CUTTACK: The Orissa High Court on Tuesday remanded the Rayagada triple murder case back to Additional Sessions Judge court at Gunupur. The lower court had awarded death penalty to nine persons accused of killing three members of a family on sorcery charges.
The Additional Sessions’ Judge had held them guilty under Section 302, 365 and some other sections of IPC and awarded them death sentence on April 13, 2018 by terming it as rarest of rare case.
While setting aside the trial court order the division bench of Justice SK Mishra and Justice AK Mishra held that the judge had ‘committed an error in convicting the accused persons under Section 365 of IPC without framing charge in a sessions’ trial.’
The death sentence was referred to the High Court for confirmation. After the judgment, all nine accused had also filed jail criminal appeal against capital punishment. The bench had taken the death reference case for hearing along with the jail criminal appeal of the convicts - Dengun Sabar, Dasunta Sabar, Ajanta Sabar, Padhantu Sabar, Dalasa Sabar, Malku Sabar, Bubuna Sabar, Lakiya Sabar and Iru Sabar.
The High Court had appointed advocate Ratikanta Mohapatra as Amicus Curiae in the case.
The bench reasoned that offence under Section 365 of IPC provides the kidnapping or abducting with intent to cause that person to be secretly and wrongfully confined.
This offence under Section 365 of IPC is not a minor offence to Section 302 (Murder) of the IPC.
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 under Sec 365 of IPC without charge. It is not a curable irregularity”, the bench ruled.
“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 under Sec 367 of CrPC”, the bench observed.
“The matter is remanded to the trial court with a direction to add charge for the offence under Sec 364 and 365 of the IPC and proceed, keeping in view of the provision under Sec 217 of CrPC. The trial court shall ensure completion of the trial within six months”, the bench said in its order.
The bench however clarified: “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”.