JUDGMENT VINOD PRASAD, J.“Of all the wordly passions, lust Is the most intense. All other wordly passions seem to follow in its train.” “ All is fair in love and war”, the phrase, has its most uncanny reprehensible illustration in the instant appeal by the appellant Banabihari behera @ Haria, who, because of his eldritch conduct and prurient devilish assault, had shortened the life span of a beautiful intelligent damsel, Biswakalpita Behera @ Rinni, (hereinafter referred to as the deceased), a Ist year I.SC., student, in her adolescent 16 years of age, by butchering her to death by Kata (Chopper), after he remained unsuccessful to ravish her chastity, ebullient by salacious psyche. Appellat has been adjudged guilty of murder u/s. 302 I.P.C. by the learned trial Judge/Addl. Sessions Judge, Jajpur in C.T. No.315 of 2013. The State versus Banabihari Behera @ Haria, relating to G.R. Case No.462 of 2013 of the Court of JMFC, Jajpur Road (P.S. Case No.28 (3) of 2013, police station Tomka, district Jajpur) and has been sentenced to death with fine of Rs.50000/- (Rupees Fifty Thousand only) and in defaualt of payment of fine to serve additional 3 years R.I. vide impugned judgment and order dated 27/28.08.2014. For confirmation of the capital punishment, DSREF No.2 of 2014, State of Orissa versus Banabihari Behera, has been dispatched to this Court by the learned trial/Addl. Sessions Judge, as is statutorily required u/s. 366 (1) Cr.P.C. Compelled by instant of self preservation and to avert going to fallows, accused appellant has preferred Jail Criminal Appeal No.51 of 2014, Banabihari Behera @ Haria versus State of Orissa, challenging his aforementioned conviction and death sentence. 2.Comprehensively carded out for a groking understanding sequences of the prosecution story unravel in a narrative mode, as was got inked by the informant Bamnamali Behera/P.W. 2 in his FIR/Ext.3, told to the I.O.s and later on trotted out before the trial Court, evinces that Biswakalpita Behera @ Rinni (deceased) was the daughter of the informant Banamali Behera/PW 2 and Rebati Behera/PW 3 and niece of Laxmidhar Behera/PW1, the real sibling elder brother of the informant and they all jointly resided as HUF in the same Khanja house in Gopal Sahi, towards west of a village road which runs from north to south, in village Nipania, P.S. Tomka, district Jajpur. Appellant Banabihari Behera @ Haria, a grown up man in his late thirties and a truck driver by vocation, had his house across the road from the house of the informant, separated by three other houses, in the same Gopal Sahi, which is a cluster of 24/25 houses. Spot of deceased annihilation is an open un-cordoned fallow land having bushes surrounded by fields of other villagers, which was used by local inhabitants and village people to attend call of nature and it lay near about 300 meters away from the houses of both the informant and the appellant. At some distance from it exists Radhakanta Nodal School and an Aganwadi centre across each other separated by a road. Appellant teased the deceased on her way to college at a distance of 7 KMs on a cycle, and she was also not having any mobile phone. 3.Appellant had one sided lubricious desire for the deceased and a month prior to her murder, on 1.3.2013, he had trespassed into deceased’s house and had vainly tried to pull her with prurience intent, but he was locked inside the room and the police was informed, who had rescued him. Both the rival sides had lodged counter complaints regarding the excruciating abashed incident in which a compromise was slated down at the police station wherein appellant had promised not to repeat the incident. The deceased, soon after this faux pas was sent to reside with her brother-in-law Bailochan @ Bairagi Behera/PW 4, resident of Fakirpur, at a distance of 30 KMs, where she had stayed up till 19.4.2013, on which date she had returned to her house in village Nipania to appear in her examinations. 4.Present incident of deceased murder occurred just a week after her return to her house on a Friday, 26.4.2013 at 7.30 a.m., when she (deceased), accompanied with her mother Rebati Behera/PW 3, had gone to attend call of nature in the fallow land where the appellant had already embushed under a tree armed with a kata (chopper).All of sudden he appeared and started pulling the deceased PW 3 abortively and ineffectively attempted to rescue her daughter as, by brandishing Kata, she was threatened with life. Unable to resist salacious assault, PW 3, rushed to her house to fetch help and within ¾ minutes, accompanied by PW 1 & 2 and other persons, when she returned to the incident spot, they witnessed the appellant mercilessly dealing severe kata blows on the neck, face, mandible, arm, forearm, back of the victim, who, most vulnerably, having a fragile anatomical physic, bare handedly and irresistibly was struggling to save her life. Locating the approaching witnesses, the appellant scampered from the spot along with Kata and could not be apprehended. Sustaining extensive brutal fatal injuries, the young adolescent damsel, lost her life at the spot, in her mother’s lap, before she could be provided with any kind of medical help. Xxxxxxxxx 77.Examining the facts of present case in the light of above propounded guidelines, I find that the present is an incident of brutal murder of a young adolescent damsel aged about 16 years by the appellant because she did not permit appellant to overpower her so as to satisfy his insatiable lust and she empty handedly fought gallantly to protect her “temple of honor”. Unfulfilled prurience licentiousness ranked the appellant so intensely that he butchered deceased to death after being defeated by her chivalry and valour and did not succumbed to his sinister design and assault. Albeit half of his age, just 16 years old, having a fragile anatomical structure, she resurrected and mustered so much courage that appellant could not made her victim of his vicious rapuit carnallter cognovits. She was a student of I.SC. 1st year and used to attend college on a cycle. There is evidence of a witness (P.W.20) that appellant used to harass her on road as well. Although prosecution has not filed the compromise of the earlier incident dated 1.3.2013, but there is convincing evidence that earlier also appellant had trespassed into deceased house and had tried to pull her regarding which police was also informed and complaint was made. This makes the appellant a recidivist with criminal proclivity. Because of house trespass incident, deceased was even removed from her village by her parents and it was only a week before that she had returned to her house to appear in her examination. This makes the appellant a recidivist with criminal proclivity. Because of house trespass incident, deceased was even removed from her village by her parents and it was only a week before that she had returned to her house to appear in her examination. Even this period of a month had not doused the sexual lust of the appellant who just in a week again approached her armed with a murderous weapon and after remaining unsuccessful to satiate his sexual desire killed her. Albelt twice of her age, appellant, a bachelor truck driver in his late thirties, depicted no compassion or mercy on such hapless and helpless victim who was incapable of defending herself successfully while he brutally and mercilessly assaulted her with kata. The trauma, pain, misery and sufferings suffered by the vulnerable victim, bare handedly, is unimaginable and for the appellant indicate the grotesque and diabolical manner in which he had annihilated her in a most inhuman uncanny manner. My summation of circumstances and facts leads me to conclude that the appellant had failed in raping the deceased not because he never intended to molest her but because of the chivalry of the adolescent victim who gave away her life fighting for her honor. Sri Das, learned counsel opposing the Reference has laid much emphasis on disproof of charge of rape and non filing of charge sheet for the said crime, but I find his castigating to be no mitigating circumstance to assuage the heinousness of the appellant’s crime. Clothes of the deceased were torn with cut injuries and her cadaver was half naked, which was later on wrapped with a piece of cloth as is clear from her inquest report and depositions of witnesses. If the appellant never desired to commit rape upon the deceased, why and what for he laid in ambush under a tree in the early hours of the morning armed with a kata at the a place where the village people used to go to attend call of nature and why he threatened the mother with her life brandishing his weapon. Cumulatively from all the facts the vicious sinister intent and preplanned execution of it is well discernible. The incident certainly is not the outcome of an innocent man who had acted precipitously surcharged with “obsessed and infatuated” failure of one sided love. Cumulatively from all the facts the vicious sinister intent and preplanned execution of it is well discernible. The incident certainly is not the outcome of an innocent man who had acted precipitously surcharged with “obsessed and infatuated” failure of one sided love. Deceased murder is also not the result of an ‘extreme emotional and psychological disturbance’. His activities of laying in ambush at such a place where the deceased was expected in all likelihood early in the morning armed with a dangerous weapon and unruffled bravery shown by him in pulling the deceased and blood thirsty vicious assault made by him, all these facts, taken together, makes it a preplanned diabolical murder of most brutal nature. Recapitulating the grotesque and merciless execution, when victim’s miseries are given a aplomb thought, the perspicacious cognitive faculties of the mind revolts into revenge for a retributive punishment. While considering sentence of an accused of such monstrous offences, the exacerbating facts and detrimental and deleterious effects of the indent has also to be taken into consideration. It is also no reason to whittle down severity of crime by taking note of the fact that the appellant acted out of self control overpowered by his copious lustfulness, which was his own creation and he cannot be permitted to reap a beneficial approach of his own misdeeds. A month and week’s times prior to the incident, during which deceased was absent from the incident village, was enough to gad his lustrous psyche and therefore it cannot be convincingly submitted that appellant lost self control because of his emotional and psychological disturbances. True Love has innate quality if sacrificing insatiable desire and not in becoming blood thirsty socio criminals. From the vetting of record it also did not emerge that appellant had any contrition or remorse and all through he maintained that he is innocent and has been falsely implicated due to village factional rivalry. The volunerable helpless adolescent girl, in the most prime time of her life, had to embrace death because of salacious appellant, who was defeated by her in his attempt to outraged her modesty. The volunerable helpless adolescent girl, in the most prime time of her life, had to embrace death because of salacious appellant, who was defeated by her in his attempt to outraged her modesty. Albelt appellant was not charge sheeted u/s. 376 I.P.C. probably in absence of convincing medical option, whereas in my pinion he should have been also booked under Sections 364/376/511 I.P.C. or at least, in bare minimum, u/s. 354 I.P.C., but that should not distract me from pacifying his criminality as he remained unsuccessful because of bravery shown by the deceased as opined earlier, and consequently this cannot and ought not to be a mitigating or mollifying circumstances for him. But for that motive to ravish deceased chastity there does not appear any other reason for him to lay in ambush and to pull the deceased even in the presence of her mother. Another factor aggravating his crime is that one end and the same time he resisted both – the mother as well as the deceased, and ultimately succeeded in snatching her away just to ravish her chastity. Deceased gallantly fought for those tormenting moments of 3 or 4 minutes till the witnesses were spotted approaching the place of bullyragging and therefore, the prurient appellant inflicted sever and grievous injuries on her torso and neck with such force that he virtually transacted her entire neck. Extensive internal damages caused to her, as has been disgorged by Dr. Ramesh Kumar Sahu/P:W 14, only aggravate the aggravating circumstances and repulsive conclusion against his criminality, rather than palliating and assuaging and mollifying it to make it a peccadillo. 78.There is another angle to the penology and that is retributive for the wrong doer and deterrent for retaining a social order by compelling people, either by the choice or by compulsion, to abide by law. Lawful will cease to exist and we will again role back to Paleolithic age of barbarianism, if the fear of abiding by the law will dissipate. This aspect of the Law has been elaborately dealt with by the larger bench of the apex Court in Bachan Singh (supra) from paras 99 onwards, but I, for the sake of conveniences do not refer to it in extensor. This aspect of the Law has been elaborately dealt with by the larger bench of the apex Court in Bachan Singh (supra) from paras 99 onwards, but I, for the sake of conveniences do not refer to it in extensor. In this respect I note with serious concern and worry that recently there has been an un-imaginable spurt in crime against women, especially young women and the ghastliness has crossed all dimensions of compassion and humanism and has attained its nadir. These are not only crimes against an individual woman but are crimes against half of the country’s population, as crime is a crime against society. How the Court’s can remain a silent and mute spectator to such a un-demanable social order? Immediate remedial measures are need of the hour to air cognitively perceivable and understandable clear message that, for protection of honor of half of the population and to maintain an orderly society, such gruesome incident will not be tolerated any more by beneficial approach but they shall receive severest punishment. Hon’ble Apex Court recently has observed that “body of a female is her temple” and therefore I am of the view that no pruriest, lustful lor licentious man of any age, has got an undefeatable right to smudge it. In yet another decision the Hon’ble Supreme Court, has observed “When a human frame is defiled, the ‘purest treasure’ is lost. Dignity of a woman is a part of her non-perishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matters most.” 79.Yet another dimension to the penology is that punishment has to be commensurate with guilt of the accused and it has to be determined considering the nature and gravity of the offence and harm done to the victim vis-a-vis circumstances favourable to the accused. Right of the victim or his family members cannot be ignored and eschwed. It is inevitable to consider them otherwise the criminal law will lose its sting and deterrent and retributive aspects of punishment will become moldy and otiose. Appreciated from this angle also there does not appear any mitigating circumstances. Brutality of assault by itself is repulsive and I say no more in the wake of horrendous pain and miserable sufferings born by the victim who was extremely vulnerable. Appreciated from this angle also there does not appear any mitigating circumstances. Brutality of assault by itself is repulsive and I say no more in the wake of horrendous pain and miserable sufferings born by the victim who was extremely vulnerable. 80.Turning to the mitigating circumstances, it is noted that appellant is 35 years of age and has got brothers and sisters, and that there is no crime record against his mantles against any other individual except deceased and his family and chances of his ways has not lost. He has a mother who is still alive. Learned trial Judge has rejected all these so called palliative circumstances and so am l. If a person is not so young or old and if he commits a mind boggling offence should he be spared of a proportional punishment because of his age ? If this be so then people of all ages will be entitled to reap fruits of this categorization. Appellant is not so young and was quite a grown up man. Deceased was of the age of his daughter. He did not show any mercy on her while chopping her body by kata. She was bare handed and helpless having a fragile physic. Appellant know very well that crime he was indulging into and the outcome there of and hence had the most sinister mens rea. Age, therefore, cannot be a mitigating factor for him to spare his life looking to his criminality. 81.Coming to the criminal record, appellant had no criminal proclivity initially, but while executing the incident he depicted extreme brutality, and more over on the earlier occasion also he had trespassed into deceased house and had pulled her. But the determinative aspect is whether, this factor is sufficient to dismiss Reference ? In my considered view, no remorse or contrition or guilty consciousness shown by the appellant and the grotesque manner in which he had taken life of a young college going student in the prime of her youth and severity of the injuries caused to her outweighs the reason that he does not have criminal background against other persons. In my considered view, no remorse or contrition or guilty consciousness shown by the appellant and the grotesque manner in which he had taken life of a young college going student in the prime of her youth and severity of the injuries caused to her outweighs the reason that he does not have criminal background against other persons. A maiden crime warranting death penalty, like the incident occurred in the capital, is sufficient for affirming maximum sentence and not to overturn it, that is to say that if the maiden crime has the potentiality of being bracketed in ‘rarest of rare’ category when there is no impediment in imposing death penalty. The determinative test is not the first or second crime but it is the nature and manner of execution which determinate the test of ‘rarest of rare ‘category and that is significant. 82.Likewise having brothers and other family members is no reason to alter the sentence awarded. As a proposition of Law is cannot be laid down that who so ever will have a family will never be sentenced to death howsoever macabre, gruesome, cruel and diabolical his crime may be. It is very surreal to note that, although appellant’s brothers are gainfully employed in respectable jobs but both of them did not come forward to lay a helping hand to him even though he has been sentenced to death. 83.Lastly coming to chance of reformation, I am of the view that it is a hypothetical prognosis. It is for the convict to reform himself or be a recidivist. It cannot be said with any amount of certainty that the appellant will mend his ways. He has shown no remorse, guilt consciousness or contrition. It has not been shown to us that he is ready for penance. All through, during the trial, he maintained that he is innocent and has been falsely implicated due to village factional vindictiveness. He reside in the same locality and instead of treating a girl of his daughter’s age with compassion and mercy he had an evil eye on her and, without compassion, virtually butchered her to death. Although I have not received any adverse report from jail during period of his incarceration, but the gravity of his crime and the revolting manner of its execution restrains me from extracting his case out of purview of ‘rarest of rare case’ and obviate his difficulties. Although I have not received any adverse report from jail during period of his incarceration, but the gravity of his crime and the revolting manner of its execution restrains me from extracting his case out of purview of ‘rarest of rare case’ and obviate his difficulties. The soul of law is its transcendental quality and characteristic adaptability of ever changing social fact situations. It has to keep itself abreast with changes in society and reject rigidity. Unless the Laws are modulated and demodulated according to contemporary need it will be outdated and lifeless legislation. Therefore looking to the prevailing social scenario and the worries expressed time and again by the Apex Court and many High Courts, the penal jurisprudential archaic approach has to be slightly altered concerning crime against woman and children. A more stringent and stricter approach is required in their respect if at all we hanker to build up a much dignified and peaceful social order. 84.For all the reasons, I hereby close down this judgment by concluding that the Jail Criminal Appeal preferred by the appellant being JCRLA No. 51 of 2014 sans merit and is hereby dismissed by confirming appellant-Banabihari Behera @ Haria’s conviction and sentence awarded by the impugned judgment and order dated 27/28.08.2014 recorded by learned Additional Sessions Judge, Jajpur in C.T. Case No.315 of 2013 ( State Vrs. Banabihari Behera alias Haria) relating to G.R. Case No.462/2013 vide Tomka Police Station Case No.28 (3) of 2013, district Jajpur. Conviction and sentence of death penalty and fine and default sentence imposed thereto awarded to the appellant is hereby confirmed and affirmed. 85.In view of aforesaid, DSREF No.2 of 2014 dispatched by learned Trial Judge stands allowed by confirming sentence of death penalty. RAGHUBIR DASH, J. 86.Having availed of the privilege to go through the judgment of my learned brother Judge, I fully agree with the view taken by His Lordship in the matter of conviction of the Appellant under Section 302 I.P.C. but I humbly disagree with His Lordship’s view on sentencing the Appellant to death. In support of this dissenting view I narrate the reasons herein below: While ascertaining he aggravating circumstances, in the present case one should not proceed under a notion that the Appellant killed the young giril as because he could not overpower her so as to satisfy his lust. In support of this dissenting view I narrate the reasons herein below: While ascertaining he aggravating circumstances, in the present case one should not proceed under a notion that the Appellant killed the young giril as because he could not overpower her so as to satisfy his lust. Though it is the case of the prosecution that the Appellant was infatuated with the victim and finding that there was no reciprocal response from the deceased he, for a period of time, subjected her to harassment there is no evidence to that effect even from her parents who are the best persons to speak as to whether the deceased herself had ever made any such allegations to them or that they had themselves seen any such incidents wherefrom they presumed that the Appellant was infatuated with the deceased and used to approach her for sexual favour. The only witness who has stated something on this aspect is P.W. 20. But his statement made in the Court is omnibus in nature and there is absence of materials to say that he had any direct knowledge on such general allegations. He is anot a family member, nor a blood relation of the deceased. He is a co-villager. But he does not say in clear terms as to how and on what basis he claims that the Appellant had developed one sided love towards the deceased and for that he used to approach the girl time and agqain and harassing her on the road. It is a fact that he is not an eye-witness to the killing of the deceased. Yet he says that deceased was killed by the Appellant. This gives rise to an apprehension that all such general statements he has made before the Court are hearsay in nature. Therefore, while considering the aggravating circumstances it should not weigh in the mind of the Court that the Appellant, because of his infatuation for the deceased and having failed to receive favourable response from her, did the criminal act as a result of utter frustration. The prosecution case is that on earlier occasion the Appellant had trespassed into deceased’s house and pulled her either to kidnap her or to outrage her modesty. The prosecution case is that on earlier occasion the Appellant had trespassed into deceased’s house and pulled her either to kidnap her or to outrage her modesty. Such assertion should not be given any importance because, even though some of the prosecution witnesses have deposed on this part of the prosecution case, such evidence is not free from reasonable suspicion. The victim’s parents (P.Ws. 2 and 3) have stated that about 1½ months prior to the murder of the victim the Appellant had trespassed into their house and pulled their daughter for which he (Appellant) was locked in their house and when the family members of the Appellant reported the matter to the police, the police came to their village and rescued the Appellant from their house. In this regard, they have further stated that on that alleged incident a compromise was arrived at and the terms of the compromise was reduced to writing. P.W. 2 claims that a copy of compromise is with him. The I.O. did not seize the written compromise, nor did the prosecution take any steps for production thereof. While vetting through the case diary it is noticed that on the second day of the investigation it came to the notice of the I.O. from local enquiry that the families of the Appellant and the deceased were in quarrelling terms over the Appellant’s free entry into the informant’s house. It is further stated by the I.O. that there was relationship between the Appellant and victim’s mother since long which was protested by the deceased. This note in the case diary cannot be used as a piece of evidence. But, in the face of such a note in the case diary, the suppression of the written compromise gathers more importance and adverse inference has to be drawn against the prosecution that the alleged entry of the Appellant into the informant’s house about 1 ½ month before the incident was not with the criminal intention to either kidnap or outrage the modesty of the deceased. The aforesaid factual aspect is dealt with at this stage to ascertain whether those are to be taken into consideration wile preparing a balance sheet of aggravating and mitigating circumstances. Having said all these, I find that only the following aggravating circumstances are left for consideration :- (i)It is a cold blooded murder. (ii)The victim was aged about 16. The aforesaid factual aspect is dealt with at this stage to ascertain whether those are to be taken into consideration wile preparing a balance sheet of aggravating and mitigating circumstances. Having said all these, I find that only the following aggravating circumstances are left for consideration :- (i)It is a cold blooded murder. (ii)The victim was aged about 16. (iii)As many as 12 injuries were inflicted. All these show the brutality of the crime committed. However, brutality and heinousness of the crime does not turn the scale towards death sentence. 87.The mitigating circumstances may be narrated as follows : (i)The Appellant was in inimical terms with the deceased’s family. (ii)He has got no criminal antecedent. At the relevant time he was aged about 35 and still a bachelor. He is a truck driver. There is no accusation that prior to the incident his conduct towards any other female folks in the village or anywhere else was objectionable. (iii)It is not shown by the prosecution that he is a menace to the society and as such remains a continuous threat to the society. (iv)The prosecution has also failed to show that probability of reform of the Appellant is ruled out. (In Bachan Singh –Vrs.- State of Punjab, (1980) 2 SCC 684 it is laid down that the State shall by evidence prove that the accused is not a menace to the society and he cannot be reformed and rehabilitated). (v)Though motive and/or genesis of the crime have been specified by the prosecution the same has not been clearly projected. 88.This is a case of murder simplicitor. Imprisonment for life is the only adequate punishment for the Appellant. All the four objects which the State intends to achieve, namely, deterrence, prevention, retribution and reformation can be achieved by way of awarding life imprisonment which is the rule whereas death penalty is an exception. The following observations made in Mohd. Mannan alias Abdul Mannan –Vrs.- State of Bihar, reported in (2011) 5 Supreme Court Cases 317 are quoted for proper guidance:- Further, crime being brutal and heinous itself does not turn the scale towards the death sentence. When the crime is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community and when collective conscience of the Community is petrified, one has to lean towards the death sentence. When the crime is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community and when collective conscience of the Community is petrified, one has to lean towards the death sentence. But this is not the end. If these factors are present the Court has to see as to whether the accused is a menace to the society and would continue to be so, threatening its peaceful and harmonious coexistence. The Court has to further enquire and believe that the accused condemned cannot be reformed or rehabilitated and shall continue with the criminal acts. In this way a balance sheet is to be prepared, while considering the imposition of penalty of death, of aggravating and mitigating circumstances and a just balance is to be struck. So long the death sentence is provided in the statute and when collective conscience of the community is petrified, it is expected that the holders of judicial power do not stammer dehors their personal opinion and inflict death penalty. These are the broad guidelines which this Court had laid down for imposition of the death penalty. 89.In view of the discussions made above, I humbly disagree with my learned brother Judge’s view that this is a case which fails in the category of “rarest of rare” cases and that the only adequate penalty is death sentence. Therefore, awarding of life imprisonment is the only option available. Ordered accordingly.