Death Penalty Requires Real And Separate Sentence Hearing | Orissa High Court Criticizes Same-Day Conviction And Sentencing As Procedurally Unfair
Safiya Malik
The High Court of Orissa Division Bench of Justice Sangam Kumar Sahoo and Justice Sibo Sankar Mishra directed that the appellants be given an opportunity to submit all relevant materials concerning mitigating circumstances before a final decision is made on sentencing. The Court held that the trial court had not conducted a proper and effective hearing on the question of sentence as required under law and directed the jail authorities to collect and furnish psychological, behavioural, and biographical reports of the appellants. The appellants were asked to submit affidavits containing relevant mitigating material by 30th June 2025.
The appellants were tried by the Additional Sessions Judge, Athmallik in connection with C.T. (S) No. 16 of 2018 for multiple offences including Sections 302, 449, 363, 364, 394, 201, and 34 of the Indian Penal Code (IPC) as well as Sections 25 and 27 of the Arms Act. The case arose from allegations involving the commission of murder, kidnapping, and destruction of evidence.
Following trial, the judgment was delivered on 27th September 2024. The appellants were convicted under Sections 302, 364, 201, and 34 of IPC. However, they were acquitted of charges under Sections 363, 394, 34 of IPC and Sections 25 and 27 of the Arms Act. No findings were recorded with respect to the charge under Section 449/34 of IPC.
On the same day, the trial court concluded the sentencing proceedings and imposed capital punishment on the appellants under Section 302 IPC along with fines. Specifically, both were sentenced to death and to pay a fine of ₹1,00,000, with a default sentence of one year’s rigorous imprisonment. For the offence under Section 364, they were sentenced to life imprisonment and a fine of ₹50,000, failing which they would undergo six months’ rigorous imprisonment. For Section 201, they were sentenced to seven years' imprisonment and a fine of ₹25,000, with a default sentence of two months' rigorous imprisonment. The sentences were to run concurrently.
The case came before the High Court by way of a death sentence reference (DSREF No. 4 of 2024) and criminal appeal (CRLA No. 1166 of 2024). During the hearing, the appellants appeared via virtual mode from Circle Jail, Angul. Mr. Dillip Kumar Das was appointed as Legal Aid Counsel to assist the appellants.
The appellants’ counsel argued that there was no separate or meaningful opportunity granted to them at the trial stage to submit materials on mitigating circumstances. It was contended that the trial court proceeded directly from conviction to sentencing without affording them the necessary procedural protections under Section 235(2) of the Code of Criminal Procedure, 1973.
In support of their position, the parties relied on decisions from the Hon’ble Supreme Court including Bachan Singh v. State of Punjab, Manoj v. State of Madhya Pradesh, and Sundar v. State by Inspector of Police. These precedents dealt with the necessity of an independent, real, and substantive hearing on sentencing, especially where the death penalty is contemplated.
The respondents argued the imposition of the death penalty was within the legal framework but did not dispute the need for compliance with procedural safeguards.
The High Court took note of the lack of proper framework at the trial level for evaluating mitigating circumstances and the absence of any structured process of psychological assessment or social investigation.
The Court examined whether the sentencing procedure adhered to the requirements laid down by the Supreme Court and statutory provisions. It stated: “There has been no proper and meaningful hearing as such which is necessary in order to do complete justice. In fact, there appears to be no opportunity afforded to the appellants to submit any such material in support of the mitigating circumstances during and in course of hearing on the question of sentence.”
The Court recorded: “The Trial Court’s order dated 27.09.2024 on hearing the question of sentence does not reveal as to if any such exercise was undertaken affording the appellants to submit material with regard to the mitigating circumstances.”
It further stated: “Law is well settled that hearing on the question of sentence has to be real and effective and not a mere formality; if a meaningful hearing is not taken up by a Court while considering the sentence to be imposed and inflicted upon the convict, it is likely to cause severe prejudice to him.”
Quoting from Sundar v. State by Inspector of Police, the Court noted: “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.”
It also referred to the importance of considering the personal and social history of the accused: “This analysis can only be done with rigour when the Court focuses on the circumstances relating to the criminal, along with other circumstances.”
In its analysis, the Bench stressed that the omission by the trial court to undertake a detailed hearing on mitigating factors was inconsistent with the procedural fairness mandated by law and Supreme Court guidelines.
The Court cited Manoj and Others v. State of Madhya Pradesh: “The importance of a separate hearing and the necessity of background analysis of the convict with reference to the social milieu, age, educational qualification and whether he has faced any trauma in life, family circumstances, psychological evaluation and post-conviction conduct being the relevant factors while taking a call, whether death penalty should be imposed or otherwise.”
The Court concluded: “This Court is of the humble view that in view of the settled position of law discussed herein before, for a purposeful and meaningful hearing on sentence, the appellants should be afforded an opportunity at present inviting from them such data to be furnished in the shape of affidavits.”
The Court directed the appellants to submit all relevant materials concerning mitigating circumstances in the form of affidavits, detailing particulars for the Court’s consideration, on or before 30th June 2025.
It further instructed the Senior Superintendent of Circle Jail, Angul to facilitate the collection of comprehensive information regarding the appellants’ past life, psychological condition, post-conviction conduct, and other relevant aspects, with the assistance of appropriate officials.
All such materials were ordered to be submitted to the Court by the same date.
The Court clarified that no opinion had been expressed on the merits of the appeal and that the ongoing exercise pertained solely to the sentencing process
Advocates Representing the Parties
For the Petitioners: Mr. Satya Ranjan Mulia, Advocate; Mr. Ramesh Ch. Maharana, Advocate
For the Respondent: Mr. Debashis Tripathy, Additional Government Advocate
Case Title: State of Odisha v. Prakash Behera & Anr.
Case Number: DSREF No.4 of 2024 & CRLA No.1166 of 2024
Bench: Justice Sangam Kumar Sahoo and Justice Sibo Sankar Mishra
[Read/Download order]
