Calcutta HC Commutes Death Sentence Of Seven For Witch-Hunting 3 Women, Says When Motive Is Engrained In Psyche, Judicial Execution Doesn’t Help [Read Judgment]

State told to implement court guidelines in Moyna Murmu case, bring in legislation

The Calcutta High Court has commuted to life the death sentence of seven men guilty of killing three women believing them to be witches while noting that when motive of crime is engrained in psyche, judicial execution does not help and that cases like this reflected upon the failure of the state to perform its constitutional duty of spreading universal education to the darkest corner.

The decision was taken by a bench of Justice JoymalaBagchi and Justice Moushumi Bhattacharya, which also directed the state government to implement guidelines issued by the court in the year 2016 to check the crime of witch-hunting by mounting effective surveillance, compensation to victims etc.

In the part of the judgment penned by Justice JoymalaBagchi, he commuted to life the death sentence awarded to Sani Mandi, Bhaku Singh, Rabin Singh, Mangal Singh, Nura Singh, Somai alias Samai Mandi and Kali Singh while upholding the life term awarded to four others—Chhabi Singh, Panchami Singh, Kuni @ Kuri Singh, Lakshmi Singh @ Kuni.

The lifers have also been slapped a fine of Rs 60,000 each.

The court, however, acquitted two co-convicts Chandmoni Singh and Jayanti Singh @ Jayeti who had been sentenced to life.

All the men are members of Munda community, a Scheduled Tribe residing at Dubrajpur and Haridaspur villages in the district of Paschim Medinipur.

They had been booked for murdering three women—Sambari Singh, Fulmani Singh and Sombari Singh—believing them to be witches responsible for the ills and diseases facing their village.

On October 16, 2012, under the leadership of one Thoba Singh, who is absconding still, a meeting was organised where the three women were declared witches and asked to pay a fine of Rs 60,000 which was far from their paying capacity.

Due to their failure to pay the fine, the women were assaulted with fists and blows and dragged to river Kangsabati where their bodies were found the next morning buried on the bank.

The families of the victims intervened but were threatened.

While upholding the conviction of all but two by carefully examining the role of each of them in the crime and holding those guilty whose role are corroborated by two or more witnesses (as laid down by the apex court in case titled Busi Koteswara Rao and Ors. vs State of A.P.) Justice Bagchi said, “In view of the legislative scheme under section 354(3) read with section 235(2) Cr.P.C…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 the 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,” said Justice Bagchi.

He then embarked upon preparing a balance-sheet of aggravating and mitigating circumstances to assess if alternative sentence of life imprisonment is wholly inadequate in the facts of the case.

Crime rooted in ignorance and blind superstition

Justice Bagchi noted 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,” he said.

When motive rooted in psyche, judicial execution of guilty won’t prevent recurrence

Justice Bagchi went on to observe that, “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,” he said.

The judge relied here on the case titled State of Maharashtra vs. Damu S/o Gopinath Shinde and Others, where the apex court, while dealing with a case involving human sacrifice of three children on the superstitious belief that such a horrible act would lead to hidden treasure, commuted death sentence to life imprisonment by holding that, “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. Of 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,” said Justice Bagchi.

He opined in favour of the probability of rehabilitation and reformation of the convicts through social awareness and education.

In her part of the judgment, Justice Moushumi Bhattacharya stressed on how witch hunting, which essentially includes stigmatisation of specific groups of people, including widowed women and children of lower caste, is prevalent in many parts of the country, particularly in Jharkhand, Bihar, Haryana, West Bengal, Madhya Pradesh, Maharashtra, Gujarat, Odisha, Chhattisgarh, Assam, Rajasthan and Uttar Pradesh.

“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,” said Justice Bhattacharya.

Journey from Kolkata to village of crime a sharp plunge in depths of ignorance

The judge spoke on how the village where the crime happened is not very far from Kolkata but is a sharp plunge into the depths of ignorance and yet the state does not act to spread awareness.

“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 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 Chhattisgarh 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.”

Justice Bhattacharya differed from the belief that crimes like witch-hunting are rooted in poor socio-economic conditions.

“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,” she said.

Calling for State’s immediate intervention

“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,” said the judge.

She then directed the State to ensure effective compliance of the guidelines put in place by the court in its judgment in case titled Smt. MoynaMurmu vs. Sri Nanda Murmu for the control and prevention of witch hunting in the State and to supplement in with legislation covering aspects of the practice of witchcraft which may not even reach the courts.