Calcutta High Court (Appellete Side)
State Of West Bengal vs Kali Singh And Others on 4 October, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Moushumi Bhattacharya
Death Reference No.7 of 2016
STATE OF WEST BENGAL
. . .APPELLANT
VERSUS
KALI SINGH AND OTHERS
. . .RESPONDENTS
With
C.R.A. No.380 of 2016
SANI MANDI AND OTHERS
. . .APPELLANTS
VERSUS
STATE OF WEST BENGAL
. . .RESPONDENT
With
C.R.A. No.381 of 2016
CHHABI SINGH AND OTHERS
. . .APPELLANTS
VERSUS
STATE OF WEST BENGAL
. . .RESPONDENT
For the Appellant/(s) : Mr. Sekhar Kumar Basu, Sr. Adv.
Mr. Tapan Deb Nandi, Adv.
Mr. Soubhik Mitter, Adv.
Mr. Ranadeb Sengupta, Adv.
Mr. Sarajit Basu, Adv.
For the State/Respondent : Mr. Saswata Gopal Mukherjee, Ld. P.P.
Mr. Rudradipto Nandy, Adv.
Mr. Ayan Basu, Adv.
Ms. Sreyashi Biswas, Adv.
Heard on : 6.11.2017, 24.11.2017, 1.12.2017, 9.2.2018,
9.3.2018, 6.4.2018, 27.4.2018, 11.5.2018 &
12.7.2018.
Judgment on : 4.10.2018
Joymalya Bagchi, J.:
The appeals and the death reference are taken up for hearing analogously and are being disposed of by this common judgment and order.
The appellants are the members of Munda community under the Scheduled Tribe category residing at Dubrajpur and Haridaspur villages in the district of Paschim Medinipur. Labouring under the unfounded superstition that three women, namely, Sambari Singh, Fulmani Singh and Sombari Singh (hereinafter referred to as 'the victims') belonging to their community were 'witches' and due to their evil spell death and other misfortunes had befallen their community, a meeting was organized on 16.10.2012 at noon at Dubrajpur village under the leadership of one Thoba Singh (an absconding accused). The meeting was attended by Ganesh Singh, Sani Mandi, Bablu Singh and others. In the meeting the victims were declared as 'witches' and a sum of Rs.60,000/- was demanded as fine. As they failed to pay, the victims were assaulted indiscriminately with fists, blows and kicks. Laxmikanta Singh (P.W.1), husband of Sambari and his family members requested the villagers not to assault them. Thereupon they were threatened and the victims were dragged away by the appellants and others towards river Kangsabati and could not be traced for the night. On the next day, that is, 17.10.2012 P.W.1 came to know that the victims had been killed and their dead bodies buried in the banks of the river Kangsabati. P.W.1 lodged complaint at the Police Station resulting in Daspur Police Station Case No.171/12 dated 17.10.2012 under sections 147/148/302/201/506 of Indian Penal Code (for short 'I.P.C.'). Inquest was held over the dead bodies of the victims by the police officer as well as Magistrate. Post-mortem was also conducted over their dead bodies. In conclusion of investigation, charge-sheet was filed against forty-nine accused persons. Sixteen accused persons were arrested whereas thirty-three including Thoba Singh absconded. They were declared proclaimed offenders and the case was committed to the court of sessions and transferred to the Court of Additional Sessions Judge, Ghatal for trial and disposal. Charges were framed against the appellants and other accused persons under sections 147/148/149/302/201 of I.P.C. In the course of trial, two of the accused persons, namely, Biswanath Singh and Budhan Singh expired and the case was dropped against them. During trial, Bhaku Singh and Rabin Singh (being appellants in CRA 380 of 2016) were arrested and charges were framed against them. Subsequently, Jopa @ Sukumar Singh and Ganesh @ Thakur Singh and Ganesh Singh @ Bhula were arrested and put on trial.
In the course of trial, prosecution examined fifteen witnesses and exhibited a number of documents. Defence of appellants is one of innocence and false implication. In conclusion of trial, the trial Judge by judgment and order dated 13.5.2016 and 16.5.2016 convicted Sani Mandi, Bhaku Singh, Rabin Singh, Mangal Singh, Nura Singh, Somai @ Samai Mandi and Kali Singh (appellants in Criminal Appeal No.380 of 2016) for the offence punishable under sections 147/302/149/201 of I.P.C. and sentenced them to death. With regard to the appellants, in Criminal Appeal No.381 of 2016, namely, Chhabi Singh, Chandmoni Singh, Panchami Singh, Kuni @ Kuri Singh, Lakshmi Singh and Jayanti Singh @ Joyeti, the trial Judge convicted them for the offence punishable under sections 147/302/149/201 of I.P.C. and sentenced them to suffer rigorous imprisonment for life each and to pay a fine of Rs.60,000/- each, in default to suffer further rigorous imprisonment for one year each for the offence under sections 302/149 of I.P.C. No separate sentence was awarded against them for the offence punishable under sections 147/201 of I.P.C.
Jopa @ Sukumar Singh was convicted for commission of offence punishable under sections 147/201 of I.P.C. and was sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.50,000/-, in default to suffer further imprisonment for one year for the offence punishable under section 201 of I.P.C. and to suffer rigorous imprisonment for two years and to pay a fine of Rs.5000/-, in default to suffer imprisonment for one month more for the offence punishable under section 147 of I.P.C.
By the selfsame judgment and order, the trial Judge was pleased to acquit the co-accuseds, namely, Rinku Singh, Putul Singh, Sankar Singh/Mini Singh, Bhula @ Ganesh Singh and Ganesh Singh @ Thakur of the charges leveled against them.
Hence, the present appeals along with the reference for confirmation of death sentence against the appellants in Criminal Appeal No.380 of 2016.
Mr. Basu, learned senior advocate appearing on the behalf of the appellants argued that the evidence of the prosecution witnesses, particularly, P.W.s 1, 2, 3, 4, 11 and 13 suffer from gross contradictions and/or embellishments when compared with their previous treatment made to the police officer or Magistrate. None of the witnesses spoke of specific roles of the appellants in the murder of the victims in their earlier statements to police. There is contradiction between their versions in Court and that in First Information Report (for short 'F.I.R.') with regard to the time and place of holding the meeting on 16.10.2012. There is also confusion as to the number of people who had attended the meeting. While P.W.1 stated 50-60 were present, P.W.2 deposed 200-300 and P.W.13 stated that 30-40 persons attended the meeting. There is no evidence to show that the appellants were the members of an unlawful assembly whose common object was to murder the victims. Analysis of evidence of P.W.s 1 and 4 would show that all the aforesaid witnesses who are family members of the victims had been driven away from the place of occurrence and taken refuge inside their house. It is, therefore, improbable that they witnessed the incident, as alleged. P.W.11 did not state the names of any appellants apart from Sani Mandi in the instant case. Presence of P.W.13 at the time of assault on the riverbed is highly unlikely in the light of evidence of P.W.s 1 and 4 that all of them had been confined in their house. Names of the appellant did not transpire in the inquest report which was contemporaneously prepared and the time, place and manner of occurrence has not been proved beyond reasonable doubt. Medical evidence also does not support the prosecution version. Accordingly, the prosecution case cannot be said to have been proved beyond reasonable doubt. He relied on various authorities in support of his contentions.
On the other hand, learned Public Prosecutor for the State argued that the roles of the appellants has been specifically stated by P.W.s 1 to 4 and 13 who had witnessed the incident. The appellants under the leadership of Thoba Singh had held a meeting in the morning of 16.10.2012 and declared the victims as 'witches'. They demanded Rs.60,000/- as fine. As the victims were unable to pay they mercilessly assaulted and dragged to the riverbed of Kangsabati where they were murdered. On the next day their bodies were recovered with multiple injuries from the riverbed. Evidence of P.W.9 (post-mortem doctor) clearly shows innumerable injuries on the victims corroborating the ocular version of the prosecution witnesses. Genesis of the incident has clearly disclosed a diabolical murder of three hapless women of Scheduled Tribe community on the suspicion of being 'witches'. The appellants acted in a barbaric and brutal manner which is evident from their conduct of urinating on one of the victims and innumerable injuries on their bodies. The heinousness of crime and the vulnerability of the victims clearly puts the case in the 'rarest of rare' category justifying death sentence on some of the appellants.
Let me examine the rival submissions in the light of the evidence on record. P.W. 1, Laxmikanta Singh is the husband of Sambari Singh. Fulmani Singh is his mother-in-law and Sombari Singh is his elder sister in relation. The villagers of Dubrajpur and Harirajpur doubted that the aforesaid three women were 'witches'. On 29th Aswin at around 8.00 a.m. the villagers assembled in front of the house of Bablu Singh under the leadership of Thoba Singh, Ganesh Singh, Sani Mandi, Jopa Singh, Babaji Singh. They took his wife, mother-in-law and sister to the side of river Kangsabati and assaulted them. The accused persons drove them away from that place. On the next morning, they found the dead bodies beside the river Kangsabati. He lodged a written complaint which was written by a person outside the police station. He proved his L.T.I. on the written complaint. Police arrested seventeen accused persons and only fifteen are present in Court. He identified Sani Mandi. In cross-examination, he stated he is illiterate. He did not accompany Thoba Singh. He further stated that about 50-60 persons assembled in the meeting. He could not say the names of all the persons who were present in the meeting but Thoba Singh, Bablu Singh, Ganesh Singh, Nura Singh, Jopa Singh, Bablu Singh, Kanta Singh, Kali Singh and Chabi Singh and others were present there. Thoba Singh was the 'morol' of his village.
P.W.2, Budhu Singh is the 'bhagnipati' (sister's husband) of P.W.1. He deposed that one year ago on 16th October, a meeting was called by Thoba in front of his house on the suspicion that Fulmani Singh, Sambari Singh and Sombari Singh were 'witches'. In that meeting a fine of Rs.60,000/- was imposed on those women and as they could not pay the said amount, it was decided they would be killed. He identified Sani Mandi, Mongal Singh, Bhaku Singh, Nura Singh, Rabin Singh, Laxmikanta Singh, Chabi Singh and Kali Singh as the accused persons in Court. He also stated Joyanti Singh, Thoba Singh, Ganesh Singh, Bhola Singh, Bablu Singh, Babai Singh, Sukanta Singh, Dipak Singh and Budhu Singh were present in the meeting. The dead bodies were recovered from the bank of the river Kangsabati.
P.W. 3, Shambhu Singh is the brother-in-law of the victim Sambari Singh. He deposed that the incident occurred on 16.10.2012. A meeting was called by Thoba Singh. Sani Mandi, Bhaku Singh, Mondal Singh, Rabin Singh, Nura Singh, Somai Mandi, Kali Singh, Chabi Singh, Laxmi Singh, Joyanti Singh were present in the meeting and he identified them in Court. There were other persons present in the meeting. Thoba Singh, Ganesh Singh, Bablu Singh, Jopa Singh, Babaji Singh, Khokan Singh were also present in the meeting. Thoba imposed a fine on the victims as they were 'witches'. Since they were unable to pay the amount they were assaulted by the accused persons and others. He along with his brother were present at the place of occurrence. They tried to resist them from assaulting on the victims. The accused persons threatened and drove them away. The accused persons dragged the victims to the bank of river 'kansai'. The victims did not return home. On the next day, they found bamboo sticks were embedded on the earth by the river side on which blouse, petticoat of Sombari Singh were wrapped. They found the dead bodies of three persons buried in the sand of the river bed. Police personnel and Executive Magistrate came to the place of occurrence and held inquest over the dead bodies of the victims. He signed on the inquest report prepared by the police as well as the Magistrate. He made a statement before police. In cross-examination, he stated that he could not say the exact date of the first meeting. He could not say by whom the first meeting was presided over. Second meeting was called by Thoba Singh at 8.00 a.m. in the morning. At the end of the meeting they came back to their house.
P.W.4, Sukra Singh is the brother of P.W.1. He deposed that on 16th October a meeting was held in front of the house of Thoba Singh over the issue that Sombari, Sambari and Fulmani were suspected to be 'witches'. The meeting was attended by Sani Mani, Nura Singh, Rabin Singh, Chabi Singh, Kali Singh, Chandmani Singh, Bhaku Singh and others. After the meeting the accused persons dragged the victims to the river. They killed them and buried them in the sand. On the next day he found the dead bodies of the victims. He made statement before the Magistrate. He proved his L.T.I. on the statement. In cross-examination, he stated that at the end of the meeting when the accused persons dragged the victims to the river bank they came back home. In the evening at 7.00 p.m. the victims were beaten up by the accused persons. He could not remember the exact number of persons were assembled when the victims were assaulted. He stated to Judicial Magistrate that they were not allowed to come out from their residences because they were threatened by the accused persons. In statement to the Magistrate under section 164 of the Code of Criminal Procedure (for short 'Cr.P.C.') the term 'amra' means himself, Lakhan Singh, Budhu Singh, Sambhu Singh, Barsha Singh and Boba Singh.
P.W.5, Joydev Dolui is the resident of Dubrajpur village. He deposed that he heard a meeting was held wherein the victims were assaulted and killed and thereafter their dead bodies were buried in the sand of the river. The incident occurred in the month of October, 2012. He could not state the names of the persons who were present in the meeting. The victims had been suspected as witches. He was cross-examined with regard to his previous statement in Court.
P.W.11, Boba Singh is the husband of Sombari Singh. He deposed that he did not identify any of the appellants apart from Sani Mandi as one who was present in the meeting which was held on the suspicion that the victims were 'witches'. He stated that they were driven out from the said meeting. He made statement before the Magistrate.
P.W.12, Rashid Khan was the scribe of the F.I.R. He proved the F.I.R. and his signature thereon (Ext.12).
P.W.13, Barsha Singh is the son of Laxmikanta Singh and Sambari Singh. He deposed that Fulmani and Sombari are his grandmother and aunt ('pisima') respectively. On 16.10.2012 a meeting was held in front of the house of Bablu Singh at Dubrajpur village. The meeting was called by Thoba Singh, Bablu Singh, Jopa Singh, Sani Mandi and Bhola as there was a strong belief that the victims were 'witches' and due to their presence death and disease occurred in the village. He went to the house of Somai Mandi, a village priest to inquire into the matter. Somai Mandi stated that after 2-3 days he would be able to declare who were the 'witches'. 2-3 days later Somai Mandi declared the victims as 'witches'. A meeting was held in the village where it was decided to impose a fine of Rs.60,000/- upon the victims. They refused to pay the amount, consequently, the victims were assaulted by the accused persons. They were assaulted till afternoon. Thereafter, they were dragged to the side of river Kangsabati and assaulted by the side of the river. Sombari requested accused Kali Singh to give water whereupon the latter urinated on her face. The assault continued. He requested accused persons not to assault the victims. They threatened him and he fled away from the place. As a result of assault, the victims died. After their death their bodies were buried under the sand. Dead bodies were recovered on the next day. His father lodged complaint to the police station. Executive Magistrate held inquest over the bodies of the victims. He signed on the inquest report. He was interrogated by police as well as Judicial Magistrate. He signed on the statement recorded by the Judicial Magistrate. Accused Somai Mandi threatened him upon release from custody he would kill all his family members. In cross-examination, he stated that accused Thoba Singh called the meeting and had requested the villagers to attend the meeting. He was present at the meeting. He told to the Executive Magistrate the names of the persons who were responsible for the death of his mother.
P.W. 14, S.I. Avijit Biswas, was posted as officer-in-charge of the Narayangar police station. He received written complaint from Laxikanta Singh (P.W.1). He filled up the formal F.I.R. (Ext.14). He endorsed the investigation to S.I. Sumanta Kr. Dey (P.W.15).
P.W.15, S.I. Sumanta Kr. Dey, is the investigating officer in the instant case. During the course of investigation, he went to the place of occurrence as identified by P.W.1. He examined P.W.1 but did not record further statement as he corroborated the F.I.R. He drew rough sketch map of the place of occurrence with index (Exts.15 and 15/1). He examined witnesses. He seized saree, broken conch and pola under a seizure list. Dead bodies were recovered from the bank of river Kangsabati in his presence as well as the presence of the Executive Magistrate. He performed inquest over the dead bodies of the victims (Exts. 4/1, 5/1 and 6/1). Executive Magistrate and S.D.O., Ghatal, also held inquest over the dead bodies. He collected the copies of the inquest report prepared by Executive Magistrate. The dead bodies were sent to Ghatal S.D. hospital for post-mortem examination. He arrested the accused persons. He forwarded witnesses to the learned A.C.J.M., Ghatal, for recording their statements under section 164 of Cr.P.C. He had taken photographs at the place of occurrence. In cross-examination, he stated that the dead bodies of three female persons were buried under the sand of river Kangsabati. When he reached the spot, he found some parts of the bodies floating above water. This fact is not mentioned in the case diary. He collected materials which showed the incident occurred at different places than what is mentioned in the sketch map as place of occurrence. During investigating, he did not ascertain the distance between the place of the meeting and the place wherefrom the dead bodies were recovered. He further stated that the distance between bamboo bush as mentioned in the sketch map by letter 'E' and the place of the meeting held, is half kilometre.
P.W.9, Dr. Samar Sinha Das is the post-mortem doctor who conducted post- mortem examination of the victims in connection with Daspur police station U.D. Case No.36/12 dated 17.10.2012. He found extensive injuries on the victims. He deposed that death of the victims was due to the effect of injuries associated with strangulation which are antemortem and homicidal in nature. He proved the post- mortem report (Ext.10). In cross-examination, he opined that the victims may have died two to seven days prior to post-mortem examination.
From the evidence on record, it appears that the victims were suspected as 'witches'. Somai Mandi, the village priest, endorsed such fact and opined due to their presence death and disease were spreading in the village. On 16.10.2012 under the leadership of Thoba Singh (absconding accused) a meeting was held in the village which was attended by the appellants and other accused persons. P.W.s 1 to 4 and 13 have identified the appellants as the persons who assembled at the meeting. Thereafter, the victims were pronounced as 'witches' in the meeting and a fine of Rs.60,000/- was imposed on them. As they were unwilling to pay the said amount of money, they were assaulted discriminately and dragged away from the place of the meeting towards the river Kangsabati by the appellants and others. Prosecution witnesses claimed when they protested, they were driven away from the place of occurrence. P.W.3 claimed that he saw the assault from a distance. It has been argued that the prosecution witnesses are unreliable as they are related to the victims and their versions are contradictory to one another. P.W.1 stated that the meeting was held at noon in F.I.R. while in Court he stated that the meeting was held at 08.00 a.m. P.W.4 claimed that the victims were assaulted at 7.00 p.m. P.W.1, in cross-examination, admitted that the accused persons did not allow him to come out from the house when the alleged incident occurred. Similarly, P.W.4 in cross-examination stated that he told the Magistrate that all of them were confined in the house by the accused persons. The place where the meeting was held is unclear.
I have given anxious consideration to the aforesaid submissions advanced on behalf of the appellants. P.W.s 1 to 4 and 13 are illiterate members of the Scheduled Tribe community. They had witnessed the wrath of other villagers including the appellants under the leadership of Thoba Singh, who after assembling in the village on the fateful day took a decision to do away with the lives of the victims on the suspicion that they were 'witches' and refused to pay the fine imposed on them. The collective lynching which followed such decision naturally had the support of most of the members of the village and, hence, it is not unnatural that apart from the family members of the victims no independent witnesses came forward to support the case. Evidence has also come on record that one of the appellants, namely, Somai Mandi (village priest) had even threatened P.W.13 during the trial with dire consequences. Fear psychosis prevailing in the village clearly explains the reason why no independent witness was willing to implicate the appellants in the murder of the victims. It is trite law that evidence of relation witnesses cannot be discarded on the premise of their association with the victims [See Gurjit Singh alias Gora and Anr. vs. State of Haryana, (2015) 4 SCC 380]. On the other hand, it is most probable that the relations would not ordinarily implicate an innocent person while sparing the real offender for the murder of one of their kin. Nothing has come on record that there was any prior enmity between the prosecution witnesses and the appellants. On the other hand, owing to a declaration that the victims were witches whose presence cast an evil spell on the lives of the other villagers, the appellants had assembled under the leadership of Thoba Singh and had imposed a fine on these so-called evil spirits and as they failed to pay committed their murders as deposed by the relation witnesses. I am, therefore, unwilling to discard the versions of P.W.s 1 to 4 and 13 on the ground that they are related to the victims as the independent witnesses may not have come forward to support the prosecution case for reasons recorded above. Coming to the alleged contradictions in the evidence of the aforesaid prosecution witnesses, I am inclined to hold that such contradictions are essentially minor in nature. It is also relevant to note that the witnesses are rustic illiterate people and members of the Scheduled Tribe community. P.W.1 admitted that he was unaware of date and time. Hence, the approximate assumptions of the witnesses with regard to the time of occurrence cannot be said to be as accurate and consistent as that of educated urban people. Moreover, the incident had not occurred at a particular place within a short time span. It is spanned throughout the fateful day, that is, 16.12.2012 after the victims were declared as 'witches' by the village priest Somai Mandi. After the declaration, Thoba Singh called a meeting which was attended by the appellants and other accused persons. They declared the victims as 'witches' and imposed a fine of Rs.60,000/- on them. When they failed to pay, they started assaulting the victims. Thereafter, they dragged the victims away to the river Kangsabati. These events spreading over a considerable time occurred in the presence of the prosecution witnesses. When the witnesses protested, they were driven away and they took shelter in their residence for the night. On the next day the bodies of the victims were recovered buried under the sand beside the river Kangsabati. The aforesaid aspects of the prosecution case are consistently narrated by the prosecution witnesses and remained unshaken during cross-examination. As the incident had spanned over a period of time and had continued from the place of the meeting in the village to the bank of river Kangsabati where the victims were killed and buried. Hence, the minor variations with regard to time and place of occurrence in the deposition of the prosecution witnesses are clearly understandable and would not, in my humble estimation, be a ground to discard their otherwise credible and consistent versions as to the manner and course of unfolding of the unfortunate events leading to the death of the victims. Evidence of the prosecution witnesses have been seriously assailed on the ground that P.W.1 claimed that he was in the house at the time of alleged incident. P.W.4 also stated in cross-examination that he told the Magistrate that all of them were threatened and kept locked inside the house. Relying on these pieces of evidence, senior counsel for the appellants emphatically argued that evidence of the prosecution witnesses could not have witnessed the assault on the victims. It is an established rule of appreciation of evidence that a single sentence from the deposition of a witness cannot be culled out of context to discredit his entire version. When the evidence of the prosecution witnesses are judged from that perspective, it is clear that all of them along with the victims were present at the place of the meeting where the appellants assaulted the victims and then dragged them away towards the river Kangsabati. As the witnesses protested, they were threatened and they took refuge at their home. One of the witnesses, namely, P.W.13 proceeded towards the river and saw the assault of the victims on the river bed also. No question has been put to P.W.13 during cross-examination to improbabilise his version. Even for arguments sake, the version of P.W.13 witnessing the assault of the victims on the river bed, is not believed, evidence of P.W.s 1 to 4 and 13 unequivocally establish that the appellants assembled in the village meeting when the victims were declared 'witches' and, thereafter, assaulted and dragged towards the river bed where they were strangulated and buried. The aforesaid ocular evidence prove that the appellants who were present at the meeting formed an unlawful assembly with the object of killing the victims and pursuant to such object assaulted the victims and dragged them towards the river bank. On the next morning, the bodies of the victims were found buried in the sand of the river bank as deposed by P.W.15, who held inquest over the bodies of the victim. P.W.9, the post mortem doctor found innumerable injuries on the victims and opined they had suffered homicidal death due to injuries associated with strangulation. He opined that the death may have occurred between 2-7 days from the date of post-mortem examination, that is, 19.12.2012. Appellants have denied the prosecution case in toto and have not given any explanation as to how the victims had suffered such gruesome death after they had been dragged to the river bank by the appellants and others. Hence, there is no escape from the conclusion that in the night between 16.12.2012- 17.12.2012 three women who had been declared as witches, assaulted and dragged from the village to the river bank by the appellants, were victims of mob lynching at their hands resulting in their death. No other explanation is forthcoming from the appellants or from the facts of the case which improbabilise the guilt of the appellants.
It has been argued that the names of the appellants are not reflected in the inquest report prepared by P.W.15 on the next day. Reference has been placed in Rameshwar Dayal vs. State of U.P., AIR 1978 (SC) 1558 and Mobarak Sk. @ Mobarak Hossain vs. State of W.B., (2011) 1 C.Cr.LR 687, in support of such contention. I am not convinced with such submission made on behalf of the appellants. Firstly, the purpose of holding inquest is to record the nature of injuries and the cause of death, that is, accidental, homicidal or suicidal. Contents of the inquest report are admissible with regard to the facts which are seen by its maker, that is, the officer holding inquest and not what is heard by him which are evidently hearsay. In this regard, reference may be made to Bablu Sardar vs. State of West Bengal, 2018 (3) CHN (CAL) 397.
In Rameshwar Dayal (Supra) the Apex Court held that the investigating officer who prepared the inquest report had found four live cartridges at the place of occurrence. Such statement made by the investigating officer in the inquest report is not a statement made by a witness before him during investigation but is a record of what he himself observed and found. On the other hand, identity of the assailants to the murder is naturally a reported version to the investigating officer and cannot be held to be admissible contents of an inquest report.
Similarly, in Mobarak Sk. (Supra), the prosecution case was doubted as there was delay in dispatching the F.I.R. naming the assailants, while the inquest report was silent with regard to their identities. The Bench in the said report, however, hastened to observe that it is not a universal law that the names of the assailants must be stated in the inquest report. The aforesaid authorities are, therefore, clearly distinguishable in the instant case where the F.I.R. was promptly recorded and the evidence of eye witnesses namely P.W.s 1, 2, 3, 4 and 13 leave no doubt in one's mind as to the participation of the appellants in the alleged crime.
It has been argued that mere presence in the meeting is not a ground to infer that the appellants shared common object to murder the victims. It is argued that the appellants may have attended the meeting out of curiosity and there is no evidence to show that all of them were armed. It is also argued that version of P.W.13 with regard to act of Kali Singh in urinating on Sombari is stated for the first time in Court and is an embellishment. I have considered the evidence of the prosecution witnesses as a whole. I find that the appellants were not only present at the place of occurrence but also participated in the assault as well as dragging Appeals Appellants PW 1 PW 2 PW 3 PW 4 PW 11 PW 13 SANI MANDI 3 + 3 + 3 + X 3 + X 3 + 3 + X RABIN SINGH 3 + 3 + 3 + X 3 + X MANGAL SINGH 3 + 3 + X 3 + X NURA SINGH 3 + 3 + 3 + X 3 + X 3 + X CRA SMT. KALI SINGH 3 + 3 + 3 + X 3 + X 3 + X 380/16 BHAKU SINGH @ 3 + 3 + 3 + X 3 + X 3 + X MATHA SINGH SUMAI MANDI @ 3 + X 3 + X SOMAI CHAABI SINGH 3 + 3 + 3 + X 3 + X 3 + X CHANDMONI 3 + X PANCHAMI 3 + X SINGH CRA KUNI @ KURI 381/16 3 + X SINGH LAKSHMI SINGH 3 + 3 + X 3 + X JAYANTI SINGH @ 3 + X JAYETI 3- PRESENT AT MEETING +- ASSAULTED AT MEETING X- DRAGGED THEM TO KANGSABATI RIVER of the victims to the river bank. For argument's sake, if the appellants had joined the meeting called by Thoba Singh out of curiosity, they would not have continued to be part of the unlawful assembly when the assault commenced upon the victims after they refused to pay the fine imposed on them by Thoba Singh on the accusation of being witches. The fact that they shared the common object with others to commit the murder of the victims is further reinforced by their participation in dragging the victims to the river bank where they were brutally killed and buried. Analysis of the evidence of P.W.s 1 to 4 and 13 in this regard would show the extent of participation of each of the appellants in the incident as follows:-
From the aforesaid chart, it is clear that the prosecution witnesses have not only stated about the mere presence of the appellants at the place of occurrence but also their participation in assault and dragging of the victims to the river bank.
In this respect, reliance on Baladin and Ors. vs. State of Uttar Pradesh, AIR 1956 SC 181, is misplaced as there is something more coming out from the mouths of the prosecution witnesses than mere presence of the appellants at the place of occurrence in the instant case as discussed above.
Similarly, in Najabhai Deshurbhai Wagh vs. Valerabhai Deganbhai Vagh and Ors., (2017) 2 SCC (Cri) 67 and Vijay Pandurang Thakre and Ors.
vs. State of Maharashtra, (2017) 4 SCC 377, it was decided in the facts of the said cases that the accused persons who participated in the assault did not share the common object to murder. I am afraid that in the facts of the present case no such conclusion may be drawn. The appellants and other accused persons assembled at the village and declared the victims as 'witches'. Thereafter, a fine was imposed on them to absolve their sins and as they failed to pay the fine, the appellants assaulted the victims mercilessly and dragged them away to the river bank where they were brutally murdered and killed. Post-mortem doctor (P.W.9) found 19 injuries on each of the victims associated with strangulation which clearly establishes a case of mob lynching by the appellants and other accused persons. Evidence has come on record that the appellants were not only present at the place of occurrence but also assaulted and dragged the victims. It is argued that specific roles of the appellants in the assault of the victims have not been narrated by the prosecution witnesses. One must appreciate that a large body of persons comprising of about 40 persons including the appellants assembled at the meeting and declared the victims as "witches". Thereafter the victims were mercilessly assaulted by the appellants and others and dragged to the river bank where they were killed and buried. In view of a large number of persons including the appellants assaulting and dragging the victims to the river bank it is not possible for the witnesses to state the exact role of each of the appellants in the incident. However, their continued presence and participation in the unlawful assembly during assault and dragging of the victims to river bank where they were murdered and buried establish beyond doubt that they shared the common object to murder the victims whom they considered as "witches" spreading evil omen in the villages.
As the case involves commission of offence by a large number of persons, it is necessary to evaluate the prosecution evidence qua each of the appellants as to their presence and participation in the crime. A rule of prudence, though not a rule of law, was laid down by the Apex Court in Masalti vs. State of Uttar Pradesh, 1965 AIR 202, in that regard, which is as follows:-
"16. .....but where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. In a sense, the test may be described as mechanical; but it is difficult to see how it can be treated as irrational or unreasonable."
The aforesaid parameter has been applied by the Apex Court in subsequent cases also while appreciating evidence in crimes involving a large number of accused persons arising out of sectarian, communal or caste violence. In Busi Koteswara Rao and Ors. vs State of A.P., (2012) 12 SCC 711, the Apex Court upheld as follows:-
"13. It is clear that when a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, the normal test is that the conviction could be sustained only if it is supported by two or more witnesses who give a consistent account of the incident in question."
A similar view was taken in Inder Singh and Ors. vs. State of Rajasthan, (2015) 2 SCC 734.
As the factual backdrop of the present case depicts a similar state of affairs where the appellants being members of a large body of persons who formed an unlawful assembly with the common object of murdering the victims and pursuant thereto assaulted and strangulated the victims to death, it would be a wholesome and prudent exercise to hold those appellants guilty whose role are corroborated by two or more witnesses.
Analyzing the prosecution evidence from that angle, I find roles of appellant No.2, Chandmoni Singh and appellant No.6, Jayanti alias Jayeti (in CRA No.381 of 2016) have been narrated by only one witness, that is, P.W.4 and P.W. 3 respectively and there is no other corroborating evidence supporting their participation in the crime. Hence, these appellants may be extended the benefit of the doubt in the light of the principles laid down in the aforesaid authorities.
Acquittal of co-accused Jopa @ Sukumar Singh, Ganesh Singh @ Thakur and Bhula @ Ganesh Singh from the charge under section 302/149 I.P.C. is on a technical ground as the evidence of post-mortem doctor (P.W.9) and other witnesses, namely, P.W.s 12 to 16 could not be used against them since the said witnesses had not been summoned for cross-examination after the said accused persons had been arrested and put on trial. Such reasoning of the trial Judge may not be free from doubt and certainly does not ensure to the benefit of the appellants who got fair opportunity to cross- examine all the prosecution witnesses.
In view of the aforesaid discussion, while I uphold the conviction of the appellant Nos. 1 to 7 in CRA 380 of 2016 and appellant Nos. 1, 3 to 5 in CRA 381 of 2016, I record an order of acquittal in favour of Chandmoni Singh and Jayanti Singh @ Jayeti, appellant Nos. 2 and 6 respectively in CRA 381 of 2016.
Coming to the issue of sentence, I find the trial Judge imposed death sentence on the following accused persons, namely, Sani Mandi, Bhaku Singh, Rabin Singh, Mangal Singh, Nura Singh, Somai @ Samai Mandi and Kali Singh being the appellants in CRA No.380 of 2016).
Trial Judge enumerated the following aggravating circumstances against the appellants:-
1. Victims were three in number.
2. They were hapless women and members of the Scheduled Tribe community.
3. Incident occurred without provocation based on the superstitious belief that the victims were witches and had failed to pay the fine imposed on them.
4. Crime was committed brutally as would be evident from the number of injuries and the strangulation of the victims.
5. Appellant Kali Singh had urinated on the face of one of the victims.
Against these aggravating factors, trial Judge noted apart from illiteracy there was no other mitigating factor in favour of the appellants. Hence, by balancing the aggravating and mitigating factors he concluded that the case fell in the category of 'rarest of rare' cases and deserved death sentence.
Statutory provisions guiding the power of the Court to impose death sentence are laid down in sections 354(3) and 235(2) of the Code.
Section 354(3) reads as follows:-
"354(3). When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence."
Perusal of the said provision makes it clear that imposition of death penalty is warranted only in cases where 'special reasons' are recorded by the Judge justifying such extreme penalty.
What are the 'special reasons' which justify the extreme penalty of death? While upholding death penalty under the constitutional scheme, the Apex Court in Bachan Singh vs. State of Punjab, (1980) 2 SCC 684, held as follows:-
"164. ...(a) The normal rule is that the offence of murder shall be punished with the sentence of life imprisonment. The court can depart from that rule and impose the sentence of death only if there are special reasons for doing so. Such reasons must be recorded in writing before imposing the death sentence.
(b) While considering the question of sentence to be imposed for the offence of murder under Section 302 of the Penal Code, the court must have regard to every relevant circumstance relating to the crime as well as the criminal. If the court finds, but not otherwise, that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the court may impose the death sentence."
Another bench of the Apex Court in Machhi Singh vs. State of Punjab, 1983 SCC (Cri) 681, held that in determining whether a case fell in the 'rarest of rare' category the judge is not to apply his personal sense of justice in determining such category of cases but is to be guided by the objective parameter as to whether the crime involves such depravity that the collective conscience is so shocked that it would expect the holders of the judicial power centre to inflict death penalty.
Analysing the guidelines in Bachan Singh (supra), the Court in Machhi Singh (supra) held the following parameters may be applied to the facts of a case to determine whether it fell in the 'rarest of rare' category:-
"38. ..."(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'.
(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.
39. In order to apply these guidelines inter alia the following questions may be asked and answered:
(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?
40. If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so."
Thus the Court is not only concerned with the heinous and abhorrent nature of the offence but also the circumstances of the offender while determining 'special reasons' for awarding death penalty.
In Bachan Singh (supra) the Court clarified the issue and held that a joint reading of sections 354(3) and 335(2) and other related provisions of the Code make it clear that for ascertaining 'special reasons' due regard must be given both to the crime and the criminal. What is the weight to be given to the aggravating and mitigating factors would depend on the fact of a particular case. In this regard it may be profitable to refer to the words in section 235(2) Cr.P.C. which read as follows:-
"235(2). If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence, and then pass sentence on him according to law."
A plain reading of the aforesaid provision would show that the emphasis of the legislature is on hearing the accused at the sentencing stage. When the aforesaid provision is read in contrast to other provisions of the Code, that is, section 234 Cr.P.C. envisaging hearing of the prosecutor as well as the accused prior to recording conviction, it is clear that the legislative intent of incorporating the aforesaid provision is to provide an 'accused centric' hearing at the stage of sentencing rather than a 'crime centric' approach. Legislative intent in this regard was further amplified in Bachan Singh (supra) wherein the Apex Court after referring to the 48th Law Commission Report, and emphasizing the lack of comprehensive inputs relating to characteristic and background of offender in the matter of sentencing, held as follows:-
"152. ...By enacting Section 235(2) of the new Code, Parliament has accepted that recommendation of the Law Commission. Although sub-section (2) of Section 235 does not contain a specific provision as to evidence and provides only for hearing of the accused as to sentence, yet it is implicit in this provision that if a request is made in that behalf by either the prosecution or the accused, or by both, the Judge should give the party or parties concerned an opportunity of producing evidence or material relating to the various factors bearing on the question of sentence."
When a right is latent in a statutory provision, it becomes the incumbent duty of the Court to apprise a party of such right, so that such privilege may be effectively utilized in letter and spirit and does not remain a dead letter of law. Practically in no case involving death sentence including the present one, effort is made on behalf of the trial Judge while imposing death penalty to intimate the prosecutor and the convict of their right to lead evidence with regard to the aggravating and mitigating factors available in the case. Right to be informed of a valuable right to lead evidence is a sine qua non for its effective enforcement and a facet of fairness in procedural safeguards available in law. Failure to read such obligation into the statutory scheme, would render the entire sentencing process a mechanical exercise bereft of vitality and vigour.
In view of the aforesaid legislative scheme under section 354(3) read with section 235(2) Cr.P.C. as enunciated above, I hold it is the duty of the Court at the time of hearing on sentence to call upon the prosecutor and the defence to adduce evidence in support of the aggravating and mitigating factors available in the case and thereupon come to a conclusion as to whether upon a balance sheet of the aggravating and mitigating factors so established the case falls within the category of 'rarest of rare' cases, justifying imposition of death penalty.
I am constrained to observe that the Trial Court has not followed such wholesome procedure and had failed to intimate the parties of their right to lead evidence or place materials in support of the aggravating and mitigating circumstances available to them. The Court merely adjourned the matter to a subsequent date for hearing on the point of sentence. Such procedure adopted by the trial Court belies a mechanical approach towards sentencing even when it chose to impose the extreme sentence of death. It was incumbent on the Trial Court to apprise the parties, particularly the convict, that the adjournment to a subsequent date for hearing on sentence does not necessarily mean mere oral submissions but also an opportunity to lead oral or documentary evidence in support of his contentions. Furthermore, the Trial Judge essentially dwelt on the aggravating factors and awarded death sentence without coming to a finding that the alternative sentence of life imprisonment is unquestionably foreclosed - an essential pre-requisite for awarding death penalty [See Mahesh Dhanaji Shinde vs. State of Maharashtra, (2014) 4 SCC 292]. In no case a Court is constitutionally entitled to impose death sentence unless upon balancing the aggravating and mitigating circumstances it comes to a conclusion that the alternative sentence of life imprisonment is inadequate as there is no possibility of the accused to be reformed and rehabilitated.
In Rajesh Kumar vs. State through Government of NCT of Delhi, (2011) 13 SCC 706, the Court held that failure of the State to show that the accused was a continuing threat to the society or beyond reform and rehabilitation is certainly a mitigating factor in favour of the accused.
Similarly, in Anil vs. State of Maharashtra, (2014) 4 SCC 69, the Court held that merely because the accused was not a young person but a middle aged man, the State was not absolved of its responsibility to place materials to rule out the probability of his rehabilitation or reformation in order to justify imposition of death penalty.
Hence, I am constrained to hold that the procedure followed by the Trial Judge while awarding death penalty without recording a finding that the alternate sentence of life imprisonment is wholly inadequate and foreclosed in the factual matrix of the case, renders the sentence of death constitutionally invalid.
Under such circumstances, the confirming Court is left with no alternative but to embark into an enquiry to prepare a balance-sheet of aggravating and mitigating circumstances to come to a conclusion whether the alternative sentence of life imprisonment is wholly inadequate in the facts of the case.
What can be treated as aggravating or mitigating circumstances in the matter of imposition of death penalty? Although no exhaustive list of aggravating and mitigating factors can be enumerated but to avoid arbitrariness in a sphere of 'judge centric' sentencing, it may be profitable to follow the guidelines which are enumerated in Bachan Singh (supra) as aggravating and mitigating factors as follows:-
"202. ...Dr. Chitale has suggested these "aggravating circumstances":
"Aggravating circumstances: A court may, however, in the following cases impose the penalty of death in its discretion:
(a) if the murder has been committed after previous planning and involves extreme brutality; or
(b) if the murder involves exceptional depravity; or
(c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed--
(i) while such member or public servant was on duty; or
(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or
(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code."
203. Stated broadly, there can be no objection to the acceptance of these indicators but as we have indicated already, we would prefer not to fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other.
..........................
206. Dr. Chitale has suggested these mitigating factors:
Mitigating circumstances.--In the exercise of its discretion in the above cases, the court shall take into account the following circumstances:
(1) That the offence was committed under the influence of extreme mental or emotional disturbance. (2) The age of the accused. If the accused is young or old, he shall not be sentenced to death. (3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above.
(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
(6) That the accused acted under the duress or domination of another person.
(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct."
207. We will do no more than to say that these are undoubtedly relevant circumstances and must be given great weight in the determination of sentence..."
It is also relevant to note that apart from noticing illiteracy as a mitigating factor, the trial Judge has not adverted to other circumstances and attributes of the convicts in order to determine the mitigating factors palpable in the instant case. He completely glossed over the fact that the appellants were also the members of Scheduled Tribe community to which the victims also belonged. In the instant case, the appellants committed the crime without premeditation and being blinded by the superstitious belief that the victims were 'witches'. They laboured under such unfounded belief and when the victims were unable to pay the fine imposed for their sins, proceeded to murder them. Motive of the crime is rooted in ignorance and blind superstition. It is sad even six decades after Independence the citizens of our country labour under such unscientific and dark beliefs like witchcraft prompting them to commit crimes as the present one. Prevalence of superstitious beliefs amongst the people raises a pertinent issue about the responsibility of the State to eradicate such ignorant beliefs and/or practices. It is the constitutional duty of a welfare State as envisaged under the Directive Principles of State policy to take special care towards the educational interest of weaker sections particularly the members of Scheduled Castes and Scheduled Tribes and ensure that the lamp of scientific temper, humanism, spirit of enquiry and reform are lit as fundamental duties particularly amongst the members of underprivileged communities. No doubt one may express outrage and hand out death sentences as deterrent punishments for the commission of murder of three hapless women of the Scheduled Tribe community at the hands of their own brethren. When the motive of crime is deeply engrained in the psyche of the community due to superstitious beliefs, does judicial execution of its perpetrators provide immunity to further recurrence of such problems? Perhaps not. Offences of such nature require the spread out of universal education and awareness resulting in enlightenment and awakening of scientific temper amongst people as effective inhibitors to further recurrence. Constitutional duty of the State in this regard is non-negotiable and its failure is palpable in the loss of lives of the victims. When one judges the crime in this backdrop, it would be unsafe to conclude that the alternative punishment of life imprisonment is wholly inadequate as the possibility of the convicts being reformed and rehabilitated through proper education and awareness cannot be wholly ruled out.
I am not unconscious that three lives of hapless women were lost. However, number of deaths, though relevant, is not the sole determining factor to conclude that the case falls within 'rarest of rare' category.
In State of Maharashtra vs. Damu S/o Gopinath Shinde and Others, (2000) 6 SCC 269, the Apex Court dealing with a case involving human sacrifice of three children on the superstitious belief that such horrible act would lead them to hidden treasure, commuted death sentence to life imprisonment holding as follows:-
"Looking at the horrendous acts committed by the accused, it can doubtlessly be said that this is an extremely rare case. Nonetheless, a factor which looms large in this case is that the accused genuinely believed that a hidden treasure trove could be winched to the surface by infantile sacrifice ceremonially performed. It is germane to note that none of the children were abducted or killed for ransom or for vengeance or for committing robbery. It was due to utter ignorance that these accused became so gullible to such superstitious thinking. Or course, such thinking was also motivated by greed for gold. Even so, the normal punishment prescribed for murder as for these accused would be preferable."
The aforesaid ratio applies with full force to the facts of this case. On the other hand, in Sushil Murmu vs. State of Jharkhand, (2004) 2 SCC 338, the Apex Court imposed the extreme penalty of death in a case of human sacrifice as the offender had criminal antecedents and was facing trial on similar allegations. No such aggravating circumstance is available in the present case wherein none of the appellants has criminal antecedents.
It is important to bear in mind that the aggravating factors noted by the trial Judge may be counter-balanced with the following mitigating factors emerging from the facts of the case:-
(a) The appellants are also the members of Scheduled Tribe community to which the victims belonged.
(b) Due to social backwardness and illiteracy, the appellants were labouring under unfounded superstitious belief that the victims were 'witches' and their presence cast an evil spell on the villagers. Being blinded by such superstitious belief founded in ignorance and backwardness, they committed the crime.
(c) Appellants have no prior criminal records.
(d) Crime was not a pre-meditated one.
(e) They were convicted on the basis of constructive liability under sections 302/149 of the IPC for having shared the common object for murdering the victims. There is no material to determine their specific roles qua the injuries on the victims.
(f) The allegation against appellant Kali Singh that she urinated on the face of Sombari is an embellishment and was stated for the first time in Court.
In Ediga Anamma vs. State of Andhra Pradesh (1974) 4 SCC 443, the Apex Court had held that offenders suffering from socio-economic, psychic or penal compulsions insufficient to attract legal exception or downgrading the crime into a lessor one may be utilized for commutation of their sentence. In the said report, conviction under constructive liability was held as a mitigating factor in the matter of sentence. Furthermore, when number of accused persons assaulted the victims and the specific roles of the accused qua the injuries of the victims are unclear, it may not be safe to impose the extreme penalty of death. [See Darshan Singh vs. State of Punjab, (1983) 2 SCC 411 (Para 7)].
Applying the ratio in the aforesaid decisions to the facts of the instant case and balancing the mitigating factors against the aggravating ones, I hold that it cannot be said that the probability of rehabilitation and reformation of the convicts through social awareness and education is wholly ruled out rendering the alternative punishment of life imprisonment patently inadequate. Hence, I commute the death sentence imposed upon the appellants, namely, Sani Mandi, Bhaku Singh, Rabin Singh, Mangal Singh, Nura Singh, Somai @ Samai Mandi and Kali Singh (appellants in Criminal Appeal No.380 of 2016) and direct them to suffer rigorous imprisonment for life each and to pay a fine of Rs.60,000/- each, in default to suffer further rigorous imprisonment for one year each.
Sentence imposed on appellant Nos.1, 3, 4 and 5, namely, Chhabi Singh, Panchami Singh, Kuni @ Kuri Singh, Lakshmi Singh @ Kuni in CRA No.381 of 2016 is, however, upheld.
With the aforesaid modification as to sentence, Death Reference No.7 of 2016 and Criminal Appeal No.380 of 2016 are disposed of. Criminal Appeal No. 381 of 2018 is partly allowed.
Chandmoni Singh and Jayanti Singh @ Jayeti, appellant Nos.2 and 6 respectively in CRA 381 of 2016 shall be forthwith released from custody if not needed in connection with any other case on execution of a bond to the satisfaction of the trial Court which shall be enforced for six months in terms of section 437A of Cr.P.C.
The period of detention suffered by the appellants during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon them in terms of section 428 of the Code of Criminal Procedure.
A copy of the judgment along with L.C.R. be sent down to the trial Court at once for necessary action.
Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis upon compliance of all formalities.
(Joymalya Bagchi, J.) Moushumi Bhattacharya, J.
I have had the privilege of reading the judgment of my learned Brother Justice Joymalya Bagchi and I have been enlightened by it. There can be no two views on the conclusion that the accused was not afforded an opportunity to lead evidence in their defence and that the offence would not fall under the "rarest of the rare" category deserving capital punishment. This is not to reiterate the views already expressed, but a need to put down a few thoughts on a practice that simply has no justification or place in this day and age.
In cases of the nature as the present one, the window given to the person condemned must necessarily be a complete and effective one where all relevant facts and materials are placed giving a court the necessary ammunition to do complete justice to the case. This is particularly true in cases where the decision would affect the most fundamental of rights; that to live, to move about, make choices, make a living and choose how to live life or what to do with it. A fine- combed assessment would be required in cases of arrest, detention, imprisonment where the punishment should be commensurate with the crime committed.
Death sentence, by its very implication, stands on a different footing in terms of the considerations which a court has to assess. A person sentenced to death must be found not deserving to live even within the four walls of a prison. The rationale is that the offender poses such a grave threat to society that he must not be allowed to live even in seclusion away from society. The degree of criminality in the offence committed would repel the court's sensibilities to the extent that death would be the only equalizer in balancing the scales of wrong and retribution. Justice Bagchi has referred to the relevant case law on the subject and the need for special reasons justifying imposition of such a sentence as laid down by the Supreme Court in Bachan Singh and Machhi Singh. The primary factor appears to be the degree of depravity so much so that the Court's conscience is shocked at the extent of the depravity. The case law on the subject of death penalty has substantially settled the parameters in relation to its imposition (as well as the restraint thereof) which involves the revolting nature of the crime committed and the motive behind it; the enormity of the crime; the socio-economic circumstances of the victim and whether the perpetrator was in a dominant position in relation to the victim. The guidelines contemplated may however involve treading a fine line at the time of deciding either in favour or against imposition of the sentence. Reinforcing the faith of the common man in the credibility of the criminal justice system requires imposing a punishment befitting the crime particularly in cases where the crime committed is cold-blooded as in pre-meditative with careful thought being put in before the attack or murder. Branding of women as witches following a declaration by a village priest (as in the instant case) may be taken at a state of heightened emotion but certainly involves a calculated and planned attack on members of a community, taking full advantage of the dominant position of a village elder or Pradhan in obtaining public affirmation (as done by Thoba Singh in this case) of the assault.
[[Witch hunting essentially includes stigmatization of specific groups of people including widowed women and children of lower caste. Witch hunting is prevalent in many parts of the country particularly in Jharkhand, Bihar, Haryana, West Bengal, Madhya Pradesh, Maharashtra, Gujarat, Odisha, Chhattishgarh, Assam, Rajastan and U.P. India represents an unfortunate paradox with a projected upward growth curve and a population mired in superstition to rationalize bad events. According to India's National Crime Records Bureau, more than 2,500 victims were tortured and killed in witch hunts between 2000 and 2016 which means the figures would be substantially higher now. The victim who is branded as a witch is subjected to beatings, burns, paraded naked through the village and other forms of dehumanizing forms of torture. In some cases this includes forced tonsure and social ostracization.
In the instant case, the villagers assembled with the avowed purpose of punishing the three 'witches' already identified and branded as such by the village Ojha Somai Mandi. That the victims would not stand a chance to exonerate themselves would be evident from the 'penalty' of sixty thousand rupees imposed on them; an impossible amount for women of the Munda community to pay. Hence the penalty was but a travesty of an opportunity given to the condemned to expiate their guilt. Thoba Singh and the other villagers know fully well that the hapless women would not have any option but to surrender to the decision taken in the meeting. The subsequent torture and assault on the women culminating in their death is a story which is played and re-played in many Indian villages not far from glitzy metropolises housing centers of learning and education.
Not much statistics is available of the Munda community to which the three victims belonged and which subjected them to torture and death, except that the place of occurrence is in the village of Jhalka, Police Station-Daspur in the Paschim Medinipur district of West Bengal. The bodies of the three women were buried under the sands of the Kangsabati River. Kansabati River, where the three women belonging to the Munda community were disrobed, killed and buried, is located in the district of West Midnapore in West Bengal and takes about three and a half hours to reach. The journey from Kolkata is in effect a sharp plunge from the capital of the State to the depths of ignorance encompassing within its darkness a belief in sorcery and witchcraft. It is difficult to conceptualise that in this day and age, women can be branded as witches and condemned to die. The declaration that someone's wife or mother-in-law or sister possess powers of black magic is usually an outcome of a 'Puja' performed or vision seen by an Ojha (witch doctor). The facts of this case fall squarely in this template where the condemnation of the three women was carried out by a collective decision taken at a meeting of villagers and presided over by the village pradhan. In most cases, such as this, the decision to brand a woman as a witch and compel her to suffer the consequences of such is coloured by a collective affirmation of that decision by putting a rationale to it which usually takes the form of disease and loss suffered by humans and livestock in the village.
The grey area in weighing the wrong done and the defence of ignorance is compounded by an absence of legislation on the national-level which addresses issues serving the larger goal of eradicating the practice altogether. Some states have drawn up their individual response to this offence by state-specific legislation. Bihar passed a law against witch hunting in 1999; Jharkhand followed in 2001 while Chattisgarh and Rajasthan passed Bills in 2005 and 2006. West Bengal is yet to pass a law even though such cases have been reported from Purulia, Birbhum and Bankura.
The searing nature of the prejudice would be evident from oral evidence of witnesses who have been charged with the offence as reported in articles published by organizations tackling the menace;
• "I saw them. They were daayans. They used to eat animals and humans,"
says Buria.
• A mile from the victims' house, another man says it's easy to spot a witch.
"You can see it in their eyes. They have different eyes".
• The randomness of the identification process leading to branding of unsuspecting women would be evident from the above.
One of the objectives of imposing exemplary punishment including death sentence is to send a message of deterrence to those who may commit similar crimes in future. The brutality and diabolical nature of the murder of innocent infirm women or children without any apparent motive is an instance where a court would lean towards sending such a message and impose a sentence harsh enough to deter potential wrongdoers. The challenge is balancing the message of deterrence which the court intends to send out in such cases on the one hand and an assessment whether the deterrence would shut out the possibility of reform and enlightenment on the other. Lack of development or illiteracy can be seen as mitigating factors deserving of a lesser punishment when the development indices of particular areas fall below the mark in real terms. The perception that a belief in black magic stems from ignorance and superstition pre-supposes that the particular community in question falls within a deprived socio-economic bracket. This is not true in all cases. Reports show that the most commonly identified causes of deep-set prejudices against women, poor development patterns, rivalries within and outside families may not be the only triggers behind the crime. The mindset of witch hunters has been found to permeate through class barriers even where women have more resources at their disposal and a greater degree of autonomy in their personal spheres.
The other question is whether the perpetrators are in a way victims themselves. Crimes such as this are a reflection of the failure of the State to harness its resources in ensuring that education pierces the darkness of superstition in the farthest corners of the State. Women being branded and executed as witches or being made to suffer various degrees of dehumanization is the darkest blot on a State's manifesto to prosperity. Despite two decades after the millennium, there are large pockets of complete depravity brought about by lack of socio-economic opportunities which the nation as a whole has failed to address.
Looking forward, this Court by a judgment delivered by Justice Bagchi in Smt. Moyna Murmu Vs. Sri Nanda Murmu in W.P. No. 27093(W) of 2015, had laid down broad guidelines for the control and prevention of witch hunting in the State. The judgment had drawn from Gaurav Jain Vs. State of Bihar (1991 Supp (2) SCC
133) but specifically addressed the issues of surveillance, reporting of cases, providing of legal aid as well as a scheme for compensation to the victims. As an immediate preventive, the State should ensure effective compliance of the guidelines supplemented by legislation covering aspects of the practice of witchcraft which may not even reach the courts.
The absurdity of the offence and its co-existence with the projected upward development curve is difficult and painful to accept. This is yet another instance of people belonging to the lowest social strata both perpetrating as well as suffering the fallout of being outside the periphery of growth. The State needs to immediately intervene and correct the picture.
(Moushumi Bhattacharya, J.)