UPENDRA PRADHANversusSTATE OF ORISSA

                        [2015] 5 S.C.R. 214


A                     UPENDRA PRADHAN

                                 v.
                        STATE OF ORISSA
B              (Criminal Appeal No. 2174 of 2009)

                         APRIL 28, 2015.

     [PINAKI CHANDRA GHOSE AND R.K. AGRAWAL, JJ.]
c         Penal Code, 1860: s. 302134 - Murder - Three
  persons convicted by trial court while accused-appellant
  given benefit of doubt - High Court held that accusation
  against appellant was proved beyond reasonable doubt -
o Appeal against conviction -Appellant took plea ofjuvenility
  and presence of view favouring him - Held: The judgment
  passed by trial court was not manifestly illegal, perverse and
  did not cause miscarriage ofjustice- Trial court was rightly
  in giving him benefit of doubt- Further, as per school records,
E t/10 appellant was less than 18 years at the time of incident-
  Plea of juvenility can be raised at any time and before any
  court as per mandate of s. 7(a) and appellant has rightly done
  so - Even otherwise, he has undergone 8 years in jail which
  is more than maximum period of 3 years prescribed uls. 15
F of Juvenile Justice Act - High Court's order is set aside -
  Juvenile Justice (Care and Protection of Children) Act, 2000
  - SS. 7(a), 15.

           Allowing the appeal, the Court
G
          HELD: 1. 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. The view which favours the accused/
H
                                214
       UPENDRA PRADHAN v. STATE OF ORISSA                   215


appellant has to be considered and the opposite view A
which indicates his guilt is discarded. 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. [Paras 10 and 11) [222-H; 224-G- B
H; 225-A)

  Narendra Singh and Anr. v. State of M.P (2004) 10 SCC
  699: 2004 (3) SCR 1148; State of Rajasthan v. Raja
  Ram (2003) 8 SCC 180: 2003 (2) Suppl. SCR 445;             C
  Bindesl'lwari Prasad Singh v. State of Bihar (2002) 6
  SCC 650: 2002 (~)Suppl. SCR 495- relied on.

      2. The testimonies of interested witnesses are of
great importance and weightage. Thus, the plea that D
testimonies of PW1 and PW7 should not have been
considered as they were interested witnesses is not
tenable. [Para 12) [225-E]

  Mohd. lshaque v. State of West Bengal (2013) 14 SCC        E
  581 :2013 (5) SCR 518 - relied on.

       3. The appellant raised the plea of juvenility under
Section 7(A) of the Juvenile Justice (Care and Protection)
Act, 2000. As per the School Certificate, the date of birth F
of the appellant was 08.07.1976. Therefore, the plea of
juvenility can be accepted. 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 G
any court as per the mandate of Section 7(a) and has
rightly done so. On the question of sentencing, 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 H
216         SUPREME COURT REPORTS                 [2015] 5 S.C.R.


A 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, appellant has undergone almost 8 years of
B 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, the decision of the High Court is struck down.
C [Paras 13 and 14] [226-A-D; E-F]

        Ajay Kumar v State of M.P. (2010) 15 SCC 83; Hakim
        v. State (2014) 13 SCC 427: Lakhan Lal v. State of Bihar
        (2011) 2 sec 251: 2011 (1) SCR 770 - relied on.

D                        Case Law Reference

      2004 (3) SCR 1148                  relied on.    Para 10

      2003 (2) Suppl. SCR 445            relied on.    Para 11
E 2002 (1) Suppl. SCR 495                relied on.    Para 11

      2013 (5) SCR 518                   relied on.    Para 12

      (2010) 15 sec 83                   relied on.    Para 15
F
      (2014) 13 sec 427                  relied on.    Para 15

      2011 (1) SCR 770                   relied on.    Para 15

        CRIMINAL APPELLATE JURISDICTION : Criminal
G Appeal No. 2174 of 2009

            From the Judgment and Order dated 17. 09.2008 of the
      High Court of Orissa, at Cuttack in Government Appeal No.
      18of1995
H
       UPENDRA PRADHAN v. STATE OF ORISSA                          217


       Rutwik Panda,Anshu Malik for the Appellant.                  A

       Sibo Sankar Mishra for the Respondent.

       The Judgment of the Court was delivered by

        PINAKI CHANDRA GHOSE, J. 1. This appeal under B
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 C
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 o
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           E
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           F
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    G
over the same to Sanatan Pradhan. Accused Sanatan Pradhan
and his f<;imily 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     H
218       SUPREME COURT REPORTS                  [2015] 5 S.C.R.


A 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
B 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
C 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
o 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
E 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.
F 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
G 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
H Section 34 of IPC.
        UPENDRA PRADHAN v. STATE OF ORISSA                          219
             [PINAKI CHANDRA GHOSE, J.]

           3. In the Court of Additional Sessions Judge, to bring    A
  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.3to P.W.5 are doctors, P.W.10 and P.W.13
 are police constables, P.W.14 is the 1.0. and P.W.15 is the         B
 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         C
 discrepancies in the evidence of P.Ws.1,7,6,9, 11and12 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      o
 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        E
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          F
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/       G
34oflPC.

        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 H
220         SUPREME COURT REPORTS                    [2015) 5 S.C.R.


A 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.
B 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
C     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.
D     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
E     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
F     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 302/341.P.C. The High Court
      recorded that the accused should be awarded appropriate
      punishment instead of taking any other view, and convicted
G     Upendra under Section 302/34 1.P.C. and sentenced him to
      imprisonment for life, because that is the alternative and lesser
      punishment as provided in Section 3021.P.C. The High Court
      ordered the appellant Upendra Pradhan to be taken into
H     custody to serve the sentence.
        UPENDRA PRADHAN v. STATE OF ORISSA                             221
             [PINAKI CHANDRA GHOSE, J.]

          6. In this Court the Counsel for the appellant contended      A
  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 l.P.C. There was, however, no specific finding against
  the present appellant. It was further contended that the              B
  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                C
  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              o
 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.8and P.W.12hadonlyseenthedeadbodies                  E
 of the children. It was further pointed out by the appellant before
 us, that P.vV.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        F
 being a juvenile under the Juvenile Justice (Care and Protection
 of Children) Act, 2000, and accordingly under Section ?(a)
 raised the claim of juvenility before the Court and stated that
 the High Court had recorded this aspect but did not act upon          G
 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 H
222       SUPREME COURT REPORTS                 [2015) 5 S.C.R.


A 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
B 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
C 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
o 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.
E 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
F
  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
G 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,
H the view which favours the accused should be taken. It has
      UPENDRA PRADHAN v. STATE OF ORISSA                          223
           [PINAKI CHANDRA GHOSE, J.]

been recognized as a human right by this Court. In Narendra A
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       B
  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'.
                                                                   c
  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         D
  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.
                                                                   E

      Xxx     )()()(   )()()(   )()()(   )()()(
  33. We, thus, having regard to the post-mortem report,
  are of the opinion that the cause of death of Bimla Bai          F
  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."
                                                                   G
                                            (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 H
224       SUPREME COURT REPORTS                   [2015] 5 S.C.R.


A 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
B     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
c     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
D
      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
E     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
F     for doing so. If the impugned judgment is clearly
      unreasonable, it is a compelling reason for interference."

                                         (Emphasis Supplied)

G 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 ar i we
H discard the opp~site view which indicates his guilt. \!' are
       UPENDRA PRADHAN v. STATE OF ORISSA                        225
            [PINAKI CHANDRA GHOSE, J.]

also of the view that the High Court should not have interfered A
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 B
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 C
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.                    o
       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 E
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.
/shaque v. State of West Bengal, (2013) 14 SCC 581.              F

       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 Basia para Nodal U. P. School which shows that G
the accused appellant was less than 18 years on the date of
the occurrence. As per the School Certificate, the date of birth
ofthe 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 &
                                                                 H
226       SUPREME COURT REPORTS                   [2015] 5 S.C.R.


A 20 days. The learned counsel for the appellant raises the plea
  of juvenility under Section ?(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
B keepin1~ 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
C 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
o 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.

E        14. On the question of sentencing, we believe thatthe
  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
F 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
G 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.

H          15. In Ajay Kumar v State of M.P., (2010) 15 SCC
        UPENDRA PRADHAN v. STATE OF ORISSA                        227
             [PINAKI CHANDRA GHOSE, J.]

83, this Court observed as follows:                                A

   "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      B
   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                       c
   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
                                                                   D
   appeal with a direction that the appellant be released
   forthwith."

                                      (Emphasis Supplied)

The same view was followed on the question of sentencing in E
Hakim v. State, (2014) 13 SCC427, and Lakhan La/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 F
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.
Devika Gujral                                   Appeal allowed.    G