HIGH COURT OF ORISSA: CUTTACK.
DSREF No.1 of 2018 JCRLA No.46 of 2018.

In the matter of a reference under Section 366(I) of the Code of Criminal
Procedure and application under Section 383 of the Code of Criminal
Procedure, arising out of the judgment of conviction and order dated
11.4.2018/13.04.2018 passed by Dr. Suvendu Kumar Pati, Addl. Sessions
Judge, Gunupur in Criminal Trial No.7 of 2017.
———

DSREF No.1 of 2018

State of Odisha ………. Appellant.

– Versus-

1. Dengun Sabar, aged about 37 years, S/o- Late Karibang Sabar,

2. Dasunta Sabar, aged about 27 years, S/o- Late Kukur Sabar,

3. Aajanta Sabar, aged about 27 years, S/o-Meghanada Sabar,

4. Padhantu Sabar, aged about 34 years, S/o-Late Dengang Sabar,

5. Dalasa Sabar, aged about 30 years, S/o- Late Sartina Sabar,

6. Malku Sabar, aged about 38 years, S/o- Late Drajika Sabar,

7. Bubuna Sabar, aged about 38 years, S/o- Late Malinga Sabar,

8. Lakiya Sabar, aged about 34 years, S/o- Late Paja Sabar,
and

9. Iru Sabar, aged about 24 years, S/o-Late Garbab Sabar.

All are of Village Kitum, P.S.-Puttasing,
District – Rayagada (as per judgment of the lower court)
………. Respondents.

Counsel for Appellant :Mr. Janmejaya Katikia, Addl.

Government Advocate.

Counsel for Respondents :Mr. Ratikanta Mohapatra, Amicus
Curiae.

Counsel for Informant : Mr. Ashok Kumar Mishra.

JCRLA No.46 of 2018

1. Dengun Sabar and others ………. Appellants.

– Versus-

State of Odisha ………. Respondent.
2

Counsel for Appellants :Mr. Ratikanta Mohapatra, Amicus
Curiae.

Counsel for Respondent :Mr. Janmejaya Katikia, Addl.
Government Advocate.

Counsel for Informant :M/s. Asit Kumar Choudhury, A. K.
Mishra, A. K. Panda, K. C. Sarangi and
N. K. Sahoo.
PRESENT:

THE HONOURABLE SRI JUSTICE S. K. MISHRA.

THE HONOURABLE DR. JUSTICE A. K. MISHRA.

————————————————————————————-

Date of hearing: 11.09.2019 Date of Judgment : 5.11.2019

————————————————————————————-

Dr. A.K. Mishra, J. Learned Addl. Sessions Judge, Gunupur vide

judgment dated 11.04.2018/13.04.2018 in Criminal Trial No.07 of

2017 convicted nine appellants U/s. 302/201/365/342/506/34 of

the SectionI.P.C. and Section 4 of the Odisha Prevention of Witch Hunting

Act, 2013 and passed the following sentence.

Offence sentence

U/s.302 of the IPC All the convicts are sentenced to death for committing offence of

murder punishable U/s.302 Of the SectionIPC and to pay a fine of

Rs.50,000/-each in default to undergo imprisonment for one more

year. Each of the convicts be hanged by their neck till they are

individually dead.

U/s.201 of the SectionIPC Each of the convicts shall undergo R.I. for three years and to pay

fine of Rs.5000/- each i.d. to SI for three months.

U/s.365 of the SectionIPC Each of the convicts shall undergo R.I. for three months and to pay

fine of Rs.5000/- each i.d to SI for three months.

U/s.342 of the SectionIPC Each of the convicts shall undergo SI for three months.
3

U/s.506 of the SectionIPC Each of the convicts shall undergo SI for two years.

Section 4 of the Odisha Each of the convicts shall undergo SI for one year and to pay fine

Prevention of Witch of Rs.1000/- i.d. for one month.

Hunting Act, 2013

All the sentences were to run concurrently on

modification/commutation/remission of sentences or pardon

granted to the convicts.

Learned Addl. Sessions Judge also allowed compensation

in the following manner:-

“From out of Rs.61,000/- fine imposed on each of the convicts,
Rs.41,000/- each shall be paid as compensation to the
informant Melita Sabar and her two younger brothers
combinedly for equal distribution among them, if the same is
realised. Additionally, as they have become Orphans and lost
three closest members of their family along with house and
property, Victim Compensation Committee is requested to pay
compensation to them for their loss in terms of 2016 Scheme
applicable for loss of human life. A copy of the judgment be
accordingly forwarded to the District Compensation Committee
through the Secretary, District Legal Services Authority,
Rayagada.”

2. In DSREF No.1 of 2018, the record has been submitted

to the court for confirmation U/s.366 of the SectionCr.P.C. All the convicts

have preferred appeal from jail U/s.383 of the SectionCr.P.C. resulting

JCRLA No.46 of 2018. Both the reference and appeal are heard

together.

4

Mr. Janmejaya Katikia, learned Addl. Govt. Advocate

argued the matter on behalf of State, Mr. Ashok Ku. Mishra, learned

counsel for the informant and Mr. Ratikanta Mohapatra, learned

State Defence Counsel appointed on behalf of the appellants through

Legal Services Authority in jail criminal appeal advanced their

respective submissions both orally and in written.

3. The gravamen of the charge that the accused persons in

furtherance of common intention suspecting the practice of

Witchcraft abducted, criminal intimidated and murdered three

persons namely Asina Sabar, Ambaya Sabar and Ashamani Sabar

on 9.9.2016 at 8 P.M. at village Kitum and caused disappearance of

the evidence with intention to screen the offenders.

The informant Melita Sabar is the daughter of Asina and

Ambaya and the younger sister of the deceased Ashamani Sabar.

The incident was unfolded by the informant lodging the F.I.R. on

16.9.2016 at Puttasingh P.S. As per the informant, on 9.9.2016 at

evening she had gone to the house of one Anita Sabar, a co-villager

to deliver corn. After half an hour she returned and did not find the

family members in the house. One Damanta Sabar informed that her

parents and elder sister were confined in the cowshed of Girijana

Sabar. She rushed there. On her arrival, she was also tied against
5

stump and found that all the accused persons including one Jamsu

Sabar (child in Conflict with Law) were assaulting her parents and

elder sister who were tied separately against stumps. They were

accusing them as to why they practised sorcery as a result of which

two of their co-villagers namely Jamjam and Biranti died. They also

blamed them to have caused fever and sickness to Ajanta, Ghunguri

and Bubuna by sorcery. The accused persons were trying to extract

confession from them and for that they were threatening to kill

them. The parents of the informant pleaded their ignorance. Accused

Dasanta brought one injection syringe with pesticide and injected

the same in the mouth, cheek and eyes of her sister Ashamani. They

assaulted her parents and sister giving kicks and fist blows. They

also gave blows by means of lathis. Her parents and elder sister

became half-dead. The accused persons took her sister outside. After

some time, her mother was taken up and thereafter her father. The

accused persons also untied her and threatened to kill her brothers

if the incident was disclosed before anyone including police.

Out of fear, she could not inform the matter before

others. On 15.09.2016, she came to know that all the accused

persons disinterred the dead bodies from their burial and cremated

all the three cadavers. She mustered courage and lodged an F.I.R. on

16.09.2016. It was scribed by one Janathan Lima. F.I.R. was

registered U/s.302/201/342/506/34 of the SectionIPC and under Section 4
6

of the Odisha Prevention of Witch Hunting Act, 2013 (hereinafter

called as „OPWH Act‟) vide Puttasing P.S. Case No.17 dated

16.09.2016. The I.I.C., Puttasing P.S. took up investigation who is

examined as P.W.11.

4. In course of investigation, the statement of the informant

U/s.164 of SectionCr.P.C. was recorded on 19.09.2016. The spot was

visited. On the leading to discovery by accused Dengun Sabar, one

„lathi‟ as weapon of offence was seized vide Ext.5. The Scientific

Team collected some charred bones and ashes from the spot. It was

packed, sealed and seized under Ext. 3 and 4. The said bones were

sent for D.N.A. Examination. D.N.A. profile could not be conducted

as the bones were burnt completely and required quantity of D.N.A.

could not be extracted vide report of S.F.S.L. No.1523 dated

2.2.2017 (Ext.21).

Investigating Officer also examined witnesses U/s.161

SectionCr.P.C. The accused persons were arrested. After completion of

investigation, charge-sheet No.01 dated 12.01.2017 was submitted

U/s.302/201/342/506/34 of the SectionIPC read with Section 4 of OPWH

Act against all the accused persons.

5. Learned SDJM, Gunupur took cognizance and

committed the case to the court of learned Addl. Sessions Judge,
7

Gunupur. On 7.7.2017, charge was framed

U/s.302/201/342/506/34 of the SectionIPC and under Section 4 of OPHW

Act.

All the accused persons pleaded not guilty and faced

trial. The prosecution examined 11 witnesses in all. Defence

examined none. 24 exhibits were marked and 15 material objects

were admitted to record.

6. P.W.1 is the informant. P.W. Nos.2 to 8 are co-villagers.

P.W.9 is the maternal uncle of the informant. P.W.10 is a Constable.

P.W.11 is the Investigating Officer. P.Ws.2 to 7 are declared hostile.

P.W.8 does not support the prosecution taking the plea of alibi.

6-I. The plea of defence was denial simplicitor.

7. Learned Addl. Sessions Judge analysed the evidence on

record and held the accused persons guilty and passed sentence as

stated above. While holding the accused persons guilty for the

offence U/s.302/201/365/342/506/34 of the SectionIPC and under

Section 4 of OPWH Act, learned Addl. Sessions Judge has

specifically observed in the judgment at para-35 that the accused

persons were not charged with offence for commission of abduction

punishable U/s.365 of the SectionIPC.

8

We carefully perused the written note of submissions

filed by each of the learned counsel and the citations. Bestowing our

keen attention, the materials on record are carefully scrutinised.

Learned Addl. Sessions Judge has convicted the accused

persons U/s.365 of the SectionIPC without charge. Learned Addl. Govt.

Advocate has not subscribed his legal view on that.

8. The duty of the High Court in dealing with reference

U/s.366 of SectionCr.P.C. is not only to see whether the order passed by the

Addl. Sessions Judge is correct, but to examine the case for itself

and even direct a further enquiry if the Court consider it desirable in

order to ascertain the guilt or the innocence of the convicted

persons. Conviction can be made in respect of minor offence where

the accused is charged with on major offence. The major and minor

offences must be cognate offences. Section 222 of the Cr.P.C. is in

the nature of general provision which empowers the Court to convict

the accused for a minor offence even though the charge has been

framed for a major offence.

In the case of Rafiq Ahmed @ Rafi vrs. State of U.P.

reported in AIR 2011 SC 3114, the Hon‟ble Apex Court has clarified

the meaning of cognate offence and observed as follows:-
9

“23. Having stated the above, let us now examine what
kind of offences may fall in the same category except to
the extent of „grave or less grave‟. We have already noticed
that a person charged with a heinous or grave offence can
be punished for a less grave offence of cognate nature
whose essentials are satisfied with the evidence on record.

xxx xxx xxx xxx

25. This expression has also been recognized and applied
to the criminal jurisprudence as well not only in the
Indian system but even in other parts of the world. Such
offences indicate the similarity, common essential features
between the offences and they primarily being based on
differences of degree have been understood to be „cognate
offences‟. Black‟s Law Dictionary (English Edition) defines
the expression „cognate offences‟ as follows.

“Cognate offences. A lesser offence that is related to
the greater offense because it shares several of the
elements of the greater offense and is of the same class or
category. For example, shoplifting is a cognate offence of
larceny because both crimes require the element of taking
property with the intent to deprive the rightful owner of
that property.”

“12. xxx xxx xxx xxx
There can be cases where it may not be possible at all to
punish a person of a less grave offence if its ingredients
are completely different and distinct from the grave
offence. To deal with this aspect illustratively, one could
say that a person who is charged with an offence under
Section 326 may not be liable to be convicted for an
offence under Section 406 IPC because their ingredients
10

are entirely distinct, different and have to be established
by the prosecution on its own strength. In other words,
the accused has to be charged with a grave offence which
would take within its ambit and scope the ingredients of a
less grave offence. The evidence led by the prosecution for
a grave offence, thus, would cover an offence of a less
grave nature.

But it is essential that the offence, for which the Court
proposes to punish the accused, is established beyond
reasonable doubt by the prosecution.”

9. In the decision reported in (2012) 9 SCC 650 in the case
of Bhimanna vrs. State of Karnataka, the Hon‟ble Apex Court at
para-14 to 16 has observed as follows:-

“14. It is a matter of great regret that the trial court
did not proceed with the case in the correct
manner. If the trial Court was of the view that there
was sufficient evidence on record against Yenkappa
(A-1) and Suganna (A-3), which would make them
liable for conviction and punishment for offences,
other than those under Sections 447 and Section504/Section34
IPC, the court was certainly not helpless to
alter/add the requisite charges, at any stage prior
to the conclusion of the trial. Section 216 of the
Code of Criminal Procedure, 1973 empowers the
trial Court to alter/add charge(s), at any stage
before the conclusion of the trial. However, law
requires that, in case such alteration/addition of
charges causes any prejudice, in any way to the
accused, there must be a fresh trial on the said
altered/new charges, and for this purpose, the
prosecution may also be given an opportunity to
recall witnesses as required under Section 217
Cr.P.C.

15. In Hasanbhai Valibhai Qureshi vrs. State of
Gujarat, AIR 2004 SC 2078, this Court held :
“Therefore, if during trial the Trial Court, on a
consideration of broad probabilities of the case,
based upon total effect of the evidence and
11

documents produced is satisfied that any addition
or alteration of the charge is necessary, it is free to
do so, and there can be no legal bar to
appropriately act as the exigencies of the case
warrant or necessitate.

16. Such power empowering alteration/addition of
charge(s), can also be exercised by the appellate
court, in exercise of its powers under Sections
385(2) and Section386 Cr.P.C.”

10. Regards being had to the above law and in order to

ensure fair trial, we are of the considered view that learned Addl.

Sessions Judge has committed an error in convicting the accused

persons U/s.365 of the SectionIPC without framing charge in a Sessions

Trial. Offence U/s.365 of the SectionIPC provides the kidnapping or

abducting with intent to cause that person to be secretly and

wrongfully confined. This offence U/s. 365 of the SectionIPC is not a minor

offence to Section 302 of the IPC. The ingredients of this offence are

not ingrained in the offence of murder. Offence of abducting is not a

cognate offence to murder.

What follows from the above reasoning is that a failure of

justice has been occasioned due to such conviction U/s.365 of the

SectionIPC without charge. It is not a curable irregularity. Learned lower

Court should have resorted to Section 216 of Cr.P.C.

11. For the availability of material on record including the

police report, learned Addl. Sessions Judge should have framed
12

charge U/s.364 and 365 of the SectionIPC. Our opinion is persuaded by the

materials on record that dead body of three deceased persons could

not be recovered and DNA profile from the charred bones could not

be conducted.

12. We are consciously restrained to make any observation

on the merit of the matter including the appreciation of evidence

made in the impugned judgment under reference. As grave error has

been committed in not framing charges and thereby failure of justice

has been occasioned, we feel it just and proper for the interest of

justice to direct further inquiry U/s.367 of Cr.P.C.

13. We are constrained by the above analysis to set aside the

conviction and sentence passed in the impugned judgment dated

11.4.2018/13.04.2018 by the learned Addl. Sessions Judge,

Gunupur in Criminal Trial No.7 of 2017.

14. In the result, the matter is remanded to the trial Court

with a direction to add charge for the offence U/s.364 and 365 of the

IPC and to proceed keeping in view of the provision U/s.217 of

Cr.P.C.

Learned Trial Court shall ensure the completion of trial

within six months from the date of receipt of copy of this order.
13

Accordingly, DSREF is answered and JCRLA is disposed of.

LCRs. be sent back immediately.

…………………….

Dr. A.K. Mishra, J.

S.K. Mishra, J. I agree.

………………………..
S.K. Mishra, J.

Orissa High Court, Cuttack.
Dated the, 5th November ,2019/RRJena