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2015 DIGILAW 541 (ORI)

Iswar Attaka v. State of Orissa

2015-09-14

S.K.SAHOO

body2015
JUDGMENT S.K.SAHOO, J. - Superstition poisons the mind. The feebler the mind is, the more space it creates for superstition. Once superstition starts ruling the mind, power of judgment what is good and what is bad vanishes. 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 an innocent lives. The tribal-dominated rural areas, where there is little access to medical care, education, justice and with widespread superstitions and beliefs, are prone to witch hunting. Witch hunting-related crime has many angles. More than the killings, the victims are subjected to abject humiliation, social ostracisation and torture. Incidents like severe beating, parading naked, feeding of excreta or chained to posts are common. The victims are mostly women, widows, issueless and unconventional ones who serve as healers or render services to the community. Lack of proper education, economic development, scientific temper and mass awareness programmes are the cause for superstitions which are violent, dangerous, destructive, harmful and inhuman. There is a need to change the mindset of the people which can help in eradicating superstitions. Enactment of Odisha Prevention of Witch Hunting Act, 2013 is one of positive steps in that regard for achieving the goal. Here in this case, the horrendous crime took place on 08.09.2014 in village Bheja of Kalyan Singhpur Police Station in the district of Rayagada. The deceased Bhima Rao Attaka (hereafter ‘the deceased’) was dragged from his house by his covillagers suspecting him to be practising witchcraft and tied in an electric pole, assaulted mercilessly and then his dead body was packed in a gunny bag alongwith stones and tied with a plastic rope and thrown inside Nagavali river. The petitioners in these three bail applications are the accused in Kalyan Singhpur P.S. Case No. 61 of 2014 corresponding to G.R. Case No. 421 of 2014 from the file of learned S.D.J.M., Rayagada in which charge sheet has been submitted under Sections 147, 148 302, 201 and 149 of Indian Penal Code. 2. The petitioners in these three bail applications are the accused in Kalyan Singhpur P.S. Case No. 61 of 2014 corresponding to G.R. Case No. 421 of 2014 from the file of learned S.D.J.M., Rayagada in which charge sheet has been submitted under Sections 147, 148 302, 201 and 149 of Indian Penal Code. 2. Smt. Nandai Attaka, wife of the deceased set the criminal law into motion by presenting an FIR before Inspector in charge of Kalyan Singhpur Police Station on 08.09.2014 wherein she stated that on that day in the morning at about 6 a.m., accused persons Sadananda Attaka, Binod Attaka and Purusati Attaka dragged the deceased out of the house, assaulted him by kick blows and slaps and tied him in an electric pole. Subsequently some more co-villagers namely accused Lachi Palaka, Mohan Pallaka, Ajay Attaka, Raji Attaka, Pramesh Attaka, Mahesh Attaka, Iswar Attaka, Muna Attaka, Rama Attaka, Sily Attaka, Purusati Attaka and Udara Attaka assaulted the deceased by means of stones and lathies and killed him. The accused persons packed the dead body in a gunny bag, tied it and then accused Sadananda Attaka and Binod Attaka carried the dead body by means of a lathi and threw it in the river. It is further stated that accused Baraja Attaka instigated others to kill the deceased suspecting that the deceased was practising witchcraft. It is stated that Sandarao Pidisika, Chandradas Attaka and Satya Attaka are the eye witnesses to the occurrence. 3. On such First Information Report, Kalayan Singhpur P.S. Case No.61 dated 8.9.2014 was registered under Sections 302/201/109/34 of Indian Penal Code by the Inspector-incharge. During course of investigation, the Investigating Officer took the assistance of the Fire Brigade officials for tracing out the dead body in Nagavali river but became unsuccessful and on 11.9.2014, getting information that a gunny bag was lying on the bank of Nagavali river at Aduguda Ghat suspected to be carrying the dead body of the deceased, the Investigating Officer reached at Aduguda Ghat, opened the gunny bag in presence of others and found the dead body of the deceased. He conducted inquest over the dead body and seized number of stones of different sizes, one gunny bag, one plastic rope on the bank of Nagavali river in presence of the witnesses. He also sent the dead body for the post mortem examination. He conducted inquest over the dead body and seized number of stones of different sizes, one gunny bag, one plastic rope on the bank of Nagavali river in presence of the witnesses. He also sent the dead body for the post mortem examination. The post mortem report indicates that the dead body was in the process of decomposition. Multiple bruises were found on the front and backside of the neck, lacerated injuries were found on the right side of the chest, there was fracture of thyroid cartilage and tracheal rings, mandible bone was fractured and there was fracture of radius and ulna at the wrist joint and all the injuries were opined to be ante mortem in nature and the cause of death was on account of asphyxia due to homicidal throttling. After completion of investigation, charge sheet was submitted on 8.1.2015 under Sections 147, 148, 302, 201 read with Section 149 of Indian Penal Code keeping the investigation open under Section 173 (8) Cr.P.C. 4. The five petitioners in BLAPL No.1086 of 2015 after being taken in custody moved an application for bail in the Court of learned Sessions Judge, Rayagada in BLAPL No.19 of 2015 which was rejected vide order dated 27.01.2015. Similarly the petitioners in BLAPL No.2062 of 2015 and BLAPL No. 2118 of 2015 moved an application for bail in the Court of learned Sessions Judge, Rayagada in Bail Application No.133 of 2015 which was rejected on 17.05.2015. Since all these three bail applications arise out of the same case, with the consent of the parties, they were heard analogously and the same are disposed of by this common order. 5. Mr. A. K. Nanda, the learned counsel for the petitioners Iswar Attaka, Rajiya @ Raji Attaka, Sadananda Attaka, Muna Attaka and Manis Rao @ Manisha Rao Attaka in BLAPL No.1086 of 2015 contended that the petitioners have not participated in the alleged incident and they have been falsely entangled in this case. It further submitted that the petitioners Iswar Attaka and Rajiya @ Raji Attaka are in custody since 14.09.2014, petitioner Sadananda Attaka is in custody since 12.09.2014, petitioner Muna Attaka is in custody since 17.09.2014 and petitioner Manisha Rao Attaka is in custody since 06.01.2015. It further submitted that the petitioners Iswar Attaka and Rajiya @ Raji Attaka are in custody since 14.09.2014, petitioner Sadananda Attaka is in custody since 12.09.2014, petitioner Muna Attaka is in custody since 17.09.2014 and petitioner Manisha Rao Attaka is in custody since 06.01.2015. It is further submitted that there is no specific allegations against the petitioners and the villagers of Bheja are tribal people and believing that the deceased was practising witchcraft for which number of people died in the village, the deceased was tied in an electric pole and assaulted for which he succumbed to the injuries. He further submitted that the petitioners were not present at the time of occurrence and there are no criminal antecedents against the petitioners and there is also no chance of their absconding from the village or tampering with the evidence and therefore their bail applications may be favourably considered. 6. Mr. Himanshu Sekhar Mishra, learned counsel for the petitioner Braja Attaka in BLAPL No.2062 of 2015 and petitioner Ajaya Attaka in BLAPL No.2118 of 2015 submitted that the petitioners are in custody since 17.04.2015 after they surrendered before the learned S.D.J.M., Rayagada in pursuance of the direction of this Court in the anticipatory bail applications. The learned counsel further submitted that the allegations have been made in an omnibus manner and in the inquest report, the names of the petitioners do not find place. He further submitted that since the petitioners are the local persons, there is no chance of their absconding and therefore the bail applications deserve favourable consideration. 7. Mr. Sangram Keshari Nayak, learned Additional Govt. Advocate on the other hand while opposing the prayer for bail submitted that the statements of the eye witnesses like Nandini Attaka, who is informant in the case as well as wife of the deceased and Chandrahas Attaka, who is the son of the deceased clearly implicates the petitioners in the crime in question. He placed the statements on record which indicate that suspecting the deceased to be practising witchcraft, petitioner Baraja Attaka and Sebati Attaka instigated the co-villagers to assault the deceased and subsequently they along with other covillagers including the petitioners in the three bail applications assaulted the deceased after he was dragged from his house and tied in an electric pole. He placed the statements on record which indicate that suspecting the deceased to be practising witchcraft, petitioner Baraja Attaka and Sebati Attaka instigated the co-villagers to assault the deceased and subsequently they along with other covillagers including the petitioners in the three bail applications assaulted the deceased after he was dragged from his house and tied in an electric pole. The statement of one Dasarathi Attaka indicates that the minor son of accused Mohan Attaka died as he was suffering from jaundice but it was suspected that the deceased practised witchcraft for which the minor son of Mohan Attaka died. The learned counsel further submitted that such type of crime has become rampant in the tribal area and the manner in which the accused persons conjointly assaulted the deceased basing on superstition that he was practising witchcraft, they do not deserve to be released on bail. 7. Considering the clinching materials available on record, the background of the case, as well as the post mortem report, prima facie it appears that there was a strong motive behind the commission of the crime and the motive was that the deceased was suspected to be practising witchcraft for which many persons of the village including the minor son of accused Mohan Attaka died. There are further materials on record to show that the accused persons were the members of an unlawful assembly and their common object was to commit murder of the deceased. It further appears that in furtherance of the common object, some of the accused persons dragged the deceased out of his house, tied him in an electric pole and thereafter all of them mercilessly assaulted the deceased. The assault was made not only by fists and kick blows but also by means of lathies and stones. It further appears that somebody had also throttled the neck of the deceased. The assault was made not only by fists and kick blows but also by means of lathies and stones. It further appears that somebody had also throttled the neck of the deceased. The extensive injuries sustained by the deceased on different parts of the body including homicidal throttling, the manner in which the accused persons after committing murder packed the dead body inside a gunny bag, put stones in the gunny bag, tied it with a plastic rope and then carried it to Nagavali river with the help of a stick and threw it in the river for causing disappearance of evidence indicates that each of the accused persons prima facie appears to be the members of an unlawful assembly and the act has been committed in prosecution of the common object of the assembly. 8. The contentions of the learned counsels for the petitioners that no specific overt act has been attributed to any of the petitioners and therefore, they cannot be held responsible are not the correct proposition of law. When an accused has the positive knowledge that the assembly was unlawful and was likely to commit any of the acts which falls within the purview of Section 141 of IPC and joins such assembly and adopts it and remains in such assembly at all crucial stages and does not abandon the assembly at any stage, he can be held responsible even if no overt act is imputed to him. It is not necessary for the prosecution to prove as to which accused did which or what act. The way the crime is perpetrated would manifest the object of the unlawful assembly. 9. The further contention raised by the learned counsels for the petitioners that there is no mention of the names of any of the accused persons in the inquest report and therefore the complicity of the petitioners is doubtful, is not all acceptable. Neither the Investigating Officer is obliged to ascertain the names of the accused persons at the stage of preparation of inquest report nor is it the requirement of law to mention the names of the accused persons in the inquest report. Absence of the names of the accused in the inquest report does not lead to the inference that such names were not disclosed till it was completed. 10. Absence of the names of the accused in the inquest report does not lead to the inference that such names were not disclosed till it was completed. 10. After bestowing my anxious, painstaking and careful consideration to the submissions raised at the Bar and going through the materials available on record, I am of the considered view that the collected oral and documentary evidence prima facie shows the involvement of the petitioners in the crime. The nature and gravity of the accusations, the severity of punishment in case of conviction, the manner in which the crime was committed and an innocent person was killed due to superstition that he was a practiser of witchcraft, the role played by the petitioners at the time of occurrence and taking into account the reasonable apprehension of tampering with the evidence, at this stage when the further investigation is under progress, it would not be proper to grant bail to the petitioners. Accordingly, the prayer for bail of all the petitioners in the three bail applications stand rejected. Application rejected.