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 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. 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 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. 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 IPC 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 Cr.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 Cr.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 IPC 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 IPC 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. Sessions Judge, Gunupur. On 7.7.2017, charge was framed U/s.302/201/342/506/34 of the IPC 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 IPC 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 IPC. 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 IPC 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 Cr.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., (2011) AIR SC 3114, the Hon'ble Apex Court has clarified the meaning of cognate offence and observed as follows:- "23. In the case of Rafiq Ahmed @ Rafi vrs. State of U.P., (2011) AIR 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 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 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 the case of Bhimanna vrs. 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 the case of Bhimanna vrs. State of Karnataka, (2012) 9 SCC 650 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 504/34 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 charges, 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, (2004) AIR 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 charges, can also be exercised by the appellate court, in exercise of its powers under Sections 385(2) and 386 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 IPC without framing charge in a Sessions Trial. 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 IPC without framing charge in a Sessions Trial. Offence U/s.365 of the IPC provides the kidnapping or abducting with intent to cause that person to be secretly and wrongfully confined. This offence U/s. 365 of the IPC 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 IPC 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 IPC. 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. Accordingly, DSREF is answered and JCRLA is disposed of. LCRs. be sent back immediately.