In view of the above report, it is evident that on the date of death of Sushila Devi, her brother in law (Devar) Nand Kumar Sao (appellant No. 2 before us) was aged 15 years 9 months and 26 days, as such, on further considering the law laid down by this Court in Vijay Singh v. State of Delhi[1], Vaneet Kumar Gupta alias Dharminder v. State of Punjab[2] and Upendra Kumar v. State of Bihar[3], we are of the view that the sentence recorded by the courts below against the juvenile accused is liable to be quashed. As to the other appellants, in the facts and circumstances of the case, we do not find any reason to reduce the sentence, awarded against them. Accordingly, the appeal of appellants Indradeo Sao and Raj Kumar Sao is dismissed, but that of Nand Kumar Sao is allowed partly.

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                     CRIMINAL APPEAL NO.    709  OF 2015
               (Arising out of S.L.P. (Crl.) No. 5796 of 2014)


Indradeo Sao and others                            … Appellants

                                   Versus

State of Bihar                                     …Respondent






                               J U D G M E N T


Prafulla C. Pant, J.


      This appeal is directed against judgment and  order  dated  28.2.2014,
passed by the High Court of Judicature at Patna in Criminal Appeal (SJ)  No.
419 of 1998 and Criminal Appeal (SJ) No.  437  of  1998,  whereby  both  the
appeals  are  dismissed,  and  conviction  and  sentence  recorded  by   1st
Additional Sessions Judge, Nalanda at Bihar Sharif in  Sessions  Trial  Nos.
192 of 1994/134 of 1996 (PS Case No. 63 of 1994) under  Section  304B,  498A
and 201 of Indian Penal Code (IPC) against the appellants, namely,  Indradeo
Sao, Nand Kumar Sao and Raj Kumar Sao, is affirmed.


It is pertinent to mention here  that  we  issued  notice  in  this  appeal,
through special leave, only on the quantum of sentence, and with  regard  to
plea of juvenility of appellant No. 2 Nand Kumar  Sao  (younger  brother  of
the husband of the deceased).


We have heard learned counsel for the parties  and  perused  the  papers  on
record.




Prosecution story in brief is  that  appellant  No.  3  Raj  Kumar  Sao  got
married to Sushila Devi (deceased) about five years before  her  death.   As
per custom, she departed from her parental house for  her  husband’s  house,
about two years after her marriage.  In the intervening  night  of  3rd  and
4th March, 1994, she died unnatural death.  On 4.3.1994 at about 8.30  p.m.,
her father PW-2 Saudagar Sao gave a report (Fard Bayan) to  the  Officer-in-
charge of Police Station Hilsa, stating that his daughter was  subjected  to
cruelty, in connection with demand of dowry by her husband (Raj Kumar  Sao),
her  father-in-law  (Indradeo  Sao),  mother-in-law  (Rajeshwari  Devi)  and
brother-in-law (Nand Kumar Sao).  It was further alleged  by  the  informant
Saudagar Singh that the accused demanded Rs.10,000/- as dowry  at  the  time
of her ‘Bidayee’, i.e., when Sushila left from her  parental  house  to  her
husband’s family for  the  first  time,  which  he  could  not  fulfill  and
resultantly she was subject to harassment and cruelty  by  her  husband  and
his father, mother and younger brother.  On the basis of  Fard  Bayan  (Ext.
4) crime case No. 63 of 1994 was registered against  all  the  four  accused
relating to offences punishable under Section 304B, 498A and 201  read  with
Section 34 IPC.  Investigation was taken up by PW-6 S.I. Kamla Kant  Pandey.
 On 5.3.1994, the Investigating Officer (PW-6) went  to  the  house  of  the
appellant (accused) in village Nadaha but could not find  the  body  of  the
deceased on that day.  Accused had disappeared from their house.  Next  day,
i.e., 6.3.1994, the dead body could be recovered from a  distance  of  about
half a kilometer from their house, from  a  ditch  of  Dangra  Kandha.   The
tongue of the deceased looked  protruding,  compressed  between  the  teeth.
The dead body was sealed and the inquest report (Ext. 5) was prepared.   The
dead body was sent for post mortem examination.  PW-1,  Dr.  Mathura  Prasad
of Sadar Hospital, Bihar Sharif, conducted autopsy at 4.15 p.m. on the  very
day (i.e. 6.3.1994 when the dead body was  recovered).   After  post  mortem
examination, the Medical Officer  opined  that  the  deceased  has  died  of
strangulation.  However, since he suspected that  poisonous  substance  also
might have been consumed by the deceased, as  such,  he  preserved  viscera.
He has further observed in the post mortem examination  report  that  though
there was no clear ligature mark on the neck, but on dissection trachea  was
found  broken.   The  Investigating   Officer,   after   interrogating   the
witnesses, and arrest of the accused, and on  completion  of  investigation,
submitted charge sheet against all the four accused for their trial.


The case was committed to  the  Court  of  Sessions,  on  4.5.1994,  by  the
Judicial Magistrate, Hilsa.  After hearing  the  parties,  the  trial  court
framed  charge  against  all  the  four  accused  in  respect  of   offences
punishable under Sections 304B, 498A and 201 IPC to which they  pleaded  not
guilty and claimed to be tried.




On this, prosecution got examined PW-1 Dr.  Mathura  Prasad  (who  conducted
post  mortem  examination),  PW-2  Saudagar  Sao  (informant/father  of  the
deceased), PW-3 Mahendra Sao (husband of sister of the deceased),  PW-4  Ram
Udit Prasad (brother of the deceased), PW-5 Rajkumari Devi  (mother  of  the
deceased), PW-6 S.I. Kamla Kant Pandey (who investigated the crime) and  PW-
7 Surendra Prasad Singh (Officer-in-charge of Police Station, Hilsa).   Oral
and documentary evidence was put to the accused under  Section  313  of  the
Code of Criminal Procedure, 1973, in response  to  which  they  stated  that
Sushila died of diarrhea, whereafter  DW-1  Baliram  Prasad  and  DW-2  Shiv
Kumar, both neighbours of the  accused,  were  examined  on  behalf  of  the
defence.


The trial court, after  hearing  the  parties,  found  that  the  charge  of
offences punishable under Sections 304B, 498A and 201 IPC  stood  proved  as
against  all  the  four  accused,  namely,  Indradeo  Sao   (father-in-law),
Rajeshwari Devi (mother-in-law), Raj Kumar Sao (husband) and Nand Kumar  Sao
(brother-in-law), and  convicted  them  accordingly  on  28.11.1998.   After
hearing on sentence on 30.11.1998, each of  the  convict  was  sentenced  to
rigorous imprisonment for a period of ten  years  under  Section  304B  IPC,
rigorous imprisonment for a period of three years under  Section  498A  IPC,
and rigorous imprisonment for a period of two years under Section  201  IPC.
All the sentences were directed to run concurrently.




Aggrieved by said judgment and order dated 28.11.1998/ 30.11.1998 passed  by
the 1st Additional Sessions Judge, Nalanda  at  Bihar  Sharif,  in  Sessions
Trial Nos. 192 of 1994/ 134 of 1996, Criminal Appeal (SJ) No.  419  of  1998
was filed by Indradeo Sao, Rajeshwari Devi and Nand Kumar  Sao.   Raj  Kumar
Sao (husband of the deceased) filed separate Criminal Appeal  (SJ)  No.  437
of 1998.  Both  the  appeals  were  heard  together  and  disposed  of  vide
impugned order challenged before us by Indradeo Sao, Nand Kumar Sao and  Raj
Kumar Sao.  (Convict Rajeshwari Devi is reported to  have  died  during  the
pendency of the appeal before the High Court, and her appeal stood abated.)




We  have  already  mentioned  above,  that  the  impugned  order  is   under
examination in this appeal only on the quantum of  sentence,  and  regarding
plea of juvenility qua appellant No. 2.




Considering the plea of juvenility of appellant No. 2  Nand  Kumar  Sao,  on
the basis of documents before us, on 23.2.2015,  we  directed  the  Sessions
Judge, Nalanda, Bihar, to conduct an enquiry with regard to  the  juvenility
of appellant No. 2 Nand Kumar Sao and to send the report to  this  Court  by
13.4.2015.




In response  to  communication  made  by  the  Registry  of  this  Court  in
compliance with our order, report dated  31.3.2015  of  Additional  District
and Sessions Judge-I, Bihar Sharif, Nalanda, after enquiry, is  received  by
this Court.  Relevant part of the report is reproduced as under: -
“     …………….

      I have taken up  the  matter  afresh  and  perused  all  the  original
documents related with age of petitioner no. 2, Nand Kumar Sao @ Nand  Kumar
Chand filed by the parties on affidavit before me and from bare  perusal  of
the original matriculation certificates, admit  card,  registration  receipt
and character certificate.  I find that every where the  date  of  birth  of
Nand Kumar Sao @ Nand Kumar Chand which is said to be petitioner no. 2,  the
date of birth is recorded as 08.05.1978.  Though the certificate  stands  in
the name of Nand Kumar  Chand  S/o  Indradeo  Prasad,  who  has  claimed  on
affidavit that Nand Kumar Chand S/o Indradeo Prasad  also  bears  the  alias
name Nand Kumar Sao (petitioner no. 2) and the father Indradeo  Sao  had  no
other son  named  as  Nand  Kumar  Chand.   This  fact  has  also  not  been
controverted in any way before this enquiry or  before  the  matter  earlier
required by the court of ACJM, Hilsa, Nalanda on 07.12.1995.

      Now coming on the point to test the juvenility of the  petitioner  no.
2 Nand Kumar Sao, who also bears the alias name Nand Kumar Chand and on  the
strict proof of the age as recorded on all the original  certificates  filed
by the petitioner no. 2 including original matriculation  certificates  duly
issued  from  the  office  of  the  Bihar  School  Examination  Board-Patna,
recorded the date of birth of the petitioner as 08.05.1978 and I  find  that
this date of birth of the petitioner no. 2  is  also  duly  entered  in  the
admit card and registration certificate in the office of  the  Bihar  School
Examination Board, which was issued from the B.S.E.B. office earlier to  the
date of occurrence.  I have also  gone  through  the  established  procedure
followed in determination of age of any juvenile mentioned in  the  rule  of
the juvenile justice care and protection of children in clause-3 as under-

“     in  every  case  concerning  a  child  or  juvenile  in  conflict  age
determination inquiry shall be conducted by the court or the  Board  as  the
case may be the committee by seeking evidence by obtaining –

i. The matriculation or equivalent certificate available and in the  absence
whereof;

ii.   The date of birth certificate from  the  school  (other  than  a  play
school) first attended and in the absence thereof;

iii.  The birth certificate given by a corporation or a municipal  authority
or a panchayat.

And only in the absence of either (i) (ii) or (iii) of clause (a) above  the
medical opinion will be sought from a duly constructed medical board,  which
will declare the age of the juvenile or child.”..

      Thus on the touch stone of the aforesaid  principle  in  determination
of age, I find and hold that the petitioner no. 2  Nand  Kumar  Sao  @  Nand
Kumar Chand, S/o Indradeo Sao was juvenile and was much  below  the  age  of
sixteen year (i.e. 15 years 09 months 26 days) at  the  time  of  occurrence
FIR dated 04.03.1994, Hilsa P.S. case no. 63/94 corresponding to  S.Tr.  No.
192/94.

      Thus in obedience of the Hon’ble Apex Court directions,  I  am  herein
submitting my report before  your  honour  to  place  the  same  before  the
Hon’ble Bench as desired.”


In view of the above report, it is evident that on  the  date  of  death  of
Sushila Devi, her brother in law (Devar) Nand Kumar  Sao  (appellant  No.  2
before us) was aged 15 years 9 months and  26  days,  as  such,  on  further
considering the law laid down by this Court  in  Vijay  Singh  v.  State  of
Delhi[1], Vaneet Kumar Gupta alias Dharminder  v.  State  of  Punjab[2]  and
Upendra Kumar v. State of Bihar[3], we are of the  view  that  the  sentence
recorded by the courts below against the juvenile accused is  liable  to  be
quashed.  As to the other appellants, in the facts and circumstances of  the
case, we do not find any reason to  reduce  the  sentence,  awarded  against
them.


Accordingly, the appeal of appellants Indradeo Sao  and  Raj  Kumar  Sao  is
dismissed, but that of Nand Kumar Sao is  allowed  partly.   We  affirm  the
conviction recorded against him but considering that he was juvenile on  the
date of incident, sentence of imprisonment is quashed.  Appellant No.2  Nand
Kumar Sao shall be set at liberty, if not required in  connection  with  any
other crime.

                                                           ……………….....…………J.
                                                               [Dipak Misra]



                                                             .……………….……………J.
New Delhi;                        [Prafulla C. Pant]
April 28, 2015.

-----------------------
[1]    (2012) 8 SCC 763
[2]    (2009) 17 SCC 587
[3]    (2005) 3 SCC 592

which creates doubt as to the very presence = the cycle got punctured and Gopalakrishnan took another cycle from the nearby shop and proceeded to his house. It would be further evident that the prosecution had produced M.O.11 and M.O.12 bicycles and according to PW-14, a Herojet Cycle was recovered from the place of occurrence. While PW-13, who is the Mahazar witness, deposed in the chief examination that only Hercules Cycle was recovered from the place of occurrence and not Herojet Cycle. It further appears from the evidence of PW-12 that soon after the occurrence, she had placed the body of her husband on her lap. But, interestingly, no blood-stained sari was recovered from PW-12, which creates doubt as to the very presence of PW-12 at the time and place of the said occurrence.

                                                              NOT-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION



                  CRIMINAL APPEAL NOS. 1647-1648  OF  2008

STATE REP. BY INSPECTOR OF POLICE, T.N.  …  APPELLANT

                                  :Versus:

MANIKANDAN AND ORS.                            …   RESPONDENTS











                                  O R D E R

   1. These appeals are directed against the judgment and order  dated  19th
      July, 2006 passed by  the  High  Court  of  Judicature  at  Madras  in
      Criminal Appeal Nos.389 & 575 of 2003 together with Criminal  Revision
      Nos.201 and 1389 of 2002, whereby the High Court  has  dismissed  both
      the appeals and both the revisions, confirming the judgment  delivered
      by the Additional Sessions Judge, Nagapattinam in S.C. Nos.39 of  1998
      and 148 of 1999.

   2. As recorded in the impugned judgment of the High Court, there are  six
      accused in S.C. No.39 of 1998  on  the  file  of  Additional  Sessions
      Judge, Nagapattinam. They are: Murugesan (A-1), Senthil  Kumar  (A-2),
      Manikandan (A-3), Rajendran  (A-4),  Hari  @  Harikrishnan  (A-5)  and
      Kathir  @  Kathiravan  (A-6).  Since  Manikandan  (A-3)  and  Hari   @
      Harikrishnan (A-5) were absconding at the time of  trial,  their  case
      was separated and they were subsequently secured  and  tried  in  S.C.
      No.148 of 1999. A separate trial was conducted in S.C. No.39  of  1998
      as against A-1, A-2, A-4 and A-6. Both these cases ended in acquittal.
      Hence, the State preferred criminal  appeals,  being  Criminal  Appeal
      No.389 of 2003 against  the  judgment  in  S.C.  No.148  of  1999  and
      Criminal Appeal No.575 of 2003 against S.C. No.39 of 1998. The wife of
      the deceased preferred two criminal revisions (Criminal  R.C.  Nos.201
      and 1819 of 2002) against the aforesaid judgments of the Trial  Court.



   3. Before we proceed further, it is necessary for us to set out the facts
      very briefly. A-1’s brother Kaliyamurthy was murdered due to  previous
      enmity by Paneerselvam and two others.  So  Senthil  Kumar  (A-2)  and
      Manikandan (A-1) who are the sons of Kaliyamurthy, had grudge  against
      the deceased Gopalakrishnan as he had preferred  a  complaint  against
      them in respect of an incident which took place on 21.10.1992. It  was
      alleged that due to the said motive when Gopalakrishnan along with his
      wife Vijaya, was proceeding on his bicycle, Murugesan  (A-1),  Senthil
      Kumar (A-2), Rajendran (A-4) and Manikandan (A-3)  assaulted  Gopal  @
      Gopalakrishnan with Aruval, causing instantaneous death.

   4. According to the prosecution,  accused  Murugesan  had  assaulted  the
      deceased Gopalakrishnan with Aruval on the right hand, accused Senthil
      Kumar had assaulted the deceased Gopalakrishnan  with  Aruval  on  the
      left  ankle  and  right  thigh,  causing  grievous  injuries,  accused
      Manikandan had assaulted the deceased Gopalakrishnan  with  Aruval  on
      the right shoulder and accused Rajendran had  assaulted  the  deceased
      Gopalakrishnan on the right ankle and right thigh. There is  no  overt
      act attributed against accused Hari @ Harikrishnan and accused  Kathir
      @ Kathiravan. It is the case of the prosecution that  accused  Hari  @
      Harikrishnan and accused Kathir @ Kathiravan were keeping vigil at the
      place of occurrence while the other accused were committing the crime.
      A complaint was lodged by wife of the deceased, being Ext.P10  (Ext.P1
      in S.C. No.148/1999) before the Village Administrative Officer  (PW-3)
      who in turn preferred a complaint before PW-13 (in S.C.  No.148/1999).
      The  Inspector,  PW-14(PW-18  in  S.C.  No.148/1999)   took   up   the
      investigation, visited the place of occurrence,  prepared  observation
      Mahazar and rough sketch and recovered material objects, held inquest,
      examined the witnesses, recorded their statements and filed the charge-
      sheet. The learned Judicial Magistrate,  Mayiladuthurai  took  up  the
      case in P.R.C. 4 of 1997 and after furnishing copies under Section 207
      Cr.P.C. committed the case to the Court of Sessions  for  trial  under
      Section 209 Cr.P.C.

   5. The Trial Court examined fourteen prosecution witnesses (PWs.1 to  14)
      and marked Exts. P1 to P21 and M.Os.1 to 13 in S.C. No.39 of 1998.  As
      against accused Manikandan and Hari @ Harikrishnan, the case was split
      up as S.C. No.148 of 1999 wherein PWs.1 to 18 were examined and  Exts.
      P.1 to 23 and M.Os.1 to 13 were marked. The Trial Court  in  both  the
      matters held that the prosecution could not prove the charges  leveled
      against the accused and accordingly acquitted all the accused.  Hence,
      appeals were filed by the State before the High Court. The High  Court
      after considering the facts of the case  and  after  appreciating  the
      evidence which was  adduced  before  the  Trial  Court,  came  to  the
      conclusion that the prosecution case suffers  from  defects  and  held
      that the learned Sessions Judges have come to definite conclusion that
      the prosecution has failed to prove the guilt of the accused beyond  a
      reasonable doubt and affirmed the reasoning given  by  the  Additional
      Sessions Judge and refused to interfere with the said decisions.

   6. We have heard the learned counsel for the parties at length.  We  have
      also gone through the judgments  delivered  by  the  learned  Sessions
      Judge as also by the High Court of Judicature at Madras. We find  that
      the High Court has given its reasoning  in  respect  of  the  evidence
      which was adduced before the Trial Court, in particular, the  wife  of
      the deceased Vijaya. It appears that  the  High  Court  has  correctly
      analysed the evidence and found that there  is  glaring  discrepancies
      found in the complaint preferred by Vijaya, being Ext.P-10.  The  High
      Court has noticed that the wife of the deceased, Vijaya had  preferred
      the complaint soon after the occurrence on 24.9.1996  at  about  12.00
      Noon before the Village Administrative Officer. Vijaya was examined as
      PW-12 in S.C. No.39 of 1998. In the complaint, she  had  categorically
      stated that Senthil Kumar (A-2) and Manikandan (A-1) in S.C. No.148 of
      1999 and Murugesan (A-1) and Rajendran (A-3) had assaulted her husband
      with Aruval. But when she deposed  before  the  Court  as  PW-12,  she
      implicated six persons Murugesan (A-1), Senthil Kumar (A-2), Rajendran
      (A-3), Manikandan, Hari @  Harikrishnan  and  Kathir  @  Kathiravan  @
      Kathiresan.  The High Court correctly held that  there  is  a  glaring
      discrepancy in the complaint before the Court and in her evidence.  As
      per Exhibit P-10, there are  only  four  accused  and  while  deposing
      before the Court she improved her version and stated that  there  were
      about six persons in the scene of occurrence.

   7. It is no doubt that there is previous enmity which is  also  reflected
      from the evidence of PW-13 who claimed  to  be  an  eye  witness.  The
      husband of PW-13 Amrithalingam was murdered by one Kaliamurthy and his
      associates. It is also a fact that Kalaimurthy was also murdered.  The
      said eye witness stated that the occurrence took place on 24.9.1999 at
      about 10.30 A.M. while she was waiting for the bus to go to a  grocery
      shop to purchase groceries. She also stated that A-1, A-2 and A-3  had
      assaulted with Aruval at Gopalakrishnan. In the cross-examination, she
      identified A-1, A-2, A-3 and A-4 and  according  to  her,  those  four
      accused persons were holding Aruval in their  hands  at  the  time  of
      occurrence. But in the chief, she deposed  that  Manikandan  (A-1)  in
      S.C. No.148 of 1999 had assaulted Gopalakrishnan. But according to PW-
      12, there were six persons present at the time of occurrence  and  out
      of them, four accused assaulted Gopalakrishnan with Aruval whereas PW-
      13 deposed in  her  cross-examination  that  only  four  persons  were
      present at the time of occurrence. There were  also  discrepancies  in
      the statements of PW-12 and PW-13 which also have been  noted  by  the
      High Court. The High  Court  has  also  noticed  that  no  weapon  was
      recovered from the accused.  There  were  also  discrepancies  in  the
      statements of PW-12, PW-13 and PW-14 which were not explained  by  the
      prosecution.

   8. We have further noticed that PW-12 Vijaya in her evidence  had  stated
      that after the occurrence, she  went  to  the  Village  Administrative
      Officer at about 12.30 P.M. and narrated the facts which were  reduced
      to writing and then read over to her and thereafter she signed  Ext.P-
      10. But we have noticed that PW-13 the Village Administrative  Officer
      after he came to learn about the said incident, went at the  place  of
      occurrence and prepared a complaint. He further deposed that  Ext.P-10
      alone is with his signature. He further stated  that  Vijaya  had  not
      given any complaint to him. Further  it  appears  that  PW-3  got  the
      information through his Assistant one Kittu, but he was  not  examined
      as prosecution witness in S.C. No.39 of 1998. We have further  noticed
      that the said Kittu was examined as PW-6 in S.C. No.148  of  1999  and
      did not support the  case  of  the  prosecution  and  was  accordingly
      declared as hostile witness.

   9. We have also noticed that the deceased along with his wife Vijaya  had
      gone in a bicycle to redeem her jewels from Agricultural  Co-operative
      Society and that the clerk had informed  that  the  Secretary  of  the
      Society was not available there and, so they returned to  their  house
      in the same bicycle. The prosecution examined  one  Bhaskaran  (PW-6),
      Clerk of the said Bank. He stated that  on  the  date  of  occurrence,
      Gopalakrishnan did not visit the said Bank. We have also noticed  that
      it was correctly found by the High Court that the cycle got  punctured
      and Gopalakrishnan  took  another  cycle  from  the  nearby  shop  and
      proceeded  to  his  house.  It  would  be  further  evident  that  the
      prosecution had produced M.O.11 and M.O.12 bicycles and  according  to
      PW-14, a Herojet Cycle was recovered from  the  place  of  occurrence.
      While PW-13,  who  is  the  Mahazar  witness,  deposed  in  the  chief
      examination that only Hercules Cycle was recovered from the  place  of
      occurrence and not Herojet Cycle. It further appears from the evidence
      of PW-12 that soon after the occurrence, she had placed  the  body  of
      her husband on her lap. But, interestingly, no blood-stained sari  was
      recovered from PW-12, which creates doubt as to the very  presence  of
      PW-12 at the time and place of the said occurrence.

  10. In these circumstances, we find that the High Court correctly  noticed
      the said discrepancies which was also found out by the Trial Court and
      thereafter correctly came to the conclusion that the  prosecution  has
      failed to prove the guilt of the accused beyond any reasonable doubt.

  11. Decisions were cited at the Bar. In our  opinion,  in  the  facts  and
      circumstances of the present case, it is not necessary  to  deal  with
      each one of them. However, we have noticed in Murugesan S/o Muthu  and
      Ors. Vs. State through Inspector of Police, (2012) 10 SCC 383, wherein
      this Court has noted that  the  principles  laid  down  by  the  Privy
      Council in Sheo Swarup v. King Emperor, (1933-34) 61 IA 398 : AIR 1934
      PC 227(2), have been followed by this Court in a series of  subsequent
      pronouncements. Sheo Swarup v. King  Emperor  (supra)  has  also  been
      considered  and  the  general  principles  regarding  powers  of   the
      appellate court while dealing with  an  appeal  against  an  order  of
      acquittal, has been culled out by this Court in Chandrappa v. State of
      Karnataka, (2007) 4 SCC 415, which are as follows:

                 (1) An appellate  court  has  full  power  to  review,  re-
           appreciate and reconsider the evidence upon which the  order  of
           acquittal is founded.

                 (2)  The  Code  of  Criminal  Procedure,   1973   puts   no
           limitation, restriction or condition on exercise of  such  power
           and an appellate court on the evidence before it may  reach  its
           own conclusion, both on questions of fact and of law.

                 (3)  Various  expressions,  such   as,   "substantial   and
           compelling reasons", "good and sufficient grounds", "very strong
           circumstances",  "distorted  conclusions",  "glaring  mistakes",
           etc.  are  not  intended  to  curtail  extensive  powers  of  an
           appellate  court  in   an   appeal   against   acquittal.   Such
           phraseologies are more in the nature of "flourishes of language"
           to emphasise the reluctance of an appellate court  to  interfere
           with acquittal than to curtail the power of the court to  review
           the evidence and to come to its own conclusion.

                 (4) An appellate court, however, must bear in mind that  in
           case of acquittal, there is double presumption in favour of  the
           accused. Firstly, the presumption of innocence is  available  to
           him under the fundamental principle  of  criminal  jurisprudence
           that every person shall be presumed to be innocent unless he  is
           proved guilty by a competent court of law. Secondly, the accused
           having secured his acquittal, the presumption of  his  innocence
           is further reinforced, reaffirmed and strengthened by the  trial
           court.

                 (5) If two reasonable conclusions are possible on the basis
           of the evidence  on  record,  the  appellate  court  should  not
           disturb the finding of acquittal recorded by the trial court.”




  12. Accordingly, we do not find any reason to interfere with the  judgment
      and order so passed by  the  High  Court.  Hence,  these  appeals  are
      dismissed.







                                       ….....….……………………J
                                       (Pinaki Chandra  Ghose)








                                       ….....…..…………………..J
                                       (Uday Umesh Lalit)
New Delhi;
April 28, 2015.

Section 15 of the Juvenile Justice Act of 2000. - the maximum period of sentence is only three years -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. -2015 S.C. MSKLAWREPORTS

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.
 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.

  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.  -2015 S.C. MSKLAWREPORTS

the appellant was constable on duty posted at the police station. It is also not disputed that the incident has occurred in the night in a Naxalite area. It is also evident from the record that it is a case of sudden quarrel and heated exchange of words between the injured and the appellant, who was armed with rifle. Considering all the facts and circumstances of the case in totality, though we find no error committed by the courts below in convicting the accused in respect of charge of offences punishable under Sections 294, 506 Part II, 324 and 326 IPC, but, in our opinion, in the present case, reducing the period of sentence to already undergone (which is more than one year) would meet the ends of justice.

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                     CRIMINAL APPEAL NO.    707  OF 2015
               (Arising out of S.L.P. (Crl.) No. 8106 of 2014)

Vipul Kumar @ Vipulesh                       … Appellant

                                   Versus

State of Chhattisgarh                        …Respondent




                               J U D G M E N T


Prafulla C. Pant, J.


This appeal is directed against judgment and order dated  October  3,  2013,
passed by the High Court of Chhattisgarh in  Criminal  Appeal  No.  1322  of
2003 whereby said Court has affirmed the conviction  and  sentence  recorded
by Additional Sessions Judge, Khairagarh, District Rajnandgaon,  in  Session
Case No. 58 of 2003, against  accused/  appellant  Vipul  Kumar  @  Vipulesh
under Sections 294, 324, 326 and 506 Part II of Indian Penal Code (IPC).

It is pertinent to mention here that we have issued notice  in  this  appeal
only on the quantum of sentence at the  time  of  entertaining  the  Special
Leave Petition.


We have heard learned counsel for the parties  and  perused  the  papers  on
record.


Prosecution story, in brief, is that on 19.1.2003 at about  10.30  p.m.,  an
unknown person entered in the  house  of  PW-4  Kamal  Singhaniya  and  PW-3
Subodh Singhaniya.  Both  of  them,  with  the  help  of  PW-12  Om  Prakash
Agrawal, caught the trespasser, suspecting that he had entered the house  to
commit  theft,  and  took  him  to  police  station,  Gandai.   PW-3  Subodh
Singhaniya lodged First Information Report against the  person  apprehended.
But the present appellant Vipul Kumar @ Vipulesh  Constable  at  the  police
station, instigated the person apprehended by  PW-3  Subodh  Singhaniya  and
others, and asked him to  lodge  report  against  them.   When  PW-3  Subodh
Singhaniya  protested  and  questioned  the  appellant  as  to  why  he  was
protecting a wrong person, he (appellant) started hurling abuses,  and  used
fowl  and  vulgar  language  against  Subodh  Singhaniya  and  others.   The
appellant did not stop there and he took up rifle, and fired  shots  due  to
which  PW-4  Kamal  Singhaniya  and  one  Rajesh  Motwani  (PW-9)  sustained
injuries.  As such, First Information Report (Ex. P/20) in  connection  with
this case was lodged at the Police Station,  Gandai.   Injured  PW-9  Rajesh
Motwani and PW-4  Kamal  Singhaniya  were  taken  to  hospital  for  medical
treatment.  PW-2 Dr. G.S. Thakur recorded  in  his  report  (Ex.  P/16)  the
injuries found on the person of above named  injured,  and  prepared  injury
report (Ex. P/17).  Thereafter,  the  injured  were  referred  from  primary
health centre, Gandai to Sector-9 Hospital, Bhilai where  also  injuries  on
left thigh, testis, scrotum and penis  of  PW-4  Kamal  Singhaniya,  and  in
respect of Rajesh Motwani gunshot injuries  suffered  on  his  right  thigh,
were recorded.  The injuries on the person of Kamal  Singhaniya  were  found
to be grievous in nature, while injuries sustained by  Rajesh  Motwani  were
simple in nature.  Three bullets were taken  out  from  the  body  of  above
injured persons.  From the possession of the appellant Rifle  (SLR)  and  47
cartridges with two empty magazines  were  seized.   Recovered  bullets  and
above mentioned armoury were examined by PW-8  Girija  Shankar  Shrivastava,
who conducted armour examination and gave his  report  (Ex.  P/25).   Sealed
Rifle, cartridge cases, recovered from the appellant, and bullets found  and
blood-stained clothes of the injured were sent for  examination  to  Central
Forensic   Science   Laboratory,   Chandigarh.     After    completion    of
investigation,  charge  sheet  was  filed  against  accused  Vipul  Kumar  @
Vipulesh.

After the case was committed  to  the  Court  of  Sessions,  the  Additional
Sessions Judge, Khairagarh, framed charge in respect of offences  punishable
under Sections 294, 506 Part II and 307 IPC, to which  the  accused  pleaded
not guilty and claimed to be tried.


On this, prosecution examined PW-1 G.P. Sharma, PW-2 Dr. G.S. Thakur,  PW-3,
Subodh Kumar Singhaniya, PW-4 Kamal Singhaniya, PW-5 Dr. M.G.  Tiwari,  PW-6
Narayan Prasad Sharma, PW-7 Roop Lal Patel (Patwari),  PW-8  Girija  Shankar
Shrivastava, PW-9 Rajesh Motwani,  PW-10  Amit  Agrawal,  PW-11  Dr.  Jogesh
Chandra Maruhal, PW-12 Om Prakash Agrawal and PW-13 S.I. T.R. Sahu.


The oral and documentary evidence was put to the accused, in reply to  which
he took the defence that on 19.1.2003, he was on duty to  guard  the  police
station between 9.00 p.m. to 11.00  p.m.,  and  the  Station  In-charge  had
instructed him not to allow more  than  two  persons  to  enter  the  police
station.  The accused further  took  the  plea  that  since  more  than  two
persons attempted to enter the police station and  started  quarreling  with
him, he had to open fire in air.   He  further  submitted  that  the  police
station is  in  Naxalite  area.   In  defence,  DW-1  Uttamchandra  Rao  was
examined.  The trial court,  after  hearing  the  parties,  found  that  the
prosecution has successfully proved the charge of offences punishable  under
Sections 294, 506 Part II, 324 and 326 IPC.  After hearing  the  parties  on
sentence, the trial court sentenced the appellant to  rigorous  imprisonment
for a period of three months under Section 294  IPC,  rigorous  imprisonment
for a period of one year under Section 506 Part  II,  rigorous  imprisonment
for  a  period  of  three  years  under  Section  324  IPC,   and   rigorous
imprisonment for a period of seven years under Section 326 IPC.

Aggrieved by said  judgment  and  order  dated  15.12.2003,  passed  by  the
Additional Sessions Judge, Khairagarh in  Sessions  Case  No.  58  of  2003,
convict Vipul Kumar @ Vipulesh  filed  Criminal  Appeal  No.  1322  of  2003
before  the  High  Court.   The  High  Court,  after  hearing  the  parties,
concurred with the view taken by the trial court that the charge in  respect
of offences punishable under Sections 294, 506 Part  II,  324  and  326  IPC
stood proved on the record and  declined  to  interfere  with  the  sentence
awarded against him, as such, the criminal  appeal  was  dismissed.   Hence,
this appeal through special leave.


Only point argued before us, in this appeal, is that the courts  below  have
erred in law in not considering the fact that the appellant  was  posted  at
the police station in Naxalite area and the act committed by him was due  to
sudden fight and provocation.  It is further pointed out that the  appellant
had already spent more than one year in jail.  It is pleaded before us  that
the sentence awarded by the trial court and affirmed by the High  Court,  is
too harsh in the facts and circumstances of the case.


It is undisputed fact that the appellant was constable  on  duty  posted  at
the police station.  It is also not disputed that the incident has  occurred
in the night in a Naxalite area.  It is also evident from  the  record  that
it is a case of sudden quarrel and heated  exchange  of  words  between  the
injured and the appellant, who was armed with rifle.   Considering  all  the
facts and circumstances of the case in totality, though  we  find  no  error
committed by the courts below  in  convicting  the  accused  in  respect  of
charge of offences punishable under Sections 294, 506 Part II, 324  and  326
IPC, but, in our opinion, in  the  present  case,  reducing  the  period  of
sentence to already undergone (which is more than one year) would  meet  the
ends of justice.


Accordingly, we partly allow this appeal.  The conviction  recorded  against
the appellant is not interfered with.  However, the sentence awarded by  the
trial court is reduced  to  the  period  already  undergone  in  respect  of
offences found to have  been  proved  against  him.   He  shall  be  set  at
liberty, if not required in connection with any other crime.



                                                           ……………….....…………J.
                                                               [Dipak Misra]



                                                             .……………….……………J.
New Delhi;                        [Prafulla C. Pant]
April 28, 2015.

where two views are probable - it is an error in presuming a version against the accused without considering the view which is favourable to the accused . - High court committed wrong and exceeded it's power in reversing the acquittal - when the interested witnesses are contradicted each other - examination of independent witness is necessary - when only one independent witness turned Hostile - accused is entitled for benefit of doubt - Apex court set aside the orders of High court - 2015 S.C. msklawreports

First
the powers of appellate Court while dealing  with  an  appeal  against  an order of acquittal.
Second,
 the sufficiency of  the  testimonies
      of   PW-4  and  PW-5  to  convict  the  accused  persons  without  any
      corroboration from an independent witness
and
the  relevancy  of  the
      statement of a hostile witness involving appreciation of the statement
      of PW-8 who turned hostile.

This Court culled down five general principles in Chandrappa and  Ors. 

as follows:

           “(1) An appellate court has full power to  review,  reappreciate
           and reconsider the evidence upon which the order of acquittal is
           founded.


           (2) The Code of Criminal Procedure,  1973  puts  no  limitation,
           restriction or condition  on  exercise  of  such  power  and  an
           appellate court on the evidence before  it  may  reach  its  own
           conclusion, both on questions of fact and of law.


           (3) Various expressions, such as,  ‘substantial  and  compelling
           reasons’,  ‘good   and   sufficient   grounds’,   ‘very   strong
           circumstances’,  ‘distorted  conclusions’,  ‘glaring  mistakes’,
           etc.  are  not  intended  to  curtail  extensive  powers  of  an
           appellate  court  in   an   appeal   against   acquittal.   Such
           phraseologies are more in the nature of ‘flourishes of language’
           to emphasise the reluctance of an appellate court  to  interfere
           with acquittal than to curtail the power of the court to  review
           the evidence and to come to its own conclusion.


           (4) An appellate court, however, must bear in mind that in  case
           of acquittal, there is  double  presumption  in  favour  of  the
           accused. Firstly, the presumption of innocence is  available  to
           him under the fundamental principle  of  criminal  jurisprudence
           that every person shall be presumed to be innocent unless he  is
           proved guilty by a competent court of law. Secondly, the accused
           having secured his acquittal, the presumption of  his  innocence
           is further reinforced, reaffirmed and strengthened by the  trial
           court.


           (5) If two reasonable conclusions are possible on the  basis  of
           the evidence on record, the appellate court should not   disturb
           the finding of acquittal recorded by the trial court.”

The Court referred to Kallu alias Masih and Ors. 
in the  above-mentioned  judgment,  
where  it  held
      that;

            “While deciding an appeal against acquittal, the  power  of  the
            Appellate Court is  no  less  than  the  power  exercised  while
            hearing appeals against conviction. In both types of appeals the
            power  exists  to  review  the  entire  evidence.  However,  one
            significant difference is that an order of acquittal will not be
            interfered with, by an appellate court, where  the  judgment  of
            the trial court is based on  evidence  and  the  view  taken  is
            reasonable and plausible. It will not reverse  the  decision  of
            the trial court merely because a different view is possible. The
            appellate  Court  will  also  bear  in  mind  that  there  is  a
            presumption of innocence  in  favour  of  the  accused  and  the
            accused is entitled to get the benefit of any doubt. Further  if
            it decides to interfere, it should assign reasons for  differing
            with the decision of the trial Court”.

 In our view the Trial Court has  given  a
reasoned decision after  careful  and  thorough  analysis  of  the  evidence
produced by the parties. 
The Trial Court also had the advantage  of  looking
at the demeanor of the witnesses, and was correct in  granting  the  benefit
of doubt to the accused  and  acquitting  them.  
The  High  Court  erred  in
presuming a version against the accused as the view which is  favourable  to
the accused should be taken in cases where two views are probable.

 PW-4 and
      PW-5 are related witnesses as they are the brothers  of  the  deceased
      Hasen Ali. There is no bar on the  admissibility  of  a  statement  by
      related witnesses supporting the prosecution case, but it should stand
      the test of  being  credible,  reliable,  trustworthy,  admissible  in
      accordance with law and corroborated by other witnesses or documentary
      evidence of the prosecution.
In  the  present  case,  however,  the  prosecution
      witnesses PW-4 and PW-5, contradict each other, and  their  statements
      are not corroborated by  any  independent  witness  in  spite  of  the
      incident happening in the market place, with shops on  both  sides  of
      the road. Therefore, in our view, as the testimonies of PW-4 and  PW-5
      are not completely reliable, this is a fit case where corroboration by
      an independent witness was required. The case of the prosecution  also
      weakens on the ground that the only independent  witness  PW-8  turned
      hostile.
A similar situation arose in Shyamal Saha and Anr.  , where the only independent  witness
      turned hostile. This Court decided to affirm the acquittal and granted
      benefit of doubt to the accused considering the factual background and
      circumstances involved in the case.Accordingly, this appeal is allowed and  the  impugned
      judgment and order  passed  by  the  High  Court  is  set  aside.- 2015 S.C. msklawreports