Act is quite clear, specific and corroborative, which

has been proved through the evidence of two independent

witnesses i.e. P.W.12 and P.W.13 and the I.O. (P.W.20). The

learned trial Court also held that the injuries sustained by the

three deceased were possible by the seized weapon. It was held

that the chemical examination report, which has been marked as

Ext.31 without any objection from the side of the defence,

immensely corroborates not only the evidence of the eye

witnesses but also the prosecution case against appellant Nabin

Dehury.

It was further held that there is no infirmity in the

evidence of the eye witnesses and the prosecution case finds

Page 17 of 107
absolute corroboration from the experts examined in the case as

well as scientific investigation to that effect and the Court came

to the final opinion that the appellant Nabin Dehury committed

murder of all the three deceased and is liable for the commission

of offence under section 302 of I.P.C.

The Court further analysed the evidence on record

relating to the role played by the appellant Hemananda Dehury

in the commission of murder of the deceased and held that he

restrained deceased Sabitri while she was going to rescue her

mother (deceased Pirobati) and taking advantage of the same,

the appellant Nabin dealt three to four blows on the neck and

other parts of the body of the deceased Sabitri, who died at the

spot and that he had never prevented or discouraged the

appellant Nabin for committing such terrible crime. The appellant

Hemananda joined appellant Nabin after the latter committed the

murder of deceased Giridhari and he not only shared common

intention with appellant Nabin, but also actively participated in

the crime and therefore, he is liable for the commission of

offence under section 302/34 of the I.P.C.

On the quantum of sentence, the learned trial Court

held that the case against the appellant Nabin Dehury is an act

Page 18 of 107
of extreme brutality and the magnitude of cruelty thrust in

committing the crime brought it to the category of „rarest of rare‟

case and accordingly, imposed death sentence on him while

imposing life imprisonment on the appellant Hemananda Dehury.

Submission of Parties:

7. Mr. Debasis Sarangi, learned Amicus Curiae

appearing for the appellants being ably assisted by Mr. Pranaya

Kumar Das, learned counsel for the appellant Hemananda

Dehury contended that from the inception, the prosecution has

tried to implicate the appellant Hemananda Dehury in the actual

assault of the deceased Pirobati Behera and Sabitri Sahu. It is

not mentioned in the F.I.R. that P.W.3 and P.W.4, the two minor

children of the deceased Giridhari and Sabitri were the eye

witnesses to the occurrence and therefore, there is every

possibility of introducing those two witnesses at a later stage and

tutoring them to depose against the appellants. There is doubt

whether the F.I.R. was lodged at the time when it was shown to

have been lodged. The role played by the appellant Hemananda

Dehury as deposed to by the witnesses during trial is completely

different from the F.I.R. story. He emphasised that even though

as per the version of P.W.5, who is the solitary eye witness to

the assault on the deceased Giridhari, it was appellant Nabin

Page 19 of 107
Dehury who assaulted the deceased Giridhari with a tangia and

the presence of appellant Hemananda Dehury has not been

deposed to at that point of time, however in the inquest report of

deceased Giridhari vide Ext.P-4, in which P.W.5 is a signatory, in

column no.9, it is mentioned that both the appellants Nabin

Dehury and Hemananda Dehury assaulted the deceased Giridhari

by „tangia‟ and „knife‟ which creates doubt as to whether P.W.5 is

an eye witness to the assault on deceased Giridhari. Similarly

P.W.5 stated to have come to the second spot after seeing the

assault on deceased Giridhari where he found the dead bodies of

deceased Pirobati Behera and Sabitri Sahu and he was present

there when the police arrived and held inquest over the three

dead bodies. In spite of that the name of P.W.5 is not mentioned

in the F.I.R. as an eye witness to the assault on the deceased

Giridhari. He urged that the version of the eye witnesses are full

of material contradictions and P.Ws.1, 3 & 4 are related to the

deceased persons and therefore, they are interested witnesses

and the learned trial Court was not justified in placing reliance

upon their evidence to convict the appellants. Reliance was

placed on the decisions of the Hon‟ble Supreme Court in the case

of Krishnegowda & others -Vrs.- State of Karnataka

reported in (2017) 13 Supreme Court Cases 98 and A.

Page 20 of 107
Shankar -Vrs.- State of Karnataka reported in (2011) 6

Supreme Court Cases 279. It was argued that though the

weapon of offence i.e. tangia was seized on 22.10.2020, but

there is no evidence as to where it was kept after its seizure and

in what condition and who was its custodian and therefore, no

importance can be attached to the finding of blood of human

origin on tangia and the learned trial Court should not have

utilized the C.E. report findings against the appellants, more

particularly when it was not shown to the eye witnesses for the

purpose of identification. It is argued that the conviction of the

appellant Hemananda Dehury with the aid of section 34 of the

I.P.C. is quite unjustified inasmuch as not only the prosecution

changed its initial story of the appellant Hemananda Dehury

being a direct assailant of both the deceased Pirobati and Sabitri

to that of only restraining deceased Sabitri when she proceeded

to rescue her mother Pirobati, but also even restraining the

deceased Sabitri cannot be a factor to come to the conclusion

that he shared common intention with the appellant Nabin

Dehury as his mere presence with the appellant Nabin Dehury in

the scene of occurrence without any specific overt act or aiding

or abetting the appellant Nabin Dehury cannot attract his

common intention with the appellant Nabin Dehury and

Page 21 of 107
therefore, it is a fit case where benefit of doubt should be

extended in favour of the appellant Hemananda Dehury. Reliance

was placed on the decisions of the Hon‟ble Supreme Court in the

cases of Idrish Bhai Daudbhai -Vrs.- State of Gujarat

reported in A.I.R. 2005 Supreme Court 1067, Tapan

Sarkar etc. -Vrs.- State of West Bengal reported in (2018)

72 Orissa Criminal Reports 255 and Jasdeep Singh @

Jassu -Vrs.- State of Punjab reported in (2022) 2 Supreme

Court Cases 545. It is argued that even if for the sake of

argument, it is held that on account of property dispute, the

appellant Nabin Dehury committed the murder of all the three

deceased but in absence of any criminal antecedents against the

appellant Nabin Dehury so also the reports which have been

received from the Jail Superintendent and the Probation Officer

and the medical documents relating to his psychological disorder,

it cannot be said that only the death sentence is justified for him

in the facts and circumstances of the case and therefore, even

though this Court holds him guilty under section 302 of the

I.P.C., the death sentence may be commuted to life

imprisonment.

Mr. Janmejaya Katikia, learned Additional

Government Advocate, being ably assisted by Mrs. Sushamarani

Page 22 of 107
Sahoo, learned Additional Standing Counsel and Ms. Gayatri

Patra, Advocate, on the other hand, supported the impugned

judgment and argued that F.I.R. is not an encyclopaedia of the

entire prosecution case. When the F.I.R. was lodged promptly

after the commission of three ghastly murder of near and dear

ones, the state of mind of an eye witness like P.W.1, who is the

informant in the case, must have been in a disturbed condition

and therefore, it was not expected of her to mention all the

details of what she had seen at the spot or what she came to

know from others and she was likely to commit mistakes. When

the witnesses during trial have consistently deposed regarding

the role played by each of the appellants and the same has not

been shaken in the cross-examination except bringing some

minor discrepancies and trifling contradictions, the learned trial

Court cannot be said to have committed any mistake in relying

upon the version of such eye witnesses. It is further argued that

the evidence of the eye witnesses gets corroboration not only

from the medical evidence but also there is recovery of tangia at

the instance of the appellant Nabin Dehury and after examining

the weapon, the doctor (P.W.6) has opined that the injuries

sustained by the deceased were possible by such weapon. It is

further argued that the motive behind the commission of crime is

Page 23 of 107
the civil dispute between the parties and the manner in which

the ghastly crime was committed by the appellant Nabin Dehury

and he dealt blows after blows to the deceased persons, who

were defenceless and out of them, two were ladies, the

imposition of death sentence on him is quite justified. Similarly,

the role played by the appellant Hemananda Dehury at the

second spot near the tube well in joining his father and not

preventing him to assault the two lady deceased rather

restraining the deceased Sabitri while she was proceeding to

rescue her mother deceased Pirobati is sufficient to hold that he

shared common intention with his father Nabin Dehury and

therefore, the learned trial Court is quite justified in holding him

guilty under section 302/34 of the I.P.C. and therefore, the

appeals preferred by the appellants should be dismissed and the

death sentence imposed on the appellant Nabin Dehury should

be confirmed. He placed reliance in the cases of Bachan Singh

-Vrs.- State of Punjab reported in (1980) 2 Supreme Court

Cases 684, Machhi Singh & others -Vrs.- State of Punjab

reported in (1983) 3 Supreme Court Cases 470, Surja Ram

-Vrs.- State of Rajasthan reported in (1996) 6 Supreme

Court Cases 271 and Muthuramalingam & others -Vrs.-

State reported in (2016) 8 Supreme Court Cases 313.

Page 24 of 107
Whether the three deceased met with homicidal deaths?:

8. Adverting to the contentions raised by the learned

counsel for the respective parties, we have to examine the

materials available on record to see whether prosecution has

successfully established the homicidal death of the three

deceased. Apart from the inquest reports of deceased Giridhari

Sahu (Ext.P-4), deceased Pirobati Behera (Ext.P-2) and Sabitri

Sahu (Ext.P-3), the prosecution examined P.W.6 Dr. Satya

Prakash Dora, the Medicine Specialist at S.D.H., Kuchinda, who

on 22.10.2020 on police requisition conducted post mortem

examination over the three dead bodies.

So far as deceased Giridhari Sahu is concerned,

P.W.6 noticed the following injuries:-

"On external examination, he found one chop
wound of size 4 cm x 3 cm x 1.5 cm over the
base left scapula, 1 cm lateral to mid line; one
chop wound of size 4 cm x 3 cm x 1 cm on
posterior base of neck at cervical vertebra at
no.6 level; one chop wound of size 4 cm x 3 cm
x 1 cm over left temporal lobe of head 4 cm
above left ear; one chop wound of size 5 cm x 4
cm x 2 cm over left side of neck. All the above
injuries were antemortem in nature.

Page 25 of 107
On internal examination, he found skull
fractured at left temporal region 4 cm above left
ear. The membrane lacerated at temporal
region, one chop wound over brain of size 2 cm
x 1 cm at temporal region, one haematoma of
size 1 cm x 1 cm x 1 cm present at temporal
region, bilateral lungs were intact and
congested, heart was intact and filled with
clotted blood, stomach intact and filled with
partially digested food, large intestine were
intact and filled with gas and fecal matter, liver
and kidneys were intact and filled with urine.
Cause of death was due to multiple chop
wounds over head and neck by heavy sharp
weapon and nature of death is homicidal. The
post mortem report is marked as Ext.P-9."

So far as deceased Pirobati Behera is concerned,

P.WS.6 noticed the following injuries: -

"On external examination, he found a stout
female dead body bilateral eyes opened, mouth
closed, rigor mortis had developed in all four
limbs and neck muscles, one chop wound of size
6 cm x 4 cm x 4 cm on back of neck at cervical
vertebra no.4 level. The above injury was
antemortem in nature.

On internal examination, he found the
brain was intact and congested, spinal cord

Page 26 of 107
incised completely at cervical vertebra no.4
level, bilateral lungs intact and congested, heart
intact and filled with clotted blood, stomach
intact and filled with partially digested food,
small intestine intact, large intestine intact and
filled with gas and fecal, urinary bladder intact
and filled with urine, genital organs were intact.

Cause of death was due to chop wound
on back of neck by heavy sharp weapon and
nature of death homicidal. The post mortem
report is marked as Ext.P-8."

So far as deceased Sabitri Sahu is concerned, P.W.6

noticed the following injuries: -

"On external examination, he found a stout
female dead body, bilateral eyes closed, mouth
opened, rigor mortis had developed in all four
limbs and neck muscles, one chopped wound of
size 6 cm x 3 cm x 3 cm over right cheek one
cm in front of right ear. One chopped wound of
size 4 cm x 3 cm x 3 cm over left cheek, one
chopped wound of size 6 cm x 3 cm x 3 cm over
base of right side of neck.

On internal examination, he found the
skull was intact, brain and spinal cord intact,
right lung intact and congested, left lung was
intact and congested, heart intact and filled with
clotted blood, stomach intact and filled with

Page 27 of 107
partial digested food, small intestine intact, large
intestine filled with gas and fecal matter, liver,
spleen and kidneys were intact, bladder was
intact and filled with urine, genital organs were
intact. All the injuries were antemortem in
nature.

Cause of death was due to multiple chop
wound over head and neck by sharp and heavy
weapon. Nature of death was homicidal. The
post mortem report is marked as Ext.P-7."

The learned Amicus Curiae so also the learned

counsel for the appellant did not challenge the evidence of the

doctor (P.W.6) so also the findings of the post mortem reports

(Exts.P-7, P-8, P-9). After perusing the evidence on record, the

inquest reports (Exts.P-3, P-4 and P-5), the post mortem reports

and the evidence of the doctor (P.W.6), we are of the view that

the prosecution has successfully proved the death of the three

deceased to be homicidal in nature.

Murder of deceased Giridhari Sahu:

9. P.W.5 Prafulla Kumar Nayak is the sole eye witness

to the commission of murder of the deceased Giridhari Sahu by

the appellant Nabin Dehury.

Page 28 of 107
In the examination-in-chief, he has stated that on

21.10.2020 in between 2.30 p.m. to 3.00 p.m. while he had

been to his cultivable land to harvest paddy crops, he noticed the

appellant Nabin Dehury coming from his land towards village

carrying a tangia on his shoulder and at that time deceased

Giridhari Sahu was coming from the village towards his land. He

further stated to have heard an unusual sound and when he

turned to his back, he found the appellant Nabin giving blows

after blows by means of a tangia to the deceased Giridhari. He

further stated that out of fear, he took another route and

reached near puja mandap and found Manikya Pruseth (P.W.1)

and Sachin Sahu (P.W.3) and two to three villagers there and

told them about the incident of assault on the deceased Giridhari

Sahu. He also stated about the preparation of the inquest report

of deceased Giridhari Sahu which has been marked as Ext.P-4.

In the cross-examination, P.W.5 has stated that he

could not say how many tangia blows were given by appellant

Nabin Dehury to the deceased Giridhari Sahu and on which parts

of the body. He further stated that since he had not met any

person on the way to Jatra mandap, he did not disclose the

incident before anyone and on reaching near Jatra mandap, he

Page 29 of 107
found the deceased Sabitri Sahu and Pirobati Behera were lying

dead.

It is the contention of Mr. Sarangi, learned Amicus

Curiae that P.W.5 has not whispered anything in his evidence

regarding presence of the appellant Hemananda Dehury at the

spot when the appellant Nabin Dehury assaulted the deceased

Giridhari Sahu. However, in the inquest report of the deceased

Giridhari Sahu marked as Ext.P-4, in which he is a signatory, it is

mentioned in column no.9 that the deceased Giridhari Sahu was

assaulted by the appellants Nabin Dehury and Hemananda

Dehury by tangia and knife and therefore, in all probability P.W.5

had got no idea as to how the deceased Giridhari Sahu died and

there is every possibility of him being planted as an eye witness

to the occurrence afterwards.

We are not able to accept such a contention. The

purpose of inquest has been discussed in the case of Brahm

Swaroop & another -Vrs.- State of U.P. reported in (2011)

6 Supreme Court Cases 288, wherein it is held as follows:-

"9. The whole purpose of preparing an inquest
report under Section 174 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as
'Cr.P.C') is to investigate into and draw up a
report of the apparent cause of death, describing

Page 30 of 107
such wounds as may be found on the body of
the deceased and stating as in what manner, or
by what weapon or instrument such wounds
appear to have been inflicted. For the purpose of
holding the inquest it is neither necessary nor
obligatory on the part of the Investigating
Officer to investigate into or ascertain who were
the persons responsible for the death. The
object of the proceedings under Section 174
Cr.P.C. is merely to ascertain whether a person
died under suspicious circumstances or met with
an unnatural death and, if so, what was its
apparent cause. The question regarding the
details of how the deceased was assaulted or
who assaulted him or under what circumstances
he was assaulted is foreign to the ambit and
scope of such proceedings i.e. the inquest report
is not the statement of any person wherein all
the names of the persons accused must be
mentioned.
10. Omissions in the inquest report are not
sufficient to put the prosecution out of court.
The basic purpose of holding an inquest is to
report regarding the apparent cause of death,
namely, whether it is suicidal, homicidal,
accidental or by some machinery etc. It is,
therefore, not necessary to enter all the details
of the overt acts in the inquest report. Evidence
of eyewitnesses cannot be discarded if their

Page 31 of 107
names do not figure in the inquest report
prepared at the earliest point of time. The
inquest report cannot be treated as substantive
evidence but may be utilized for contradicting
the witnesses of inquest. (See Pedda
Narayana and Ors. -Vrs.- State of Andhra
Pradesh : AIR 1975 SC 1252; Khujji -Vrs.-
State of M.P. : AIR 1991 SC 1853; George
-Vrs.- State of Kerala : (1998) 4 SCC 605;
Sk. Ayub -Vrs.- State of Maharashtra:
(1998) 9 SCC 521; Suresh Rai -Vrs.- State
of Bihar : (2000) 4 SCC 84; Amar Singh
-Vrs.- Balwinder Singh : (2003) 2 SCC 518;
Radha Mohan Singh -Vrs.- State of U.P. :
(2006) 2 SCC 450; and Aqeel Ahmad -Vrs.-
State of U.P.: AIR 2009 SC 1271).
11. In Radha Mohan Singh (supra), a three

judge bench of this Court held:

"11......No argument on the basis of an
alleged discrepancy, overwriting,
omission or contradiction in the
inquest report can be entertained
unless the attention of the author
thereof is drawn to the said fact and
he is given an opportunity to explain
when he is examined as a witness in
court."
(Emphasis added)

Page 32 of 107
12. Even where, the attention of the author of
the inquest is drawn to the alleged discrepancy,
overwriting, omission or contradiction in the
inquest report and the author in his deposition
has also admitted that through a mistake he
omitted to mention the crime number in the
inquest report, this Court has held that just
because the author of the report had not been
diligent did not mean that reliable and clinching
evidence adduced by the eyewitnesses should be
discarded by the Court. (Vide: Krishna Pal
(Dr.) -Vrs.- State of U.P. : (1996) 7 SCC
194)."

It appears that P.W.2 Uday Chandra Pruseth has

filled up the column no.9 of the inquest report Ext.P-4 and put

his signature thereon and he is not an eye witness to any of the

three murders. On receipt of phone call from P.W.4 Swapna

Sahu regarding the murder of deceased Pirobati Behera and

deceased Sabitri Sahu, P.W.2 came to village Lapada where he

was apprised of the occurrence by his wife (P.W.1). He further

stated to have heard from P.W.1 that the appellants were

shouting that they had killed the deceased Giridhari Sahu and

then he went to the paddy field and found the dead body of

Giridhari lying there with injuries. Therefore, even though P.W.2

is a post-occurrence witness, mentioning the names of both the

Page 33 of 107
appellants in column no.9 to be the assailants of the deceased

Giridhari by him on the basis of information supplied to him by

his wife (P.W.1) cannot be ruled out particularly when he has

stated that besides his wife (P.W.1), no other person had told

him about the occurrence. No question has been put to P.W.2 as

to how he mentioned the names of both the appellants in column

no.9 of the inquest report as he was the best person to answer

the same. Since P.W.5 has not made any such endorsement

except signing at the end of the inquest report (Ext.P-4) and it

was P.W.2 who had filled up column no.9, the same cannot be a

ground to disbelieve the evidence of P.W.5 as an eye witness to

the occurrence.

It is pertinent to note that though confrontation has

been made to P.W.5 in the cross-examination by the learned

defence counsel relating to his previous statement recorded

under section 161 Cr.P.C. that he had not stated to have found

the appellant Nabin Dehury giving blows after blows by means of

a tangia to deceased Giridhari, but such contradiction has not

been proved through the Investigating Officer (P.W.20). In fact,

in the interest of justice, when we perused the 161 Cr.P.C.

statement of P.W.5 to know the correct state of affairs, we found

that he had in fact stated to have seen the assault on the

Page 34 of 107
deceased Giridhari by the appellant Nabin Dehury with tangia

repeatedly.

It is surprising as to how the learned trial Court

allowed such confrontations to be made to P.W.5 by the learned

defence counsel particularly when the statement under section

161 Cr.P.C. indicates P.W.5 to be an eye witness to the

occurrence and that he has stated specifically about the assault

on the deceased Giridhari Sahu by appellant Nabin Dehury with

tangia repeatedly. The Public Prosecutor so also the learned trial

Court is required to remain alert when the trial is being

conducted particularly in a case of this nature. In the case of

Sister Mina Lalita Baruwa -Vrs.- State of Orissa and Ors.

reported in (2013) 16 Supreme Court Cases 173, it is held

as follows:-

"19. In criminal jurisprudence, while the offence
is against the society, it is the unfortunate victim
who is the actual sufferer and therefore, it is
imperative for the State and the prosecution to
ensure that no stone is left unturned. It is also
the equal, if not more, duty and responsibility of
the Court to be alive and alert in the course of
trial of a criminal case and ensure that the
evidence recorded in accordance with law reflect
every bit of vital information placed before it.

Page 35 of 107
Neither the prosecution nor the Court should
remain a silent spectator......"

Therefore, a trial Judge is not expected to be a mute

spectator or a recording machine during trial. He has to be active

and dynamic so that errors can be minimized and justice can be

done to the parties concerned. He has to monitor the

proceedings in the aid of justice. He has got power to put

questions to the witnesses, either during chief examination or

cross-examination or even during re-examination to elicit truth

and check irrelevant questions to be put to the witnesses by the

counsel as it is more often seen that the defence counsel adopt

unnecessary lengthy cross-examination to impress the client and

to play to the gallery and in that process, the valuable time of

the Court is lost. Even if the Public Prosecutor is remiss or

lethargic in some ways, the trial Court should control the

proceedings effectively so that the ultimate objective, i.e. the

truth is arrived at. Witnesses attend the Court to discharge the

sacred duty of rendering aid to justice. When the Prosecutor or

the defence counsel confront the previous statement of a witness

to that witness which might have been recorded under section

161 Cr.P.C. or 164 Cr.P.C., it is nonetheless the duty of the

Page 36 of 107
Court to peruse such previous statement at the time of

confrontation so that error is minimized.

Mr. Sarangi, learned Amicus Curiae argued that if

P.W.5 had seen the occurrence of assault on deceased Giridhari

and disclosed the same before P.W.1 and P.W.3, his name

should have been mentioned in the F.I.R. as an eye witness to

the occurrence as P.W.1 is the informant in the case and at least

those two witnesses (P.W.1 and P.W.3) would have stated about

the disclosure being made by P.W.5. According to him, the non-

mention of the name of P.W.5 as an eye witness in the F.I.R.

creates doubt that he has been subsequently planted as an eye

witness. We are not able to accept such contention. It is rightly

argued by Mr. Katikia, learned Addl. Govt. Advocate that the

F.I.R. is not an encyclopedia which must disclose all facts and

details relating to the offence reported. Even if the information

report does not furnish all the details, it is for the Investigating

Officer to find out those details during the course of investigation

and collect necessary evidence. The information disclosing

commission of a cognizable offence only sets the law in motion

and then it becomes the duty of the investigating machinery to

collect necessary evidence and to take action in accordance with

law. Omission on the part of the informant to mention the name

Page 37 of 107
of an eye witness in the F.I.R. cannot be a factor to hold that

such witness was deposing falsehood and he has been

subsequently planted as such. Similarly, the mention of a name

of a person as eye witness is not a guarantee that he is a truthful

witness. The learned trial Court is to assess the evidence of the

witness in accordance with law and come to the conclusion

whether in the factual scenario, a particular witness is a truthful

one or not. It is also not expected from P.W.1 to remain in a

stable mind and mention all the details in the F.I.R. including the

names of eye witnesses within a short period after seeing the

murder of two lady deceased who were closely related to her.

P.W.1 and P.W.3 though have not stated about the disclosure

being made by P.W.5 to corroborate the version of P.W.5, but

the same cannot be a ground to doubt the veracity of P.W.5.

Where the statement of an eye witness is found to be

reliable, trustworthy and consistent with the course of events,

the conviction can be based on his sole testimony. There is no

bar in basing the conviction of an accused on the testimony of a

solitary witness as long as the said witness is reliable and

trustworthy. Where there is a sole witness to the incident, his

evidence has to be accepted with caution and after testing it on

Page 38 of 107
the touchstone of evidence tendered by other witnesses or

evidence otherwise recorded.

After carefully considering the submission made from

both the sides, we found that the version of P.W.5 is very clear,

consistent and trustworthy and nothing has been brought out in

the cross-examination to dislodge his testimony. Therefore, in

our humble view, the learned trial Court has rightly placed

reliance on his evidence.

Murder of deceased Pirobati Behera and Sabitri Sahu:

10. Three witnesses i.e. P.W.1, P.W.3 and P.W.4 have

deposed about the assault on the deceased Pirobati Behera and

Sabitri Sahu.

P.W.1, the informant has stated that while her

mother Pirobati was pumping the tube well and her sister Sabitri

was collecting water in a bottle, at that time both the appellants

came there and appellant Nabin suddenly dealt a blow by means

of a tangia on the neck of her mother and when her sister went

to rescue her mother, appellant Hemananda restrained her sister

by dragging her hairs. Appellant Nabin gave consecutively three

to four blows on the neck of her mother and she died at the

spot. Similarly, blows were given by means of tangia on different

parts of the body of her sister by both the appellants and she

Page 39 of 107
also died at the spot and then both the appellants told loudly

that they had killed the deceased Giridhari.

Though in the cross-examination, the learned

defence counsel has tried to bring out some contradictions and

accordingly, confronted the 161 Cr.P.C. statement through the

Investigating Officer but such contradictions could not be proved

as after perusal of the previous statement, the Investigating

Officer categorically stated that there were no contradictions in

the statement of P.W.1 given in Court vis-à-vis her statement

recorded under section 161 Cr.P.C. In the interest of justice, we

also perused the 161 Cr.P.C. statement of P.W.1 keeping side by

side her evidence in Court and found that there are no such

material contradictions in her evidence.

Law is well settled that if the statement before the

police officer and the statement in the evidence before the Court

are so inconsistent or if irreconcilable with each other that both

of them cannot co-exist, it may be said that one contradicts the

other. If the police record becomes suspect or unreliable on the

ground that it was deliberately perfunctory or dishonest, it loses

much of its value and the Court in judging the case of a

particular accused has to weigh the evidence given against him

in Court keeping in view the fact that the earlier statements of

Page 40 of 107
the witnesses as recorded by the police are tainted record and

were not as great a value as it otherwise could have in weighing

all the materials on record as against each individual accused.

There are no materials on record that there was any kind of

perfunctory investigation and in fact there are no material

contradictions and we are of the view that it was neither proper

on the part of the learned defence counsel to put such questions

in the cross-examination which should have been objected to by

the learned Public Prosecutor and the learned trial Court also

should not have allowed such confrontations to be made to

P.W.1 by the learned defence counsel.

Mr. Sarangi, learned Amicus Curiae contended that

though in the F.I.R. as well as in the examination-in-chief, P.W.1

has stated that both the appellants assaulted the deceased

Sabitri Sahu, but in the cross-examination, P.W.1 has stated that

it was only appellant Nabin Dehury who assaulted the deceased

Sabitri Sahu and the appellant Hemananda Dehury only

restrained the deceased Sabitri when she was proceeding to

rescue her mother deceased Pirobati who was assaulted first by

appellant Nabin Dehury. Similarly, in the F.I.R., it is stated that

both the appellants assaulted deceased Pirobati with „tangia‟

whereas in Court, P.W.1 has stated that it was only appellant

Page 41 of 107
Nabin Dehury who assaulted the deceased Pirobati with tangia.

According to Mr. Sarangi, such contradictions are not expected

from a truthful witness, rather it suggests that P.W.1 has no idea

as to who were the actual assailants of the deceased Pirobati and

Sabitri and being a related witness, she implicated the appellants

falsely.

We are not able to accept the contentions of the

learned Amicus Curiae. The mere fact that a witness is related,

the same would not by itself be sufficient to discard her evidence

straightaway unless it is proved that the evidence suffers from

serious infirmities which raises considerable doubt in the mind of

the Court. A close relative who is a very natural witness cannot

be regarded as an interested witness. Such witness would

normally be most reluctant to spare the real assailants and

falsely mention the name of an innocent person as the one

responsible for causing injuries to the deceased. A witness who is

closely related and who could be expected to be near about the

place of occurrence and could have seen the incident, cannot be

held unreliable on the ground of his close relationship. Of course,

it is incumbent on the part of the Court to exercise appropriate

caution when appraising his evidence and to examine its

probative value with reference to entire mosaic of facts

Page 42 of 107
appearing from the record. Even if it is found that a closely

related witness has exaggerated his version which he had not

stated previously to the police or even to the Magistrate in his

statements recorded either under section 161 or under section

164 Cr.P.C., but the Court after examining such evidence with

great care and caution has a duty to separate the grain from the

chaff and to extract the truth from the mass of evidence. After

separating the chaff, the Court can seek further corroboration

from reliable testimony, direct or circumstantial in cases where

the evidence is partly reliable and partly unreliable.

P.W.1 has no doubt stated in the F.I.R. that both the

appellants assaulted the deceased Pirobati Behera by means of

„tangia‟. However, in her evidence in Court, she has stated that it

was only appellant Nabin Dehury who dealt blows on the neck of

the deceased Pirobati by means of a tangia. F.I.R. is not

considered as a substantive piece of evidence. It can only be

used to corroborate or contradict the informant or as a previous

statement. P.W.1 has not been confronted with the recital in the

F.I.R. with respect to the assault on the deceased Pirobati,

particularly with reference to the inclusion of the name of

appellant Hemananda as an assailant of deceased Pirobati in the

F.I.R. which has been omitted in the evidence in Court.

Page 43 of 107
Therefore, we cannot give much emphasis on such omission in

Court relating to the assault made by the appellant Hemananda

to deceased Pirobati.

As it appears from the cross-examination of P.W.1,

she had seen the occurrence from a distance of 20 cubits. She

specifically stated that she had read up to Class-X and since she

was in shock and was trembling, she could not scribe the F.I.R.

and requested P.W.8 to scribe the same.

So far as the contention of Mr. Sarangi, learned

Amicus Curiae that P.W.1 could have raised hullah then and

there drawing the attention of the co-villagers to come forward

and rescue the two deceased persons from the assault of the

appellants, we are of the humble view that the assault on both

the deceased took place in quick succession and it must have

taken a very little time and it was afternoon around 3 O‟clock

and therefore, it was not expected for most of the villagers to be

on the village street. Moreover, P.W.1 has stated that after

seeing the assault, out of fear, she along with P.W.3 and P.W.4

entered inside the house and closed the door, which was very

natural as she might have apprehended that after killing three

persons of the family, the appellants might proceed towards her

house to assault her as well as P.W.3 and P.W.4, who were just

Page 44 of 107
aged about thirteen years and seven years respectively. P.W.1

has categorically stated that at the time of incident, no other

person was present near her house. She further stated that after

closing the door, they raised hullah for which the villagers came

to the spot and when the villagers came, she came outside and

narrated the entire incident before the villagers.

In the case of A. Shankar (supra), it is held as

follows:-

"22. In all criminal cases, normal discrepancies
are bound to occur in the depositions of
witnesses due to normal errors of observation,
namely, errors of memory due to lapse of time
or due to mental disposition such as shock and
horror at the time of occurrence. Where the
omissions amount to a contradiction, creating a
serious doubt about the truthfulness of the
witness and other witnesses also make material
improvement while deposing in the court, such
evidence cannot be safe to rely upon. However,
minor contradictions, inconsistencies,
embellishments or improvements on trivial
matters which do not affect the core of the
prosecution case, should not be made a ground
on which the evidence can be rejected in its
entirety.

Page 45 of 107
23. The court has to form its opinion about the
credibility of the witness and record a finding as
to whether his deposition inspires confidence.
"Exaggerations per se do not render the
evidence brittle. But it can be one of the factors
to test credibility of the prosecution version,
when the entire evidence is put in a crucible for
being tested on the touchstone of credibility."
Therefore, mere marginal variations in the
statements of a witness cannot be dubbed as
improvements as the same may be elaborations
of the statement made by the witness earlier.
"Irrelevant details which do not in any way
corrode the credibility of a witness cannot be
labelled as omissions or contradictions." The
omissions which amount to contradictions in
material particulars, i.e., materially affect the
trial or core of the prosecution's case, render the
testimony of the witness liable to be discredited.

In the case of Krishnegowda and Ors. (supra), it is

held as follows:-

"27. Generally in the criminal cases,
discrepancies in the evidence of witness is bound
to happen because there would be considerable
gap between the date of incident and the time of
deposing evidence before the Court, but if these
contradictions create such serious doubt in the
mind of the Court about the truthfulness of the

Page 46 of 107
witnesses and it appears to the Court that there
is clear improvement, then it is not safe to rely
on such evidence."

We are of the humble view that even if there are

some minor contradictions in the evidence of P.W.1 as adduced

during trial vis-à-vis what she had narrated in the F.I.R. relating

to the involvement of appellant Hemananda Dehury in the

assault of both the deceased Pirobati and Sabitri, but since the

attention of P.W.1 has not been drawn to such parts available in

the F.I.R. to explain and moreover, the evidence of P.W.1 is

found to be very natural, clear and cogent, the learned trial

Court has rightly placed reliance on the evidence of P.W.1.

11. P.W.3 Sachin Sahoo has stated in the examination-

in-chief that while his grandmother (deceased Pirobati) was

pumping the tube well and his mother (deceased Sabitri) was

collecting water in a bottle to take to the field, at that time both

the appellants came to that place and appellant Nabin was

holding a „tangia‟ and he dealt blows to deceased Pirobati and

when deceased Sabitri went to protest him, appellant

Hemananda Dehury restrained her by dragging her hair and

appellant Nabin also assaulted the deceased Sabitri by means of

a „tangia‟ and at that time, appellant Nabin Dehury was telling

Page 47 of 107
loudly that they had also killed „Kirmiria‟ (deceased Giridhari). He

further stated that out of fear, his mausi (P.W.1) took him and

P.W.4 inside the house and closed the door and when they raised

hullah, many villagers congregated at the spot.

In the cross-examination, it has been confronted to

P.W.3 and proved through the I.O. (P.W.20) that he had not

made any statement that while the deceased Sabitri went to

rescue the deceased Pirobati, the appellant Hemananda dragged

her hair and did not allow to proceed. In fact, in the 161 Cr.P.C.

statement, P.W.3 has stated that after the assault on the

deceased Pirobati, while his mother (deceased Sabitri) was

proceeding to rescue, appellant Hemananda restrained her. The

words used „chheki dela‟, is a local word which as per „Saraswata

Odia Bhasha Abhidhan‟ means „atakaiba‟, in other words

„restrained‟. Of course the manner in which the restrain was

made is not mentioned in the 161 Cr.P.C. statement, which is

there in the evidence in Court, but the same may be on account

of non-extracting the details by the I.O. while recording the

statement of the concerned witness or may be elaborately

describing the occurrence in Court. P.W.3 further stated that no

outsider was present when the assault took place. He specifically

Page 48 of 107
stated that the appellant Hemananda was not armed with any

weapon and he had not assaulted anyone. However, he was

assisting his father (appellant Nabin).

A peculiar suggestion has been given by the learned

defence counsel to P.W.3 that his father (deceased Giridhari)

died during fighting of bullocks as the horn of the bullocks

pierced inside his body and that his mother (deceased Sabitri)

and maternal grandmother (deceased Pirobati) died by coming

in contact with harvesting machine. Neither any such suggestion

has been given to P.W.1 nor has any such plea been taken in

the accused statement of both the appellants.

In view of the foregoing discussions, we find P.W.3

to be a reliable and trustworthy witness and we are of the view

that the learned trial Court has rightly placed reliance on his

evidence.

12. P.W.4 Swapna Sahoo has stated in her examination-

in-chief that while her grandmother (deceased Pirobati) was

pumping the tube well and his mother (deceased Sabitri) was

collecting water in a bottle, appellant Nabin Dehury came and

dealt a blow on the head of deceased Pirobati by means of a

„budia‟, for which she fell down on the ground and then he dealt

Page 49 of 107
three blows on her neck. She further stated that when her

mother (deceased Sabitri) went to the rescue of deceased

Pirobati, appellant Hemananda @ Mantu restrained deceased

Sabitri by dragging her hairs and appellant Nabin assaulted her

mother (deceased Sabitri) by means of „budia‟. She further

stated that she herself along with her aunt (P.W.1) and brother

(P.W.3) saw the occurrence standing near their door and while

she was trying to proceed to her mother (deceased Sabitri),

P.W.1 restrained her and took her and P.W.3 inside the house

and closed the door. She further stated that when they raised

hullah, hearing the same, some villagers came to the spot.

In the cross-examination, it has been confronted to

P.W.4 and proved through the I.O. (P.W.20) that she had not

specifically stated in the 161 Cr.P.C. statement that appellant

Nabin dealt three blows on the neck of the deceased Pirobati,

the appellant Hemananda @ Mantu dragged the hair of her

mother. After verification of the 161 Cr.P.C. statement of P.W.4,

we found that though she had stated about the assault made by

appellant Nabin Dehury on deceased Pirobati with „tangia‟, but

the number of blows has not been stated by her. Similarly, she

has also stated in the 161 Cr.P.C. statement that appellant

Hemananda @ Mantu restrained deceased Sabitri when she

Page 50 of 107
came forward to rescue her mother (local language used as

„chheki dela‟, which means „obstructed‟/‟restrained‟), of course

the manner of restrain by holding the hairs has not been stated

in the 161 Cr.P.C. statement.

P.W.4 specifically stated in the cross-examination

that the appellant Hemananda was not armed with any weapon

and no assault was given by appellant Hemananda and he had

only restrained the deceased Sabitri. Thus, we find the evidence

of P.W.4 to be clear, cogent and trustworthy and it also

corroborates the evidence of P.W.1 as well as P.W.3.

In view of the discussions of the evidence of P.W.1,

P.W.3 and P.W.4, we are of the view that their evidence relating

to the assault on deceased Pirobati Behera and Sabitri Sahu by

both the appellants are reliable and there are no such major

contradictions so as to create doubts in their evidence and the

learned trial Court has rightly placed reliance on their evidence.

Premeditation on the part of appellant Nabin Dehury to

commit the crime:

13. It appears from the evidence on record that there

was civil dispute between the parties. P.W.3 has stated that

there was a long-standing dispute between his maternal uncle‟s

family and family of the appellants relating to their landed

Page 51 of 107
properties. P.W.5 has also stated that there was land dispute

between both the parties since long and two to three civil suits

were instituted in which deceased Pirobati got the decree.

Specific details of premeditation can be established

from the following facts:-

(i) The appellant carried/chose a weapon of offence

which was heavy and deadly in nature and commonly carried by

villagers for agricultural purposes. He carried tangia to the paddy

field and assaulted the deceased Giridhari Sahu and caused

multiple chop wounds on the left scapula, base of his neck at

cervical vertebrae, left temporal lobe of head and left side neck.

(ii) Calculation was so imminently found in the mind

of the appellant Nabin Dehury that he took the opportunity to

confront Giridhari when he was alone and did not give the blow

from the front, so as to render any opportunity to the deceased

to have any kind of protection from the blow since the blow was

given from behind. The blow was at the cervical vertebra at no.6

level i.e. posterior base of the neck. The part of the body chosen

for inflicting the blows is so conspicuously decided that even a

single blow would be fatal whereas the appellant Nabin Dehury

has given successive blows to rule out any possibility of survival

of the deceased;

Page 52 of 107
(iii) After doing away with the life of a male member

of the family, the evidence on record suggests that appellant

Nabin Dehury walked about 700 meters to the village before

committing the next two murders of deceased Pirobati Behera

and Sabitri Sahu, which indicates a degree of deliberation and

planning and again caught them off-guard to avoid the possibility

of any defence. No sooner appellant Nabin Dehury came across

deceased Pirobati Behera at the tube well point, he dealt severe

tangia blows on the back of the neck at cervical vertebra no.4

while she was quite helpless and was not in a position to ward off

the blow. Responding to such act of appellant Nabin Dehury,

when her daughter deceased Sabitri Sahu rushed to her rescue,

appellant Hemananda Dehury caught hold of her by her hair

while appellant Nabin Dehury dealt several blows to deceased

Sabitri on the right cheek, left cheek and right side of neck to

end her life. This prolonged journey and the subsequent actions

suggest that appellant Nabin Dehury had time to reflect, thereby

potentially aggravating the nature of the offence;

(iv) Furthermore, it is established by the testimony

of P.W.5 that the appellant Nabin Dehury was annoyed and

wanted to kill deceased Pirobati since she had got favourable

decrees in disputes relating to the ancestral property, which the

Page 53 of 107
appellant believed was by deceitful means and on many

occasions, he was telling to kill the deceased Pirobati Behera,

which proves the motive behind commission of the crime.

Therefore, we are of the view that there was

premeditation on the part of appellant Nabin Dehury to commit

the crime.

Declaration made by Appellant Nabin Dehury:

14. The appellant Nabin Dehury made a significant

declaration immediately after committing the murders of

deceased Pirobati Behera and Sabitri Sahu that he committed

murder of deceased Giridhari Sahu. This declaration provides

crucial insight into his state of mind and the motivations behind

his actions. Not only in the F.I.R. but also in the evidence of

P.W.1, P.W.3 and P.W.4, this aspect finds place. By openly

admitting the crime committed, appellant Nabin Dehury

confirmed his responsibility for the deaths, eliminating any

ambiguity regarding the identity of the perpetrator and thereby

strengthening the prosecution case. The declaration made by the

appellant Nabin Dehury to have killed deceased Giridhari Sahu

was only intended to take credit for the execution of his plan.

Though P.W.3 and P.W.4 have stated that it was only appellant

Page 54 of 107
Nabin Dehury, who made such declaration but P.W.1 stated that

both the appellants made such declaration.

Different persons seeing an event give varying

accounts of the same. That is because the perceptiveness varies

and a recount of the same incident is usually at variance to a

considerable extent. Ordinarily, if several persons give the same

account of an event, even with reference to minor details, the

evidence is branded as parrot like and is considered to be the

outcome of tutoring. Discrepancies in the matter of details

pertaining to precise number of blows given by the appellant, the

nature of weapon used particularly when the weapons are almost

similar used to occur even in the evidence of truthful witnesses.

Such variations creeped in because they are always natural

differences in the mental faculty of different individuals in the

matters of observation, perception and memorization of truth.

These hardly constitute grounds for rejecting the evidence of the

witnesses when there is consensus as to the substratum of the

case.

Seizure of tangia at the instance of appellant Nabin

Dehury:

15. P.W.12 is an independent witness and he has stated

that appellant Nabin Dehury, while in police custody, disclosed to

Page 55 of 107
have concealed the tangia under a straw heap in his courtyard.

The said statement was reduced to writing by the I.I.C. and

signature of the appellant Nabin Dehury was obtained thereon

and he along with Parameswar Khadia (P.W.13) signed thereon

as witnesses. He further stated that appellant Nabin led the

police and the witnesses to his house and removed a „tangia‟

from inside the straw heap which was in his inner courtyard.

There was mark of blood stain on that tangia and female hair

was also found from the weapon. The I.I.C. seized the same by

preparing a seizure list in which he along with P.W.13 put their

signatures. He further stated that the appellant Nabin Dehury

also signed the seizure list. The seized „tangia‟ was also identified

by P.W.12 in Court and the same has been marked as M.O.I.

Except giving some suggestions, nothing has been brought out in

the cross-examination of P.W.12 to disbelieve his evidence.

The evidence of P.W.12 gets corroboration from the

evidence of P.W.13 so also the I.O. (P.W.20) who specifically

stated that on 22.10.2020 after recording the statement under

section 27 of the Evidence Act vide Ext.P-14, the appellant Nabin

led herself as well as the witnesses to his house and brought out

the weapon of offence from the straw heap over the verandah of

his house and accordingly, the seizure list vide Ext.P-15 was

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prepared. The weapon was also produced before the doctor

(P.W.6) for obtaining his opinion regarding possibility of the

injuries on the deceased by such weapon and it was sent to

D.F.S.L, Sambalpur on 23.10.2020 so also to R.F.S.L.,

Sambalpur on 09.11.2020 through learned S.D.J.M., Kuchinda

along with other material objects for chemical analysis. As per

the C.E. report marked as Ext.P-31, human origin blood was

found from the tangia.

Mr. Sarangi, learned Amicus Curiae argued that

seizure of „tangia‟ was made on 22.10.2020 and it was examined

by P.W.6 on 03.11.2020. However, it was sent for chemical

examination on 09.11.2020. No evidence has been adduced as

to where it was kept after its seizure and therefore, no

importance can be attached to the findings of human origin blood

on the „tangia‟.

It was no doubt the duty of the prosecution to

adduce clinching evidence that the weapon of offence after its

seizure and before it was produced in Court for being sent for

chemical analysis, was kept in safe custody and there was no

tampering with the same. However, neither the prosecution nor

the defence has put any question on this aspect to the

Investigating Officer. The weapon was seized on 22.10.2020, it

Page 57 of 107
was produced before the Scientific Officer at D.F.S.L., Sambalpur

on 23.10.2020 who examined on the same and prepared the

report vide Ext.P-13 and then dried, sealed, packed all the

exhibits including tangia properly and handed over to the I.O. on

24.10.2020 and then it was produced before the doctor (P.W.6)

on 03.11.2020 for necessary examination and then it was

produced before the Court of learned S.D.J.M., Kuchinda on

09.11.2020 for being sent to Deputy Director, R.F.S.L.,

Sambalpur for chemical examination and opinion. Therefore, any

irregularity committed by the prosecution in bringing material on

record regarding the safe custody of the exhibits including the

tangia cannot be a factor to disbelieve the evidence of leading to

discovery of the weapon, the opinion given by the doctor (P.W.6)

so also the findings recorded in the serology report, particularly

when the tangia was produced in a cardboard box covered with

cloth, which was in a sealed condition and it was forwarded to

R.F.S.L. with the seal of the Court.

Whether F.I.R. was lodged at the time when it was shown

to have been lodged?

16. The F.I.R. (Ext.P-1) is shown to have been presented

by P.W.1 on 21.10.2020 at 4.20 p.m. before I.I.C., Mahulpali

Page 58 of 107
police station at the spot and it was registered as Mahulpali P.S.

Case No.175 dated 22.10.2020 at 1.28 a.m.

P.W.1 has stated that she presented the written

report at the spot to the police after the police arrived at the

spot getting information and as per her statement, the report

was written by Kalyan Behera (P.W.8), who read over the

contents thereof to her and finding the same to be true and

correct, she put her signature in it. In the cross-examination,

P.W.1 has admitted that there was no endorsement in Ext.P-1

that the contents thereof were read over and explained to her

and admitting the same to be true and correct, she put her

signature. She further stated that she had read up to Class-X

and since she was in shock and was trembling, she could not

scribe the F.I.R. and requested P.W.8 to scribe the same.

P.W.8 has stated that as per the request of P.W.1, he

scribed the F.I.R. (Ext.P-1). In the cross-examination, he has

stated that after scribing the F.I.R., the contents thereof were

read over and explained to P.W.1 and thereafter she put her

signature. He admitted not to have given any endorsement to

that effect.

Mr. Sarangi, learned Amicus Curiae for the appellants

submitted that according to P.W.8, while he was in his elder

Page 59 of 107
sister‟s house at Kirmira, phone call came to his sister in

between 3.30 p.m. to 4.00 p.m. on 21.10.2020 intimating the

death of three deceased and after about ten minutes of receipt of

the phone call, they left for village Lapada in a Bolero vehicle

which was at a distance of 50 kms. from village Kirmira and they

reached at village Lapada at around 5.00 p.m. to 5.15 p.m. He

further stated that the F.I.R. was submitted to the I.I.C. by

P.W.1 at the spot. Around 5.20 p.m., P.W.1 told him that the

accused persons killed the deceased Giridhari and the F.I.R. was

scribed before 6.00 p.m.

It is the contention of the learned Amicus Curiae that

when P.W.8 reached in between 5.00 p.m. to 5.15 p.m. and then

at about 5.20 p.m., on the oral information given by P.W.1, he

prepared the written report before 6.00 p.m., the endorsement

given in the F.I.R. that it was received at the spot at 4.20 p.m.

cannot be accepted. Therefore, the time of receipt reflected in

the F.I.R. is not correct and it has been ante-timed.

The learned Additional Government Advocate has

placed the evidence of the I.O. (P.W.20) who has stated that

while she was on patrolling duty with the staff on 21.10.2020, at

about 3.10 p.m., she received telephonic information from one

unknown person regarding the commission of murder of three

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persons at village Lapada and accordingly, she reduced the same

in writing in Mahulipali P.S. G.D. No.14 dated 21.10.2020 and

proceeded to village Lapada with staff where P.W.1 presented

the written report before her. She immediately took up

investigation of the case and after she returned to the police

station, at 1.28 a.m. on 22.10.2020, she registered the F.I.R. as

Mahulpali P.S. Case No.175 dated 22.10.2020 under section

302/34 of the I.P.C. In the cross-examination, she stated to

have reached at the spot before 4.20 p.m. No further question

has been put to P.W.20 regarding the timing of receipt of the

written report from P.W.1. The endorsement given in the written

report vide Ext.P-1 reads as follows:-

"At spot Received the report at spot. As it reveals
4.20 p.m.
21.10.2020 a cog. case u/s.302/34 I.P.C., registered
a case vide Mahulpali P.S. S.D.E. No.14
and self took up investigation of the case.
A copy of F.I.R. will be supplied to the
complt. free of cost.
Sd/-(Illegible)
21.10.2020
I.I.C., Mahulpali P.S."

P.W.20 started investigation of the case after receipt

of the written report vide Ext.P-1 at the spot from P.W.1 and by

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that time, P.S. Case had not been registered. The three dead

bodies were lying in the village Lapada and inquests were

conducted and then the dead bodies were dispatched to S.D.H.,

Kuchinda for post-mortem examination. The three inquest

reports marked as Ext.P-2, Ext.P-3 and Ext.P-4 indicates

Mahulpali P.S. S.D.E. No.14 dated 21.10.2020. Similarly, the

dead body challans, Exts.P-22, P-23 and P-24 also indicate the

same S.D.E. No.14 dated 21.10.2020.

In our humble view, P.W.20 is quite justified in

carrying out the investigation of the case on receipt of the

written report at the spot without waiting for formal registration

of the F.I.R. in the police station inasmuch as it was a case of

triple murder and immediate action was required to be taken in

holding inquest over the dead bodies and taking steps for

sending the same for post-mortem examination. The place of

occurrence was at a distance of 18 kms. away from Mahulpali

police station as per the formal F.I.R. and if P.W.20 would have

waited for the registration of the F.I.R. by sending the written

report to the police station and then to carry out investigation, it

would have delayed the process of investigation.

Page 62 of 107
Therefore, we are of the view that the F.I.R. has not

been ante-timed and it was lodged when it was shown to have

been lodged.

Common intention on the part of appellant Hemananda

Dehury:

17. The learned Amicus Curiae contended that the

appellant Hemananda Dehury should not have been held guilty

under section 302/34 of the I.P.C. on the accusation that he

shared common intention with the appellant Nabin Dehury. He

argued that appellant Hemananda was not there at all when the

assault on the deceased Giridhari took place.

According to P.W.1, both the appellants came and

appellant Nabin dealt a blow by means of a tangia on the neck of

deceased Pirobati and seeing this, when the deceased Sabitri

went to her rescue, appellant Hemananda restrained deceased

Sabitri by dragging her hair. She further stated that the

appellant Nabin gave consecutive three to four blows on the neck

of deceased Pirobati for which she died at the spot and both the

appellants restrained deceased Sabitri and went on giving blows

by means of tangia on different parts of her body for which she

died at the spot and the appellants were telling loudly that they

had killed the deceased Giridhari.

Page 63 of 107
In the cross-examination, P.W.1 has stated that she

could not say whether appellant Hemananda was armed with any

weapon but appellant Nabin Dehury was holding a tangia. She

further stated that while appellant Nabin was assaulting,

appellant Hemananda was holding the deceased Sabitri.

P.W.3 Sachin Sahu has stated that both the

appellants came to the place where deceased Pirobati was

pumping tube well and deceased Sabitri was collecting water in a

bottle. He stated that appellant Nabin was holding a tangia and

dealt blows to the deceased Pirobati and when deceased Sabitri

went to protest appellant Nabin, appellant Hemananda Dehury

restrained her by dragging her hair and appellant Nabin also

assaulted deceased Sabitri by means of tangia. He further stated

that appellant Nabin was telling loudly that they had killed

deceased Giridhari, who is otherwise known as „Kirmiria‟.

In the cross-examination, P.W.3 has further stated

that the appellant Hemananda was not armed with any weapon

and no assault was also given by him but he was assisting

appellant Nabin.

P.W.4 has stated that while deceased Pirobati was

pumping the tube well and deceased Sabitri was pouring water in

bottle, appellant Nabin Dehury came and dealt a blow on the

Page 64 of 107
head of deceased Pirobati by means of a budia for which the

latter fell down on the ground. When the deceased Sabitri went

to rescue deceased Pirobati, appellant Hemananda restrained her

by dragging her hair and appellant Nabin assaulted by means of

budia.

P.W.4 has stated in the cross-examination that the

appellant Hemananda was not armed with any weapon and no

assault was given by appellant Hemananda and he had only

restrained the deceased Sabitri.

From the evidence on record, it is evident that the

appellant Hemananda was not present when the assault on

deceased Giridhari took place near the cultivable land. He came

to the second spot which was the tube well of the village with his

father appellant Nabin Dehury where the two lady deceased were

collecting water. He was not armed with any weapon nor

assaulted any of the two lady deceased as per the evidence of

P.W.3 and P.W.4 except restraining the deceased Sabitri when

she proceeded to save her mother. Though the evidence of

P.W.1 in the examination-in-chief is that both the appellants

gave blows by means of tangia not only to deceased Pirobati but

also to deceased Sabitri, but in view of the evidence of P.W.3

and P.W.4, the same cannot be accepted. At this stage, the

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decisions cited by the learned Amicus Curiae needs to be

discussed.

In the case of Idrish Bhai Daudbhai (supra), it is

held that what would form a common intention is now well

settled. It implies acting in concert, existence of a pre-arranged

plan which is to be proved either from conduct or from

circumstances or from any incriminating facts.

In the case of Tapan Sarkar and Ors. (supra), it is

held that the strained relations in the family and giving of

evasive replies, by itself, cannot be considered to be a safe and

sound basis to arrive at the required inference so as to attract

the principle laid down in section 34 Indian Penal Code. The

inference of common intention must be based on more tangible

material so as to hold all the accused-Appellants to be jointly and

vicariously liable for the crime committed. It is possible that one

of the accused had committed the crime but in the absence of

evidence to draw an inference of common intention, none of the

accused can be held liable.

In the case of Jasdeep Singh (supra), it is held as

follows:-

"20. Section 34 Indian Penal Code creates a
deeming fiction by infusing and importing a

Page 66 of 107
criminal act constituting an offence committed
by one, into others, in pursuance to a common
intention. Onus is on the prosecution to prove
the common intention to the satisfaction of the
court. The quality of evidence will have to be
substantial, concrete, definite and clear. When a
part of evidence produced by the prosecution to
bring the Accused within the fold of Section 34
Indian Penal Code is disbelieved, the remaining
part will have to be examined with adequate
care and caution, as we are dealing with a case
of vicarious liability fastened on the accused by
treating him on a par with the one who actually
committed the offence.

21. What is required is the proof of common
intention. Thus, there may be an offence without
common intention, in which case Section 34
Indian Penal Code does not get attracted.

22. It is a team effort akin to a game of football
involving several positions manned by many,
such as defender, mid-fielder, striker, and a
keeper. A striker may hit the target, while a
keeper may stop an attack. The consequence of
the match, either a win or a loss, is borne by all
the players, though they may have their distinct
roles. A goal scored or saved may be the final
act, but the result is what matters. As against
the specific individuals who had impacted more,

Page 67 of 107
the result is shared between the players. The
same logic is the foundation of Section 34 Indian
Penal Code which creates shared liability on
those who shared the common intention to
commit the crime.

23. The intendment of Section 34 Indian Penal
Code is to remove the difficulties in
distinguishing the acts of individual members of
a party, acting in furtherance of a common
intention. There has to be a simultaneous
conscious mind of the persons participating in
the criminal action of bringing about a particular
result. A common intention qua its existence is a
question of fact and also requires an act "in
furtherance of the said intention". One need not
search for a concrete evidence, as it is for the
court to come to a conclusion on a cumulative
assessment. It is only a Rule of evidence and
thus does not create any substantive offense.

24. Normally, in an offense committed
physically, the presence of an accused charged
under Section 34 Indian Penal Code is required,
especially in a case where the act attributed to
the accused is one of instigation/exhortation.
However, there are exceptions, in particular,
when an offence consists of diverse acts done at
different times and places. Therefore, it has to
be seen on a case to case basis.

Page 68 of 107
25. The word "furtherance" indicates the
existence of aid or assistance in producing an
effect in future. Thus, it has to be construed as
an advancement or promotion.

26. There may be cases where all acts, in
general, would not come under the purview of
Section 34 Indian Penal Code, but only those
done in furtherance of the common intention
having adequate connectivity. When we speak of
intention, it has to be one of criminality with
adequacy of knowledge of any existing fact
necessary for the proposed offence. Such an
intention is meant to assist, encourage, promote
and facilitate the commission of a crime with the
requisite knowledge as aforesaid.

27. The existence of common intention is
obviously the duty of the prosecution to prove.
However, a court has to analyse and assess the
evidence before implicating a person under
Section 34 Indian Penal Code. A mere common
intention per se may not attract Section 34
Indian Penal Code, sans an action in
furtherance. There may also be cases where a
person despite being an active participant in
forming a common intention to commit a crime,
may actually withdraw from it later. Of course,
this is also one of the facts for the consideration
of the court. Further, the fact that all accused

Page 69 of 107
charged with an offence read with Section 34
Indian Penal Code are present at the
commission of the crime, without dissuading
themselves or others might well be a relevant
circumstance, provided a prior common
intention is duly proved. Once again, this is an
aspect which is required to be looked into by the
court on the evidence placed before it. It may
not be required on the part of the defence to
specifically raise such a plea in a case where
adequate evidence is available before the court."

According to Mr. Sarangi, learned Amicus Curiae,

there is no evidence on record that the appellant Hemananda

continued to hold the deceased Sabitri while she was being

assaulted by the appellant Nabin or in other words, there is lack

of clinching evidence that on account of holding the hairs, the

assault on the deceased Sabitri was made possible and

therefore, his mere presence at the spot or act of restraining

deceased Sabitri cannot be a factor to hold him guilty with the

aid of section 34 of I.P.C.

Mr. Katikia, learned counsel for the State submitted

that not only the two appellants came together but they also left

the place together and the appellant Hemananda never tried to

restrain his father (appellant Nabin) in assaulting the two ladies

Page 70 of 107
and in view of the presence of appellant Hemananda at the spot,

it might have given passive support or courage to the appellant

Nabin to commit such crime in killing two lady deceased and

therefore, the finding of the learned trial Court that the appellant

Hemananda shared common intention with his father appellant

Nabin is quite justified.

Learned counsel for the State relied upon the

decisions of the Hon‟ble Supreme Court in the cases of Ajay

Kumar Das -Vrs.- State of Jharkhand reported in (2011)

12 Supreme Court Cases 319 and Ramesh Singh -Vrs.-

State of A.P. reported in (2004) 11 Supreme Court Cases

305 to elucidate the pre-condition needed to press in section 34

I.P.C. into service.

In Ajay Kumar Das (supra), the Hon‟ble Supreme

Court relied upon the decision in the case of Mahbub Shah

-Vrs.- King Emperor : (1944-45) 72 IA 148, wherein it was

held that to invoke the aid of Section 34 I.P.C. exclusively, it

must be shown that the criminal act complained against was

done by one of the accused persons in furtherance of the

common intention of all and if that is shown then the liability for

the crime may be imposed on any one of the persons in the

same manner as if the acts were done by him alone. It was

Page 71 of 107
further held that it is difficult, if not impossible, to procure direct

evidence to prove the intention of an individual; in most cases it

has to be inferred from his act or conduct or other relevant

circumstances of the case.

In Ramesh Singh (supra), the Hon‟ble Supreme

Court explained the ambit of section 34 I.P.C. in the following

words:

"12. To appreciate the arguments advanced on
behalf of the appellants, it is necessary to
understand the object of incorporating Section
34 in the Penal Code, 1860. As a general
principle in a case of criminal liability, it is the
primary responsibility of the person who actually
commits the offence and only that person who
has committed the crime can be held guilty. By
introducing Section 34 in the Penal Code, the
legislature laid down the principle of joint
liability in doing a criminal act. The essence of
that liability is to be found in the existence of a
common intention connecting the accused
leading to the doing of a criminal act in
furtherance of such intention. Thus, if the act is
the result of a common intention then every
person who did the criminal act with that
common intention would be responsible for the
offence committed irrespective of the share

Page 72 of 107
which he had in its perpetration. Section 34
I.P.C. embodies the principle of joint liability in
doing the criminal act based on a common
intention. Common intention essentially being a
state of mind, it is very difficult to procure direct
evidence to prove such intention. Therefore, in
most cases, it has to be inferred from the act
like, the conduct of the accused or other
relevant circumstances of the case. The
inference can be gathered from the manner in
which the accused arrived at the scene and
mounted the attack, the determination and
concert with which the attack was made, and
from the nature of injury caused by one or some
of them. The contributory acts of the persons
who are not responsible for the injury can
further be inferred from the subsequent conduct
after the attack. In this regard, even an illegal
omission on the part of such accused can
indicate the sharing of common intention. In
other words, the totality of circumstances must
be taken into consideration in arriving at the
conclusion whether the accused had the
common intention to commit an offence of which
they could be convicted.

xxx xxx xxx

16. A-2 is the person in this case who had the
grievance that the deceased prevented him from

Page 73 of 107
collecting the "bhajan samagri" (prayer
material) for the use at the funeral of his
relative. It is the case of the prosecution that all
the accused persons came together to the place
of incident at 11 o'clock to demand the "bhajan
samagri". The fact that A-1 and A-3 who were
not concerned with the need of A-2 to collect the
"bhajan samagri", still came together at that
time of the night i.e. at 11 p.m. shows that A-1
and A-3 were associates of A-2. After failing to
get the "samagri", all the three went together
presumably to the house of A-2 at 11.45 p.m.
Again these three persons came to the house of
the deceased which act cannot be termed as a
normal act because by that time most of the
people including the deceased would have been
or had been sleeping. When these accused
persons summoned the deceased to come out of
the house, obviously they had some common
intention which their second visit, timing of the
visit and calling of the deceased indicates. Once
the prosecution evidence tendered through
P.Ws. 1 to 3 is accepted, then it is clear that
when A-2 and A-3 held the hands of the
deceased, they had some intention in disabling
the deceased. This inference is possible to be
drawn because the appellants in their statement
recorded under Section 313 Cr.P.C. did not give
any explanation why they held the hands of the

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deceased which indicates that the appellants
had the knowledge that A-1 was to assault the
deceased. The fact that the appellants continued
to hold the deceased all along without making
any effort to prevent A-1 from further attacking,
in our opinion, leads to an irresistible and an
inescapable conclusion that these accused
persons also shared the common intention with
A-1. In these circumstances, what was the
intention of A-1 is clear from the nature of
weapon used and the situs of the attack which
were all in the area of chest, penetrating deep
inside and which caused the death of the
deceased. It is very difficult to accept the
defence version that the fight either took place
suddenly, or these appellants did not know that
A-1 was carrying a knife, or that these
appellants did not know by the nature of injuries
inflicted by A-1, that he did intend to kill the
deceased. At this stage, it may be useful to note
that A-1 did not have any motive, apart from
common intention to attack the deceased. In
such circumstances, if A-1 had decided to cause
the injury and A-2 who had a direct motive had
decided to hold the hands of the deceased with
A-3, in our opinion, clearly indicates that there
was a prior concert as to the attack on the
deceased. We also notice that thereafter the
accused persons had all left the place of incident

Page 75 of 107
together which also indicates the existence of a
common intention.

17. Having thus independently considered the
facts and circumstances in their totality and
taking holistic view of the facts of this case, we
are of the opinion that the two courts below
are justified in coming to the conclusion that
the appellants are guilty of an offence
punishable under Section 302 read with
Section 34 IPC."

From thorough analysis of the evidence of the

witnesses and the authoritative findings in the aforesaid

precedents, we find that even though there is no evidence on

record that the appellant Hemananda Dehury was present when

the assault on deceased Giridhari took place, but he joined his

father somewhere on the way while the latter was coming to the

second spot holding a blood stained tangia. He could have

prevented his father not to assault the two lady deceased which

he had not done. His presence with his father must have given

passive support to commit the crime. He was not a mere

observer at the spot, but restrained the deceased Sabitri from

rescuing her mother. P.W.1 has stated that while appellant Nabin

was assaulting, appellant Hemananda was holding deceased

Sabitri. P.W.3 has stated that when his mother went to protest

Page 76 of 107
appellant Nabin, appellant Hemananda restrained her by

dragging her hair and appellant Nabin also assaulted his mother.

P.W.4 has also stated in similar manner like P.W.3. Three chop

wounds were noticed over right cheek in front of right ear and

left cheek and right side of neck of deceased Sabitri which

probablises that all the assault on the front side of the head were

made possible as appellant Hemananda continued to hold her

hairs and restrained her movement. He left the spot with his

father after commission of the crime. The contributory acts of

the appellant Hemananda are no less significant. He had

adequate knowledge what offence his father is likely to commit.

His presence, his support, his overt act are sufficient to hold that

he shared common intention with his father in the assault of the

deceased Pirobati Behera and deceased Sabitri Sahu. The

learned trial Court has rightly found both the appellants guilty

under sections 302/34 of the I.P.C. and also sentenced appellant

Hemananda Dehury to life imprisonment taking into account the

fact that his role was lesser than that of his father, who directly

assaulted all the three deceased by „tangia‟ and caused their

death.

Page 77 of 107
Death Sentence on Appellant Nabin Dehury:

18. Appellant Nabin Dehury was found guilty of

committing triple murder of deceased Giridhari Sahu, Pirobati

Behera and Sabitri Sahu and sentenced to death with a further

direction that he be hanged by neck till he is dead.

The learned trial Court after convicting the appellant

although fixed a separate date for hearing to decide on the

quantum of sentence, but it found to have focussed extensively

on the aggravating circumstances. The reasons given by the

learned trial Court for awarding the sentence of death is that the

case against Nabin Dehury is an act of extreme brutality and

magnitude of the cruelty thrust in committing the crime bringing

it to the category of „rarest of rare‟ case.

It is thus clear that the mitigating circumstances, if

any in favour of the appellant, has not been taken into

consideration. 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

circumstances, the Judge is likely to be less aggressive in the

ruling/sentencing.

Page 78 of 107
As per order dated 21.06.2024, during course of

argument, this Court while delving into the impugned judgment,

when found that there was no endeavour on the part of the

learned trial Court to find out mitigating circumstances in respect

of the appellant, taking into account the observations made by

the Hon‟ble Supreme Court in the case of Sundar @ Sundar

Rajan -Vrs.- State of Inspector of Police reported in 2023

Live Law (SC) 217 : 2023 SCC OnLine SC 310 and also the

decision rendered by the Hon‟ble Supreme Court in the case of

Manoj & others -Vrs.- State of Madhya Pradesh reported in

(2023) 2 Supreme Court Cases 353, held that for a

purposeful and meaningful hearing on sentence, the appellant

Nabin Dehury should be afforded an opportunity inviting from

him such data to be furnished in the shape of affidavits and also

to direct the jail authorities to do the needful in that regard.

Accordingly, we directed the Senior Superintendent, Circle Jail at

Sambalpur to collect all such information on the past life of the

appellant, psychological condition of the appellant and also his

post-conviction conduct, obtaining reports by taking service and

assistance from the Probation Officer and such other officers

including a Psychologist or Jail Doctor or any Medical Officer

attending the prison and since the appellant was represented by

Page 79 of 107
the learned Amicus Curiae, learned Additional Government

Advocate was directed to furnish all such mitigating

circumstances and to ensure collection of detailed information

with reports on those aspects by filing affidavits through the

competent person stating therein the particulars for the

consideration of the Court. We also gave liberty to the appellant

Nabin Dehury to file affidavit and produce any material on

mitigating circumstances.

In pursuance of such order, the Senior

Superintendent of Jail, Circle Jail, Sambalpur filed an affidavit

wherein it is indicated that the appellant Nabin Dehury is not

involved in any other case except in Mahulpali P.S. Case No.134

dated 06.11.2015 registered under section 379/34 of I.P.C.,

which is pending for trial. The appellant Nabin Dehury has not

committed any jail offence during his confinement period. He has

also annexed the reports relating to the past life period,

psychological condition and post-conviction conduct of the

appellant Nabin Dehury. One of such reports annexed to the

affidavit is that of Regional Probation Officer, Sambalpur who

after examining the neighbours of the appellant so also Sarpanch

and Ward Member indicated that the family of appellant Nabin

Dehury is comprised of his wife, one daughter and two sons. The

Page 80 of 107
daughter is the elder one who has already got married and out of

two sons, the younger one is dead and the second one is

appellant Hemananda Dehury who is now in jail custody. The

wife of appellant Nabin Dehury is residing at her father‟s place

after arrest of the appellant. The statements collected indicate

that prior to the imprisonment, the attitude, conduct and

behaviour of appellant Nabin Dehury was very good and he was

maintaining good and amicable relationship with the people of

the locality and there was no adverse remark passed against him

by any of the persons examined. It further came to light that the

land dispute between the appellant Nabin Dehury and family of

the deceased persons was one of the prime reasons for not

having good relations between them. The ancestral property of

the appellant Nabin Dehury was encroached by the deceased for

which most of the times, the appellant was remaining upset for

being deprived of his ancestral property. The deceased was

teasing the appellant several times to create an unhealthy

situation. The wife of appellant Nabin Dehury also expressed that

due to land dispute, the appellant was not remaining in a

constant state of mind and he was taking psychiatric medicine

suffering from mental trauma. The medical documents from

VIMSAR, Burla, Sambalpur relating to the treatment of the

Page 81 of 107
appellant Nabin Dehury were also forwarded with the affidavit of

the Jail Superintendent, which show that he was referred to the

Department of Psychiatry wherein it is indicated that there was

previous medication history of five years and two months.

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.

Let us first discuss as to what are the aggravating

factors in the case. The commission of multiple murders is no

doubt a significant aggravating factor. The deliberate and

voluntary nature of the acts, especially following the initial

murder of deceased Giridhari Sahu, demonstrates a pattern of

Page 82 of 107
extreme violence and a disregard for human life. 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 one after another is another aggravating factor. The

use of violence not only reflects a high degree of culpability but

also underscores the severity of the crimes. As noted in 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 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

Page 83 of 107
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
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

Page 84 of 107
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
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

Page 85 of 107
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."

The emotional and psychological impacts on the

families of the deceased also constitute an aggravating factor.

The murders must have caused immense suffering to the

families of deceased Giridhari Sahu, Pirobati Behera, and Sabitri

Sahu. Deceased Giridhari Sahu and Sabitri Sahu had two minor

children i.e. P.W.3 Sachin Sahu and P.W.4 Sapna Sahu and the

occurrence took place before their eyes and they witnessed the

murder of their mother and maternal grandmother and they

were left orphaned. This is highlighted in Machhi Singh (supra),

where the Court considered the impact of occurrence on the

victims‟ families as a critical aspect of the sentencing process.

Mitigating Circumstances:

Hon‟ble Supreme Court in the case of Bachan Singh

(supra), while discussing the suggestions of Dr. Chitaley relating

to mitigating circumstances, observed that the offence being

committed under the influence of extreme mental or emotional

disturbance can be taken into account. It was held that Judges

should never be bloodthirsty.

Page 86 of 107
Emotional and psychological distress:

As appears from the reports received, appellant

Nabin Dehury was taking medications prior to the commission of

the offence due to the teasing and bullying done by the

deceased‟s family as mentioned by his wife. Although he was

aware of his actions and its consequences, but his mental state

was fuelled by annoyance, frustration and the constant reminder

of the land dispute which he thought to have lost on account of

fraudulent means adopted by the deceased Pirobati Behera. This

context provides an understanding of his loss of mental control,

which ultimately seems to have resulted in the murders. While

not constituting a defence of diminished responsibility, appellant

Nabin‟s mental health issues are a crucial mitigating factor, as

acknowledged in Dauvaram Nirmalkar -Vrs.- State of

Chhattisgarh reported in 2022 SCC OnLine SC 955, wherein

it is held as follows:-

"11. K.M. Nanavati (supra) (1962 Supp (1)
SCR 567), has held that the mental background
created by the previous act(s) of the deceased
may be taken into consideration in ascertaining
whether the subsequent act caused sudden and
grave provocation for committing the offence.
There can be sustained and continuous
provocations over a period of time, albeit in such

Page 87 of 107
cases Exception 1 to Section 300 of the I.P.C.
applies when preceding the offence, there was a
last act, word or gesture in the series of
incidents comprising of that conduct, amounting
to sudden provocation sufficient for reactive loss
of self-control. K.M. Nanavati (supra) quotes
the definition of „provocation‟ given by Goddard,
C.J.; in R. v. Duffy, as:
"...some act or series of acts, done
by the dead man to the accused which
would cause in any reasonable person,
and actually causes in the accused, a
sudden and temporary loss of self-
control, rendering the accused so
subject to passion as to make him or
her for the moment not master of his
own mind...indeed, circumstances which
induce a desire for revenge are
inconsistent with provocation, since the
conscious formulation of a desire for
revenge means that the person had the
time to think, to reflect, and that would
negative a sudden temporary loss of
self-control which is of the essence of
provocation...".
×× ×x xx xx xx
16. For clarity, it must be stated that the
prosecution must prove the guilt of the accused,
that is, it must establish all ingredients of the

Page 88 of 107
offence with which the accused is charged, but
this burden should not be mixed with the burden
on the accused of proving that the case falls
within an exception. However, to discharge this
burden the accused may rely upon the case of
the prosecution and the evidence adduced by
the prosecution in the court. It is in this context
we would refer to the case of the prosecution,
which is that the deceased was addicted to
alcohol and used to constantly torment, abuse
and threaten the appellant. On the night of the
occurrence, the deceased had consumed alcohol
and had told the appellant to leave the house
and if not, he would kill the appellant. There was
sudden loss of self-control on account of a „slow
burn‟ reaction followed by the final and
immediate provocation. There was temporary
loss of self-control as the appellant had tried to
kill himself by holding live electrical wires.
Therefore, we hold that the acts of provocation
on the basis of which the appellant caused the
death of his brother, Dashrath Nirmalkar, were
both sudden and grave and that there was loss
of self-control."
'Slow burn' reaction followed by provocation rendered to

the Appellant:

The constant teasing and bullying of appellant Nabin

Dehury relating to the land dispute has been established through

Page 89 of 107
himself and the witnesses and the reports collected. This aligns

with the concept of sustained provocation which can be

considered a mitigating circumstance. Continuous provocations

over time, lead to a final act that causes a loss of self-control

and can reduce the culpability of the offender. It is too much to

expect from everyone to always be calm, no matter what the

provocation be. In this case, appellant Nabin‟s prolonged

exposure to harassment and the resulting emotional distress

contributed to his actions. Although specific and immediate

trigger for the initial assault on deceased Giridhari is not fully

established, the circumstances suggest the effect of the distress

rendered by him through the constant teasing from the

prolonged land dispute and his feeling of helplessness in being

landless. The prison Medical Officer has also submitted that the

appellant continues to take psychiatric medication though his

cognitive abilities are found to be intact.

Potential for Rehabilitation:

As per the reports submitted, prior to the

imprisonment, the attitude, conduct and behaviour of appellant

Nabin Dehury was very good and he was maintaining good and

amicable relationship with the people of the locality and there

was no adverse remark passed against him by anyone. His

Page 90 of 107
behaviour in jail has been reported as normal and good,

indicating his potential for rehabilitation. The Supreme Court in

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.

Is it a 'rarest of rare' case?:

The Supreme Court in the case of Bachan Singh

(supra) set forth the doctrine that the death penalty should only

be imposed in the "rarest of rare" cases where the alternative

option is unquestionably foreclosed. The terms „brutal‟,

„grotesque‟, „diabolical‟ and „ghastly‟ have been cited through

various judgments by the Supreme Court, even though they are

not specifically defined in legislative texts. The literal meaning of

the above terms can be held as-

(i) Brutal: Acts characterized by excessive
cruelty or savagery. In a legal context, brutality
implies a level of violence that is excessive and
beyond what would be considered necessary to
achieve the criminal objective.

Page 91 of 107
(ii) Grotesque: Acts that are shockingly
incongruous or out of the ordinary in a
disturbing way. In legal terms, grotesque actions
are those that are bizarre and evoke a sense of
horror due to their abnormal nature.
(iii) Diabolical: Acts that are wicked or evil to
an extreme degree. Legally, diabolical crimes
are those that reflect a perverse and calculated
intent to cause harm, often involving
premeditation and malicious intent.
(iv) Ghastly: Acts that are horrifying or
macabre. Legally, ghastly crimes are those that
are gruesome and evoke a sense of revulsion
due to their horrifying nature.

The actions taken by appellant Nabin Dehury were

certainly heinous. He killed three individuals using a tangia, two

of them were women. These acts could be described as brutal

due to the violent manner of the killings. However, while the

murders committed by appellant Nabin Dehury are undoubtedly

heinous and premeditated, several mitigating factors go against

the imposition of the death penalty. They do not constitute

offences that are defined above as „grotesque‟, „diabolical‟ and

„ghastly‟. These terms cumulatively describe an offence that is

shocking and gruesome to the extent that it causes a sense of

horror and indifference, shaking the core of society. As stated

Page 92 of 107
above, in our opinion, the nature of the murder committed by

the appellant is heinous, the motive appears confined to a form

of revenge, driven by annoyance and psychological distress.

These acts, though cruel and ruthless, do not fully meet the

threshold of being „grotesque‟, „diabolical‟ and „ghastly‟.

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

a case of triple murder, it is held that the number of persons

Page 93 of 107
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 94 of 107
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

Page 95 of 107
must be remembered that public opinion has
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

Page 96 of 107
helpless children and others and concluded that
the Petitioners would be a menace and threat to
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

Page 97 of 107
family and community members with whom they
continue to share emotional ties and the
certificate issued by the Jail Superintendent on
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

Page 98 of 107
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
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."

Page 99 of 107
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

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.

The aggravating circumstances in this case,

particularly the commission of multiple murders, the evidence of

premeditation, and the brutality of the acts, point towards a

severe sentence. However, the mitigating circumstances,

including the psychological distress, the appellant‟s mental

health issues, his good attitude, conduct and behaviour prior to

the imprisonment, his good behaviour in jail suggest that the

death penalty may be disproportionate. While appellant Nabin

Dehury‟s mental health issues do not constitute a credible

ground for complete exoneration, still it remains a crucial

mitigating circumstance.

It is evident that in the judgment of the learned trial

Court, there is no reference to the discussions on mitigating

Page 100 of 107
circumstances and possibility of reformation and rehabilitation of

the appellant Nabin Dehury. In fact, there was no endeavour on

the part of the learned trial Court to find out mitigating

circumstances, if any in respect of appellant. 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 appellant keeping in view the golden principle

that life imprisonment is the rule and death sentence is an

exception.

In the case of Surja Ram (supra), on which reliance

was placed by the learned State Counsel, it is held that

punishment must respond to the society's cry for justice against

the criminal. While considering the punishment to be given to the

accused, the Court should be alive not only to the right of the

criminal to be awarded just and fair punishment by administering

justice tempered with such mercy as the criminal may justly

deserve, but also to the rights of the victims of the crime to have

the assailant appropriately punished and the society's reasonable

expectation from the Court for the appropriate deterrent

Page 101 of 107
punishment conforming to the gravity of the offence and

consistent with the public abhorrence for the heinous crime

committed by the accused.

We are of the view that public opinion or the society's

expectation may be to confirm the death sentence of appellant

Nabin Dehury since it is a case of triple murder and two

deceased were ladies, but it must be remembered that such

opinion or expectation is neither an objective circumstance

relating to crime, nor the criminal, and therefore, this Court must

exercise judicial restraint and play a balancing role. The

appellant comes from a rural and economically poor background

and on account of property dispute and after losing the ancestral

property in the Court battle, he had done away with the lives of

three deceased. The appellant is having a criminal antecedent of

a Magistrate triable offence in which trial is yet to be over and

therefore, he cannot be said to be a hardened criminal. The

reports furnished by Jail Superintendent in which the appellant

has been lodged for more than three and half years 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

Page 102 of 107
making imposition of death sentence imperative or in other

words, life imprisonment would be completely inadequate and

would not meet the ends of justice.

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.

Accordingly, we commute the death sentence

imposed on the appellant Nabin Dehury to life imprisonment. The

appellant Nabin Dehury is sentenced to life imprisonment for

each of the three murders committed by him 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.

Page 103 of 107
Victim Compensation:

19. The learned trial Court has directed the entire fine

amount of Rs.2,00,000/- (rupees two lakhs), if realized to be

paid to P.W.3 Sachin Sahoo and P.W.4 Swapna Sahoo in equal

proportion, which means if the appellants decide not to pay the

fine amount, then they have to undergo the default sentence but

the minor children of the two deceased would not get any

financial benefits. 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 learned

trial Court unfortunately has not passed any compensation award

in terms of 2017 schemes. 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 the deceased-parents of

Page 104 of 107
P.W.3 and P.W.4 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.20,00,000/- (rupees twenty lakhs) which is to be paid

to P.W.3 and P.W.4 in equal proportion. So far as the death of

deceased Pirobati Behera is concerned, the upper limit of

compensation of Rs.10,00,000/- (rupees ten lakhs) is also to be

paid to the victims, out of which Rs.5,00,000/- (rupees five

lakhs) is to be paid to P.W.1 and the balance amount of

Rs.5,00,000/- is to be paid in equal proportion to P.W.3 and

P.W.4. If any compensation amount has already been disbursed

to any of these persons, i.e. P.W.1, P.W.3 and P.W.4, the same

shall be adjusted and the D.L.S.A., Sambalpur shall take

immediate steps to pay the balance amount of compensation

within four weeks from today.

Conclusion:

20. In view of the foregoing discussions, CRLA No.693 of

2024, filed by the appellant Hemananda Dehury is dismissed.

The conviction of the appellant Hemananda Dehury under section

302/34 of the I.P.C. and sentence imposed thereunder is upheld.

So far as JCRLA No.118 of 2023 filed by appellant Nabin Dehury

is concerned, his conviction under section 302/34 of the I.P.C. is

Page 105 of 107
upheld, however, the death sentence awarded to him is

commuted to life imprisonment. The appellant Nabin Dehury is

sentenced to life imprisonment for each of the three murders

committed by him and the sentences so awarded shall run

concurrently. It is made clear that such life imprisonment shall

mean the remainder of his natural life, without

remission/commutation under sections 432 and 433 of Code of

Criminal Procedure. The fine amount imposed by the learned trial

Court on both the appellants and the default sentence stands

confirmed.

Accordingly, the death sentence reference is

answered in negative.

Before parting with this case, we would like to put

our deep appreciation to Mr. Debasis Sarangi, learned Amicus

Curiae 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.

Pranaya Kumar Dash, Advocate to this Court. This Court also

appreciates extremely valuable assistance provided by Mr.

Janmejaya Katikia, Addl. Govt. Advocate who has been ably

assisted by Mrs. Sushama Rani Sahoo, learned Addl. Standing

Counsel and Ms. Gayatri Patra, Advocate. The hearing fees is

Page 106 of 107
assessed to Rs.20,000/- (rupees twenty thousand) in toto which

shall be paid to the learned Amicus Curiae Mr. Debasis Sarangi

immediately.

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., Sambalpur for

compliance.

.........................................
S.K. Sahoo, J.

........................................... Chittaranjan Dash, J.

Orissa High Court, Cuttack The 28th August 2024/M.K.Rout/RKMishra/Sipun Signature Not Verified Digitally Signed Signed by: RABINDRA KUMAR MISHRA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 28-Aug-2024 11:23:14 Page 107 of 107

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