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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.