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.
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,
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)
Counsel for Appellant :Mr. Janmejaya Katikia, Addl.
Counsel for Respondents :Mr. Ratikanta Mohapatra, Amicus
Counsel for Informant : Mr. Ashok Kumar Mishra.
JCRLA No.46 of 2018
1. Dengun Sabar and others ………. Appellants.
State of Odisha ………. Respondent.
Counsel for Appellants :Mr. Ratikanta Mohapatra, Amicus
Counsel for Respondent :Mr. Janmejaya Katikia, Addl.
Counsel for Informant :M/s. Asit Kumar Choudhury, A. K.
Mishra, A. K. Panda, K. C. Sarangi and
N. K. Sahoo.
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.
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
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.
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,
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
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
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
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
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,
Gunupur. On 7.7.2017, charge was framed
U/s.302/201/342/506/34 of the SectionIPC and under Section 4 of OPHW
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.
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:-
“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
“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
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
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
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
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
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
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
Learned Trial Court shall ensure the completion of trial
within six months from the date of receipt of copy of this order.
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