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'Ruthless Criminal Also Entitled To Life Of Dignity': Orissa HC Commutes Death Sentence Awarded To 9 Persons For Witchcraft Triple Murder
Jyoti Prakash Dutta
15 Jan 2025 2:51 PM
The Orissa High Court on Wednesday (January 15) commuted the death sentence awarded to nine persons by the Sessions Judge, Rayagada for committing murder of three members of a family in 2016, suspecting their involvement in witchcraft.While lessening the sentence to imprisonment till the end of natural life, the Division Bench of Justice Sangam Kumar Sahoo and Justice Radha Krishna Pattanaik...
The Orissa High Court on Wednesday (January 15) commuted the death sentence awarded to nine persons by the Sessions Judge, Rayagada for committing murder of three members of a family in 2016, suspecting their involvement in witchcraft.
While lessening the sentence to imprisonment till the end of natural life, the Division Bench of Justice Sangam Kumar Sahoo and Justice Radha Krishna Pattanaik was of the view that reformation of the condemned prisoners cannot be ruled out and held –
“We should not forget that the criminal, however ruthless he might be, is nevertheless a human being and is entitled to a life of dignity notwithstanding his crime. It is for the prosecution and the Court to determine whether such a person, notwithstanding his crime, can be reformed and rehabilitated.”
Prosecution Case
The informant Melita Sabar lodged an FIR on 16.09.2016 alleging that her father Asina Sabar, mother Amabaya Sabar and elder sister Ashamani Sabar (deceased persons) were murdered in the evening hours of 09.09.2016 by the present appellants/condemned prisoners along with a juvenile offender.
In the FIR, she narrated that after being informed that her parents along with her elder sister were tied and were being tortured in a cowshed, she rushed to the spot. Upon reaching at the spot, she was also tied to a stump by the appellants.
She further alleged that the appellants assaulted her father, mother and elder sister and were accusing them of killing some of the co-villagers by practising sorcery. They also abused the deceased persons and held them responsible for persisting fever and ill-health of some other villagers.
The informant had further stated that one of the appellants brought out a syringe filled with some pesticides, pierced its needle in the mouth, cheek and eyes of her deceased elder sister and asked her to tell the truth or else he would kill her. At that time, the other nine appellants were mercilessly assaulting her parents by means of lathis.
Thereafter, the appellants took the deceased persons, one after another, to a burial ground where they assaulted the three persons, who were already in a moribund condition. Merciless assault on the deceased resulted in their death whereafter they were buried.
The appellants asked the informant not to disclose the fact before anyone and threatened of her dire consequences, in case she divulges about the occurrence before the police. On 15.09.2016, she came to know that the appellants exhumed the dead bodies from the place of burial and cremated them.
After registration of the FIR, investigation was carried out and upon its completion, a charge-sheet was filed against the appellants under Sections 302, 201, 342, 506 read with Section 34 of the IPC and Section 4 of the Odisha Prevention of Witch Hunting Act, 2013 (the 2013 Act).
Trial Court's Order
After analysing the oral and documentary evidence, the trial Court found that the appellants, after assaulting the three deceased persons in the cow-shed, took them one after another to a different place in a moribund state and the informant is an eye witness to the first scene of the occurrence.
It further held that the appellants were last seen with the deceased persons on 09.09.2016 at about 8 PM, to which the informant is a witness, when they shifted the deceased persons to another place and they again came in contact with the informant after about one hour, but thereafter the three deceased were never seen alive.
Considering the time gap between the company of both the parties and the death of the deceased persons to be significantly small, the Court was of the view that possibility of others intervening in the killing of the deceased persons can be safely ruled out.
Accordingly, it held all the nine appellants guilty for commission of offences under Sections 342/364/365/302/201/506/34 of the IPC read with Section 4 of the 2013 Act. Holding that the collective conscience of the society was shocked by the crime, the trial Court held it to be a 'rarest of rare' case warranting imposition of death sentence on all the appellants for commission of offence under Section 302/34 of the IPC.
High Court's Findings
After examining the evidence on record, the Court found that the informant is the solitary eye-witness to a part of the crime. It was argued on behalf of the appellant that she, being a close relative of the deceased persons, is an 'interested witness' and thus, her evidence should be viewed with suspicion. The Court was, however, not convinced by such contention and held –
“We are not inclined to accept such submission as 'related' is not equivalent to 'interested'. The witness may be called 'interested' only when he or she has derived some benefit from the result of a litigation in the decree in a civil case, or in seeing an accused person punished. A witness, who is a natural one and is the only possible eye witness in the circumstances of a case, cannot be said to be `interested'.”
It further clarified that merely because the informant is the solitary witness to the crime, this fact per se does not call for discarding her evidence or suspecting her veracity.
“Neither the legislature (Section 134, Evidence Act, 1872) nor the judiciary mandates that there must be particular number of witnesses to record an order of conviction against the accused. Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction,” it held.
The appellants challenged the prosecution case on the ground of delay in lodging of the FIR, but the Court was convinced with the explanation furnished by the informant regarding such delay and thus observed –
“…since it was a small village consisting of only 25 houses and she was staying in the house of the Samiti member, she can be said to be under the close watch of not only the appellants but also the Samiti member who appears to have closeness with the appellants… We are of the view that the explanation furnished by P.W.1 regarding delay in lodging the F.I.R. is quite satisfactory and plausible...”
Non-Recovery Of Corpus Delicti Not Fatal
It was further argued on behalf of the appellants that the informant has only seen a part of the occurrence in the cow-shed and she has not witnessed as to what happened to the deceased persons once they were taken out of there. Furthermore, the dead bodies of the deceased were never recovered.
The Court, however, placed reliance on a number of judgments of the Apex Court wherein it is held that conviction in a case does not necessarily depend upon recovery of corpus delicti i.e. dead bodies. In this regard, reference was made to Ramachandra v. State of Uttar Pradesh, Mani Kumar Thapa v. State of Sikkim, Prithipal Singh & Ors. v. State of Punjab & Ors. and Rishi Pal v. State of Uttarakhand.
Having regard for the aforesaid precedents, the Court observed that when it is not disputed that the deceased persons were taken away, one after another, from the cow-shed by the appellants and shortly thereafter, the informant was informed about their murder and most importantly, they were never seen alive after the said occurrence, it is for the appellants to explain, as per Section 106, as to under which circumstances their death happened.
Apart from the above, the Court also emphasized the conduct of the appellants who not only gave extra-judicial confession about commission of the ghastly murder but also asked the informant to take bath in a spring since after killing human beings, they were not supposed to go straight to their houses without taking bath. The Bench found it relevant under Section 8 of the Evidence Act.
Thus, the Court found the appellants guilty for commission of offences under Section 342 (wrongful confinement), Section 364 (kidnapping or abducting in order to murder), Section 365 (kidnapping or abducting with intent secretly and wrongfully to confine person) Section 201 (causing disappearance of evidence), Section 506 (criminal intimidation) and Section 302 (murder) of the IPC.
Not Guilty For 'Witch Hunting'
The trial Court had found the appellants guilty under Section 4 of the 2013 Act which provides penalty for 'witch-hunting'. Sub-section (2) of Section 4 states that if any one forces any woman, branding her as witch, to drink or eat any inedible substance or any other obnoxious substance or parade her with her painted face or body or commits any similar acts, which is derogatory to human dignity or displaces from her house can be punished for witch-haunting.
“On the face of the evidence of P.W.1, there is no such material to attract the ingredients of sub-section (2) of section 4 of the O.P.W.H. Act, 2013 as neither the two lady deceased nor the informant (P.W.1) were forced by the appellants, branding them as witches, to drink or eat any inedible substance or any other obnoxious substance or were paraded with painted face or body or any such similar acts were committed, which were derogatory to human dignity or they were displaced from their house,” the Court held.
Therefore, it acquitted the appellants for commission of offence under Section 4 of the 2013 Act.
On Death Penalty
The Bench led by Justice Sahoo underlined that the trial Court after pronouncing the order of conviction against the appellants on 21.10.2021, posted the case on the same day for hearing on the question of sentence and later at 02.00 PM, after hearing the prosecutor and the defence counsel, found the crime to be 'rarest of rare'. Accordingly, it handed down the extreme penalty of death.
“It is thus clear that the learned trial Court after convicting the appellants has not given adequate opportunity to them to produce the mitigating circumstances in their favour nor it tried to collect the same nor discussed what the mitigating circumstances are available in favour of the appellants, but merely stated that the aggravating circumstances were outweighing the mitigating circumstances,” it added.
The Bench had earlier asked the Superintendent of Prison to collect detailed information with reports on the past life, psychological condition and post-conviction conduct of the appellants and other relevant materials which could potentially point toward mitigating factors.
As per the above order, the Senior Superintendent of Circle Jail, Koraput submitted affidavit containing social reports of all the appellants, their health reports including mental status and their conduct and behaviour in jail, which were found to be good.
In view of such report from the authority as well as upon balancing the aggravating circumstances against the mitigating circumstances, the Court said –
“…it cannot be said that there is no possibility of the appellants being reformed and rehabilitated foreclosing the alternative option of a lesser sentence and making imposition of death sentence imperative or in other words, life imprisonment would be completely inadequate and would not meet the ends of justice.”
Accordingly, the sentence of death imposed upon all the nine appellants was commuted to imprisonment for life, which shall mean till the end of their natural lives. It was clarified that they shall not be entitled to the benefit of remission/commutation under Sections 432 and 433 of the CrPC.
Before parting with the judgment, the Court awarded a compensation amount i.e. Rs.10,00,000/- (rupees ten lakhs) for each of the death, as provided under Schedule-II of the Odisha Victim Compensation Scheme, i.e. in total Rs.30,00,000/- (rupees thirty lakhs) which is to be paid to the informant, her sister and her brothers in equal proportion.
Case Title: State of Odisha v. Dengun Sabar & Ors.
Case No: DSREF No. 1 of 2021 along with CRLA No. 750 of 2021
Date of Judgment: January 15, 2025
Counsel for the Condemned Prisoners/Appellants: Mr. Himansu Bhusan Dash, Advocate; Mr. Manas Kumar Chand, Advocate
Counsel for the State: Mr. Arupananda Das, Addl. Govt. Advocate
Citation: 2025 LiveLaw (Ori) 6