Supreme Court of India
Upendra Pradhan vs State Of Orissa on 28 April, 2015Author: P C Ghose

Bench: Pinaki Chandra Ghose, R.K. Agrawal





Upendra Pradhan … … Appellant


State of Orissa … … Respondent


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 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 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
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 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
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

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 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 High Court ordered
the appellant Upendra Pradhan to be taken into custody to serve the

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 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 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 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 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
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 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

(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 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
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 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 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 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)

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.

(Pinaki Chandra Ghose)

(R.K. Agrawal)
New Delhi;
April 28, 2015.


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