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State Of Orissa v. Upendra Pradhan
Structured Summary of the Opinion
Factual and Procedural Background
The opinion concerns a Government appeal against the acquittal of the sole respondent, Upendra Pradhan, in a trial for offences arising from an incident on 29.8.1993. The prosecution alleged that a family dispute over the 'patta' (Record of Rights) led accused Sanatan Pradhan and members of his family to form a common intention to eliminate the family of Brundaban (P.W.7). On the evening of 29.8.1993, it was alleged that several accused persons attacked P.W.7 and three children of P.W.7 (Sanjib, Pravasini and Rajib) were killed.
Charges were framed under sections 307 and 302 read with section 34, I.P.C. The prosecution examined 15 witnesses and produced documents (Exts. 1–23) and material objects including the weapon (M.O.-I) and clothing of the deceased (M.Os. II–IV). During trial, Rabindra made a confessional statement recorded as Ext. 23; post-mortem reports were produced (Exts. 15, 9 and 10). The defence produced one witness (D.W.1) to establish an alibi for accused Sanatan.
The Trial Court convicted Sanatan, Rabindra and Debendra for murder (section 302/34) and attempted murder (section 307/34), sentenced Sanatan and Rabindra to death (a reference under section 366 Cr.P.C. was made) and awarded life imprisonment to Debendra. The Trial Court acquitted Jema Dei and Upendra. On appeal and in the death sentence reference heard by a Division Bench, the convictions of the three convicted persons were sustained but the death sentences were commuted to life imprisonment. The State obtained leave under section 378(1), Cr.P.C. against the acquittal of Upendra and prosecuted this Government appeal; by order of the Court Upendra was on bail at the time of this hearing.
Legal Issues Presented
- Whether the Trial Court erred in applying a double standard in the appreciation of evidence by convicting Debendra but acquitting Upendra when the same or materially similar evidence (particularly the testimony of P.Ws 1, 6 and 12) was relied upon in respect of both?
- Whether the acquittal of Upendra Pradhan should be set aside and he should be convicted under section 302/34, I.P.C., in view of the evidence on record?
- Whether, if conviction is recorded after a long lapse of time (about 14 years since trial and trial-age issues), the Court should nonetheless impose the appropriate sentence or exercise leniency?
Arguments of the Parties
Appellant / State (as presented in the opinion)
- Learned Standing Counsel (Mr. A.K. Mishra) argued that the Trial Court applied a double standard in appreciating evidence: the same evidence (P.Ws 1, 6 and 12) that supported conviction of Debendra could not legitimately be doubted so as to acquit Upendra. The State urged that the acquittal of Upendra be set aside and he be convicted and sentenced accordingly.
- At one point in the hearing the opinion records an argument described as being made by "learned Counsel for the appellant" that at the date of trial the accused was about 17–18 years old and about 14 years had elapsed; hence imposing a sentence curtailing liberty might not be in the interest of justice. (This submission is recorded in the opinion as having been made during the hearing.)
- In response to the leniency contention, the learned Standing Counsel (referred to later in the opinion) relied on precedents where courts have interfered with acquittals and imposed convictions/sentences even after lengthy delays, arguing that lapse of time should not prevent conviction and sentence in the present case.
Accused-respondent Upendra Pradhan
- Learned Counsel for the accused-respondent (Mr. G.S. Pani) argued that the Trial Court's order of acquittal was justified on the basis of the evidence of P.Ws 6 and 12 and that no exception should be taken to that order; accordingly the Government appeal should be dismissed.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State of Orissa v. Dibakar Naik. 2002 22 OCR SC 734. | Authority for interfering with an order of acquittal and recording conviction and sentence even after a long lapse of years. | The bench relied on this precedent (as cited by learned Standing Counsel) to counter the contention that lapse of time or the accused's youthful age at an earlier date should preclude conviction or sentence now; it contributed to the Court's conclusion that lapse of time alone did not preclude imposing appropriate punishment. |
| State of Orissa v. Raghu Naik. 2002 Supplementary OLR 665. | Similar authority showing that Courts have substituted convictions/sentences for earlier acquittals after lengthy periods. | The Court noted this authority in support of the proposition that prior courts have interfered with acquittals and imposed conviction/sentence even after 15–20 years; this supported the view that delay did not automatically preclude conviction and sentence in the present case. |
Court's Reasoning and Analysis
The Court proceeded on the undisputed facts that the incident on 29.8.1993 occurred and that three children were homicidally killed; those findings had already been recorded by the Trial Court and affirmed earlier in the death sentence reference and related appeals. The Court therefore limited re-appreciation to evidence necessary to decide the Government appeal against Upendra's acquittal.
The prosecution relied principally on the testimony of P.Ws 1, 6 and 12. P.W.1 (the mother) fully supported the prosecution account that accused persons attacked P.W.7 and that the three children were killed with active participation by some of the accused. P.W.6 gave a narrative broadly consistent with P.W.1, including a statement (elicited under leading questioning with reference to section 154 of the Evidence Act) that accused Debendra and Upendra caught hold of the children while Rabindra dealt axe blows. P.W.12's testimony was less clear: she said she did not see Upendra present and, in cross-examination, admitted not seeing Debendra or Upendra with any weapon.
The Trial Judge had accepted P.W.12's evidence to the extent of treating it as showing Upendra's absence and thereby gave Upendra the benefit of doubt. The present bench found that approach to be perverse and inconsistent with the record for the following reasons:
- P.W.12's account was internally contradictory: if she had not seen Debendra and Upendra at the spot, it would be inconsistent for her to state she did not see them with weapons (because if absent she could not have observed whether they had weapons).
- P.W.12's confusion could be explained either by genuine confusion or by being influenced to suppress a part of the truth; in either case her testimony did not create a valid distinction between Debendra (convicted) and Upendra (acquitted).
- The evidence of P.Ws 1 and 6 affirmed Upendra's presence and participation; the Trial Court had found P.W.1 and P.W.6 credible as regards Debendra and this Court had upheld that finding on appeal. There was no principled justification for treating Upendra differently where the evidence for his participation was similar.
On these bases the bench held that the Trial Court's acquittal of Upendra was illegal. The Court also addressed the mitigation argument based on the accused's youthful age at the time of trial and the long lapse of time since the offence: it noted precedents where courts have interfered with acquittals and imposed conviction/sentence even after long intervals, and found those authorities persuasive in rejecting a bar to convicting and sentencing on account of delay alone.
Concluding that Upendra had actively participated in the killings and shared the common intention to murder the three children, the Court recorded conviction under section 302/34 IPC and imposed the alternative lesser punishment of life imprisonment.
Holding and Implications
Holding: The Government appeal is allowed. The Court set aside the acquittal of accused-respondent Upendra Pradhan, recorded his conviction under section 302/34, I.P.C., and sentenced him to imprisonment for life.
Implications:
- Direct effect on the parties: Upendra Pradhan, who was on bail, is to be taken into custody to serve the life sentence; the Trial Court is directed to take appropriate steps immediately to implement this order.
- The Government appeal was allowed and the Trial Court's inconsistent treatment of similarly placed accused was corrected by this Court.
- The opinion does not purport to lay down a novel legal principle beyond applying established law: the Court relied on existing precedents to conclude that lapse of time does not automatically bar conviction or sentence, and treated the decision as a factual reassessment of credibility and evidence rather than as the creation of new law. (The opinion does not state any broader precedent-setting implication beyond the case outcome.)
Disposition: Appeal Allowed.
P.K Tripathy and S.R Singharavelu, JJ.:— Heard argument from the parties, hearing is concluded and the judgment is as follows.
2. This Government appeal is directed against the order of acquittal granted to the sole respondent Upendra Pradhan in the judgment passed on 3.12.1994 by learned Additional Sessions Judge, Sambalpur in S.T Case No. 28/7 of 1994. A short narration of the relevant events being in the impugned judgment, is needed to be noted as hereunder.
3. Accused Sanatan Pradhan is the father and accused Upendra Pradhan, Debendra Pradhan and Rabindra Pradhan are his three sons. Accused Jema Dei is his wife. As per the prosecution allegation, a dispute arose between accused Sanatan and his younger brother Brundaban (P.W 7) when the latter did not yield to the request of accused Sanatan to part with the ‘patta’ (Record of Rights) of the land so as to facilitate accused Sanatan to obtain a loan on mortgage. Accused Sanatan convened a village Punch, in which Brundaban was directed to collect ‘patta’ from the mother and to hand it over to accused Sanatan. Accused Sanatan and his family members bore grudge against Brundaban for non-complying with that order of the village punch and declared to eliminate the entire family of Brundaban, P.W 7.
4. Radha Pradhan (P.W 1) is the wife of P.W 7. Deceased Sanjib, Pravasini and Rajib are their three children. According to the prosecution case, on 29.8.1993 at about 8.00 p.m all the accused persons, in furtherance of their common intention, attempted murder of P.W 7 and also killed the above-named three innocent children of P.W 7. The local Sarapanch informed the matter to Jujumura Police Station. On the basis of such information, investigation was undertaken and charge-sheet was filed and ultimately after commitment of the case to the Court of Sessions, charges were framed under sections 307 and 302 read with section 34 of the I.P.C
5. To substantiate the charge, prosecution relied on the evidence of 15 witnesses and documents marked Exts. 1 to 23 besides the weapon of offence, M.O-I and the wearing apparels of the deceased persons as M. Os. II to IV. In furtherance of their plea of denial, accused persons examined one witness, i.e, D.W 1, to prove the plea of alibi of accused Sanatan.
6. In course of the investigation, accused Rabindra made confession before the Judicial Magistrate First Class (P.W 15) and that confessional statement was marked as Ext. 23. The post-mortem reports of deceased Sanjib, Pravasini and Rajib are respectively marked as Exts. 15, 9 and 10. No document or material object was produced from the side of the defence.
7. On assessment of the evidence, learned Additional Sessions. Judge found accused Sanatan, Rabindra and Debendra guilty of the offence under section 302/34, I.P.C Amongst them he sentenced accused-Sanatan and Rabindra with capital punishment and awarded life imprisonment to accused Debendra. He also found all the above three convicts guilty of the offence under section 307/34, I.P.C and awarded sentence of imprisonment for life. Learned Additional Sessions Judge granted acquittal to accused Jema Dei and accused Upendra. Prosecution allegation against accused Jema Dei was relating to instigation, whereas, as against accused Upendra in making active participation in the murder of the three children.
8. In view of the death sentence imposed against accused Sanatan and Rabindra, the Trial Court made a reference under section 366, Cr.P.C and that was registered as death sentence reference No. 1 of 1994. Accused Sanatan, Debendra and Rabindra also preferred appeals from the jail and they were respectively registered as jail Crl. Appeal Nos. 436, 434 and 435, all of 1994. A Division Bench of this Court analogously heard the aforesaid death sentence reference and jail criminal appeals and disposed of the same on 27.3.1995 The Court held in that judgment that, from the evidence on record accusation against each of the appellants has been proved beyond all reasonable doubt and, therefore, the order of the Trial Court in recording the conviction of the appellants was sustained. However, in the matter of death sentence, Their Lordships held that the circumstance behind the crime is good enough to take a lenient view and accordingly substituted that sentence by imprisonment for life.
9. The State filed leave application under section 378(1), Cr.P.C as against the impugned judgment and on 15.5.1995 leave was granted and this Government appeal was registered. Thereafter service of notice on the accused-respondent Upendra Pradhan took a considerable time. However, by virtue of the order of this Court, accused Upendra Pradhan is on bail.
10. Putting forth the argument on behalf of the State; Mr. A.K Mishra, learned Standing Counsel argues that learned Additional Sessions Judge has completely gone wrong by applying double standard in appreciation of evidence with respect to accused Debendra and Upendra. He argues that evidences of P.Ws 1, 6 and 12 are the three relevant evidences which were taken into consideration and appreciating the same when accused Debendra was found guilty, the same set of evidence could not have been doubted so as to grant acquittal to accused Upendra. Accordingly he argues to set aside the order of acquittal of accused Upendra Pradhan and to convict and sentence him accordingly.
11. Mr. G.S Pani, learned Counsel appearing for the accused-respondent Upendra Pradhan, on the other hand argues that the order of acquittal in favour of accused-respondent Upendra Pradhan, as noted by the Trial Court, is supported by justification in view of the evidence of P.Ws 6 and 12 and, therefore, no exception should be taken to that order passed in favour of the respondent. Accordingly, he argues to dismiss the Government appeal.
12. We may point out that though the appeal has been argued in detail on all relevant aspects, but there being no dispute at the Bar relating to the occurrence on 29.8.1993 and the preceding incidents besides the homicidal death of the three children and when to that effect not only the Trial Court has recorded the specific findings but also such findings, after proper examination, has been up held by this Court in the judgment delivered in the death sentence reference No. 1 of 1994, therefore reiteration of the facts relating to that aspect and re-appreciation of the evidence in the same manner is not again reflected in this judgment save and except mentioning the relevant facts, which are necessary to be discussed to consider the contention of the rival parties.
13. According to the case of the prosecution, because of the threats given by the accused persons, P.W 1 and her three children had taken shelter in the house of a co-villager namely Keshab Pradahn (P.W 10) and it was on 29.8.1993 that at about 8.00 p.m P.Ws 1 and 7 together with the children were returning to their house. According to the narration of events in the F.I.R as well as in the evidence of the eye-witnesses to the occurrence besides the injured P.W 7, when they reached their house and at the point of conducting the children into the house that the male accused persons attacked and assaulted P.W 7. At that time, as alleged, accused Upendra Pradhan was holding a stick. On sustaining injuries caused by axe, P.W 7 grovelled into the house of a neighbour namely Kulamani Budhia and became senseless there and then three sons of the accused Sanatan, i.e, accused Debendra, Upendra and Rabindra focused their attention on the three children in the house and, as alleged, deceased Sanjib, the eldest of the child was caught-hold from both sides by accused Upendra and Debendra and accused Rabindra dealt axe blows causing injuries on the neck and other parts of the body. Then accused Upendra caused injuries on the girl child Pravasini and killed her and thereafter accused Debendra and Upendra caught-hold of child Rajib, the second son of P.W 7 and accused Rabindra dealt axe blows and killed him. P.W 1 as the mother besides P.Ws 6 and 12, as per the prosecution, witnessed this ghastly scene. On the shout of P.W 1 when the covillagers came out, the accused persons decamped and P.W 1 brought all the three deceased children from inside the room to front of the house. Then P.W 7 in severely injured condition was lying senseless, as stated above, in a neighbour's house.
14. To account for the aforesaid occurrence, prosecution relied on the evidence of P.Ws 1, 6 and 12. Amongst them P.W 1 fully supported the prosecution case and narrated the occurrence in the above-indicated manner. P.W 6 on the other hand stated that by the time of the aforesaid occurrence, i.e, when P.Ws 1 and 7 were coming to their house with the deceased children, she was preparing hidi’ sitting on the verandah of one Kulamani Budhia and two other ladies namely Dutika and Thaka were also preparing ‘bidi’ at that time. It appears from the evidence of P.W 12 that at such time sitting on the verandah of one Snehalata she was preparing ‘bidi’. P.W 6 narrated about the assault on P.W 7 and thereafter the three accused Debendra, Upendra and Rabindra entering into the house of P.Ws 1 and 7 killed the three children and coming out therefrom after half an hour and that thereafter P.W 1 entered into her house and brought out the dead children. However, in course of such examination, being permitted by the Court, prosecution put leading questions in accordance with section 154 of the Evidence Act and at that stage P.W 6 stated that—
“It is a fact that I have stated to the I.O that accused Debendra and Upendra caught hold of the arms of the deceased, 2 sons and one daughter of Brunddaban and accused Rabindra gave blows with an axe on their necks, heads and other parts of their body, in presence of P.W 1 and that the deceased had succumbed to the injuries.”
15. In course of the cross-examination of P.W 1 or P.W 6 nothing was brought out from the mouth of these two witnesses to show or suggest that accused Upendra was not present there. Even suggestions were not given denying to the presence or participation of Upendra in the crime in the above-indicated manner. P.W 12 in her evidence also supported the prosecution case regarding P.Ws 1 and 7 returning to their house with the children and P.W 7 being assaulted by means of an axe on his neck and head. She further stated that she found accused Upendra and Debendra entering into the house of P.W 7 and at that time she did not see the wife of P.W 7 (i.e, P.W 1) being present there. She further stated that when accused persons entered into the house of P.W 1 out of fear she ran to her house and could not see anything else. In the cross-examination therefore she has admitted to have not seen accused Debendra and Upendra being present there or holding any weapon.
16. Capitalizing on the aforesaid evidence of P.W 12, learned Additional Sessions Judge recorded that—
“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 accused Upendra absent from the spot. Statements of P.Ws 1 and 6 showing the part played by Upendra in catching deceased Pravasini are not in conformity with each other. There is scope to entertain doubt about the prosecution involving accused Upendra in this case. The benefit of such doubt shall be given to him.”
17. The aforesaid finding undoubtedly runs contrary to the evidence on record and can be commented as perverse, inasmuch as P.W 12 stated that he was sitting on the verandah of one Snehalata. Apart from that, her evidence is that she could not notice presence of Upendra. That evidence itself is contradictory in view of the fact that in paragraph-3 of her deposition (in cross-examination) she stated that, “I have not seen any weapon held by accused Debendra and Upendra”. If those persons were not present at the spot, then there was no question of seeing them empty handed or with weapons. All that can be said about this witness is that either she had confused and could not give the correct picture about the occurrence or that she had been gained over to suppress a part of the fact relating to participation of accused Debendra and Upendra. In any event the evidence of P.Ws 1 and 6 was found credible with respect to accused Debendra and that finding of the Trial Court was also upheld by this Court in the appeal. The evidence of P.W 12 does not make a distinction between accused Debendra and accused Upendra and therefore the same analogy has to follow. P.Ws 1 and 6 have also stated regarding presence of accused Upendra at the scene of occurrence and participation in the crime. Under such circumstance the order of acquittal recorded in favour of accused Upendra is illegal and accordingly set aside. Since he actively participated to facilitate accused Upendra to deal axe blows to deceased Sanjib, Rajib and Pravasini, therefore, there remains no doubt about accused Upendra sharing the common intention in furtherance of the murder of the three innocent children.
18. At this stage learned Counsel for the appellant argues that by the date of trial accused was aged about 17 to 18 years and in the meantime about 14 years have elapsed and, therefore, an order imposing sentence by curtailing his liberty may not be in the interest of justice. In reply, learned Standing Counsel referring to the cases of State of Orissa v. Dibakar Naik . 2002 22 OCR SC 734., and State of Orissa v. Raghu Naik . 2002 Supplementary OLR 665., argues that in those decisions the Hon'ble Apex Court and this Court have interfered with the order of acquittal, recorded the conviction and imposed sentence even after lapse of 15 to 20 years, and therefore in this case no exception should be taken for the lapse of time in between.
19. On consideration of the aforesaid contention and the facts and circumstances involved in this case, we find that when accused Upendra is a party to the ghastly murder of three innocent children, we find him guilty like other co-accused persons for the offence punishable under section 302/34, I.P.C Therefore, it is appropriate that accused Upendra should be awarded appropriate punishment instead of taking any other view. Accordingly, we record conviction of accused Upendra under section 302/34, I.P.C and sentence him to imprisonment for life, because that is the alternative and lesser punishment as provided in section 302, I.P.C Accused-respondent Upendra Pradhan, who is on bail, be taken to custody to serve the sentence and steps be accordingly taken by the Trial Court immediately. The Government appeal is accordingly allowed.
20. Appeal Allowed.
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