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IN THE HIGH COURT OF ORISSA, CUTTACK
S.K. Mishra, A.K. Mishra, JJ.
State Of Odisha - Appellant
Versus
Dengun Sabar - Respondent
Death Reference No. 1 of 2018; Jail Criminal Appeal No. 46 of 2018
Decided On : 05-11-2019
Witchcraft - Criminal Trial - IPC 302/201/365/342/506/34, Odisha Prevention of Witch Hunting Act, 2013 - The court discussed the conviction of the accused under various sections of the IPC and the Odisha Prevention of Witch Hunting Act, 2013. The court also highlighted the failure to frame charges for the offence under IPC 365 and the subsequent direction for further inquiry under Cr.P.C. 367.
Fact of the Case:
The accused were convicted for the abduction, criminal intimidation, and murder of three individuals suspected of practicing witchcraft. The informant's family members were assaulted and killed by the accused, leading to the filing of an FIR and subsequent investigation.
Finding of the Court:
The court found the accused guilty of the charged offences but noted the failure to frame charges for the offence under IPC 365, leading to the direction for further inquiry under Cr.P.C. 367.
Issues: The main issue revolved around the conviction of the accused under various sections of the IPC and the Odisha Prevention of Witch Hunting Act, 2013, as well as the failure to frame charges for the offence under IPC 365.
Ratio Decidendi: The court's decision was influenced by the failure to frame charges for the offence under IPC 365, leading to the direction for further inquiry under Cr.P.C. 367.
Final Decision: The court set aside the conviction and sentence, remanding the matter to the trial court with a direction to add charges for the offence under IPC 364 and 365 and to ensure the completion of the trial within six months.
JUDGMENT
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 I.P.C. and Section 4 of the Odisha Prevention of Witch Hunting Act, 2013 and passed the following sentence. Offence 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 IPC 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 IPC | 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 IPC | 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 IPC | Each of the convicts shall undergo SI for three months. |
| U/s.506 of the IPC | Each of the convicts shall undergo SI for two years. |
| Section 4 of the Odisha Prevention of Witch Hunting Act, 2013 | Each of the convicts shall undergo SI for one year and to pay fine of Rs.1000/- i.d. for one month. |
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 Cr.P.C. All the convicts have preferred appeal from jail U/s.383 of the Cr.P.C. resulting JCRLA No.46 of 2018. Both the reference and appeal are heard together.
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
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