Case: Dayanidhi Bisoi Vs. State Of Orissa

This appeal arises out of a judgment of the High Court of Orissa at Cuttack made in Death Reference No.2 of 2002 and in Jail Criminal Appeal No. 244 of 2000. The reference in question was made by the Additional Sessions Judge Jeypore in Sessions Case No. 8 of 1999 whereby the learned Sessions Judge having found the appellant in this appeal guilty of an offence punishable under Section 302 IPC came to the conclusion that on facts of the case the appellant should be given the maximum sentence of death, hence, referred the case for confirmation of the sentence under Section 366 of the Code of Criminal Procedure to the High Court.2. The appellant preferred the concerned Criminal Appeal No. 244 of 2000 challenging his conviction and sentence awarded by the learned Additional Sessions Judge, Jeypore. Both the matters came to be heard together in the High Court and by the impugned judgment the High Court confirmed the conviction award to the appellant as also accepted the reference made by the learned Additional Sessions Judge in regard to awarding death penalty to the appellant.3. It is against the above said judgment of the High Court of Orissa at Cuttack, the appellant is before us in this appeal.4. Brief facts necessary for the disposal of this appeal are as follows:The prosecution alleges that the appellant was an agnetic nephew of the deceased Anirudha Sahu who was working as a Peon in the Sales Tax Department and residing in the Irrigation Colony at Jeypore. The appellant is a resident of village Niranguda and was carrying on turmeric and mustard business. According to the prosecution, he used to come to Jeypore and visit the deceased and often used to stay in the house of the deceased. The prosecution further alleges that the deceased Anirudha was married to Lata and had a three year old daughter by name Puja who were all residing together in the flat at Irrigation Colony. It is also the case of the prosecution that the appellant had suffered loss in his business and was in constant need of financial assistance. The visit of the appellant to their house was not liked by Anirudhas wife Lata since she was suspecting the character of the appellant. She had complained about this to the brother of her husbandwho in turn had spoken to Anirudha about the propriety of allowing the appellant to stay with Anirudha and his family during the visits of the appellant to Jeypore. According to the prosecution, Anirudha, however, took a very sympathetic view of the financial position of the appellant, hence, told his brother it is not fair not to help a person like the appellant in his days of trouble. Hence, against the wish of Lata and his brother, Anirudha continued to entertain the appellant in his house.5. The prosecution alleges that on 3rd June, 1998, the appellant had visited Jeypore. On that day about 9 p.m. Lata had gone to the house of one Babu Lenkato recall her daughter Puja who was playing there. At that time when Lenkas motherasked Lata to stay for a while, she replied that they had a guest from the village at home and she has to serve dinner, so saying she felt for the house along with daughter Puja. The prosecution also alleged that Goutam Kumar Swain (PW2) who was the owner of a Betal shop in the Irrigation Colony had seen on 3rd June, 1998 Anirudha in the company of the appellant at about 9 p.m. According to the said witness, the deceased and the appellant had gone to his Betel shop to purchase two Sachets of "Khaini". The same witness also says that on the next day i.e. on 4th June, 1998 he had seen the accused going from the direction of the house of the deceased. It is the further case of the prosecution that on 4th June, 1998 having not seen the family members of Anirudha till late in the morning, the neighbours got suspicious about the welfare of the family of Anirudha, hence, tried to find out what has happened to Anirudha and his family. In this process, it is stated that one Kanhu Charan Lenka (PW9) brother of the neighbour of the deceased Babu Lenka PW1 climbed a Guava tree in front of the flat of the deceased and saw Anirudha, Lata and Puja lying dead inside the house. Therefore, the prosecution alleges that the neighbours joined together broke open the front door of the flat which was locked from outside and entered the house where they found the dead bodies of thepersons having injuries in their neck. They also noticed that the ornaments normally worn by Lata and Puja were missing. They also saw the almirah in the flat was opened and all the household articles were ransacked. Some of the witnesses who had seen the appellant in the company of the deceased on the previous evening also noticed that the appellant was missing. Therefore, suspecting that he might have been the assailant Babu Lenka (PW1), the neighbour, filed a complaint in Jeypore Town Police Station which was registered as Case No. 148 of 1998. The investigation of the case in question was then taken up by PW22 Ram Mohan Uttarkabat, who visited the spot and held the inquest over the dead bodies. He also requisitioned the assistance of scientific team from the office of the Superintendent of Police, Koraput to collect blood scraping, finger prints etc. from the place of incident. The bodies of the deceased were sent for post mortem examination. The further investigation was conducted byNathuram Sahani. The post mortem of the dead bodies was conducted by PW20 Dr. Umesh Chandra Patnaik who noticed punctured wound on the neck of all the three victims, consequent to which wound the carotid artery, jugular veins, trachea and larynx of the victims were cut into pieces. The doctor opined that the death was due to shock and hemorrhage due to the above injuries. During the course of investigation, the prosecution alleges that the police arrested the appellant and his finger prints, foot prints etc. were collected by the scientific team. It is further stated that on information given by the appellant, a knife M.O. VIII was recovered from a bamboo bush near thein the village of the appellant. The prosecution also alleges that on the information of the appellant they recovered some cash and a ladies watch in small plastic box M.O.IX from the house of the appellant. It is also stated that on information given by the appellant gold ornaments M.Os. I to VI were recovered from the goldsmith T. Rama Rao (PW19) which according to the prosecution belonged to the deceased Lata and Puja. In a Test Identification Parrade conducted by the police, the appellant was identified by the owner of the Pan shop PW2, the goldsmith who negotiated the transaction between the accused Keshab Rao Acharya (PW19) and T. Rama RaoThe ornaments recovered were also identified as belonging of the deceased persons byTamala Lenka, the mother ofwho used to meet deceased Lata frequently including the night before the incident in question and had occasion to notice the jewellery. The jewellery and the wrist watch were also identified as belonging to the deceased by theBidyadhar Sahu. On analysing the finger prints found at the place of incident, the Finger Prints Bureau reported that some of the finger prints recovered tallied with that of the appellant. Based on such investigation, the prosecution charged the appellant of offences punishable under Sections 394 and 302 of IPC before the learned Additional Sessions Judge Jeypore as stated above.6. The defence of the appellant in the courts below is one of denial and false implication by the police. He admitted his relationship with deceased Anirudha but denied that he had visited him or his family.7. Learned Sessions Judge after examining the material on record and hearing the arguments addressed came to the conclusion that though the case in hand is based on circumstantial evidence, the prosecution has established each and every circumstances placed against the appellant and the links in the chain of circumstances without any doubt had established the guilt of the appellant. Having so come to the conclusion that the appellant is guilty of offences punishable under Sections 302 and 394 of IPC and having heard the learned counsel for the defence on the question of sentence and after discussing the law on this point elaborately, and also considering the facts of the case, the trial court came to the further conclusion that the act of the appellant was a diabolical and amurder, executed in a well planned manner, causing the death of the entire family including a three year old child. The court also came to the conclusion that the action of the appellant was in no manner caused by any provocation whatsoever from the victims and was motivated solely by greed. The court also came to the conclusion that on entire perusal of the material on record, there were no extenuating circumstance and the case being one of the rarest of the rare cases deserved the maximum punishment. The court also came to the conclusion that since for an offence under Section 302 IPC he was awarding the maximum punishment of death, there is no need to sentence the appellant further for an offence punishable under Section 394 IPC. Accordingly the trial court sentenced the appellant to be hanged by neck till death As required by law, the trial court referred the matter to the High Court under Section 366 of the Code of Criminal Procedure for confirmation of the sentence.8. The appellant preferred an appeal to the High Court against the said judgment of the trial court. The High Court, heard the death reference case as also the appeal of the appellant together and delivered the impugned judgment dismissing the appeal of the appellant and accepting the reference made by the trial court in regard to the death sentence awarded by it to the appellant.9. As noticed above, it is against this common judgment of the High Court, the appellant is in appeal before us.

Reasoning:
24. Since the courts below have elaborately discussed the case law applicable to various issues involved in this case, we do not think it necessary for us to reconsider the same, having independently considered the material produced by the prosecution as against the appellant.25. Having agreed with the conclusions of the courts below in regard to their findings as to the guilt of the appellant, we will now consider the merit of the sentence imposed on the appellant by the two courts below. As noticed above, the learned Judge on facts and circumstances of this case found it appropriate to award the maximum sentence of death and on his reference the High Court has agreed with him on the question of sentence also. Learned counsel appearing for the appellant submitted before us that the appellants age is 35 years and there is no material to show that he is involved in any other crime prior to this. He submitted that the crime in question as per the prosecution case itself is because of the acute financial need of the appellant and that he has aged parents and minor daughters and there is every possibility of he being rehabilitated if given an opportunity. Therefore, he prays that the sentence of death may be reduced to life imprisonment.26. We have taken note of various judgments of this Court like in the case of Bachan Singh vs. State of Punjab (AIR 1980 SC 898 ), Surjvaram vs. State of Rajasthan (1997 (12) CCR (SC) 214), Ravji alias Ram Chandra vs. State of Rajasthan (1996 (2) SCC 175 ) and Dhananjoy Chatterjee alias Dhana vs. State of W.B. (1994 (2) SCC 220 ) which judgments have also been considered by the courts below. A cumulative reading of these judgments shows that for awarding a punishment of death sentence, there must be some special reasons, the courts should give relative weight to the aggravating and mitigating factors available on the facts of the case, the case in question should be a rarest of the rare case. Having noticed the above principles broadly laid down by this Court to be borne in mind by the courts while awarding death penalty, we find both the courts below have considered each and every aspect required to be taken note of by the courts before choosing to award the death sentence in this case. Onof those material on record, we find no reason to differ from the said findings of the courts below. The fact that the murder in question is committed in such a deliberate and diabolic manner while the victims were sleeping without any provocation whatsoever from the victims side, that too having enjoyed the hospitality and kindness of the victims, indicates the cold blooded and premeditated approach of the appellant to put to death the victims which include a child of three years age just to gain some monetary benefit. In our opinion, the extenuating circumstances put forth by the learned counsel for the appellant in regard to the age of the appellant, his surviving relatives and the possibility of rehabilitation would not, in our opinion, justify the courts to impose a sentence of life imprisonment on the facts and circumstances of this case. Hence, we have no hesitation in agreeing with the findings of the courts below and coming to the conclusion that the case in hand is a rarest of the rare case involving abrutal murder without provocation, hence, we find no reason whatsoever to interfere even with the quantum of punishment awarded by the courts below.