UPENDRA PRADHAN Vs. STATE OF ORISSA

JUDGEMENT

(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 IPC.