RAJEEV KUMAR UPADHYAY versus SRIKANT UPADHYAY & ORS.
[2024] 12 S.C.R. 1122, Supreme Court of India, 2024
Outcome: Disposed off
Segment: Issues
[2024] 12 S.C.R. 1122 : 2024 INSC 1008
Rajeev Kumar Upadhyay
v.
Srikant Upadhyay & Ors.
(Criminal Appeal No. 4831 of 2024)
19 December 2024
[C.T. Ravikumar and Sanjay Karol,* JJ.]
Issue for Consideration
The victim was subjected to grave accusations and was also 
disrobed and assaulted in public. The Court take this as an 
opportunity to refer and reaffirm the commitment to the ideals of 
equality and justice for all.
Headnotes†
Penal Code, 1860 – ss.341, 323, 354, 354B, 379, 504, 506, 
149 – Witch (Daain) Act – ss.3 and 4 – Victim was accused of 
witchcraft – She abused physically & verbally and thereafter 
disrobed – FIR was registered against 13 accused persons – 
Trial Court took cognizance – Accused persons sought 
quashing of FIR u/s.482 CrPC – The High Court stayed the 
proceedings during pendency of the said petition – Complainant 
aggrieved by the said order approached the Supreme Court:
Held: During the hearing, it was informed that petition seeking 
quashing of the cognizance was withdrawn – This case does not 
fall under 'ordinary circumstances’, the FIR, shows that the victim, 
whose name is redacted for the purposes of maintaining the privacy 
of the said individual, was subjected to grave accusations and also 
disrobed and assaulted in public, which undoubtedly is an affront 
to her dignity – Acts committed have shaken the conscience of 
the Court – Even though the Criminal Miscellaneous petition now 
stands withdrawn, this Court is aghast as to how the High
Court, 
in its wisdom, saw it fit to grant a stay against proceedings qua 
the accused persons – A Court granting a stay of proceedings is 
not to grant a stay in a mechanical manner – The sum total of 
circumstances both for and against need to be examined to check 
as to whether a prima facie case for stay is made out or not, or in 
other words, whether the non-grant of stay is to somehow prejudice 
*Author
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Rajeev Kumar Upadhyay v. Srikant Upadhyay & Ors.
the party, etc. – Authorities showed insensitivity – The FIR, records 
that the authorities did not heed the complainant’s request for the 
registration of an FIR and that recourse had to be taken to Section 
156(3) of CrPC – A further peculiar situation came to be when 
out of the 13 accused persons, only one person, whose name 
incidentally did not feature directly as having acted against the 
victims physically or verbally, was sent up for trial – The chargesheet 
did not disclose any reason as to why the investigating authorities 
adopted such a course of action – However, ACJM found it fit to 
send all accused persons to trial, taking the opposite view as put 
forth in the chargesheet – The State also did not chose to assail 
the non-speaking order of the High Court granting stay in favour of 
the accused – There is a need to hold ideals of equality and justice 
for all – Dignity is an invaluable aspect of Indian Constitutional 
jurisprudence, and there exists a duty upon the State to take all 
action to protect the same – Thus, it is directed that the matter to 
be placed on the file of the concerned District Court to proceed in 
accordance with the law – The Trial against the accused persons 
shall proceed on a day-to-day basis. [Paras 8, 9, 10, 14, 15, 17, 27]
Constitution of India – Art.21 – Dignity:
Held: Dignity goes to the very core of the existence of an individual 
in society – Any action
which undermines dignity either by an act 
of another person or that of the State is potentially going against 
the spirit of the Constitution of India, which guarantees the security 
of all persons by ensuring that justice, liberty and equality are 
avouched for each and every person – By extension, if the dignity 
of a person is compromised, their human rights, available to 
them by virtue of them being humans and guaranteed by various 
enactments, both national and international, are imperilled – Dignity 
is an invaluable aspect of Indian Constitutional jurisprudence, and 
there exists a duty upon the State to take all action to protect the 
same. [Paras 1 and 17]
Constitution of India – Art.51A – discussed. [Paras 18-19]
Case Law Cited
K.S. Puttaswamy (Privacy-9J.) v. Union of India [2017] 10 SCR 
569 : (2017) 10 SCC 1 – followed.
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[2024] 12 S.C.R.
Supreme Court Reports
Vikram Deo Singh Tomar v. State of Bihar [1988] Supp. 1 SCR 
755 : 1988 Supp SCC 734; Pawan Kumar v. State of H.P. 
[2017] 3 SCR 458 : (2017) 7 SCC 780; Bodhisattwa Gautam v. 
Subhra Chakraborty [1995] Supp. 6 SCR 731 : (1996) 1 SCC 
490 – relied on.
Nipun Saxena v. Union of India [2018] 14 SCR 755 : (2019) 2 
SCC 703; Kesavananda Bharati v. State of Kerala [1973] Supp. 1 
SCR 1 : (1973) 4 SCC 225; X2 v. State (NCT of Delhi) [2022] 7 
SCR 686 : (2023) 9 SCC 433; Francis Coralie Mullin v. State (UT 
of Delhi) [1981] 2 SCR 516 : (1981) 1 SCC 608 – referred to.
Books and Periodicals Cited
Alam and Raj, (2021) The Academic Journey of Witchcraft Studies 
in India, Man in India Vol.97 Issue 21
List of Websites
2019: https://www.ncrb.gov.in/uploads/nationalcrimerecordsbureau/
custom/1653730573_CII%202019%20Volume%201.pdf
2020: https://www.ncrb.gov.in/uploads/nationalcrimerecordsbureau/
post/16959885631653645869CII2020Volume1.pdf
2021: https://www.ncrb.gov.in/uploads/nationalcrimerecordsbureau/
custom/1696831798CII2021Volume1.pdf
2022: https://www.ncrb.gov.in/uploads/nationalcrimerecordsbureau/
custom/1701607577CrimeinIndia2022Book1.pdf
Resolution of the Human Rights Council dated 12th July 2021 
passed in its 47th session.
https://documents.un.org/doc/undoc/gen/g23/007/84/pdf/g2300784.
pdf
List of Acts
International Covenant on Civil and Protection Rights (See Article 
6,7,10,17), Convention on Elimination of Discrimination Against
Women (See Preamble, Article 2,5) and Universal Declaration of 
Human Rights (See Article 1,3,5,7,12).
List of Keywords
Witchcraft; Disrobing; Assault; Physical abuse; Verbal abuse; 
Dignity; Human Rights; Right to live with human dignity;
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Rajeev Kumar Upadhyay v. Srikant Upadhyay & Ors.
Fundamental duties; Superstitions; Unfounded beliefs; Protection 
of women; Exploitation.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 
4831 of 2024
From the Judgment and Order dated 04.07.2024 of the High Court 
of Judicature at Patna in CRLM No. 30562 of 2023
Appearances for Parties
Bhanwar Pal Singh Jadon, Susheel Tomar, Sanjeev Malhotra, 
Advs. for the Appellant.
Santosh Kumar, Rajiv R. Mishra, Ms. Suruchi Yadav, Ashutosh 
Yadav, Manish Kumar, Divyansh Mishra, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
Sanjay Karol, J.
Leave granted
“The legal subordination of one sex to another — is wrong 
in itself, and now one of the chief hindrances to human 
improvement; and that it ought to be replaced by a system 
of perfect equality, admitting no power and privilege on 
the one side, nor disability on the other.” 
[John Stuart Mill, On Subjection of Women, Chapter 1 
(1869).]
1.	
Dignity goes to the very core of the existence of an individual in 
society. Any action which undermines dignity either by an act of 
another person or that of the State is potentially going against the 
spirit of the Constitution of India,1 which guarantees the security of 
all persons by ensuring that justice, liberty and equality are avouched 
for each and every person. By extension, if the dignity of a person 
1	
Hereafter ‘Constitution’
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is compromised, their human rights, available to them by virtue of 
them being humans and guaranteed by various enactments, both 
national and international, are imperilled. 
2.	
We may benefit from the observations in K.S. Puttaswamy (Privacy-
9J.) v. Union of India2: 
“108. Over the last four decades, our constitutional 
jurisprudence has recognised the inseparable relationship 
between protection of life and liberty with dignity. Dignity as 
a constitutional value finds expression in the Preamble. The 
constitutional vision seeks the realisation of justice (social, 
economic and political); liberty (of thought, expression, 
belief, faith and worship); equality (as a guarantee 
against arbitrary treatment of individuals) and fraternity 
(which assures a life of dignity to every individual). These 
constitutional precepts exist in unity to facilitate a humane 
and compassionate society. The individual is the focal 
point of the Constitution because it is in the realisation 
of individual rights that the collective well-being of the 
community is determined. Human dignity is an integral part 
of the Constitution. Reflections of dignity are found in the 
guarantee against arbitrariness (Article 14), the lamps of 
freedom (Article 19) and in the right to life and personal 
liberty (Article 21).”
3.	
When such rights of a woman are threatened, the danger is 
comparatively greater, for despite advancement by great leaps and 
bounds,
when it comes to equality, much remains to be achieved, 
especially when it comes to women in rural areas. 
4.	
This case is premised on certain disturbing facts. The First Information 
Report3 lodged on 04th March 2020 bearing details, FIR No.79/2020 
under Sections 341, 323, 354, 354B, 379, 504, 506, 149 of Indian 
Penal Code, 18604 and Section 3&4 of the Witch (Daain) Act against 
13 persons namely, Ashutosh Kumar, Paritosh Kumar, Rishu Kumar, 
Jisu Kumar, Soni Devi, Nirmala Devi, Lakhpati Devi, Sachidanand 
2	
[2017] 10 SCR 569 : (2017) 10 SCC 1 
3	
Hereafter ‘FIR’
4	
Hereafter ‘IPC’
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1127
Rajeev Kumar Upadhyay v. Srikant Upadhyay & Ors.
Upadhyay, Ravikant Upadhyay, Shrikant Upadhyay, Asim Priyanshu, 
Shrina Upadhyay and Shashikant Upadhyay. The relevant extracts 
describing the alleged commission of the offence are as under:
"1.	
The present complaint reveals that the grandmother 
of the complainant, ..... going in the village. As soon 
as she reached in front of the house of opposite party 
Shashikant Upadhyay, the opposite party Shashikant 
Upadhyay surrounded ..... and began to say that you 
have made my son sick by doing witchcraft. He is 
not getting rid of the illness. Today you will have to 
cure my son by taking back your witchcraft. On this 
.......... said that you should mind your language. I 
am not a witch. On this, the opposite party Shrikant 
Upadhyay called his family members that a witch had 
come. Her witchcraft has to be ended.
2.	
In continuation of the same, the opposite party 
Ashutosh Kumar started pulling the hair (Jhonta) 
of the complainant’s grandmother ..... and began 
to say to bring the stool (dirt) as the witchcraft of 
the witch has to be freed. On this, the opposite 
party Paritosh Kumar brought stool in a container 
(Phophi) and opposite party Rishu Kumar caught 
the hands of the complainant’s grandmother and 
Tajbadasti Paritosh Kumar put the stool in the mouth 
of the complainant’s grandmother ...... due to which 
Jagmasti Kunwar started vomiting and she fell on the 
ground. On hearing the noise,
when the applicant 
and the witnesses went to rescue her, Shashikant 
Upadhyay caught the applicant and the brother-in-law 
of the opposite party started kicking and slapping him, 
giving the filthy abuses. When ....... went to save the 
applicant during the fight, she too was given filthy 
abuses by all the opposite parties and Paritosh Kumar 
and Jishu Kumar made semi-naked to ...... by tearing 
her Saree and Blouse and Soni Devi snatched the 
gold Sikdi of the complainant.
3.	
That the opposite party Reena Devi started saying 
that the witch has to be paraded in the village by
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making her naked. On this, Ravikant Upadhyay and 
Asim Priyanshu made the applicant’s grandmother 
semi-naked by tearing her Saree and when began to 
pull her away, the witness present there saved her. 
Thereafter, all the opposite party fled away.
4.	
That all the opposite party having common 
intention beat and abused the applicant, applicant’s 
grandmother and ..... and all the aforementioned 
caused the incident.
5.	
That after the incident, the applicant who was badly 
injured, got himself treated at Areraj Govt. Hospital.
6.	
That the applicant informed the local police station 
about the incident but the SHO did not take the 
applicant’s report. Therefore, the applicant is filing 
this case before the Hon’ble Court.
7.	
That it is necessary in the interest of justice to send 
the complaint to the local police station Govindganj 
for registering an FIR.
Hence, it is prayed that an order be 
passed to register an FIR by sending the 
application under Section 156(3) Cr.P.C. 
of the applicant to the local police station 
so that the applicant may get justice for 
which the applicant will be grateful to the 
Hon’ble Court. 
Sd/-
Rajeev Kumar Upadhyay, Applicant.
13. Action taken: Since the above information reveals 
commission of offence(s) u/s as mentioned at item: 2
(1) Registered the case and took up the investigation: 
Subodh Kumar SI( Sub-Inspector), Govindganj Or
(2) Directed (Name of I.O.):, Rank: SI (Sub-Inspector)
No.
to take up the investigation:”
The FIR as extracted above contained the names of two victims, 
however, considering the nature of the accusations and in keeping
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Rajeev Kumar Upadhyay v. Srikant Upadhyay & Ors.
with the directions issued in Nipun Saxena v. Union of India,5 their 
names stand redacted. 
5.	
The Police, upon investigation, filed a chargesheet bearing 
no.129/2020 before the Chief Judicial Magistrate, Motihari (East 
Champaran) on 08th August 2020 under Sections 341, 329 and 504 
IPC, against only one person, namely, Lakhpati Devi and observed 
that none of the others were to be sent up for trial.
6.	
The record reveals that Additional Chief Judicial Magistrate6- First, 
Motihari, took cognizance of the aforesaid incident. The said order 
dated 21st February 2021, is not on record. Such taking of cognizance 
was challenged before the Sessions Judge, East Champaran, 
Motihari. The order dated 16th July 2022 reveals that the learned 
ACJM, upon perusal of the case records, took cognizance against not 
only Lakhpati Devi but also all other persons named in the FIR. The 
Sessions Judge declined to interfere with the order of cognizance. 
7.	
It is in the aforesaid backdrop that the accused persons preferred 
Criminal Miscellaneous No.30562 of 2023 before the High Court of 
Judicature at Patna under Section 482, Code of Criminal Procedure, 
1973,7 seeking quashing thereof. The order of the High Court dated 
04th July 2024 is reproduced as under: 
“Heard learned counsel for the petitioners; learned APP 
for the State and learned counsel for the informant. 
2. Heard. 
3. Admit.
4. During pendency of
this application, the operation of the 
order dated 16.07.2022 passed by the learned Sessions 
Judge, East Champaran at Motihar in Criminal Revision 
No. 94 of 2022, shall remain stayed with respect to the 
petitioners only. ”
8.	
The complainant, aggrieved by the stay granted by the High Court, 
has approached this Court. During the hearing on 26th November 
2024, learned counsel informed us that the petition seeking quashing 
of the cognizance order stood withdrawn as on 22nd November 2024.
5	
[2018] 14 SCR 755 : (2019) 2 SCC 703
6	
Hereafter ‘ACJM’
7	
Hereafter ‘CrPC’
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9.	
In ordinary circumstances, the petition could have been disposed 
of by requesting the Trial Court to proceed expeditiously with the 
trial of the accused persons, keeping in view that the offence was 
committed in the early part of 2020, and now we stand right at 
the door of 2025 however this case does not fall under ‘ordinary 
circumstances’. The FIR, as extracted above, shows that the victim, 
whose name is redacted for the purposes of maintaining the privacy 
of the said individual, was subjected to grave accusations and also 
disrobed and assaulted in public, which undoubtedly is an affront 
to her dignity. Certain other acts were also committed against her, 
which we refrain from mentioning again, for the full extent of which 
already stands extracted supra and because the reality that such 
acts are still a part of 21st century life is a fact that has shaken the 
conscience of this Court. Not only was the victim accused of witchcraft, 
but she was abused physically and verbally as well. Another person 
who was present amidst all this disturbance was also disrobed, and 
her jewellery was snatched. 
10.	 Before proceeding further, we may observe that even though the 
Criminal Miscellaneous petition now stands withdrawn, this Court is 
aghast as to how the High Court, in its wisdom, saw it fit to grant 
a stay against proceedings qua the accused persons. It cannot be 
doubted that each and every person subjected to the
criminal law 
of the country is taken to be innocent till proven otherwise, and 
this presumption extends till the very last moment. Nonetheless, 
the machinery cannot be ground to a halt in such a callous and 
unreasoned manner. A Court granting a stay of proceedings is not to 
grant a stay in a mechanical manner. The sum total of circumstances 
both for and against need to be examined to check as to whether 
a prima facie case for stay is made out or not, or in other words, 
whether the non-grant of stay is to somehow prejudice the party, etc. 
11.	 When it comes to offences that infringe upon the dignity of a 
person, the responsibility cast on both the investigating and the 
adjudicatory authorities, in our considered view, is greater than 
usual or what is generally cast upon them in other circumstances. 
Both these authorities must show sensitivity to the issues involved, 
awareness of the social situations, a sensitivity to emotions evoked 
by the circumstances at play and a consciousness for time being 
the essence of action and lastly, but arguably the most importantly
[2024] 12 S.C.R. 
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Rajeev Kumar Upadhyay v. Srikant Upadhyay & Ors.
the letter of the law and the balance of the scales of justice for the 
accused and the victim. 
12.	 We are constrained to observe that this case demonstrates the exact 
opposite of what appears to us to be only natural and expected. The 
FIR, as extracted supra, records that the authorities did not heed the 
complainant’s request for the registration of an FIR and that recourse 
had to be taken to Section 156(3) of CrPC. A further peculiar situation 
came to be when out of the 13 accused persons, only one person, 
whose name incidentally did not feature directly as having acted 
against the victims physically or verbally, was sent up for trial i.e. 
Lakhpati Devi and those against whom direct allegations have been 
made in the complaint/FIR were let go scot-free. The chargesheet 
did not disclose any reason as to why the investigating authorities 
adopted such a course of action. It is a matter of record that on the 
basis of the very same material collected during the investigation, 
the learned ACJM found it fit to send all accused persons to trial, 
taking the opposite view as put forth in the chargesheet. This leads 
us to question how can one set of materials elicit such diametrically 
opposite courses of action.
13.	 It is a well-acknowledged fact that the States and the Union 
Government are the biggest litigators before the High Courts and this 
Court. Numerous cases are filed by State parties
everyday. There may 
be various reasons as to why the States choose to litigate various 
issues and topics before the Court, but the overarching purpose of 
any action of the State should be the welfare of the people. In this 
regard reference may be made to Vikram Deo Singh Tomar v. 
State of Bihar,8 
“2. India is a welfare State governed by a Constitution 
which holds the pride of place in the hearts of its citizens. 
It lays special emphasis on the protection and well being of 
the weaker sections of society and seeks to improve their 
economic and social status on the basis of constitutional 
guarantees spelled out in its provisions. It shows a particular 
regard for woman and children, and notwithstanding the 
pervasive ethos of the doctrine of equality it contemplates 
special provision being made for them by law. This is 
8	
[1988] Supp. 1 SCR 755 : (1988) Supp SCC 734
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only to be expected when an enlightened constitutional 
system takes charge of the political and socio-economic 
governance of a society, which has for centuries witnessed 
the relegation of women to a place far below their due. 
We live in an age when this Court has demonstrated, 
while interpreting Article 21 of the Constitution, that every 
person is entitled to a quality of life consistent with his 
human personality. The right to live with human dignity is 
the fundamental right of every Indian citizen. And, so, in 
the discharge of its responsibilities to the people, the State 
recognises the need for maintaining establishments for 
the care of those unfortunates, both women and children, 
who are the castaways of an imperfect social order and 
for whom, therefore, of necessity provision must be made 
for their protection and welfare. Both common humanity 
and considerations of law and order require the State to 
do so. …”
14.	 Given the vulgarity of what the two women had to endure, we may 
say nothing more but express our surprise as to why the State chose 
not to assail the non-speaking order of the High Court granting stay 
in favour of the accused before this Court. The State’s decision 
to litigate an issue should not depend on the benefit that may be 
derived either to the State exchequer or elsewhere but also should be 
reflected of its responsibility to protect, within its people the respect 
for the rule of law and
justice for all. 
15.	 Incidents such as the one before us, as also many others that 
come across our desks, keep us alive to the on-ground reality that 
however much has been done by way of legislative, executive and 
judicial action to protect vulnerable sections of the society, in this 
context women, from exploitation, its effect has not permeated to 
the grassroot level. We take this opportunity to refer to and reaffirm 
our commitment to the ideals of equality and justice for all. 
16.	 Unquestionably, Article 21 of the Constitution is at the forefront 
of violations having taken place in this inhumane incident. In the 
celebrated case Kesavananda Bharati v. State of Kerala,9 it was 
held that the right to dignity forms part of the basic structure of the 
9	
[1973] Supp. 1 SCR 1 : (1973) 4 SCC 225
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Rajeev Kumar Upadhyay v. Srikant Upadhyay & Ors.
Constitution. Recently, a bench of 3-judges in X2 v. State (NCT of 
Delhi)10 observed that the concept of dignity forms the very foundation 
of the Constitution and the rights enshrined in it. In Francis Coralie 
Mullin v. State (UT of Delhi),11 this Court recognized that the right 
to life includes the right to live with human dignity. In Pawan Kumar 
v. State of H.P.,12 :
“47. …A woman has her own space as a man has. She 
enjoys as much equality under Article 14 of the Constitution 
as a man does. The right to live with dignity as guaranteed 
under Article 21 of the Constitution cannot be violated by 
indulging in obnoxious act of eve teasing. It affects the 
fundamental concept of gender sensitivity and justice and 
the rights of a woman under Article 14 of the Constitution. 
That apart it creates an incurable dent in the right of a 
woman which she has under Article 15 of the Constitution. 
One is compelled to think and constrained to deliberate 
why the women in this country cannot be allowed to live in 
peace and lead a life that is empowered with dignity and 
freedom. It has to be kept in mind that she has a right to 
life and entitled to love according to her choice. She has 
an individual choice which has been legally recognised. It 
has to be socially respected. No one can compel a woman 
to love. She has the absolute right to reject.
…
48. In a civilised society male chauvinism has no room.
The Constitution of India confers the affirmative rights on 
women and the said rights are perceptible from Article 
15 of the Constitution. When the right is conferred under 
the Constitution, it has to be understood that there is no 
condescension. A man should not put his ego or, for that 
matter, masculinity on a pedestal and abandon the concept 
of civility. Egoism must succumb to law. Equality has to 
be regarded as the summum bonum of the constitutional 
principle in this context. …”
10	
[2022] 7 SCR 686 : (2023) 9 SCC 433
11	
[1981] 2 SCR 516 : (1981) 1 SCC 608
12	
[2017] 3 SCR 458 : (2017) 7 SCC 780
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17.	 What can be gathered from reference to the above judgments is that 
dignity is an invaluable aspect of Indian Constitutional jurisprudence, 
and there exists a duty upon the State to take all action to protect 
the same. 
18.	  There is undoubtedly a right to live with dignity, as discussed above. 
But concomitantly, there is a duty cast upon every citizen to promote 
harmony and a spirit of common brotherhood amongst all, keeping 
aside the differences that are only natural in a country which is as 
vast and varied as India. Reference can be made to Article 51A of 
the Constitution. It is to be emphasized that 51A(e) extracted herein 
below postulates a duty to renounce practices which are derogatory 
to women. It reads:
“51-A. Fundamental duties.—It shall be the duty of every 
citizen of India—
…
(e) to promote harmony and the spirit of common 
brotherhood amongst all the people of India transcending 
religious, linguistic and regional or sectional diversities; to 
renounce practices derogatory to the dignity of women;
 …
(h) to develop the scientific temper, humanism and the 
spirit of inquiry and reform;”
19.	 At this stage, we may also take note of Article 51(c) of the Constitution 
which enjoins upon the State the responsibility to foster respect for 
International Law and treaty obligations. The protection of dignity for all 
human beings as also the protection of women against discrimination 
form important parts of
obligations under International Law in so far 
as India is concerned. India is the signatory to International Covenant 
on Civil and Protection Rights (See Article 6,7,10,17), Convention 
on Elimination of Discrimination Against Women13 (See Preamble, 
Article 2,5) and Universal Declaration of Human Rights (See Article 
1,3,5,7,12). It would be apposite to reproduce below certain provisions 
of the CEDAW:
13	
In short ‘CEDAW’
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Rajeev Kumar Upadhyay v. Srikant Upadhyay & Ors.
“Preamble
…
Recalling that discrimination against women violates the 
principles of equality of rights and respect for human 
dignity, is an obstacle to the participation of women, on 
equal terms with men, in the political, social, economic 
and cultural life of their countries, hampers the growth of 
the prosperity of society and the family and makes more 
difficult the full development of the potentialities of women 
in the service of their countries and of humanity, …
Article 2 States Parties condemn discrimination against 
women in all its forms, agree to pursue by all appropriate 
means and without delay a policy of eliminating 
discrimination against women and, to this end, undertake: 
(a)	 To embody the principle of the equality of men 
and women in their national constitutions or other 
appropriate legislation if not yet incorporated therein 
and to ensure, through law and other appropriate 
means, the practical realization of this principle; 
(b)	 To adopt appropriate legislative and other measures, 
including sanctions where appropriate, prohibiting all 
discrimination against women; 
(c)	
To establish legal protection of the rights of women 
on an equal basis with men and to ensure through 
competent national tribunals and other public 
institutions the effective protection of women against 
any act of discrimination; 
(d)	 To refrain from engaging in any act or practice 
of discrimination
against women and to ensure 
that public authorities and institutions shall act in 
conformity with this obligation; 
(e)	 To take all appropriate measures to eliminate 
discrimination against women by any person, 
organization or enterprise;
(f)	
To take all appropriate measures, including legislation, 
to modify or abolish existing laws, regulations,
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customs and practices which constitute discrimination 
against women;
…
Article 5 States Parties shall take all appropriate measures: 
(a) To modify the social and cultural patterns of conduct of 
men and women, with a view to achieving the elimination 
of prejudices and customary and all other practices which 
are based on the idea of the inferiority or the superiority 
of either of the sexes or on stereotyped roles for men 
and women;…”
20.	 Having noticed the obligations under international law to protect 
women as above, we now turn to the main basis on which the two 
female victims were harassed and grievously assaulted. 
21.	 Witchcraft, of which one of the victims stands accused, is certainly 
one such practice which should be shunned. Such allegations have a 
long past often with tragic consequences for those subjected to them. 
Witchcraft is deeply intertwined with superstition, patriarchy and social 
control, leaving it to no manner of surprise that such allegations were 
most often directed against women who were either widows or elderly. 
A variety of reasons are accepted to be the reasons for casting such 
aspersions- caste-based discrimination, retaliation for defying social 
norms, etc. The effect thereof is overwhelmingly negative, leading to 
barbaric treatment, public humiliation and sometimes even death.14 
Yearly report as per NCRB15 
Witchcraft 
354-B IPC 
2019 
102 
11238 
2020 
88
10580
2021 
68
11102
2022
85
9101
14	
See generally, Alam and Raj, (2021) The Academic Journey of Witchcraft Studies in India, Man in India 
Vol.97 Issue 21
15	
2019-https://www.ncrb.gov.in/uploads/nationalcrimerecordsbureau/custom/1653730573_CII%20 
2019%20Volume%201.pdf 
2020- https://www.ncrb.gov.in/uploads/nationalcrimerecordsbureau/post/16959885631653645869CII20
20Volume1.pdf 
2021-https://www.ncrb.gov.in/uploads/nationalcrimerecordsbureau/custom/1696831798CII2021 
Volume1.pdf 
2022- https://www.ncrb.gov.in/uploads/nationalcrimerecordsbureau/custom/1701607577CrimeinIndia20
22Book1.pdf
[2024] 12 S.C.R. 
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Rajeev Kumar Upadhyay v. Srikant Upadhyay & Ors.
22.	 Although the numbers referred to above may seem insignificant, 
however, even 102 or 85, whatever the number may be, of reported 
inhumane, degrading incidents, each of them is a blot on the 
constitutional spirit. Those many persons were targeted and possibly 
exploited and abused on the basis of superstitions, conjecture and 
entirely unfounded beliefs which go against the scientific temper that 
each and every citizen of India called upon to foster within oneself and 
also within their own communities. The other number presented, i.e. 
the number of incidents reported under Section 354-B IPC, is deeply 
anguishing. In Bodhisattwa Gautam v. Subhra Chakraborty16 the 
Court made the following observations in the context of the offence 
under Section 375 IPC:
“10. Rape is thus not only a crime against the person of 
a woman (victim), it is a crime against the entire society. 
It destroys the entire psychology of a woman and pushes 
her into deep emotional crisis. It is only by her sheer will-
power that she rehabilitates herself in the society which, 
on coming to know of the rape, looks down upon her in 
derision and contempt. Rape is, therefore, the most hated 
crime. It is a crime against basic human rights and is also 
violative of the victim›s most cherished of the Fundamental 
Rights, namely, the Right to Life contained in Article 21. 
To many feminists and psychiatrists, rape is less a sexual
offence than an act of aggression aimed at degrading and 
humiliating women. The rape laws do not, unfortunately, 
take care of the social aspect of the matter and are inept 
in many respects.”
23.	 We may say that the offence of disrobing would also qualify as 
having a similar effect on the psychology of the woman subjected 
to such deep humiliation. 
24.	 Turning our attention back to witchcraft, the seriousness and drastic 
ill effects of such accusations and what follows thereafter have 
been noticed at the World stage. Of relatively recent vintage is the 
Resolution of the Human Rights Council dated 12th July 2021 passed 
in its 47th session, the relevant extract of which read as under:
16	
[1995] Supp. 6 SCR 731 : (1996) 1 SCC 490
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Supreme Court Reports
“1. Urges States to condemn harmful practices related to 
accusations of witchcraft and ritual attacks that result in 
human rights violations; 
2. Also urges States to take all measures necessary to 
ensure the elimination of harmful practices amounting to 
human rights violations related to accusations of witchcraft 
and ritual attacks, and to ensure accountability and the 
effective protection of all persons, particularly persons in 
vulnerable situations;
… 
4. Invites States, in collaboration with relevant regional and 
international organizations, to promote bilateral, regional 
and international initiatives to support the protection of 
all persons vulnerable to harmful practices amounting to 
human rights violations related to accusations of witchcraft 
and ritual attacks, while noting that, in providing protection, 
attention to local context is critical;
.... 
6. Emphasizes that States should carefully distinguish 
between harmful practices amounting to human rights 
violations related to accusations of witchcraft and ritual 
attacks and the lawful and legitimate exercise of different 
kinds of religion or beliefs, in order to preserve the right 
to freely manifest a religion or a belief, individually or in 
a community with others, including for persons belonging 
to religious minorities;
7. Encourages human rights mechanisms, including 
relevant special procedures of the Human Rights Council 
and treaty bodies, to
compile and share information on 
harmful practices related to accusations of witchcraft and 
ritual attacks and their impact on the enjoyment of human 
rights; 
…”
(Emphasis Supplied)
[2024] 12 S.C.R. 
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Rajeev Kumar Upadhyay v. Srikant Upadhyay & Ors.
25.	 Subsequent to this resolution, a report of the Office of UN High 
Commissioner for Human Rights was submitted to the Council in its 
52nd session titled ‘Study on the situation of the violations and abuses 
of human rights rooted in harmful practices related to accusations of 
witchcraft and ritual attacks, as well as stigmatization.’17. The section 
on ‘Women and Girls’ deserves extraction given the context with 
which this Court is concerned:
“17. The Committee on the Elimination of Discrimination 
against Women has noted that in some countries persistent 
patriarchal norms confine women to their reproductive role 
and legitimize harmful practices, including the accusation 
of witchcraft and the social exclusion of women and girls 
accused of practising witchcraft. Reportedly, women 
who do not fulfil gender stereotypes, such as widows, 
childless or unmarried women, are at increased risk of 
accusations of witchcraft and systemic discrimination. Other 
marginalized groups include older women, women with 
disabilities, mothers of children with albinism, Indigenous 
women, women belonging to minorities and lower castes, 
women of African descent and women of diverse sexual 
orientations, gender identities, gender expressions and 
sex characteristics.
18. Research indicates that women are more often 
subjected to accusations of witchcraft than men. Women 
accused of witchcraft have been subjected
to various 
forms of violence, including being beaten, burnt, stripped 
naked, raped, mutilated, buried alive and killed. Owing 
to the grave consequences of such accusations in 
some countries, it has been suggested that emergency 
procedures be put in place to rescue and resettle women 
who are at risk of suffering witchcraft-related violence in 
their communities. In some countries, women have also 
been detained on grounds of witchcraft or charlatanism, 
often on the pretext of protecting them from mob justice. 
There are also instances of women, in some countries, 
who have been sent to “witch camps” through a system 
17	
The report can be accessed at https://documents.un.org/doc/undoc/gen/g23/007/84/pdf/g2300784.pdf
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[2024] 12 S.C.R.
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that lacks minimal due legal process and from which the 
possibility of returning to society is uncertain.
19. Several of the root causes of accusations of witchcraft 
targeting women were outlined during the expert 
consultation, including patriarchy, cultural beliefs and 
structural challenges of conflicts and poverty. Participants 
also discussed other factors related to accusations of 
witchcraft and ritual attacks. For example, inheritance 
practices mean that widows and wives in polygamous 
marriages without children, or without sons, are vulnerable 
because in many cases the land, house and other properties 
will pass on to the husband’s sons from other wives or 
the nearest male relative. Competition over financial 
resources, for attention, looks or children may trigger 
accusations of witchcraft and lead to acts of violence as 
a result of jealousy. Illness and death in the family or local 
community, as well as other misfortunes, are key factors 
in triggering accusations of witchcraft against and ritual 
attacks on women. The arrival of strangers/newcomers in 
a local community may be another factor. Women’s agency 
and assertion of rights may also trigger accusations of 
witchcraft against independent and empowered women. 
20. Older women accused of witchcraft have been reported 
to be subject to imprisonment, forced starvation, damaging 
“exorcism” ceremonies, such as forcing them to ingest 
hazardous substances,
such as cement, and having nails 
driven into their heads with the objective of extracting 
confessions of witchcraft and forcing the evil spirit out. 
In some countries, such women are abandoned by their 
own children, family and community members and often 
the State does not provide alternative care facilities. Due 
to extreme fear of witchhunting or reprisal attacks, those 
labelled as “witches” are exiled to the margins of their 
communities and forced to remain confined in “safe” 
spaces, living in deplorable conditions.
21. The Committee on the Elimination of Discrimination 
against Women has stressed that States should combat 
all forms of discrimination and violence against older
[2024] 12 S.C.R. 
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Rajeev Kumar Upadhyay v. Srikant Upadhyay & Ors.
women accused of witchcraft, including intimidation, 
isolation, abuse and killings, as well as expulsions from 
their homes and families, and ensure that the perpetrators 
are prosecuted and adequately punished.
…
23. The Committee on the Elimination of Discrimination 
against Women has emphasized the need to take 
immediate and effective measures to investigate incidents 
of violence against and murder of women and girls based 
on accusations of witchcraft, and prevent their reoccurrence 
in the future; arrest, prosecute and adequately punish the 
perpetrators of such acts; strengthen the enforcement 
of relevant legislation; and criminalize accusations 
of witchcraft, while repealing provisions criminalizing 
witchcraft per se.
24. The Committee has also stressed the importance of 
undertaking public education programmes highlighting the 
negative impact of accusations of witchcraft, targeting both 
men and women, as well as community and villages chiefs 
and religious leaders, and raising awareness, particularly 
in rural areas, of the criminal nature of such attacks. It has 
also noted the need for special programmes that address 
the psychological trauma, physical harm, social exclusion 
and impoverishment of women accused of witchcraft, and 
allocate adequate resources to victim support structures.”
26.	 In the preceding paragraphs, we have discussed the variety of 
legislations, judicial
pronouncements and other relevant literature 
pertaining to, in particular, the allegations of witchcraft and, in general, 
the protection of women against discrimination and exploitation. It 
is not lost on us that the judgment impugned before us has been 
rendered null by subsequent withdrawal; however, given the peculiarity 
of the situation and the vulgarity of the actions alleged, we adopted 
the course as above. 
27.	 Keeping in view the aforesaid, we issue the following order:
(1)	 The matter is placed on the file of the concerned District Court 
to proceed in accordance with the law.

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(2)	 The Trial against the accused persons shall proceed on a day-
to-day basis.
(3)	 The accused persons are directed to appear before the Trial 
Court on 15th January 2025.
(4)	 It stands clarified that comments made hereinabove reflect only 
the heinousness of the crimes committed and do not in any way 
cast a shadow of guilt over the accused persons.
(5)	 The Trial shall proceed keeping in view the aforesaid principles 
but uninfluenced by any observations made in this judgment.
Pending application(s), if any, stand disposed of.
Result of the case: Appeal disposed of.
†Headnotes prepared by: Ankit Gyan