Ohan@Jaminikanta Mohanta vs State Of Odisha

Hearing of the matter is taken up today.

In course of hearing and on perusal of record, it is revealed that by Court‟s order dated 23rd December, 2020, the appellant was allowed to lead evidence on the question of sentence after further examination under Section 313 Cr.P.C. Later to the above order, the appellant examined witnesses as D.Ws.2 and 3 on 27th January, 2021. In fact, after confrontation of additional incriminating material to the appellant under Section 313 Cr.P.C., such defence evidence was permitted with the examination, cross-examination of D.Ws.2 and 3 and thereafter, both being discharged.

A decision of the Apex Court in the case of Sundar @Sundarrajan Vrs. State by Inspector of Police 2023 LiveLaw (SC) 217 is cited at the Bar in connection with consideration of materials on mitigating circumstances, while dealing with the sentencing aspect of a matter. For better appreciation, the relevant extract of the aforesaid decision is reproduced herein below:

“77. The law laid down in Bachan Singh requires meeting the standard of „rarest of rare‟ for award of the death penalty which requires the Courts to conclude that the convict is not fit for any kind of reformatory and rehabilitation scheme. As noted in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, this requires looking beyond the crime at the criminal as well:

The rarest of rare dictum, as discussed above, hints at this difference between death punishment and the alternative punishment of life imprisonment. The relevant question here would be to determine whether life imprisonment as a punishment will be pointless and completely devoid of reason in the facts and circumstances of the case? As discussed above, life imprisonment can be said to be completely futile, only when the sentencing aim of reformation can be said to be unachievable. Therefore, for satisfying the second exception to the rarest of rare doctrine, the court will have to provide clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme. This analysis can only be done with rigour when the court focuses on the circumstances relating to the criminal, along with other circumstances. This is not an easy conclusion to be deciphered, but Bachan Singh sets the bar very high by introduction of the rarest of rare doctrine.”

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The duty of the court to enquire into mitigating circumstances as well as to foreclose the possibility of reformation and rehabilitation before imposing the death penalty has been highlighted in multiple judgments of this Court. Despite this, in the present case, no such enquiry was conducted and the grievous nature of the crime was the only factor that was considered while awarding the death penalty.

During the course of the hearing of the review petition, this court had passed an order directing the counsel for the state to get instructions from jail authorities on the following aspects: (i) the conduct of the petitioner in jail; (ii) information on petitioner‟s involvement in any other case; (iii) details of the petitioner acquiring education in jail; (iv) details of petitioner‟s medical records; and (v) any other relevant information.”

After having gone through the decision (supra), the Court deems it proper to call for a report from the Superintendent, Circle Jail, Baripada with regard to (i) the conduct of the appellant while in jail; (ii) criminal antecedent of the appellant; (iii) on any education acquired by the appellant being in jail and (iv)details of the appellant‟s medical record.

Apart from the above, keeping in view the decision of the Supreme Court in Suo Motu Writ Petition (Crl.) No.1 of 2022, the Court is inclined to issue further directions since many other aspects are  to  be  considered  and  duly  examined  while  taking  up  a meaningful hearing on sentence and the same are with respect to all such information on the past life of the appellant; the appellant‟s psychological condition and conduct after conviction, as such an exercise is necessary and expedient in the interest of justice. The Court is also inclined to allow the appellant to file affidavit so as to facilitate the defense, an opportunity to bring on record such other material or information/data to be taken cognizance of along with the report received from the Jail Superintendent, Circle Jail, Baripada, the intent and purpose being to weigh the balance between the aggravating and litigating circumstances since a balance is to be struck while taking a final call on the sentence.

Hence, it is ordered.

For the foregoing reasons, the Court accordingly directs the Jail Superintendent, Circle Jail, Baripada to ensure collection of information with reports on the past life, psychological conditions and post-conviction conduct of the appellant with all such other relevant information on conduct; criminal antecedent, etc. as stated before, for its consideration at the final hearing by exercising his good office and with necessary assistance from such officers including the Probation Officer, Psychologist and Jail Doctor or any other Medical Officer attending the prison inmates. It is further directed that the aforesaid information along with any such affidavit, if filed by the appellant, shall reach the Court on or before 20th May, 2024. It is clarified that the above decision by the Court should not be considered as any opinion expressed on merits of the appeal and for that matter, the appellant should not be apprehensive, since such exercise is being undertaken keeping in view the settled legal position vis-a-vis hearing on sentence, while disposing of the matter along with the death reference.

A free copy each of the above order be supplied to the learned counsel for the respective parties for immediate compliance.

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