STATE vs KANHU CHARAN SAMAL
- Court
- Odisha High Court
THE HIGH COURT OF ORISSA AT CUTTACK
CRLLP No.129 of 2013
CNR No.ODHC010402742013
(In the matter of an application under Section 378(1) & (3) of the
Criminal Procedure Code, 1973 )
State of Orissa (G.A. Department) Petitioner
…….
-Versus-
Kanhu Charan Samal Opposite Party
…….
For the Petitioner : Mr. Sangram Das, SC (Vigilance)
For the Opposite Party : None
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 01.10.2026 : Date of Judgment: 31.10.2026
S.S. Mishra, J. The present appeal is directed against the judgment of
acquittal dated 12.10.2010 passed by the learned Special Judge
(Vigilance), Sambalpur in C.T.R. Case No.28 of 1998, whereby the
opposite party, namely, Kanhu Charan Samal, has been acquitted of the
offences punishable under Sections 7 and 13(2) read with Section
13(1)(d) of the Prevention of Corruption Act, 1988 and Section 34 of the
Indian Penal Code.
2. During pendency of the trial, accused Gangadhar Mishra expired
and the proceeding against him was abated on 25.08.2010.
3. Heard Mr. Sangram Das, learned Standing Counsel (Vigilance) for
the petitioner.
4. The prosecution case, in brief, was that the complainant, Sri
Mikhel Ekka, was undertaking construction of residential houses on
contract basis and, in connection with such work, had collected certain
wooden poles from old construction material at Bileigarh. According to
the prosecution, the Range Officer of Rajgangpur Forest Range and the
present opposite party, who was then working as a Forest Guard,
demanded illegal gratification from the complainant on the threat that the
wooden poles would otherwise be seized. It was alleged that the opposite
party demanded Rs.2,000/- for the Range Officer, Rs.500/- for the
Forester and Rs.500/- for himself. Subsequently, on 05.12.1997, the
opposite party took the complainant to the Forest Range Office,
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Rajgangpur, where the Range Officer allegedly insisted upon payment of
Rs.2,000/- and the opposite party demanded an additional sum of
Rs.1,000/-. On 06.12.1997, the complainant allegedly paid Rs.1,000/- to
the Range Officer, who insisted upon payment of the remaining amount.
Being aggrieved by the alleged illegal demand, the complainant
approached the Vigilance authorities. His oral report was reduced into
writing and treated as the F.I.R. Thereafter, a trap was arranged.
5. On 08.12.1997, the complainant, along with the Vigilance officials
and trap witnesses, assembled at the Vigilance Unit Office, Rourkela.
The complainant produced ten Government Currency Notes of Rs.100/-
denomination. Their serial numbers were noted by the trap witnesses.
Phenolphthalein powder was applied to the currency notes and the
complainant was instructed to hand over the tainted money to the
accused only on demand. Sri Pradip Kumar Purohit was instructed to
accompany the complainant and observe the transaction. The Range
Officer allegedly asked the complainant whether he had brought the
money and thereafter directed him to hand over the same to the present
opposite party. The opposite party then allegedly asked the complainant
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whether he had brought the money and, upon receiving an affirmative
answer, accepted Rs.1,000/-. The Vigilance Inspector reached the spot,
disclosed his identity and challenged the opposite party regarding
acceptance of bribe. His hands were washed in sodium carbonate
solution and the solution allegedly turned pink. The tainted currency
notes were thereafter recovered from the left pocket of his pant. The
serial numbers were found to tally with the numbers noted during
preparation of the trap. The left pant pocket was also washed in sodium
carbonate solution and the solution allegedly turned pink. The hand-
wash and pant-pocket wash were subsequently sent for chemical
examination and were found to contain phenolphthalein.
6. The prosecution examined five witnesses. The complainant was
examined as P.W.2. Sri Pradip Kumar Purohit, the accompanying
witness, was examined as P.W.1. Sri Durga Charan Ojha, a trap witness,
was examined as P.W.3. Sri Hari Shankar Upadhyay, who had accorded
sanction for prosecution, was examined as P.W.4, and the Vigilance
Inspector Sri Bishnu Charan Dash was examined as P.W.5. The
prosecution relied upon documentary evidence marked Exts.1 to 16. The
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defence examined one Banamali Patra, a Forest Guard, as D.W.1. The
defence of the opposite party was one of complete denial of the
allegation.
7. Upon appreciation of evidence, the learned trial Court held that
although recovery of the tainted currency notes from the possession of
the accused and the positive hand-wash and pant-pocket wash were
proved, the prosecution had failed to establish beyond reasonable doubt
that the amount had been received as illegal gratification. The learned
Court found the evidence of the accompanying witness, P.W.1, to be
materially inconsistent. The complainant himself did not support the
prosecution case and, according to the trial Court, supported the defence
version that the amount had been paid towards fine. The trial Court
further noticed that P.W.1 admitted in cross-examination that he had not
actually heard the conversation between the complainant and the accused
regarding the alleged demand. The evidence of P.Ws.3 and 5 regarding
demand was found to be hearsay. The learned trial Court, therefore, held
that the essential ingredient of demand of illegal gratification had not
been established and that mere recovery of the tainted money, separated
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from the circumstances in which it was received, was insufficient to
sustain a conviction. Accordingly, the opposite party was acquitted. The
relevant part of the aforesaid judgment is reproduced herein for ready
reference:-
“ 23. To sum up, the complainant has not supported the
prosecution case. On the other hand, he has supported the
defence plea by saying that, he was in possession of some
fresh wooden poles and for that, he was required to pay fine.
The evidence of accompanying witness is not found to be
credible. No other substantive evidence is there to establish
that, the accused demanded bribe from the complainant. The
evidence of P.W. Nos. 3 and 5, in this regard, are hear-say in
nature. No where they have stated to have heard the accused
demanding bribe from the complainant. Again, it is the settled
position of law that, the defence is required to establish its
case by a preponderance of probability and the defence must
be convincing. The complainant himself has admitted that, he
was required to pay fine. D.W.1 has evidenced that, the
complainant paid Rs.1000/- to the accused with a request to
hand over the same to the forester Sri Saraf towards payment
of fine. Again, it is admitted case of the prosecution that, at
the relevant time, the accused was serving as a Forest Guard
at Rajgangpur. The place, where the wooden poles were kept
by the informant, comes under the jurisdiction of Lying Beat.
The Forest Guard of Rajgangpur, had no authority to file any
forest case against the informant, as the place involved in this
case, was covered under Lying Beat. Accordingly, there was
no scope for him to demand bribe from the complainant.
Keeping in view of the afore-said infirmities in the
prosecution case, I do not feel it safe to proceed against the
accused.
24. Keeping in view of my above discussed evidence, I step to
a confirmed conclusion that, the prosecution has failed to
establish its case U/Ss. 7 and 13 (2) read with Sec.13 (1) (d)
of the Act and 34 of the I.P.C. against the accused. Hence, the
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points for determination, as set forth above, are answered
accordingly.
25. In the result, I hold that, the accused is found not guilty of
the offences punishable U/Ss. 7 and 13 (2) read with Sec.13
(1) (d) of the Act and U/S.34 of the I.P.C. Accordingly, I
acquit him there from U/S.248 (1) of the Cr.P.C. He is set at
liberty. ”
8. The learned counsel appearing for the State submitted that the
judgment of acquittal is contrary to the evidence on record. It is
contended that the recovery of the tainted Government Currency
Notes from the conscious possession of the opposite party is an
undisputed circumstance. The hand-wash and pant-pocket wash
having turned pink and the chemical examination having confirmed
the presence of phenolphthalein, the acceptance of the tainted money
stood established. Once acceptance of gratification is established, the
statutory presumption under Section 20 of the Prevention of
Corruption Act comes into operation and the burden shifts upon the
accused to rebut the same. According to learned counsel, the defence
explanation that the money represented payment of fine was neither
probable nor satisfactorily established.
9. Learned counsel for the State has further submitted that the
learned trial Court attached undue importance to the complainant
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having turned hostile. According to him, the evidence of a hostile
witness is not liable to be discarded in its entirety and the portion of
such evidence which supports the prosecution can be relied upon. It
is argued that the evidence of P.W.1, read with the recovery of the
tainted notes, the preparation report, detection report and chemical
examination report, establishes the prosecution case. It is also
submitted that the defence failed to explain satisfactorily how the
tainted currency notes bearing the very serial numbers noted during
the trap came into the possession of the opposite party.
10. This Court has carefully examined the judgment passed by the
learned trial Court, the reasons assigned therein, and the evidence
adduced by both the prosecution and the defence during trial. This
Court has also considered the grounds urged in the present appeal
and heard the learned counsel appearing for the petitioner-State at
length.
11. Before interfering with an order of acquittal, this Court is also
required to bear in mind the well-settled principles governing an
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appeal against acquittal. In Tulasareddi @ Mudakappa & Anr. v.
State of Karnataka & Ors. , 2026 INSC 67
reported in , 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 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
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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 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.
”
Equally, 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, 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
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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.”
12.
The appellate jurisdiction against an order of acquittal is,
therefore, not intended to facilitate a fresh substitution of the opinion of
the trial Court merely because a different view on the evidence is
conceivable. As reiterated by the Hon'ble Supreme Court in Tulasareddi
@ Mudakappa & Anr. v. State of Karnataka & Ors. (supra) , the
appellate Court must first satisfy itself that the judgment of acquittal is
vitiated by patent perversity, misreading or non-consideration of material
evidence, or is so unreasonable that no prudent person could have
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arrived at such a conclusion. Equally, as held in Mallappa & Ors. v.
State of Karnataka (supra)
, the reinforced presumption of innocence
following an acquittal places a higher threshold upon the appellate Court
before upsetting the findings recorded by the trial Court. Thus, unless the
conclusions reached by the trial Court are wholly unsustainable on the
evidence available on record, judicial restraint rather than substitution of
views remains the governing principle in an appeal against acquittal.
Applying the aforesaid principles to the present case, this
Court finds that the appreciation of evidence by the learned trial Court
cannot be said to be 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.
13. At this distant point in time, the absence of compelling and
substantial reasons warranting interference, reversal of the acquittal
would itself occasion serious prejudice and would be a travesty of
justice. At this belated stage, presumption of innocence prevailed in
favour of the opposite party for more than 15 years, as he was acquitted
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by the Court below. Reversing such presumption at this stage would not
only be harsh, but it would be against the cardinal principle of
reformatory criminal jurisprudence. This Court, therefore, finds no legal
or factual justification to unsettle the well-reasoned judgment of acquittal
passed by the learned trial Court. In view of the aforementioned, this
Court is not inclined to grant leave against the judgment of acquittal
impugned herein.
14. Accordingly, the CRLLP stands dismissed.
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack
st
Dated the 31 October, 2026/Ashok
Signature Not Verified
Digitally Signed
Signed by: ASHOK KUMAR JAGADEB
MOHAPATRA
Reason: Authentication
Location: High Court of Orissa
Date: 05-Nov-2026 19:59:15
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