THE HIGH COURT OF ORISSA AT CUTTACK

CRA No. 66 of 1996

CNR No. ODHC010-00864-1996

(In the matter of an application under Section 378 (4) of the Criminal

Procedure Code, 1973)

Nandakishore alias ……. Appellant(s)

Nandakishore Parida

-Versus-

Rajkishore Parida and others ……. Respondent(s)

For the Appellant : Ms. Chetna Prakash, Amicus Curiae

For the Respondents: Ms. Heera Das, Amicus Curiae

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 30.07.2026 :: Date of Judgment: 25.08.2026

S.S. Mishra, J. The present appeal is preferred by the

complainant/appellant challenging the judgment of

acquittal dated 25.09.1995 passed by the learned JMSC,

Jajpur in ICC Case No. 206/1993, whereby

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respondents/accused persons have been acquitted under

427 of IPC.

2. The appellant had filed Criminal Misc. Case No. 34 of

1996 seeking leave of this Court to challenge the impugned

judgment of acquittal. This Court, vide order dated

19.02.1996, granted leave to appeal to challenge the

impugned judgment of acquittal. The appeal has remained

pending for consideration before this Court since 1996.

3. When the appeal was taken up for hearing,

continuously none appeared either for the appellant or for

the respondents. Therefore, on 30.07.2026 this Court

appointed Ms. Chetna Prakash and Ms. Heera Das, learned

counsel, who are present in Court to assist the Court as

Amicus Curiae on behalf of the appellant and respondents

respectively. Both the counsel have obtained the soft copy

of the trial court record and rendered effective assistance,

for which this Court records appreciation.

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4. The case of the appellant is that he has got record of

right over the plot no.2829 under khata no.221 in mouza-

Kacherigaon and has been in possession since 25.07.1977.

The appellant had raised china variety of paddy crop over

the said land. It is alleged that on 1.6.1993, all the accused

persons forcibly entered into the subject land of the

complainant and cut the eastern side ridge of the land and

constructed a new ridge encroaching about an area of 80

links in length and 7 links in breadth as their land is

adjacent to the land of the complainant. Thereafter, they

ploughed the land of the complainant, as a result of which

the paddy seedlings were destroyed. When the complainant

protested their action, they abused him and also

threatened to kill him. Thereafter, the complainant

reported the matter at Baruan police outpost. As police did

not take any step to investigate, the complainant filed the

complaint case.

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5. In order to substantiate his case, the complainant has

examined four witnesses and also filed one document,

whereas the defence while taking a stance of complete

denial have examined one witness.

6. The learned trial court after analyzing the evidence on

record, returned the following findings:-

“7. Apart from this, the prosecution has not

called for the station diary entry or the FIR

lodged in the Baruan outpost to substantiate its

stand on the truth and veracity of this

prosecution case. Another vital point raised by

the defence counsels that P.W.1 has stated that

besides accused persons, complainant and

witnesses there are five to seven persons were

present near the occurrence place on the case

land and there are five to seven ploughs were

being perated in nearby place of occurrence

namely Dhaneswar Parida, Arjuna Nayak,

Nakula Parida, Nrusingha Panda. None of the

above persons have been examined. On the

other hand prosecution has examined p.w.3

and p.w.4 who are interest witness in this case.

The statement of p.w.1 clearly reflects the name

of Biren Mohanty, Mukunda Nayak, and Sarat

Nayak who have reached the occurrence place

simultaneously with p.w.1. These persons are

the eye witness to the occurrence but they have

not been examined by the prosecution. Non

examination of material witnesses by the

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prosecution raised suspicion regarding the truth

of the occurrence and credibility of the

witnesses. Learned Justice D.M. Pattnaik of

Orissa High Court observed that:-

“It is well settled that credibility of a

witness should not be accepted merely

because it is corroborated by the

evidence of other witnesses but such

credibility should be tested in the

touchstone of the broad probabilities of

the case. If doubt arises with regard to

any material fact in a criminal case, the

accused is always entitled to the benefit

of such doubt (1995) OCR 231) in the

case of Mangulu Kanhar and another

vrs. State of Orissa.”

13. On thorough appraisal of evidence of

prosecution and defence and considering the

decision of Hon‟ble High Court on the definition

of beyond reasonable doubt the conclusion is

irrestistible that the prosecution witnesses could

not be able to prove the case beyond reasonable

doubt. In the result, the accused persons are

found not guilty of the offence under 427 IPC

and are acquitted of the same u/s 255(1)

Cr.P.C.. They are set at liberty and their bail

bonds do hereby stand cancelled.”

7. Aggrieved by the aforesaid findings leading to the

acquittal order, the appellant has approached this Court by

filing the present appeal.

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8. Heard Ms. Chetna Prakash, learned Amicus Curiae

for the appellant and Ms. Heera Das, learned Amicus

Curiae for the respondents-accused.

9. Learned Amicus Curiae appearing for the appellant

submitted that the learned trial court has completely

misread the provisions of law. In paragraph-6 and 7 of the

judgment, it has been observed that the complainant could

not prove intimidation, insult and annoy, which are not the

ingredients required to be proved by the complainant to

attract the offence under section 427 of IPC, rather those

ingredients are required to bring the case under the sweep

of Section 448 of IPC. This itself shows the complete non-

application of mind on the part of the learned trial court.

She further submitted that the learned trial court has

ignored the evidence of the complainant and passed the

impugned judgment of acquittal on the ground that the

station diary entry or the FIR alleged to have been lodged

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by the complainant in Baruan outpost was neither proved

nor call for to substantiate his case. The delay in filing the

complaint is remained unexplained. That finding is

contrary to the record. It is further contended that

although the complainant has stated in the complaint that

the incident is witnessed by the eye witnesses, but since

the eye witnesses are not examined by the

prosecution/complainant, the narrative put forth by the

complaint regarding the occurrence cannot be believed.

10. Ms. Heera Das, learned counsel for the respondents

submitted that the judgment of the learned trial court

under challenge is a very detailed judgment meticulously

dealing with the evidence on record. Therefore, no fault

could be found from the impugned judgment. She further

submitted that even if the argument of the appellant is

taken on its face value that could be a possible view

gathered from the evidence on record, but that itself is not

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sufficient to up-set the reasoned judgment of the learned

trial court.

11. I have taken into consideration the rival submission

made by both the counsel appearing for the parties and

also meticulously analyzed the evidence on record with the

help of the learned Amicus Curiae. Since allegation made

by the appellant against the respondents is bereft of any

credible evidence, the learned trial court had no other

option rather to record an acquittal. Therefore, this Court

at this belated stage after lapse of more than three decades

refrain to interfere by re-appreciating the evidences only to

find whether any other possible view could be elucidated

from the evidence or not. Even if any other view could be

inferred on the re-appreciation of available evidence on

record, the same cannot be substituted by up-setting the

judgment of the learned trial court.

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12. It is apt to note that interfering with an order of

acquittal, this Court is required to bear in mind the well-

settled principles governing an appeal against acquittal. In

Tulasareddi @ Mudakappa & Anr. v. State of

Karnataka & Ors. , reported in 2026 INSC 67 , the

Hon'ble Supreme Court has reiterated that where 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. It has

further been held that if the view taken by the trial Court is

a possible view based on the evidence available on record,

the appellate Court cannot overturn the order of acquittal

merely because another view is also possible. Interference

is warranted only when the judgment of acquittal suffers

from patent perversity, is based on misreading or omission

of material evidence, or where compelling and substantial

reasons exist showing that the acquittal is clearly

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unreasonable. The relevant part of the aforesaid judgment

is reproduced herein for ready reference:-

“29. From the aforesaid decisions rendered by

this Court, it can be said that if two reasonable

conclusions are possible on the basis of the

evidence on record, the Appellate Court should not

disturb the findings of acquittal recorded by the

Trial Court. Further, if the view taken is a possible

view, the Appellate Court cannot overturn the

order of acquittal on the ground that another view

was also possible. The following principles have to

be kept in mind by the Appellate Court while

dealing with the appeals against an order of

acquittal:

(a) whether the judgment of acquittal suffers

from patent perversity;

(b) whether the judgment is based on

misreading/omission to consider the material

evidence on record;

(c) an order of acquittal is to be interfered with

only when there are “compelling and

substantial reasons” for doing so. If the order

is “clearly unreasonable”, it is a compelling

reason for interference.

(d) the appellate court, while deciding an

appeal against acquittal, after reappreciating

the evidence, is required to consider whether

the view taken by the trial court is a possible

view which could have been taken on the basis

of the evidence on record;

(e) if the view taken is a possible view, the

appellate court cannot overturn the order of

acquittal on the ground that another view was

also possible; and

(f) the appellate court can interfere with the

order of acquittal only if it comes to a finding

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that the only conclusion which can be recorded

on the basis of the evidence on record was that

the guilt of the accused was proved beyond a

reasonable doubt and no other conclusion was

possible.”

The aforesaid principle has also been reiterated

by the Hon'ble Supreme Court in Ballu v. State of

Madhya Pradesh , reported in (2024) 12 SCC 202 ,

wherein it has been observed that suspicion, however

strong it may be, cannot take the place of proof beyond

reasonable doubt and that an accused is presumed to be

innocent unless proved guilty beyond reasonable doubt.

The Hon'ble Supreme Court, while dealing with reversal of

an acquittal, further held that interference by the appellate

Court would not be warranted unless the finding of

acquittal is found to be perverse or impossible. Even where

two views are possible and the trial Court has adopted one

of them, the appellate Court would not be justified in

interfering unless the view taken by the trial Court is

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shown to be perverse or impossible. The Hon'ble Supreme

Court observed:

“12. It is settled law that the suspicion,

however strong it may be, cannot take the

place of proof beyond reasonable doubt. An

accused cannot be convicted on the ground

of suspicion, no matter how strong it is. An

accused is presumed to be innocent unless

proved guilty beyond a reasonable doubt.

13. Apart from that, it is to be noted that

the present case is a case of reversal of

acquittal. The law with regard to

interference by the appellate court is very

well crystallised. Unless the finding of

acquittal is found to be perverse or

impossible, interference with the same

would not be warranted. Though, there are

a catena of judgments on the issue, we will

only refer to two judgments which the High

Court itself has reproduced in the impugned

judgment [State of M.P. v. Ballu, 2018 SCC

OnLine MP 1924] , which are as reproduced

below: (Ballu case [State of M.P. v. Ballu,

2018 SCC OnLine MP 1924] , SCC OnLine

MP paras 13-14)

“13. In Sadhu Saran Singh v. State of

U.P. [Sadhu Saran Singh v. State of U.P.,

(2016) 4 SCC 357 : (2016) 2 SCC (Cri) 275] ,

the Supreme Court has held that: (SCC pp.

365-66, paras 20-21)

„20. … In an appeal against acquittal where

the presumption of innocence in favour of

the accused is reinforced, the appellate

court would interfere with the order of

acquittal only when there is perversity of

fact and law. However, we believe that the

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paramount consideration of the Court is to

do substantial justice and avoid miscarriage

of justice which can arise by acquitting the

accused who is guilty of an offence. A

miscarriage of justice that may occur by the

acquittal of the guilty is no less than from

the conviction of an innocent. This Court,

while enunciating the principles with regard

to the scope of powers of the appellate court

in an appeal against acquittal, …

21. … has no absolute restriction in law to

review and relook the entire evidence on

which the order of acquittal is founded.‟

14. Similarly, in Harijan Bhala Teja v. State

of Gujarat [Harijan Bhala Teja v. State of

Gujarat, (2016) 12 SCC 665 : (2016) 4 SCC

(Cri) 84] , the Supreme Court has held that:

(SCC p. 668, para 12)

„12. No doubt, where, on appreciation of

evidence on record, two views are possible,

and the trial court has taken a view of

acquittal, the appellate court should not

interfere with the same. However, this does

not mean that in all the cases where the

trial court has recorded acquittal, the same

should not be interfered with, even if the

view is perverse. Where the view taken by

the trial court is against the weight of

evidence on record, or perverse, it is always

open for the appellate court to express the

right conclusion after reappreciating the

evidence if the charge is proved beyond

reasonable doubt on record, and convict the

accused.‟ ”

xxx xxx xxx

34. The High Court could have interfered in

the criminal appeal only if it came to the

conclusion that the findings of the trial

Judge were either perverse or impossible.

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As already discussed hereinbefore, no

perversity or impossibility could be found in

the approach adopted by the learned trial

Judge.

35. In any case, even if two views are

possible and the trial Judge found the other

view to be more probable, an interference

would not have been warranted by the High

Court, unless the view taken by the learned

trial Judge was a perverse or impossible

view.”

The scope of such appellate scrutiny has also

been summarised by the Hon'ble Supreme Court in H.R.

Sundara v. State of Karnataka , reported in 2023 INSC

858. The Hon'ble Supreme Court has summarised the

principles governing the exercise of appellate jurisdiction in

an appeal against acquittal. It was held thus:-

“7. In this appeal, we are called upon to

consider the legality and validity of the

impugned judgment rendered by the High

Court while deciding an appeal against

acquittal under Section 378 of the Code of

Criminal Procedure, 1973 (for short,

„Cr.P.C.‟). The principles which govern the

exercise of appellate jurisdiction while

dealing with an appeal against acquittal

under Section 378 of Cr.P.C. can be

summarised as follows: -

Page 15 of 18

(a) The acquittal of the accused further

strengthens the presumption of innocence;

(b) The Appellate Court, while hearing an

appeal against acquittal, is entitled to re-

appreciate the oral and documentary

evidence;

(c) The Appellate Court, while deciding an

appeal against acquittal, after re-

appreciating the evidence, is required to

consider whether the view taken by the

Trial Court is a possible view which could

have been taken on the basis of the

evidence on record;

(d) If the view taken is a possible view, the

Appellate Court cannot overturn the order

of acquittal on the ground that another

view was also possible; and

(e) The Appellate Court can interfere with

the order of acquittal only if it comes to a

finding that the only conclusion which can

be recorded on the basis of the evidence

on record was that the guilt of the accused

was proved beyond a reasonable doubt

and no other conclusion was possible.”

This principle has been further explained in

Mallappa & Ors. v. State of Karnataka , reported in

2024 INSC 104, the Hon'ble Supreme Court has held that

the presumption of innocence, which every accused enjoys

during trial, gets strengthened and concretized once the

trial culminates in an order of acquittal. Consequently,

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while exercising appellate jurisdiction against an acquittal,

a higher threshold is required to rebut such reinforced

presumption. Unless the findings recorded by the trial

Court are manifestly unsustainable or perverse, the

appellate Court ought to exercise great restraint in

upsetting the acquittal. It was held thus:-

“24. We may firstly discuss the position of law

regarding the scope of intervention in a criminal

appeal. For, that is the foundation of this

challenge. It is the cardinal principle of criminal

jurisprudence that there is a presumption of

innocence in favour of the accused, unless proven

guilty. The presumption continues at all stages of

the trial and finally culminates into a fact when the

case ends in acquittal. The presumption of

innocence gets concretized when the case ends in

acquittal. It is so because once the Trial Court, on

appreciation of the evidence on record, finds that

the accused was not guilty, the presumption gets

strengthened and a higher threshold is expected to

rebut the same in appeal.”

Thus, the appellate jurisdiction in an appeal

against acquittal, though undoubtedly wide enough to

permit re-appreciation of the evidence, is not intended to

facilitate a mere substitution of the opinion of the trial

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Court. The appellate Court must first ascertain whether the

findings recorded by the trial Court are vitiated by patent

perversity, misreading or non-consideration of material

evidence, or are so unreasonable that no prudent judicial

mind could have arrived at such a conclusion. The

strengthened presumption of innocence following an

acquittal, as explained in Mallappa (supra), requires the

appellate Court to exercise greater restraint before

disturbing such finding. Therefore, unless the view taken

by the learned trial Court is found to be perverse,

impossible, clearly unreasonable or wholly unsustainable

on the evidence available on record, the mere possibility of

another view cannot constitute a sufficient ground for

interference.

13. Testing the present case on the anvil of the aforesaid

principles, this Court finds that the appreciation of

evidence by the learned trial Court cannot be said to be

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either perverse or wholly unreasonable. Merely because

another view may also be possible, the same cannot

furnish a ground to reverse the acquittal in exercise of

appellate jurisdiction.

14. Accordingly, the Criminal Appeal stands dismissed.

15. This Court acknowledges the effective and meaningful

assistance rendered by Ms. Chetna Prakash, learned

Amicus Curiae for the appellant and Ms. Heera Das,

learned Amici Curiae for the respondent. Learned Amicus

Curiae are entitled to an honorarium of Rs.5,000/- (Rupees

five thousand) each to be paid as a token of appreciation.

(S.S. Mishra)

Judge

The High Court of Orissa, Cuttack.

Dated the 25

th

August, 2026/ Ashok