UPENDRA PRADHAN Vs STATE OF ORISSA
Bench: PINAKI CHANDRA GHOSE,R.K. AGRAWAL
Case number: Crl.A. No.-002174-002174 / 2009
Diary number: 5644 / 2009
Advocates: RUTWIK PANDA Vs
RADHA SHYAM JENA
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2174 OF 2009
Upendra Pradhan … … Appellant
:Versus:
State of Orissa … … Respondent
J U D G M E N T
Pinaki Chandra Ghose, J.
1. This appeal under Section 379 of the Code of Criminal Procedure, 1973 read with Section 2 of the
Supreme Court (Enlargement of Criminal Appellate
Jurisdiction) Act, 1970, has been preferred against
the judgment and order dated 17.9.2008 passed by
the High Court of Orissa at Cuttack in Government
Appeal No.18 of 1995, filed by the State against
the acquittal of the appellant herein. The High
Court by the impugned judgment allowed the
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Government appeal and convicted the appellant for
offence under Section 302/34 of the Indian Penal
Code (“IPC”) and sentenced him to imprisonment for
life.
2. The facts pertinent to the present case, as unfolded by the prosecution, are that Upendra
Pradhan, Debendra Pradhan and Rabindra Pradhan are
sons of Sanatan Pradhan and Jamadevi is his wife.
Sanatan Pradhan and his younger brother Brundaban
are having title deeds of their lands standing in
their names jointly. They possessed land on an
amicable division. According to the prosecution
story, a dispute arose between Sanatan Pradhan and
his younger brother Brundaban when Brundaban did
not yield to the request of Sanatan Pradhan to hand
over the Patta of their lands to procure a loan as
the Patta was with the mother. Thereafter,
Panchayat meetings were held on 27.8.93 and 29.8.93
and it was decided that Brundaban shall collect the
Patta from his mother and hand over the same to
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Sanatan Pradhan. Accused Sanatan Pradhan and his
family members bore grudge against Brundaban for
non-complying with the direction of the Panchayat.
Sanatan Pradhan got angry and declared to ruin his
family. Fearing for his life, Brundaban along with
his family left his house and stayed in the house
of Keshab Pradhan (P.W.10) of his village. At about
8 P.M. on 29.8.93, Brundaban along with his three
children, Sanjib, Pravasini and Rajib and wife
Radha Pradhan (P.W.1), returned to his house. On
seeing them, the accused Sanatan and Jama Devi
called out the other accused persons. No sooner did
Brundaban enter his house and asked his children to
sleep on cots, than the accused Rabindra, Debendra
and Upendra, each armed with axe and lathi, rushed
towards them. Accused Rabindra dealt two blows on
his neck and head with axe. Accused Debendra dealt
a blow with axe on Brundaban’s head. Brundaban
started bleeding profusely and groveled into the
house of Kulamani Budhia nearby. He became
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unconscious. Thereafter, the three sons of the
accused Sanatan Pradhan focused their attention on
his children and Upendra and Debendra caught the
eldest son Sanjib from both sides and accused
Rabindra dealt axe blows causing injuries on the
neck and other parts of the body. Then the accused
Upendra caused injuries on the girl child Pravasini
and killed her. Thereafter, accused Debendra and
Upendra caught hold of Rajib, the second son of
Brundaban Pradhan and accused Rabindra dealt axe
blows and killed him. According to the prosecution
version, the entire incident was witnessed by
P.W.1-the mother of the deceased, and P.W.6 and
P.W.12. When the villagers came out on hearing the
shout of P.W.1, the accused persons decamped and
P.W.1 brought all the three deceased children from
inside the room to front-side of the house.
Brundaban Pradhan in severely injured condition was
lying senseless in a neighbour’s house. The local
Sarpanch informed the matter to Jujumura Police
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Station. On the basis of this information,
investigation was made, charge-sheet was filed and
after the case was committed to the Court of
Sessions, charges were framed under Section 307 and
302 read with Section 34 of IPC.
3. In the Court of Additional Sessions Judge, to bring charges home to the accused persons, the
prosecution examined 15 witnesses of whom, P.W.1 is
the wife of the injured P.W.7 and mother of the
deceased, P.Ws.6, 8, 9, 11, 12 are local persons,
P.W.3 to P.W.5 are doctors, P.W.10 and P.W.13 are
police constables, P.W.14 is the I.O. and P.W.15 is
the Judicial Magistrate, First Class, Sambalpur.
The defence examined one witness D.W.1 Damodar
Pradhan. The Sessions Court, on analysis of the
evidence adduced by the parties, decided that there
were little contradictions and discrepancies in the
evidence of P.Ws.1,7,6,9,11 and 12 on the aspect of
presence of P.W.1 at the spot, and threats given by
the accused Sanatan or other male accused persons
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to P.W.7. The defence witness (D.W.1) has excluded
the presence of accused Sanatan at the place of
occurrence as both of them went home from
Fuljijaran and accused Sanatan was with him from 7
P.M. to 9 or 10 P.M. The Additional Sessions Judge
held that the three male persons were guilty. The
female accused had been falsely implicated in this
case on exaggerated version of P.W.1, not supported
by independent corroboration. However, the evidence
of P.W.12 preparing Biri on the verandah of
Kulamani Budhia has not been challenged by the
prosecution to the extent of her finding the
accused Upendra absent from the spot. The
Statements of P.W.1 and P.W.6, stating that the
part played by Upendra in catching deceased
Pravasini, are not in conformity with each other.
On these ground the Additional Sessions Judge gave
the benefit of doubt to the Upendra Pradhan
(appellant herein) and Jema Devi and did not find
them guilty under Sections 307 and 302/34 of IPC.
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4. The High Court pointed out that the prosecution allegation against the accused Jema Devi was
relating to the instigation whereas against the
accused Upendra in making active participation in
the murder of three children. In view of the death
sentence imposed against the Sanatan and Rabindra,
the Trial Court made a reference under Section 366
of the Code of Criminal Procedure (Cr.P.C.) and
that was registered as Death Sentence Reference
No.1 of 1994. Accused Sanatan, Debendra and
Rabindra also preferred appeals from jail in 1994.
5. A Division Bench of the High Court analogously heard the Reference and Jail Criminal appeals and
disposed of the same on 27.03.1995. The High Court
held that the accusation against each of the
appellants had been proved beyond all reasonable
doubt. Therefore, the order of the Trial Court in
recording the conviction of the appellants was
sustained. However, in the matter of death
sentence, the High Court was of the view that the
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circumstances behind the crime were good enough to
take a lenient view and accordingly it awarded
sentence of imprisonment for life. The State
thereafter filed leave application under Section
378(1) Cr.P.C. as against the judgment and leave
was granted on 15.05.1995 and the Government appeal
was registered in the High Court. In the meantime,
by virtue of the High Court’s order accused Upendra
Pradhan was on bail. However, the High Court
reversed the decision taken by the Additional
Sessions Judge, and held that when accused Upendra
is a party to the murder of three innocent
children, he is guilty like other accused persons
for offence punishable under Section 302/34 I.P.C.
The High Court recorded that the accused should be
awarded appropriate punishment instead of taking
any other view, and convicted Upendra under Section
302/34 I.P.C. and sentenced him to imprisonment for
life, because that is the alternative and lesser
punishment as provided in Section 302 I.P.C. The
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High Court ordered the appellant Upendra Pradhan to
be taken into custody to serve the sentence.
6. In this Court the Counsel for the appellant contended that after the incident took place, the
local Sarpanch informed the matter to the Police
Station and after investigation, charges were
framed under Sections 307 and 302 read with Section
34 of I.P.C. There was, however, no specific
finding against the present appellant. It was
further contended that the Additional Sessions
Judge, after trial, acquitted the appellant along
with his mother and held that the female accused
had been implicated on an exaggerated version of
P.W.1 not supported by independent corroboration.
The Additional Sessions Judge also noted that the
evidence of P.W.12 preparing Biri on the verandah
of Kulamani Budhia, had not been challenged by the
prosecution to the extent of her finding accused
Upendra absent from the place of occurrence. The
Court has given benefit of doubt to the appellant
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as the statements of P.W.1 to P.W.6 about the part
played by Upendra in catching the deceased
Pravasini, are not in conformity with each other.
The learned counsel further contended that the
Additional Sessions Judge has held that P.W.1 has
stated that P.W.2, P.W.6, P.W.8 and P.W.12 had only
seen the dead bodies of the children. It was
further pointed out by the appellant before us,
that P.W.6 is the Aunt of P.W.1 and P.W. 12 had
fled out of fear and, therefore, the High Court was
wrong in reversing the acquittal order of the
appellant on certain wrong presumption and
interpretation. The appellant has further taken the
plea of being a juvenile under the Juvenile Justice
(Care and Protection of Children) Act, 2000, and
accordingly under Section 7(a) raised the claim of
juvenility before the Court and stated that the
High Court had recorded this aspect but did not act
upon it. It was brought to our notice that the
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appellant has already undergone the sentence for a
period of about 8 years in jail.
7. Learned counsel for the respondent, on the other hand, contended before us that while
modifying the sentence and maintaining conviction,
the Trial Court and the High Court have believed
the testimony of all the prosecution witnesses and
have opined that the prosecution has fully proved
the case by leading credible evidences of credible
witnesses. Thus, there is no occasion for the Trial
Court to disbelieve the same set of witnesses. The
witnesses have unrebuttably deposed that the
present appellant was not only present but was
armed with stick. The eyewitness in the present
case is P.W.1, who is the mother of the deceased
and Brundaban’s wife, has stated facts in her
testimonies which have been corroborated by the
testimonies of other witnesses, thus is
unrebuttable. P.Ws.1, 6, 7 & 12 have narrated the
incident unequivocally and the defence could not
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derive much in the cross-examination. The learned
counsel thus submitted that the prosecution had
proved the case beyond reasonable doubt. The
learned counsel finally submitted that the Trial
Court had formed the conclusion that the
prosecution had proved its case beyond reasonable
doubt, but abruptly mentioned that the testimonies
of P.W.6 and P.W.12 created a doubt regarding the
part played by Upendra. This view taken by the
Trial Court is erroneous and the High Court has
rightly taken the correct view.
8. We have heard the learned counsel for the parties.
9. There are mainly three questions for our consideration. First being, whether the presence of
a view favouring the accused appellant should be
considered. Second being, whether the prosecution
witnesses P.W.1 and P.W.7 being interested
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witnesses, should be relied upon. The third being
the juvenility of the accused appellant.
10. Taking the First question for consideration, we are of the view that in case there are two views
which can be culled out from the perusal of
evidence and application of law, the view which
favours the accused should be taken. It has been
recognized as a human right by this Court. In
Narendra Singh and Another v. State of M.P., (2004)
10 SCC 699, this Court has recognized presumption
of innocence as a human right and has gone on to
say that:
“30. It is now well settled that benefit of doubt belonged to the accused. It is further trite that suspicion, however grave may be, cannot take place of a proof. It is equally well settled that there is a long distance between ‘may be’ and ‘must be’.
31. It is also well known that even in a case where a plea of alibi is raised, the burden of proof remains on the prosecution. Presumption of innocence is a human right. Such presumption gets
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stronger when a judgment of acquittal is passed. This Court in a number of decisions has set out the legal principle for reversing the judgment of acquittal by a Higher Court (see Dhanna v. State of M.P., Mahabir Singh v. State of Haryana and Shailendra Pratap v. State of U.P.) which had not been adhered to by the High Court. Xxx xxx xxx xxx xxx
33. We, thus, having regard to the post-mortem report, are of the opinion that the cause of death of Bimla Bai although is shrouded in mistery but benefit thereof must go to the appellants as in the event of there being two possible views, the one supporting the accused should be upheld.”
(Emphasis Supplied)
11. The decision taken by this Court in the aforementioned case, has been further reiterated in
State of Rajasthan v. Raja Ram, (2003) 8 SCC 180,
wherein this Court observed thus:
“Generally the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on
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the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, or the purpose of ascertaining as to whether any of the accused committed any offence or not. (see Bhagwan Singh v. State of M.P.) The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference.”
(Emphasis Supplied)
Therefore, the argument of the learned counsel for
the appellant that the High Court has erred in
reversing the acquittal of accused appellant,
stands good. The Additional Sessions Judge was
right in granting him benefit of doubt. The view
which favours the accused/appellant has to be
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considered and we discard the opposite view which
indicates his guilt. We are also of the view that
the High Court should not have interfered with the
decision taken by the Additional Session Judge, as
the judgment passed was not manifestly illegal,
perverse, and did not cause miscarriage of justice.
On the scope of High Court’s revisional
jurisdiction, this Court has held in Bindeshwari
Prasad Singh v. State of Bihar, (2002) 6 SCC 650,
“that in absence of any manifest illegality,
perversity and miscarriage of justice, High Court
would not be justified interfering with the
concurrent finding of acquittal of the accused
merely because on re-appreciation of evidence it
found the testimony of PWs to be reliable whereas
the trial Court had taken an opposite view.” This
happens to be the situation in the matter before us
and we are of the view that the High Court was
wrong in interfering with the order of acquittal of
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Upendra Pradhan passed by the Additional Sessions
Judge.
12. The Second ground pleaded before us by the counsel for the accused appellant, that the
testimonies of P.W. 1 and P.W.7 should not have
been considered, as they were interested witnesses,
holds no teeth. We are of the opinion that the
testimonies of interested witnesses are of great
importance and weightage. No man would be willing
to spare the real culprit and frame an innocent
person. This view has been supplemented by the
decision of this Court in Mohd. Ishaque v. State of
West Bengal, (2013) 14 SCC 581.
13. The Third and last ground pleaded before us was the plea of juvenility of the accused appellant.
The accused appellant has submitted before us, true
copy of the certificate issued by the Basiapara
Nodal U.P. School which shows that the accused
appellant was less than 18 years on the date of the
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occurrence. As per the School Certificate, the date
of birth of the appellant is 08.07.1976. The age of
the appellant on the date of occurrence i.e.
28.8.1993, was 17 years, 1 month & 20 days. The
learned counsel for the appellant raises the plea
of juvenility under Section 7(A) of the Juvenile
Justice (Care and Protection) Act, 2000. The plea
can be raised before any Court and at any point of
time. We feel that the stand taken by the counsel
is correct and we will look into the present lis
keeping in mind the juvenility of the accused
appellant at the time of commission of the crime.
As stated earlier, the age of the accused appellant
was less than 18 years at the time of the incident.
It has been brought to our notice that the
appellant has undergone about 8 years in jail. The
appellant falls within the definition of “juvenile”
under Section 2(k) of the Juvenile Justice (Care
and Protection of children) Act, 2000. He can raise
the plea of juvenility at any time and before any
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court as per the mandate of Section 7(a) and has
rightly done so. It has been proved before us, as
per the procedure given in the Rule 12 of the
Juvenile Justice Model Rules, 2007, and the age of
the accused appellant has been determined following
the correct procedure and there is no doubt
regarding it.
14. On the question of sentencing, we believe that the accused appellant is to be released. In the
present matter, in addition to the fact that he was
a juvenile at the time of commission of offence,
the accused appellant is entitled to benefit of
doubt. Therefore, the conviction order passed by
the High Court is not sustainable in law. Assuming
without conceding, that even if the conviction is
upheld, Upendra Pradhan has undergone almost 8
years of sentence, which is more than the maximum
period of three years prescribed under Section 15
of the Juvenile Justice Act of 2000. Thus, giving
him the benefit under the Act, we strike down the
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decision of the High Court. This Court has time and
again held in a plethora of judgments on the
benefit of the Act of 2000 and on the question of
sentencing.
15. In Ajay Kumar v State of M.P., (2010) 15 SCC 83, this Court observed as follows:
“In the light of the aforesaid provisions, the maximum period for which a juvenile could be kept in a special home is for three years. In the instant case, we are informed that the appellant who is proved to be a juvenile has undergone detention for a period of about approximately 14 years. In that view of the matter, since the appellant herein was a minor on the date of commission of the offence and has already undergone more than the maximum period of detention as provided for under section 15 of the Juvenile Justice Act, by following the provisions of Rule 98 of Juvenile Justice Rules, 2007 read with Section 15 of the Juvenile Justice Act, we allow the appeal with a direction that the appellant be released forthwith.”
(Emphasis Supplied)
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The same view was followed on the question of
sentencing in Hakim v. State, (2014) 13 SCC 427,
and Lakhan Lal v. State of Bihar, (2011) 2 SCC 251.
16. Therefore, in the light of the above discussion, we allow this appeal and set aside the
impugned judgment and order passed by the High
Court. The appellant has been released on bail vide
this Court’s order dated 15.04.2014. His bail bonds
are discharged.
….....….……………………J (Pinaki Chandra Ghose)
….....…..…………………..J (R.K. Agrawal)
New Delhi; April 28, 2015.