Jitu Murmu vs State Of Odisha

Presence of societal tribulations is undoubtedly not uncommon in any country. However, tribulations or evil practices in the society particularly

based on superstitious beliefs make man’s cruelty to man harsher. One among such nasty social evils is witch craft that has been in practice

across culture, religion and territory and bares the terrible face of the so-called civilized society of human being. The Petitioners herein have moved

the instant application under Section 439 of the Code of Criminal Procedure, 1973 in connection with S.T. Case No.154 of 2018 pending before the

Court of the learned Additional Sessions Judge-II, Mayurbhanj, Baripada, corresponding to G.R. Case No.344 of 2018 further corresponding to

Kuliana P.S. Case No-35, dated 26.04.2018 for the commission of alleged offences under Sections 302,307,323,324,325,326,342,34 of the Indian Penal

Code,1860 and Sections 5 & 6 of the Odisha Prevention of Witch-Hunting Act, 2013.

A snap shot of the facts as alleged and leading to filing of the present application is that the informant, has lodged a FIR on 26.4.2018 before the

IIC, Kuliana Police Station. It was stated inter alia that the deceased Sambari Murmu had been to the house of one Rame Murmu who happened to

be her maternal uncle and is the father of the petitioners herein. The facts as encapsulated in the FIR, the deceased who was not feeling well for few

days which led her to go to the house of her maternal uncle, who was a self-styled supernatural medicine expert, for some sort of indigenous

treatment as practiced by Rame Murmu. But surprisingly, on 25.4.2018 as a part of treatment practice, Sambari Murmu (deceased) was assaulted by

means of Trisul/Trident, rope and iron rod as a result of which she suffered multiple fatal injuries leading to her death. The petitioners who are also the

perpetrators of such treatment had caused the death of the deceased on the pretext of conducting some sort of an exorcism which led to inflicting of

some gruesome injuries. Allegedly, the Petitioners herein believed that some evil spirit had overpowered the body of the deceased resulting in her

abnormal behavior. In order to pull out the “evil spiritâ€, the main accused Rame Murmu along with his wife Mahi Murmu, elder- son Sukul Murmu

(Petitioner No.1), his wife Sita Murmu and younger son Narasingha Murmu (Petitioner No.2) tied the hands and legs of the deceased and started

assaulting her by means of Trident, crowbar and iron rod. The said misadventure was done to pull out the purported remnants of negative energy from

the body of the deceased but it resulted in the death of the Sambari Murmu. After receiving the FIR from the informant, the IIC registered the same

as Kuliana P.S.Case No. 35/2018 for commission of offence punishable u/s. 302, 307, 323, 324, 325, 326, 342, 34 of IPC and Sections 5 & 6 of the

Odisha Prevention of Witch-Hunting Act, 2013 and commenced investigation.

The Ld. Counsel Mr. Anjan Kumar Biswal appearing for the Petitioners submits that petitioners who are relatives of the informant have been

falsely implicated due to some rivalry issue. He contended that the trial has already commenced and 16 witnesses have already been examined but

none of them have implicated the Petitioners. He further submitted that the Petitioners have no prior criminal antecedents. There is no chance of

apprehension that the petitioners will tamper with the evidences since the investigation in the case has already been completed, charge sheet has been

filed and the trial has commenced. The Petitioners herein have been in custody since 26.04.2018 and the co-accused have been granted bail by this

court. He further contended that the Petitioners herein ought to be released on the ground of parity.

The Ld. Counsel for the State Mr. Das, ASC has strenuously contended that witness plays a vital role in a criminal trial. Witnesses play a sacred

role like sun to illuminate the face of justice. In the instant case, many of the witnesses have turned hostile due to the influence of the accused and

their dominant position in the area. There is likelihood of intimidating the witnesses. The fact of perceived fear owing to the possession of some

supernatural power by the principal accused leading to a sordid phenomenon of refraining the witnesses from deposing truthfully. In this context, the

criminal justice system in the instant case has been witness to traumatic experience of witnesses turning hostile. He relied on a judgment of the

Supreme Court in Ramesh and Others v. State of Haryana (2017) 1 SCC-529 which holds that threat and intimidation have been one of the major

causes for the hostility of the witnesses. When the witnesses are not able to depose truthfully due to fear in the Court of law, as in the instant case, it

results in an unfortunate acquittal and the cause of justice suffers. He has also relied on the statements of the witnesses to demonstrate the specific

role ascribed to the Petitioners. He further contended that the offence is that of murder that too by a self-proclaimed witch- doctor of the locality

which is the primary reason why the witnesses have not been forthcoming.

Heard Ld. Counsel for the parties. The Petitioners herein have been in custody since 26.04.2018 and have previously moved an application for bail

before the learned Addl. Sessions Judge- II, Mayurbhanj, Baripada, who rejected the Bail Application of the petitioners vide its order dated

23.10.2019. It has been contended by the Ld. Counsel for the Petitioners that co-accused i.e. one Mahi Murmu and one Chhita Murmu @ Hansdah

have been granted bail by this Court in BLAPL No.4358 of 2019 vide order dated 28.08.2019. It is noticed from the records of the case that the

aforesaid Mahi Murmu is the wife of the principal accused Rame Murmu and the said Chhita Murmu @ Hansdah is the wife of Petitioner No. 1

herein. Prior to moving this court, the aforesaid persons had moved the Trial Court, which vide it’s order dated 3.1.2019 had rejected the bail

application with a specific finding that the custom of black magic and witchcraft were not only rampant but were a growing menace in that part of the

State. The Ld. Counsel for the Petitioners relied heavily on the plea of parity stating that since the wives of the accused persons had been released on

bail by this court, a similar approach ought to be taken with respect to the petitioners herein. Although, such a contention appears quite attractive on

first blush, however, a deeper scrutiny clearly brings out the difference in terms of the allegations and the role ascribed to the petitioners herein.

A careful examination of the evidence on record, especially the autopsy report reveals that the deceased had sustained as many as 27 injuries and

Injury Nos. 19 and 27 are penetrative wounds present at chest wall and lungs. The death of the deceased is said to be homicidal in nature. Prima facie

it appears that the autopsy report matches with the initial version of the informant which clearly states that injuries were inflicted upon the deceased

using Trident, Gainthi and sabala (crowbar). Thus, the autopsy report revealing the injuries matches with the description of the manner in which the

assault was carried out by the petitioners herein. There is a direct allegation against the Petitioners herein which is quite different from that of the

accused who have been granted bail. The only allegation with respect to those accused was that they were present during the attack. The Petitioners

herein, prima facie appear to have had a direct role in the unprovoked gruesome attack.

The informant in the present case is one Rama Murmu who is the brother of the deceased lodged the FIR on 26.4.2018. He states that the mother

of the informant was not keeping well for some time and in order to get her mother cured the deceased accompanied her mother to the house of the

principal accused Rame Murmu. It was well-known in the locality that the Rame Murmu used to practice sorcery and black magic to cure some

elements. It is stated that while the principal accused was performing some ritual, the deceased shouted out loud, being terrified. The said fact

convinced the principal accused and his family members that the deceased was overpowered by some evil spirit. On the pretext of conducting an

exorcism, the principal accused and his family members, it is stated, grabbed the limbs of the deceased and tied them up with ropes etc. Thereafter, as

per the prosecution, the principal accused assaulted the deceased with the Trident and the other accused persons assaulted with other sharp objects

like “gainthi†and “sabalaâ€. When the informant reached there, he saw that his sister was severely injured and they called an ambulance to

take her to the hospital. However, the deceased breathed her last in the ambulance on the way to the hospital. Thereafter, the FIR was registered by

the informant.

The prosecution has filed charge sheet on 22.8.2018 with a list of 38 prosecution witnesses out of which about 16 witnesses have been examined.

A prima facie perusal of the depositions on record reveal that the otherwise gullible and naïve persons seem to be deposing under some kind of

apprehension of fear in their minds which is not very hard to comprehend given the backdrop of the case. Despite the above, the depositions reveal

the barbaric nature of the crime by the accused and the injuries caused. Needless to say, the same will be subject to detailed examination during the

trial.

The confessional statement of Narasingha Murmu (Petitioner No. 2 herein) paints a gory picture of the diabolical manner in which the death of the

deceased was caused. He has categorically stated that all of them collectively tied the limbs of the deceased. Further, it is stated that while injuring the

body of the deceased by a Trident, he along with the wife of the Petitioner No.1 caught hold the deceased tightly and the petitioner No.1 injured the

body with an iron rod. He also confessed that he used one ""Gainti"" to injure the deceased. The petitioners have also confessed that prior to the date of

incident, all the accused persons have also practiced such methods on another lady of the same village. The confessional statement of Petitioner No.1

is also identical to the confessional statement made by the Petitioner No.2. The value of such statements will, of course, be examined by the Ld. Trial

Court.

The ancestry of present-day Witchcraft and sorcery has long and chequered history. The earliest practice of witch-hunting which has been

documented in India is in the year 1792 referred to as the “Santhal witch trialsâ€​ of the Santhal tribes belonging to what was then referred to as the

Chotta Nagpur Division in Singbhum District in British India. Even prior to that, the western world, in the pre- industrial revolution was still dabbling

with the hideous idea of witch-hunting. In 1484, Pope Innocent VIII issued Summis desiderantes affectibus, a Papal bull which authorized correction,

imprisonment and punishment of branded devil-worshippers. It was done at the request of an infamous inquisitor Heinrich Kramer, who had been

refused permission by the local bishops in Germany to investigate. Three years later in 1487, Kramer published the notorious Malleus Maleficarum

(popularly known across Europe as “Witch Hammerâ€) which, because of the newly invented printing presses, enjoyed a wide readership. There

are also a large number of infamous witch-trials reported which caused frenzy in a section of sensation craving public in those times.

At present, in some parts of the world many precious lives are sacrificed at the altar of witchcraft. Another telling aspect of the evil practice is

that in tribal society the said practice is often related to local politics. Many tribal women also convert as witch and get pushed to the receiving end of

immense mental and physically torture. Certain ideas, such as evil spirits, sorcery, spell casting, magic, and harmful curses are all equal with the idea

of witches or witchcraft are prevalent in the tribal society even in the present century though the motive driving modern witch hunting may be more

venal than spiritual. The fact that such practices are primarily hidden in villages, distant from the urban areas, allows it to thrive unnoticed, on most

occasions. This would further mean that the poor and the illiterate women, being the most vulnerable, unfortunately, fall prey to the inhuman violence

associated with this superstition. Disturbingly, women accused of being a witch could end up being subjected to brutal torture, abuses and even

murder, with active knowledge and consent of her relative.

Over time, various states have risen to the occasion to end the still rapaciously prevalent scourge of superstition and have enacted various

legislations at the State level such as the (a) The Prevention of Witch (Daain) Practices Act, 1999- Bihar, (b)The Prevention of Witch (Daain)

Practices Act, 2001- Jharkhand (c) Chhattisgarh Tonahi Pratadna Nivaran Act, 2005 (d) The Odisha Prevention of Witch Hunting Act, 2013 (e) The

Maharashtra Prevention and Eradication of Human Sacrifice and other Inhuman, Evil and Aghori practices and black magic Act, 2013 (f) The

Karnataka Prevention and Eradication of Inhuman Evil Practices and Black Magic Act, 2017 (g) The Rajasthan Prevention of Witch Hunting Act,

2015 (h) The Assam Witch Hunting (Prohibition, Prevention and Protection Act) 2015. These legislations, which are relatively new, indicate that the

society is surprisingly still afflicted by such mindless and absurd practices. Even during Vedic era there seems to be a rather developed society with an

evolved philosophy in place which have been echoed in various texts. Specifically, the first two lines in the famous verse from the Brhadaranyaka

Upanishad:

□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□

[Asato ma sadgamaya, tamaso ma jyotirgamaya] †reflects a collectively evolved social mind set of the people who held firm belief in a knowledge-

based society and relatively free from regressed and abject superstition. But the said practice is still very active in the 21st century despite science and

scientific temper have reached its pinnacle. The fact remains, in the absence of a central legislation it has resulted in lack of uniformity in the

application of law across the country. The provisions of the Indian Penal Code, although applicable for the crime associated with the menace, have not

proved to be as effective in deterring these criminals.

The pattern of the perpetrators of the crime, sought to be curbed by the above legislations, it appears, has a lot of similarities and the uneducated

and economically weaker sections end up being their soft targets. The need to generate awareness among such susceptible sections of people,

therefore, assumes importance and the concerned authorities may have to take effective steps, in this regard, to dispense with such primitive beliefs

and mindsets, which defies logic.

The United Nations Committee on the Elimination of Discrimination against Women had (CEDAW), as far back as in 2012 Fifty First Session held

between 13 February- 2 March 2012, recognized witch hunting as a discriminatory practice and expressed its concerns regarding such customs and

practices, which perpetuate discrimination against women and girls. Further, a Report by an Independent Expert body of the United Nations Report of

the Independent Expert on the enjoyment of human rights by persons with albinism on the expert workshop on witchcraft and human rights dated

23.01.2018. had identified a variety of impacts of witchcraft beliefs, all amounting to serious human rights violations, including attacks and mutilation,

human trafficking and human sacrifice. Predictably, it was also observed that the number of cases reported are often significantly lower than the

reality, since many instances of these human rights violations are unreported or unmonitored by official entities. The report also recognized that:

“.... witchcraft involves harmful practices in breach of international human rights standards and obligations, notably regarding human trafficking,

violence against women, the duty of due diligence, the right to life and the duty of protection requiring firm and immediate action, and the duty to

prevent and prosecute harmful practices and hate crimes.... Children are particularly vulnerable and need safeguarding, including early interventions to

tackle risks of witchcraft accusation or ritual killings...â€​

The Madras High Court in the case of Divan Sahib, In re 1963 SCC OnLine Mad 266 dealt with a case relating to death caused during an alleged

exorcism and noted two earlier pre-Independence cases with almost identical facts in Haku v. Crown AIR 10 Lah 555 : AIR 1928 Lah 917 and Nga

Po Tha v. Emperor 44 Ind Cas 679 : (AIR 1918 UB 24) which depict that even after the elapse of a century too little progress has been made in too

much time. In Gaurav Jain v. State of Bihar, 1991 Supp (2) SCC 133 the Supreme Court was cognizant of the widespread menace of witch-hunting

and directed the State to take steps to curb the menace by setting up of a special cell in each of the districts vulnerable to such perverse practices. In

a case of human sacrifice, fraught with superstition and blind belief in Sushil Murmu v. State of Jharkhand (2004) 2 SCC 338 the Supreme Court

declared that helpless boy who had his head severed by the accused to placate a deity, a fit case within the parameters of “rarest of rare†cases

and prescribed death punishment.

Superstition-bound witch-hunting violence has long history in the State of Orissa as noted by Supreme Court inD asrath Gand v. State of Orissa

AIR 1955 SC 583 and continues to rear its ugly head in Odisha despite the State government enacting Prevention of Witch Hunting Act in 2013 to put

to an end the abhorrent practice. The genesis of this Act owes to a judicial pronouncement of this court in the case of Mrs. Sashiprava Bindhani &

Ors v. State of Orissa & Ors. 2012 SCC OnLine Ori 152 This court in the aforesaid judgment opined that the State should expeditiously introduce a

bill in the Legislature to enact law to tackle the menace of witch-hunting effectively and laid down extensive guidelines to combat witch-hunting in the

State. In a slew of extensive guidelines this Court has comprehensively dealt with most of the aspects arising in such cases. Out of all the directions,

this Court feels that the direction that the Investigating Agency in cases involving allegations of witch-hunting, in order to avoid the witnesses turning

hostile should swiftly get the statement of the witnesses recorded under Section 164 of the Code of Criminal Procedure, 1973 needs to be stringently

followed. This is especially necessary as the experience of this court has shown that cases of witch hunting are mostly rampant in tribal and backward

areas. The communities living there are usually close-knit societies and persons who claim to possess such supernatural powers and dabble in the

practice of occult are usually feared in such communities. Its just like the proverbial saying “it is ill sitting at Rome and striving with the Popeâ€. In

this context, the experience of this court is, more often than not, the witnesses invariably turned hostile at the stage of trial fearing for their lives,

possibly, due to the perceived fear of suffering attack from supernatural powers. It is with this backdrop, it becomes extremely important that the

investigating agency ensures the statement of the witnesses recorded under Section 164 of the Code of Criminal Procedure, 1973 goes unhampered.

In the case of Moyna Murmu v. State of W.B. 2016 SCC OnLine Cal 4272 the High Court of Calcutta passed a slew of directions to enable the

State to combat the evil of witch-hunting. It also directed that the victims be provided assistance through the Legal Services Authority as aggrieved

persons who are entitled to legal aid under The Legal Services Authorities Act, 1987. It also directed the State Government to formulate a

Comprehensive Victim Compensation Scheme under Section 357A of the Code of Criminal Procedure for victims of witch hunting. The same view

was not only further buttressed but the urgency with which such practices needed to curb was emphasized by the same court in the case of State of

W.B. v. Kali Singh. 2018 SCC OnLine Cal 7237 In the case of Bhimpuri v. State of Assam 2017 SCC OnLineGau 813 the Hon’ble High Court of

Gauhati painfully observed that although orders passed by it had fructified in a legislation, still there was a lot of room for doing more in the area by the

State to curb the undying menace. This Court as recently as in the case of Iswar Attaka v. State of Orissa 2015 SCC OnLine Ori 34 6has taken note

of the worryingly rampant practices of witch-hunting which continues unabated despite there being a specific law dealing with the subject matter. The

Hon’ble Supreme Court in the cases of Ashok Laxman Sohoni & Anr v. State of Maharastra (1977) 2 SCC 103 PhuliaTudu & Anr v. State of

Bihar (2007) 14 SCC 588 and Bhuyan v. State of Assam (2011) 3 SCC 377 while dealing with such cases of witch-hunting has treated them to be

murder as the accused is generally fully aware of the consequences of his actions.

Witch hunting is abounded with 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, Rajasthan 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. Crimes such as witch hunting shock the collective conscience of the communities who are mostly tribal and backward

people of our society. Experience has shown that the faith of these otherwise naïve populations is exploited by such charlatans who stifle the voices

of the victims, brandishing the sword of “supernatural†fear. Thus, in such cases the courts need to be cognizant of the ground realities and the

skittish mindset of persons subject to such atrocities. Such crimes need to be dealt with an iron hand and the message needs to go out loud and clear

that courts sternly frown upon such crimes.

The aforesaid narration of the sordid events prima facie shows that the informant as well as the mother of the deceased were well aware as to

how the deceased had been attacked, resulting in her death. However, understandably and regrettably, it is only much later at the stage of trial that

these witnesses have turned hostile and are trying to cover up the involvement of the accused persons possibly because they are closely related to

them. Additionally, it is to be kept in mind that given the fact that the principal accused i.e. Rame Murmu masquerades as a “witch doctorâ€

claiming to possess supernatural powers, the witnesses who are yet to depose need not be exposed to any further fear psychosis. If the witnesses turn

hostile because of fear of witch doctor, the Benthamian percepts on witness are “the eyes and ears of justice†will lose importance and primacy

of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralyzed, and

it no longer can constitute a “fair trialâ€​.

Considering the aforesaid discussion, submissions made and taking into account a holistic view of the facts and circumstances of the case at hand,

this Court, at this stage, is not inclined to release the Petitioners on bail. Accordingly, the bail petition filed on behalf of the accused/petitioners stands

rejected. It is, however, clarified that the above observations shall not come in the way of a fair trial before the Ld. Trial Court and it will proceed to

decide the matter on its own merits, uninfluenced by any of the observation made hereinabove.

The bail Application under Section 439 Cr.P.C. is accordingly dismissed.