STATE OF ORISSA Vs. BANABIHARI BEHERA @ HARIA

JUDGEMENT

(1.) The appellant- Banabihari Behera @ Haria faced the trial in the Court of Additional Sessions Judge, Jajpur in C.T. Case No. 315 of 2013 standing charged for commission of offence under section 302 IPC. The trial court has found the appellant guilty of murder under section 302 IPC. Having thus for been convicted for the offence of causing murder of the sixteen years daughter of the informant who was then a student of Ist Year of Intermediate in Science, the appellant has been sentenced to death. In view of the infliction of the capital punishment upon the appellant, for its confirmation, reference has been made under section 366(1) of the Code of Criminal Procedure, 1973 (for short, the Code ').

(2.) The reference as well as the appeal had been heard by the Hon'ble Judges constituting the Division Bench. The Bench delivered two judgments on 19.11.2015. While two Hon'ble Judges are of the unanimous opinion that the finding of guilt recorded by the trial court is based on just and proper appreciation of evidence on record keeping in view the settled position of law warranting no interference and accordingly have held that the conviction of the appellant has to be maintained, the difference of opinion arises as to the sentence to be awarded. The Hon'ble Judge presiding the Bench when observed that the case falls within the category of 'rarest of rare' cases as it is a case of brutal murder of a young adolescent damsel aged about sixteen years by infliction of twelve numbers of injuries on her person by means of a sharp cutting weapon and thus the death sentence is only adequate one; the other Hon'ble Judge however has differed on this aspect of sentence that the appellant has to be visited with. The Hon'ble Judge having said that mitigating circumstances, particularly the young age of the appellant without any criminal track record and in the absence of any such material that he is a menace to the society and as such remaining with the continuous threat from the society and the possibility of his being reformed and rehabilitated not ruled out has opined that imposition of sentence of death is not called for and it is a case where sentence of imprisonment for life be awarded, further taking note of the fact that when the motive behind the crime has neither been so pinpointedly projected nor established. This is how, the matter has thus been laid before me as provided under section 370 read with section 392 of the Code.

(3.) The facts having been comprehensively given in the judgment of the Hon'ble Judge presiding the Bench, I would only refer to such facts as are necessary for disposal of the matter in hand which has been laid before me.