ABSTRACT

India is a land of diverse religions, cultures, and traditions, many of which are intertwined with deep-rooted superstitions. While some superstitious beliefs are harmless, others lead to grave criminal offenses, disproportionately affecting vulnerable sections of society. Illiteracy and lack of scientific awareness are primary drivers behind such practices, resulting in severe physical and psychological trauma for victims and their families. This paper examines the alarming rise of superstition-driven crimes, with a focus on murder, witch-hunting, and human sacrifice, and evaluates the legal mechanisms in place to address them. The study analyzes the provisions of the Bharatiya Nyaya Sanhita (BNS) and its application in prosecuting offenses linked to superstition. It highlights how existing laws, though robust in theory, often fall short in practical implementation, particularly in rural and tribal areas. The paper also explores state-level legislations aimed at curbing such crimes, emphasizing their role in prevention and victim protection. Judicial responses to these offenses are critically examined, with references to landmark cases where courts have imposed stringent punishments, including the death penalty, to deter future incidents. Furthermore, the paper underscores the urgent need for a comprehensive central legislation to uniformly address superstition-based crimes across India. The judiciary has repeatedly advocated for such a law, recognizing the limitations of fragmented state laws. By analyzing brutal instances of witch-hunting and human sacrifice, the study reveals the inadequacies in the current legal framework and calls for collaborative efforts between the legislature, judiciary, and executive to eradicate these practices. Ultimately, the paper advocates for a multi-pronged approach combining legal reform, education, and social awareness to dismantle the superstitions fueling these heinous crimes.

Keywords: Superstition-driven crimes, Bharatiya Nyaya Sanhita (BNS), Witch-hunting, Illiteracy, Central legislation.

INTRODUCTION

India is a country of diversity. Many people belonging from various religion, caste and linguistic backgrounds resides in our country. In India especially in the areas where the literacy level is low, there the people believe in superstition. As a result of such superstition many grave offences are committed by the people. The offences have serious impact on the victim as well as on the victim’s family. As per Merriam Webster dictionary superstition means, “A belief or practice resulting from ignorance, fear of the unknown, trust in magic or chance, or a false conception.” The superstitious practices have been passed down from one generation to the next generation. Some superstitious practices do not cause any harm but some practices result in commission of grave offences. Many offences are committed under superstition like practices of sati, witch-hunting, human sacrifice, murders etc. Most of the offences which are committed under superstition are committed against women and children. Most of the times these grave offences are committed in a brutal manner. In India presently the offences committed under superstition are dealt under the provisions of IPC or BNS and various legislations which are enacted and enforced by states in our country. The Supreme court and the High courts of our country apart from awarding the punishment in such grave offences, through various decisions have emphasized the need of measures to be taken by the states and need of legislation to prevent the commission of crimes under superstition. There are many state level legislations which are in place to deal with offences committed under superstition. The Indian judiciary has adopted a proactive role in dealing with cases committed under superstition.

TYPE OF GRAVE OFFENCES COMMITTED UNDER THE INFLUENCE OF SUPERSTITION

Witch-hunting

The practice of witch-hunting was previously only confined to the tribal communities and now the practice of witch-hunting is becoming common among the Dalit and other minority communities. The practice of witch-hunting can be attributed to the illiteracy and lack of development in certain area. It is basically the practice of killing a woman believing her to be a witch who has caused certain harms to the member of the particular community. As per the common belief across various states where the practice of witch-hunting is prevalent, “Witch are thought to possess an evil eye or mouth, they eat humans, cattle and destroy crops and causes illness.” This is nothing but a massive superstition which causes serious harms to the life and property of the suspected witch.

The witch-hunting is a practice of naming a woman as a witch and cause unimaginable harm to her by the members of the particular society. The victims of witch hunt are generally Dalit, Adivasis or tribal women. This practice is generally found in the areas where there is no access to education, medical care, sanitation or legal services.[1] This practice affects the people belonging to the vulnerable section of the society. The victims are subjected to ostracization by the members of the society. As per the bill presented before the Indian parliament, “There have been instances where such women are branded as witches beaten, burned, paraded naked, tonsured, forced to eat human excreta, raped, teeth and fingernails are pulled out. There have been instances of mutilation of women’s body parts and organs including genitalia. Women are tortured to death or murdered.”

The person in whose family someone dies, or whose cattle or crops have been perished in the tribal and underdeveloped areas they employ an ojha or witch doctor to find who is the witch. After a death of someone in the village or if any epidemic is there in the village, then the people start believing that this is the work of a witch and they start witch-hunting. The only reason of witch-hunting is that the people believe more in superstition in comparison to science. In many numbers of reported cases of witch-hunting women who were declared as witches by the local people were made to walk without any clothes in the village, in some cases they were subjected to gang rape, they are killed in brutal manner. They are brutally assaulted and publicly humiliated. They are also forced to do inhumane work. There is no single definition of witch craft in our country and it varies form state to state. Witch-hunting cases in the recent times have been dealt with under the provisions of BNS. Section 103, 116, 130, 74, 351 are some of the sections of BNS under which cases of witch-hunting is registered.

In the case of State of West Bengal v. Kali Singh and Others,[2] three women were brutally murdered suspecting and believing that they were witches. Around 50 people gathered in front of the house of those women and demanded Rs.60000 and when they did not pay these women were dragged to the river and there they were killed and buried. In this case unfortunately the death sentence was commuted to life imprisonment by using the mitigating factor that the accused were under the influence of superstition and they belonged to scheduled tribe.

Witch-hunting has some severe impacts on both the physical and mental health of the victim if she survives. The practice of witch-hunting is completely based on superstitious beliefs. This practice is violative of the right to life as guaranteed under the Indian constitution. Such acts are also not the part of the religious freedom as guaranteed under the article 25 of the constitution. It is a discriminatory practice against the women which is rooted in the ancient patriarchal set up in our society. A woman who is living alone or suffering from psychological disorder is often subjected to the practice of witch-hunting. The HC of Odisha in the case of Iswar Attaka v. State of Orissa[3] stated that, “Murders and other serious crimes are continuing unabated in the name of witchcraft, sorcery and superstitious practices. The horrendous and lurid scenarios of the obsolescent superstition of witch-hunting have taken many lives.” As per the bill presented before the parliament, “Women accused of witchcraft do not seek assistance of legal authorities or police in the fear of further violence. In many cases police fails to lodge FIR. Even if FIR is lodged, arrest is made, accused are set free due to lack of evidence.” Because of lack of adequate rehabilitation, relief and compensation the women who are identified as witches when return to their villages face hostility from the society and they also become deprived of their socio-economic and property rights.

Black Magic And Commission Of Murder- The practice of black magic is existent in our country as a social evil and it is often treated as a part of the religious beliefs. It is a common practice that in the villages also in some cities when some person starts behaving in an inappropriate manner or shows certain psychological disorders then such person is taken to the black magic gurus. Influenced by the black magic and superstition people start believing that any material pain of theirs can be cured by pleasing the supernatural power. To please the supernatural power the people, make human and animal sacrifices before any god or goddess on whom they have their believe. Most of the times the humans who are sacrificed are children and of very tender age. The offenders think that their problem can be solved by giving human sacrifice and they also do so. Because of such superstition innocent children and persons lose their lives in the name of sacrifice. News of such human sacrifice makes headlines in the local and national newspaper across the country. These sacrifices are committed in a brutal and grave manner. The root of such grave offence is in the superstitious beliefs of the persons.

Sati- Sati is also a superstitious social evil which is harmful to the life and dignity of woman.[5] In this practice the women jump into the funeral pyre of their husband to sacrifice themselves. The last reported case of Sati was Roop Kanwar case of state of Rajasthan.[6] After that case the central government enacted a stringent legislation providing punishment in the case of commission of such offence. This practice is against the life and dignity of married woman. Such practice may not be present in the recent times, but it is a grave offence which is committed under the superstition and rightfully the central government has enacted a law to prevent and check the commission of this social evil.

Offence Of Rape- Rape is one of the gravest offences committed against a woman. A woman who is termed as a witch in the remote areas of our country is often subjected to the offences of rape and gang rape. Offence of rape is also committed when the women have superstitious beliefs and such beliefs are exploited by some self-proclaimed spiritual gurus and they commit rape on such women.[7] Ram Rahim of Punjab state committed such offence of rape on the victims who had superstitious belief that he was a god and they were totally turned blind by the superstitious beliefs.[8] They believe such gurus as gods and they are often ready to do whatever they say. Such gurus take advantage of such persons and commit rape on them. Another spiritual guru Asaram Bapu who is now in undergoing his life imprisonment raped a teenage devotee on the pretext that this will help her in getting rid of her evil spirits.[9] Such offence of rape should be condemned and such spiritual leaders who exploit the trust of their devotees must be given severe punishment. If the devotees can get rid of their superstitious beliefs, then such offence will not happen at all. The simple logic in such case is how can be a human be a god. Many such spiritual leaders have been convicted for commission of rape and sentenced with severe punishment for such shameful and illegal acts.

RELEVANCY BETWEEN SUPERSTITION AND INSANITY-

Unsoundness of mind is termed as insanity. As per the medical science it is a disorder of the mind of a human being which impairs the mental faculties and condition of a human being. It is mental abnormality. In BNS, the term insanity is not used instead of it the term unsoundness of mind is used in the code. Section 22 of the BNS states that, “Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.”[10] Simply stating that a person is insane is not sufficient to regard him as innocent person, it has to be proved that the insanity or unsoundness of mind was such that the person was not in a position to understand the nature and consequence of the act committed by him. In this regard medical insanity is different from legal insanity. A medically insane person can be convicted but a person who is legally of unsound mind during the commission of the criminal act will not be punished for such commission. It is often seen that when some offence is committed by a person under the influence of superstition, they tend to take section 22 of BNS as a defence stating that they were unaware of the nature and consequences of the act while committing it. They may also state that they were suffering from a delusion while commission of the act. The courts in some cases have allowed this defence considering it as a delusion.

In the case of Ashiruddin v. The King[11], the accused sacrificed his 5-year-old son while acting under the delusion of the dream, believing it to be right. The accused had dreamt that he was commanded by someone in paradise to sacrifice his son of five years. The next morning, he took his son to mosque and killed him using a knife. He then went to his uncle and told him the story. The Calcutta HC allowed the defence under section 84 of IPC. The court stated that, “The accused did not know whether the act which was done by him was wrong. The accused was labouring under a belief that his dream was a reality.” As we can see from this case the person who has superstitious beliefs are most likely to have such dreams. Because a rational person definitely does not believe in human sacrifice to appease someone in paradise. The court has also allowed this defence because the court considered that the person was not knowing that he was doing a wrong thing.

Sometime such defence pleaded by the accused is not allowed. Because while doing such superstitious acts their cognitive and mental faculties know the nature and consequence of the act which they are doing. In such cases the court should not allow the defence of unsoundness of mind because this will encourage commission of grave offences like human sacrifices under the influence of superstition. After commission of such grave offence the accused can plead the defence of insanity. So, superstition should not be confused with insanity. An insane person does not know what is the act which he or she is doing. But a person acting under the influence of superstition does a work knowing it to be wrong and against the law because his mental faculties and reasoning faculties of mind are considered to be in fit condition while doing such act. A person sacrificing another human being knows that he is doing a wrong act and it is contrary to law and the burden of proof in such case lies on him to prove that the work done by him qualifies the defence as provided under section 22 of BNS.

CAUSES OF GRAVE OFFENCES COMMITTED UNDER SUPERSTITION

The SC of India in the case of State of U.P. v. Sahrunnisa[12] stated that, “Superstition plays a very important role in the Indian society. It is not restricted to any particular religion or a particular section of society including the haves and have-nots.” As per the study conducted by R.E. Zad in Iran, “Superstitions are social phenomena and product of social context and conditions. Amongst the factors which provided the emerging field of social phenomena is the fear of human being from spiritual and material circumstances, precautions reactions, human ignorance of reality during the history and transmission of superstitious ideas.”[13]

In 21st century despite the remarkable development in the field of science and technology, superstition still exists in many parts of the world as well as in India. As per a study conducted by Jahoda in 1969, “Superstition believes grow in the context of ignorance, and nearly all human sacrifices have some superstitious tendencies. Common people tend to superstition, because wisdom is usually difficult and troublesome. Therefore, humans prefer superstition to reasoning and imagination to the truth.”[14]

i. Illiteracy and Ignorance- Illiteracy is one of the prime reasons for the existence of superstitious beliefs. Because the people become ignorant and they start following superstitious practices like animal and in some cases human sacrifices. For the people practicing superstitious practices for them it may look like normal but it is actually not. They commit many brutal crimes because of illiteracy. Because they think the work they are doing is absolutely right. But in the name of superstitious beliefs, they commit many brutal and grave crimes. Illiteracy is one of the main reasons for commission of grave offences under the influence of superstition. These practices are evident in the tribal and remote areas of our country. Illiteracy and ignorance are the primary reasons for such offences because they make people believe in supernatural being which is not really in existence and such beliefs some time pave the way for commission of many grave offences.

ii. Traditional practices- Some practices have been in continuance since time immemorial. These superstitious practices have been incorporated in the daily life style of the individuals. Some superstitious practices are harmless but some superstitious practices result in commission of grave offences. Such tradition is of no use which promote the commission of grave offences.

iii. Religious Beliefs- Some religious beliefs also promote superstitious practices and such superstitious practices encourage the commission of certain acts which are crimes and grave offences in the eyes of law. Such false religious beliefs which result in commission of crime should be discouraged.

iv. Lack of modern development- Many tribal areas do not have the modern developed facilities especially the health care facilities. These constraints encourage and forces them to take the help of superstitious practices and gradually they start believing in such irrational practices and it can also at a later stage result in that particular individual committing a grave offence.

v. Existence of extreme poverty- Some times because of extreme poverty the individuals are not in a position of getting education. Poverty forces individuals to commit any crime. They take the help of the superstitious practices to solve their problem because they do not have the access to the means and modes necessary for solving the problems in a rational manner.

BNS AND GRAVE OFFENCES COMMITTED UNDER SUPERSTITION-

Currently because of lack of any central legislation the grave offences which are committed under the influence of superstition are dealt under the provisions of BNS. Many types of grave offence can be committed under the influence of superstition and many minor offences can be committed which are incidental and part of the grave offences. The relevant sections of BNS dealing with such offences are-

Murder and Attempt to Murder-

Section 103- In the practice of witch-hunting often the offence of murder is committed in a brutal manner and similarly when the offence of human sacrifice is made under the influence of superstition then it will also come under the purview of this section. The punishment provided under this section is death or life imprisonment with fine.[15]

Section 109- Similarly, the offender if fail in commission of murder under these superstitious acts then he can be punished under this section for attempt to murder. There is provision of an imprisonment up to 10 years when no hurt is caused to the person and there is provision of life imprisonment, which shall mean imprisonment for the remainder of that person’s natural life, if any hurt is caused to the person while such attempt is made.[16]

Hurt and Grievous Hurt-

Section 116- This section defines what is grievous hurt. While committing any grave offence under superstition there is a chance that severe damage may happen to any body parts or permanent disfiguration may occur. Such cases are dealt under this section.[17]

Section 117(1)- As per this section voluntarily causing hurt to any person is punishable with an imprisonment up to one year along with a fine which can be extended up to 1000 rupees.[18]

Section 117(2)- As per this section voluntarily causing grievous hurt is punishable with an imprisonment which can be extended up to seven years along with fine.[19]

Wrongful Restraint and Confinement-

Section 126(2)- This section provides punishment for wrongful restraint. An imprisonment up to one month or fine up to Rs. 5000 is provided as punishment under this section.[20]

Section 127(2) This section provides punishment for wrongful confinement. The punishment is same as to the punishment provided for wrongful restraint.[21]

Assault-

Section 130- This section provides the definition of assault. As per this section any gesture, preparation to use criminal force against the person is considered to be an assault.[22]

Section 74- As per this section any assault or use of criminal force to outrage the modesty of a woman is punishable with an imprisonment of 1 year which can be extended up to 5 years and also punishable with fine[23]

Abduction and Kidnapping-

Section 140(1)- This section deals with the offence of kidnapping or abduction committed for murder. The punishment provided under this section is life imprisonment or rigorous imprisonment up to 10 years along with fine. In cases of witch-hunting and human sacrifices such offence is generally caused.[24]

Offence of Rape-

Section 63- This section gives the definition of rape. Many times, the women who are victim of such offence committed under superstition are subjected to rape and gang rape.[25]

Section 64- A range of punishment is provided for the offence of rape. Under this section rigorous imprisonment up to 10 years is provided for commission of offence of rape. rigorous imprisonment up to 20 years is provided for the offence of rape committed against a woman under 16 years of age.[26]

Section 66- This section provides the punishment when the death or permanent vegetative stage of victim is caused because of the rape. The punishment provided under this section is rigorous imprisonment up to 20 years which can be extended as life imprisonment. The offence is also punishable with death.[27]

Section 65(2)- This section provides the same punishment as section 66 when the offence of rape is committed on a woman under 12 years of age.[28]

Section 70(1)- This section provides punishment for the offence of gang rape of a woman. The punishment is rigorous imprisonment up to 20 years which can be extended to life imprisonment.

Section 70(2)- This section makes the offence of gang rape of a woman under 18 years of age punishable with death or life imprisonment, which shall mean imprisonment for the remainder of that person’s natural life[29]

Defamation-

Section 356(1)- This section defines the offence of defamation along with certain exceptions. The victim of which hunting and other black magic practices are subjected to harsh defamation.[30]

Section 356(2)- This section provides punishment for offence of defamation. Simple imprisonment up to 2 years along with fine or with community service is provided as punishment under this section.[31]

LEGISLATIONS RELATED TO GRAVE OFFENCES COMMITTED UNDER SUPERSTITION-

Practices of Sati-

1. The Commission of Sati (Prevention) Act, 1987 -

Section 3 of the act makes attempt to sati a punishable offence with imprisonment which may extend up to six months or fine or both. Section 4 of the act makes abetment of sati as an offence punishable with death or imprisonment for life along with fine. Section 5 of the act makes glorification of sati an offence punishable with an imprisonment of one year which can be extended up to seven year and with a fine of minimum Rs. 5000 which can be extended up to Rs. 30000.[32]

Witchcraft and Witch-hunting-

There are no central legislations in this regard. The Prevention and Prohibition of Witch-Branding and Witch-Hunting and Other Harmful Practices Bill, 2022 was introduced by Rajya Sabha but it has not yet been passed and is still in the process of being considered by the Parliament. The legislations below are some of the legislations enacted by the state to check the commission of witch-hunting.

1. The Bihar Prevention of Witch (Daain) Practices Act, 1999-

As per section 4 of this act when any physical or mental torture is inflicted on a woman who is identified as witch by the members of the community, then the person will be punished with an imprisonment of three months which can be extended up to 1 year and fine of Rs. 1000 which can be extended up to Rs. 2000.[33]

2. The Jharkhand Prevention of Witch (Daain) Practices Act, 2001-

As per section 4 of this Act, for a murder of woman naming her as a witch is punishable with an imprisonment ranging from six months to one year along with a fine up to Rs. 2000.[34]

3. The Chhattisgarh Tonahi Pratadna Nivaran Act, 2005-

Section 5 of this Act states that an imprisonment of one year which can be extended up to five-year along with fine for the act of witch-hunting. The fine is to be decided basing on the quantum of mental and physical agony inflicted on the victim.[35]

4. The Orissa Prevention of Witch-hunting Act, 2013-

As per Section 4(2) of this act, “Any person who degrades the dignity of a woman termed as a witch and is paraded with painted face or any act incidental thereto will be punished with imprisonment of 1 to 5 year with a fine which may be extended up to Rs. 1000.[36]

5. The Assam Witch-Hunting (Prohibition, Prevention and Protection) Act, 2015-

As per Section 6 of this Act, “Witch-hunting is a non-bailable, cognizable and non-compoundable offence and punishment extending up to life imprisonment and or fine up to Rs. 5 lakhs if a woman commits suicide after being stigmatized, intimidated and defamed in the society after being accused as a witch.”[37]

6. The Rajasthan Prevention of Witch-Hunting Act, 2015-

As per section 4 of this act there is a provision of punishment of imprisonment of 1 year which can be extended up to 5 years and a fine minimum of Rs. 50000 if a woman is termed as a witch and is asked to consume inedible substances, or is displaced from the property or is paraded naked in the public places.[38]

Blackmagic, Human sacrifices and Superstition-

There is no central legislation for these superstitious practices. These are some of the state legislations which are mentioned below:

1. The Maharashtra Prevention and Eradication of Human Sacrifice and Other Inhuman, Evil and Aghori Practices and Black Magic Act, 2013-

As per section 3 of the act, “Commission of any act of human sacrifice and other inhuman, evil and aghori practices and any black magic practices is punishable with an imprisonment of six months which can be extended up to seven years and a fine of 5000 which can be extended up to Rs. 50000.”[39]

2. Karnataka Prevention and Eradication of Inhuman Evil Practices and Black Magic Act, 2017-

This act bans 16 types of different superstitious practices. As per this act, “Any inhuman, evil and black magic acts organised in the name of witchcraft which involves assaulting any person, parading someone naked, tying a person with a rope or chain, beating the person or forcing people to consume urine or excreta are punishable.”[40] Any person who is convicted under the provisions of this act could be jailed or fines and can be dealt under section 302, 307 and 308 of IPC.[41]

CASE ANALYSIS ON APPROACH OF INDIAN JUDICIARY WHEN THE GRAVE OFFENCES ARE COMMITTED UNDER SUPERSTITION-

1. Sushil Murmu v. State of Jharkhand[42]

Significance of the case-

This is a case where a 9-year-old boy was sacrificed before goddess kali by the appellant. Death penalty was rightly imposed on the convicted person. The respondent contended that superstitious belief existing in the tribal area should act as a mitigating factor in the instant case. But the court said that in the shadow of superstition if any diabolic and brutal murder is committed it cannot be excused. This is a case where superstitious belief and black magic resulted in the death of an innocent child. The apex court of our country in this case has rightly confirmed the imposition of death penalty. Otherwise, being lenient in such cases may encourage such superstitious practices.

Facts of the case-

On 11th December, 1966 the son of Somlal Besra named Chirku Besra was missing from house. The father was searching his son by making inquiries. He received the information that the appellant had sacrificed his son before goddess Kali. The wife and mother of the appellant were also said to be the parties who killed his son in a brutal manner. The case of the prosecution was based on the extra judicial confession made by the accused in front of large number of members of the locality. One witness saw the accused carrying a bag to the pond and throwing that bag into the pond on the day of commission of the offence. The severed head of the child was recovered from the pond. Information was given to the police and after receiving information the investigation was carried out by the police. All three accused were tried per offences punishable under section 302 and 201 of IPC.

The appellant was found guilty for both the offence and was sentenced to death under section 302 and 7 years of rigorous imprisonment was provided under section 201 of IPC. But the benefit of doubt was given to the other two accused and they were acquitted. When reference was made to the Jharkhand HC under section 366 Cr.P.C., the HC upheld the conviction and sentence imposed by the trial court. Against the judgement of the HC, this appeal was filed by Sushil Murmu challenging the imposition of death sentence.

Issues raised before the court-

1. Whether there is something uncommon in this crime which renders the life imprisonment inadequate and calls for imposition of death penalty in this case.

2. Whether the circumstances of the crime are such that it calls for imposition of death sentence even after giving maximum weightage to the mitigating factors.

Reasoning given by the court-

The court stated that imposition of death penalty is justified in the rarest of rare cases when the collective conscience of the society is shocked in such a manner that the society expects the judiciary to inflict the death penalty without considering the personal opinion of the judges. In Macchi Singh v. State of Punjab[43], such situations were enlisted by the SC, when the collective conscience of the society is shocked. Two situations which applies to this case were- “When the murder is committed in an extremely brutal, diabolical and dastardly manner so as to arouse intense and extreme indignation of the community and When the victim of the murder is an innocent child.”

If after taking into consideration all the circumstances of a particular case it is warranted that the death penalty should be imposed then death penalty should be imposed in such cases by the court.

The court then after going through the facts and circumstances of the case stated that the appellant was not possessed with humanness and considering his mindset the appellant is unfit for reformation. He sacrificed a helpless child in brutal and diabolical manner. He did so for personal gain and to appease the deity. The brutality of the murder is revealed from the fact that how the head of the helpless child was severed form his body in brutal and diabolical manner. The court stated that, “Even if the helpless and imploring face and voice of the innocent child did not arouse any trace of kindness in the heart of the accused, the nonchalant way in which he carried and severed head in a gunny bag and threw it in the pond unerringly shows that the act was diabolic of most superlative degree in conception and cruel in execution.” The crime committed in this case is of social abhorrent nature. It is definitely a crime committed in a dastardly manner.

The court signifying how superstition in this case will not act as a mitigating factor stated that, “Superstition is a belief or notion, not based on reason or knowledge. Superstition cannot and does not provide justification for any killing, much less a planned and deliberate one. No amount of superstitious colour can wash away the sin and offence of an unprovoked killing, more so in the case of an innocent and defenceless child.”

The accused had criminal propensities which is proved by the un going trial against him for a similar offence. Though he was not yet convicted for the commission of similar offence but the fact of accusation cannot be disregarded. There is no need to interfere with the imposition of death penalty in this case. This case falls under the rarest of rare cases category and death sentence should be imposed in this case.

Decision of the court-

The court held that there is something uncommon in this case which renders life imprisonment inadequate and calls for imposition of death penalty. After balancing the aggravating and mitigating factors of the case the court came into the conclusion that death penalty imposed in this case need not be interfered and the imposition of death penalty was correct. There is no need to modify the sentence to life imprisonment.

2.Ishwari Lal Yadav v. State of Chhattisgarh[44]

Significance of the case-

This is a recent case decided by the SC. The SC imposed death penalty applying the rarest of rare cases test and balancing the aggravating and mitigating factors of the case. This case is a clear example hoe even in recent times the act of human sacrifice is committed by people under the influence of superstition. A child of age two years before becoming an adult was deprived of his life because of the superstitious beliefs and black magic practice adopted by the convicted persons in this case. This case also shows how the apex court of our country has provided the most severe form of punishment available in this case where the murder of a young child is committed because of superstitious beliefs.

Facts of the case-

Kiran Bai and her husband Ishwari Lal Yadav believed in the superstition of tantrism. Kiran Bai wanted to attain siddhi. She also had proclaimed herself as a Guru Mata. To please god, she asked her followers and her husband to get a small human child for the purpose of human sacrifice. For the purpose of sacrificing a small child named Chirag was kidnapped and murdered in a gruesome and brutal manner in the house of Kiran Bai and Ishwari Lal Yadav. After the commission of murder, the deceased body was buried in the premises of the house. They also played music system with a high volume to avoid the sound of cries of Chirag while committing the sacrifice.

When the parents and other people started searching for Chirag, they came across the loud music played inside the house of the accused which gave rise to suspicion among them. Some relevant facts are, “When some people have entered the house of Kiran Bai and Ishwari Lal Yadav and found five mounds of freshly dug earth. It is alleged that there was also a leaf bowl, one small bowl, one small round metal pot, a trident, idols and pictures of Gods and other items of puja were lying there. There was blood on some of these items.” When the people asked what happened after entering the house of the accused it is alleged that the accused stated that they had sacrificed Chirag and they also begged for mercy. When the crowd started digging the place body of Chirag was found.

Police came and sent the body for post-mortem after lodging FIR and based on disclosure statements of the accused discovered some incriminating articles. Then police submitted its final report under section 173 of Cr.P.C. The sessions judge imposed the sentence of death penalty on the accused. Then reference was made under section 366 of Cr.P.C. The trial court convicted "All the appellants were charged for offence under Sections 364/34 read with section 120B of IPC and under sections 302/34 read with sections 120B and 201 of IPC. When reference was made to the HC then the HC confirmed the imposition of death penalty on the appellants in the instant case.

Issues raised before the court-

1. Whether the imposition of death penalty on the appellants in the instant case was correct.

2. Whether the extra judicial confessions can be accepted as a piece of evidence.

Reasoning given by the court-

The court stated that based on the oral evidence on the record of the persons other than the parents of the deceased child it is clear that when they entered the house of the main accused, they found some wet area with certain puja articles and they also noticed fresh mounds of soil in the premises and when they removed the soil then they found body of Chirag and his tongue and cheeks were missing. The statements of the independent witnesses regarding the loud music and arrival of police at that place is also very clear.

The court also considering the evidentiary value of the confession stated that, “They have confessed that they have committed murder of the deceased child for the purpose of sacrifice. There is nothing on record to show that such confessions are caused by inducement, threat or promise. When such confessions are corroborated by other evidence on record, the trial court as well as the High Court, rightly relied on such confessions.” The court stating that in this case extra judicial confessions can be treated as a valid confession with evidentiary value stated that,

“It is true that the extra judicial confession is a weak piece etc. of evidence, but at the same time if the same is corroborated by other evidence on record, same can be accepted.”

Regarding the conviction under section 364 of IPC the court stated that, “To prove the charge of kidnapping and conspiracy, there is no acceptable evidence on record.”

The court stating that application of section 106 of the Indian Evidence Act, 1872 by the lower courts was valid stated that, “In this case on hand it is proved by cogent evidence that the body of Chirag was found in the house of Ishwari Lal Yadav. By applying the provision under Section 106 of the Indian Evidence Act definitely it is the burden of the accused to explain the fact within the knowledge of them how the body of Chirag came to be buried in their house.” The court examining the imposition of death penalty on the appellants stated that under section 302 of IPC life imprisonment is a rule where as death penalty is to be given in only “rarest of rare cases”. The court stated that death penalty has to be imposed only after balancing the aggravating and mitigating circumstances of the case. The court referred to the cases of Bachan Singh v. State of Punjab[45] and Machhi Singh v. State of Punjab[46]. After referring to these judgements court stated that before imposition of death penalty the age of accused, possibility of reformation of the accused and gravity of the offence has to be considered.

Justifying the imposition of death penalty in the instant case the court stated that they sacrificed a 2-year child to God despite of them being the parents of three minor children. They committed the murder in a brutal manner. The head of the helpless child was severed and his tongue was cut down. Stating that the accused are not fit for reformation the court stated that, “Having regard to age of the accused, they were not possessed of the basic humanness, they completely lacked the psyche or mindset which can be amenable for any reformation. It is a planned murder committed by the aforesaid two appellants.” The court also stated that the accused in this case earlier committed the murder of a six-year-old girl and such previous commission of similar offence is an aggravating factor. The court stated that the prosecution has proved the case beyond reasonable doubt and the imposition of death penalty by the trial court was correct.

Decision of the court-

The court stated that extra judicial confession has a strong evidentiary value when corroborated by other evidences. The imposition of death penalty was also confirmed by the court. The court in its final decision stated that, “Appeals filed by Ishwari Lal Yadav and Kiran Bai respectively are partly allowed, setting aside the conviction recorded and sentence imposed for the offence under Section 364/34 and 120B of the IPC. However, their conviction under Section 302/34 and 201, IPC is confirmed, confirming the death sentence imposed on them for the offence under Section 302/34 IPC. The sentence imposed on them under Section 201 IPC is also confirmed.”

3. Mrs. Sashiprava Bindhani & Others v. State of Orissa & Others[47]

Significance of the case-

This case is of significant importance. State of Odisha is one of the states where the practice of witch-hunting is prevalent across the state. In this case the HC of Odisha recognised the problem of witch-hunting and issued certain guidelines in accordance with the international conventions to prevent commission of witch-hunting. The state government was also directed to make a legislation to prevent witch-hunting. The state government followed the direction and enacted a legislation in this regard. This is a case showing the proactive approach by the judiciary to combat the malady of witch-hunting prevalent in the remote and tribal areas of our country.

Facts of the case-

In this case writ a writ petition was filed before the Odisha High court. The petition was filed before the court in order to pray the court to direct the state government and to frame guidelines to deal with witch-hunting cases and to protect the women from any witch-hunting till such legislation is framed by the state government. The petitioner described the instances of murders in the state because it was believed that the deceased was practicing witchcraft. They stated that the persons do the act of witch-hunting under the influence of gunias. They stated that the person committing such crime often believe that they are doing the right thing while committing the murder of a person suspected of witchcraft. This particular condition is prevalent across the tribal districts of state of Odisha.

Issues raised before the court-

1. Whether guidelines should be issued by the HC to prevent the commission of witch-hunting in the state of Odisha.

2. Whether the state government of Odisha should be directed by the HC to frame a law to eradicate the practice of witch-hunting which is mostly prevalent in the tribal districts of Odisha.

Reasoning given by the court-

The HC referring the report submitted to the state government of Karnataka regarding witch-hunting by an expert committee which was constituted to investigate and report about the practice of witch-hunting stated that, “People have been suffering from this so-called witchcraft due to various causes. Some of the prominent causes have been fear, ignorance, superstition, personal & family problems, poverty, religious feuds, & village politics. This phenomenon of witch-hunting and witch craft is more prevalent in remote villages cut away from the main stream of life. It is also a fact that most of the victims are women. Even among women those belongs to marriageable & child-bearing age groups seem to be more prone to this problem.”

The victims are subjected to many physical and mental problems. The practice of witch-hunting and witchcraft is treated as a mean of exploitation. The people state that reason behind such practice is presence of supernatural forces. As per the report of the committee the practice of witchcraft and witch-hunting was growing in the state because many educated people also believe in the practice of witchcraft. Sometimes many unscientific reports and articles are published in the newspapers regarding the existence of witchcraft which further encourages such practices among the uneducated masses of the state. As per the report of Karnataka, “One of the main reasons for the spread of witchcraft and witch-hunting across the state is that the police department under its existing laws are helpless and cannot take notice of cases coming under the purview of witchcraft. This has indirectly given a free hand and also encouragement to persons who in the name of witch exploit innocent people.”

The court recognized that this social malady is prevalent across the state because of ignorance of the people and an effective measure is required to be taken to tackle this. The court referred to the recommendation given by the Committee of Elimination of Discrimination Against Women of the United Nations to eliminate stereo-type and harmful practice in its 51st session held in 2012. The committee citing its concerns over practices like witch-hunting stated that, “Committee expresses its serious concern about the persistence of harmful norms, practices & traditions, patriarchal attitudes & deep-rooted stereotypes, regarding the roles, responsibilities & identities of women & men in all spheres of life, as well as the State party’s limited efforts to address such discriminatory practices. These include, in particular, polygamy, bride price (lobola), & in certain regions, virginity testing & witch-hunting.” The committee also urged different state parties to take measures to eradicate such practices.

The court again stated that, “It is clear that the CEDAW also endorse witch-hunting as one of the harmful practices. The State should formulate a preventive strategy to eliminate such practice. This Court, therefore, is of the opinion that the State should introduce a bill in the Legislature to enact law to tackle the menace of witch-hunting effectively.”

Decision of the court-

The court gave a definition to witch-hunting and stated that, “Any person accuses another or defames a woman by calling her ‘Dayan’ or ‘Dahani’ or any other name or symbol suggesting her to be a witch & any person or persons jointly or individually harms another person either physically or mentally or damages her property calling her to be a witch, shall be known to be practicing witch-hunting.” When any such act of witch-hunting is committed the provisions of IPC should be used by the police administration to register the commission of offence and appropriate actions should be initiated. The court stated that it shall be the duty of the state and district administration to prevent commission of witch-hunting and provide protection to the victims of witch-hunting. The state has also the responsibility to provide procedure of prosecution of such persons who commits the act of witch-hunting.

The court also gave certain guidelines-

"(i) Public awareness programmes should be launched in the Grama Panchayats to eradicate the superstitions of witchcraft.”

“(ii) Health camps should be organized in different village level to detect cases of the psychologically disordered, which may lead to a false acquisition being possessed or being a witch.”

“(iii) The Investigating Agency in cases involving allegations of witch-hunting, in order to avoid the witnesses turning hostile should take steps to get statement of the witnesses recorded under Section 164 of the Code of Criminal Procedure, 1973.”

The court stated that such directions are not exhaustive and state can take appropriate steps to check the commission of witch-hunting. The court directed that the guidelines must be followed by the authorities till the time a suitable legislation is passed by the state legislature. The court also stated that the state government shall introduce an appropriate bill in the state legislature within a period of one year.

NEED OF A CENTRAL LEVEL LEGISLATION: A WAY FORWARD-

Witch-hunting is one of the most dehumanizing and degrading acts. It results in gross violation of the human rights of a woman. Any black magic practices or superstitious practices on a large scale affects and violate the human rights of an individual. “Witch-hunting not only violates basic Fundamental rights guaranteed under Article 14, 15 and 21 of the constitution, but also several provisions of various international conventions like Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR), Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, 1975 and Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).”[48]

The provisions of IPC/BNS in its current form are not equipped in a proper manner to deal with grave offences of witch-hunting because cognizance in such cases of witch-hunting and human sacrifice is often taken after commission of murder. The brutal acts which torture the women are often categorized as simple hurt under BNS, for which the punishment is minimal. The mental harm caused to the victim is completely disregarded. Many cases with fear the victim withdraw the case and there is no remedy available to the victim in such cases. The state legislation is only providing minimum punishment. Central legislation with stringent punishment should be introduced.

There are some states like Kerala, Andhra Pradesh, which still have not passed a legislation despite the occurrence of continuing offences in their respective states.

Kerala has seen several reported cases of black magic and human sacrifice in recent years. In 2018, Krishnan, a practitioner of black magic, along with his wife and two sons, was murdered by his assistant. The following year, a 27-year-old woman named Thushara was killed by her husband, who was involved in black magic. At the time of her death, she weighed only 20 kilograms. In 2021, a woman slit her six-year-old son’s throat in an act of human sacrifice. Another gruesome incident occurred in 2022, where two women were reportedly murdered and dismembered as part of a human sacrifice ritual. Despite these recurring incidents of black magic, sorcery, and superstitious practices, the state government has delayed action on the Kerala Prevention and Eradication of Inhuman Evil Practices, Sorcery and Black Magic Bill, 2019, drafted by the Kerala Law Reforms Commission. The bill, aimed at curbing such activities, has remained pending for the past six years.[49]

In a welcome effort, The Prevention of Witch-hunting Bill, 2016 and Prevention and Prohibition of Witch-Branding and Witch-Hunting and Other Harmful Practices Bill, 2022 were introduced in the parliament but still it is not converted into a legislation. It has not been passed by both the houses of parliament till now and also has not received presidential assent. Under the provisions of Prevention of Witch-hunting bill, the offences of witch-hunting is only recognised. Section 3 to section 11 of the bill deals with imposition of punishment. The minimum punishment provided under this bill is three months of imprisonment and the maximum punishment provided under this bill is life imprisonment. There is also provision of fine with a minimum fine of Rs. 1000 and maximum fine of Rs. 50000. These punishments are provided only for the offences committed which are associated and related to the grave offence of witch-hunting. The offence of witch-hunting in this bill has been recognised as a cognizable, non-bailable, non-compoundable offence.

There are some provisions under the bill which acts for the benefit of victim of witch-hunting. Section 22 of the bill imposes an obligation on the state to provide free medical care to the victim. The provisions of BNS can also be used to try the offender. Right to free legal aid is also provided to the victim under section 24 of the bill. The bill is now pending in the parliament over 9 years. Witch-hunting is a grave and heinous offence and bill should be passed which can benefit the innocent victim of witch-hunting.

For other grave offences like human sacrifice and rape which happen because of superstition are currently dealt under the provisions of BNS. A unified distinct legislation in this regard will also help in combating the superstitious activities. The states of our country have enacted separate legislations in this regard. The central government should also make legislation for such superstitious practices and provide punishment for them which can help in checking the commission of grave offences under the influence of superstition.

FINDINGS-

• The grave offences under superstition is mostly prevalent in the tribal and remote areas and states of our country as revealed by the NCRB statistics.

• The apex court of our country has awarded death penalty in cases of human sacrifice after balancing the aggravating and mitigating factors of a case.

• The HCs of our country has repeatedly through various judgements have emphasized the importance and need of legislation for the prevention of witch-hunting. Odisha HC also issued some guidelines on how to check the commission of witch-hunting.

• Human sacrifices and witch-hunting are the gravest offences which are committed in our country under the influence of superstition.

• There are many causes for such grave crimes but the most important cause is ignorance and illiteracy.

• There is no separate central legislation as of now which makes the grave offences committed under superstition punishable with severe punishments.

• Defence of insanity in such cases are allowed if the person while doing the act was not in a position to understand that the act done by him is either wrong or contrary to law.

RECOMMENDATIONS-

• The courts in our country should inflict severe punishment on those who commits offences under the influence of superstition.

• Spread of awareness and the efforts should be made by the authorities to make the people literate in the tribal and remote areas of our country. This can help in checking the commission of such grave offences.

• Development of such areas can also be made which can help in eradicating the superstitious atmosphere prevalent in the remote and tribal area.

• The Prevention of Witch-hunting Bill, 2016 should be passed in the parliament without unnecessary delay and a separate legislation for other grave offences committed under superstition by keeping in mind the welfare of the victim should be introduced in our country.

• Inculcating scientific thought process and providing education to all must be the primary focus of the state to combat the evils of superstition. Changing the thought process of the individuals should be the primary focus of the state and authorities.

CONCLUSION-

As revealed by the NCRB statistics the grave offences committed under the influence of superstition are mostly occurring in the tribal and remote areas and states of our country. By analyzing the judgements of the courts of our country, it can be seen that the courts are providing proper punishment to the offenders committing grave offences like witch-hunting and human sacrifices. This practice should be continued by the Indian judiciary. It will help in checking the commission of such grave offences by creating a deterrence effect. Education and development of scientific though process from the childhood should be encouraged to combat the evil of superstition. It is the right time to acknowledge all such offences which have been committed in the name of superstitious practices, the victims of which are majorly women and innocent children. Before the introduction of specific central legislation, the effort should be made to change the thought process of the individuals to eradicate the evils of superstition. Such practices should be first removed from the minds of members of the society. Spreading awareness and education in such areas where the commission of such grave offences are common should be the priority of the authorities. Raising Social consciousness supplemented with a central in this regard can help in checking the commission of grave offences committed under influence of superstition.

REFERENCES

1. TEXTBOOK ON INDIAN PENAL CODE, KD Gaur, 7th edition, LexisNexis, 2020.

2. Shredding the Shroud of Superstition: Whether a Specific Central Enactment, Disperse the Illusion, Abhishek Goyal, October 24, 2020, SCC Online Blog.

3. Role of Anti-Superstition Laws in Modern India, Rhea Bazaz, www.lawaudience.com.

4. State anti-superstition laws not enough, India needs a central law, focus on victim not crime, Sushovan Patnaik, 9 December, 2020, The Print.

5. Call it crime, not superstition, Pratap Bhanu Mehta, August 30, 2013, The Indian Express.

6. Bulbul: Myth of a Witch, Gaurangi Sharma, August 13, 2020, CCLNLUI

7. Black Magic and Witchcraft cases: A legal Analysis, Vaishium.

8. NCRB Report, 2022.