MD.NASRUL vs RAFIUE
- Court
- Odisha High Court
THE HIGH COURT OF ORISSA AT CUTTACK
CRA No.226 of 1998
CNR- ODHC010005781998
(In the matter of an application under Section 378(4) of Criminal
Procedure Code )
Md. Nasrul Haque ……. Appellant
-Versus-
Rafique Khan and others ……. Respondents
For the Appellant : Ms. Sartika Das, Advocate
For the Respondents : None
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 02.07.2026 :: Date of Judgment: 25.08.2026
S.S. Mishra, J. The present appeal has been preferred by the
appellant assailing the judgment dated 07.12.1994 passed by the learned
1st Additional Sessions Judge, Cuttack in Criminal Appeal No.75 of
1992 (29/92), whereby the appeal preferred by the present respondents
was allowed and the judgment of conviction and order of sentence
passed by the learned J.M.F.C., Cuttack in I.C.C. Case No.45 of 1988has
been reversed. By the judgment of the learned J.M.F.C., all the
respondents had been convicted under Section 4 of the D.P. Act and
sentenced to undergo rigorous imprisonment for six months each and to
pay a fine of Rs.2,000/- each, with a default stipulation of rigorous
imprisonment for six months. The respondent, namely, Rafique Khan,
was further convicted under Section 6 of the D.P. Act and sentenced to
undergo rigorous imprisonment for one year and to pay a fine of
Rs.5,000/-, with a default stipulation of rigorous imprisonment for one
year.
2. Heard Ms. Sartika Das, learned Counsel for the appellant and none
appeared for the respondents.
3. The prosecution case, in brief, is that P.W.5, Gahur Khatun, the
sister of the complainant, was married to accused No.1 (respondent No.1
herein), Rafique Khan, on 12.07.1984 in accordance with Muslim rites
and customs. It is alleged that prior to the marriage, the accused persons
Page 2 of 22
demanded dowry comprising cash of Rs.10,000/-, gold and silver
ornaments, and other articles as detailed in Schedule 'A' of the complaint
petition. In compliance with the said demand, the complainant allegedly
paid Rs.10,000/- in cash along with the scheduled articles to the accused
persons at the time of marriage.
It is further alleged that after the marriage, P.W.5 resided with
accused No.1 for a few days, following which accused No.1 left for Tata,
where he was employed. Subsequently, P.W.5 came to know that
accused No.1 was maintaining an illicit relationship with a nurse and, on
that account, neglected and deserted her. Thereafter, the wife of the elder
brother of accused No.1 brought P.W.5 back to her parental home on the
assurance that she would soon be taken back to her matrimonial home.
The prosecution further alleges that despite repeated
communications from the complainant requesting the accused persons to
take back P.W.5, the accused persons visited the complainant's house on
18.01.1988 and demanded an additional sum of Rs.15,000/- as dowry.
They allegedly declared that unless the said demand was fulfilled, they
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would not accept P.W.5 back into the matrimonial home. Although the
complainant made several attempts to resolve the dispute amicably, the
efforts proved futile. Thereafter, accused No.1 is stated to have sent a
letter of divorce (Talaq) to P.W.5.
It is the further case of the prosecution that P.W.5 served a legal
notice upon accused No.1 demanding return of the dowry articles, gold
and silver ornaments, and other dues payable under Muslim law.
However, accused No.1 allegedly evaded the demand by sending an
evasive reply and failed to return the articles. Consequently, the
complainant instituted I.C.C. Case No.45 of 1988 by filing the complaint
petition on 27.04.1988, whereupon cognizance was taken against the
accused persons, leading to the present trial.
4. In order to substantiate its case, the prosecution examined five
witnesses. P.W.2 is the complainant and the brother of P.W.5, while
P.W.5 is the victim and the wife of respondent No.1. The remaining
prosecution witnesses were examined to prove the relevant facts and
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circumstances of the case. In defence, the accused persons examined two
witnesses in support of their case.
5. The learned J.M.F.C. undertook a detailed appreciation of the oral
and documentary evidence adduced by the prosecution and considered
the scope and object of the provisions contained in Sections 4 and 6 of
the Dowry Prohibition Act. While dealing with the contention of the
defence that the articles presented at the time of marriage did not
constitute "dowry" and that the prosecution evidence suffered from
certain inconsistencies and exaggerations, the learned trial Court
extensively discussed the social purpose underlying the legislation, the
distinction between voluntary gifts and dowry, and the manner in which
the evidence was required to be appreciated in prosecutions under the
Act. The learned trial Court further considered the evidence of the
material prosecution witnesses, particularly P.W.1, P.W.4 and P.W.5, as
well as the decisions relied upon by the parties, before ultimately
arriving at the conclusion that the prosecution had succeeded in
establishing the charges under Section 4 of the Act against all the
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accused persons and under Section 6 of the Act against accused No.1,
Rafique Khan.
The relevant observations and findings recorded by the learned
J.M.F.C., which form the basis of the judgment of conviction and are the
subject matter of challenge in the present appeal, are extracted herein
below:
“ In this present case, during cross-examination, the learned
defence counsel has not elicited whether such gifts had been given
voluntarily or affectionately manner. So, in my opinion, all the gifts
and presents cannot be considered as dowry. When gifts and
presents have been given out of social and personal compulsion,
the said gifts and presents shall be considered as dowry. In our
society, the problem of dowry is so deep-rooted that if anybody
does not take sufficient dowry, she becomes the victim of cruelty,
underestimation and neglect by the family members in her in-laws'
house. So, whenever gifts have been given under social compulsion,
they are to be considered as dowry under the Act. So, the decision
relied by the learned defence counsel cannot be used in the present
case. The offence under Sections 4 and 6 of the D.P. Act is purely a
social offence. If we shall approach this law in a doctrinaire
fashion and in a rigid manner there will be dis-illusionment and
disrespect towards law entailing other harmful consequence. So the
evidence under this Act is not to be appreciated like any other
offence under the general law. The object of the legislation behind
the statute of Dowry Prohibition Act only to curbed the deep rooted
evil in this society. So it is the duty of the Court to mould the spirit
of law accordingly to the changing
value and mores of society by giving new meaning and new cast to
the letter of law. So as to protest, the weak, poor and destitute to
seek them protected from exploitation, injustice and tyranny.
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The learned defence advocate further contended that there
is no allegation u/s 4 and 6 of the Dowry Prohibition Act
against the present accused persons. However, all the allegations
were made against the accused Gulab Khan who is now dead. On
the perusal of the evidence of P.W.5, it reveals that P.W.1 stated in
his evidence that the accused persons demanded Rs.10,000/- as
dowry besides other articles. She has also stated in her evidence
that on 18.1.88 the accused persons 2, 3, 4, 5 and 6 came to her
father's house and demanded Rs.15,000/- as Additional Dowry. She
also further stated in her evidence that as they could not able to
pay Rs.15,000/- as dowry to the accused persons so the accused
No.1 divorced her. P.W.5 stated in her evidence that accused No.1,
her husband, has demanded dowry from her for several times till
his departure to Tata. P.W.5 further stated in her evidence that now
the accused person had not returned back the said dowry articles to
her or her brother P.W.2. Even she had not brought the said
articles to her house on her final departure from in law's house.
However on perusal I found from the evidence that the accused
No.1 had kept all the dowry articles which had been given to P.W.5
during her marriage. P.W.4 stated in his evidence that he had seen
P.W.5. had not brought any dowry articles from her house (from
the house of the accused persons).
From the evidence I found there are some exaggerated and
inconsistent versions and other defects in the prosecution case. It is
observed in a case reported in 1991 (4) O.C.R. page 357 Ashok
Kumar Barik vrs. State of Orissa that:
“It is well to remember that there is a tendency amongst witnesses
in our country to back up a good case by false or exaggerated
version. It is also experienced that invariably the witnesses add
embroidery to prosecution story, perhaps for the fear of being
disbelieved. But if there is a ring of truth, the case should not be
rejected. It is the duty of the court to cull out the nuggets of truth
from the evidence”.
In an epoch making judgment Lord Krishna Iyer observed in a case
reported in A.I.R. 1978 S.C. at page 1542 Nirottam Singh Vrs. State
of Punjab and another that:-
“Discrepancies do not necessarily demolish testimony, delay does
not necessarily spell unveracity and tortured technicalities do not
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necessarily upset conviction when the Court has had a
perspicacious, sensitive and correctly oriented view of the evidence
and probabilities to reach the conclusion it did, proof of guilt is
sustained despite little infirmities, tossing peccadilloes and
peripheral probative short falls. The 'Sacred Cows' of shadowy
doubts and marginal mistakes, procedural or other, cannot deter
the court from punishing crime where it has been sensibly and
substantially brought home”.
On the re-appraisal of the evidence I found from the lengthy
evidence that the inconsistent and exaggerated versions are not so
glaring that it will destroy the confidence of the witnesses and the
defence lawyer has not substantially brought anything in the cross
examination to disbelieve the evidence of the prosecution witness.
As such I hold all the accused persons are guilty of the offence U/s
4 of the Dowry Prohibition Act and the offence U/s 6 as well made
out against the accused Rafique Khan, the husband of P.W.5 who is
presume to received the dowry articles. The other accused persons
are not found to be guilty of offence U/s 6 of the Dowry Prohibition
Act.”
6. Aggrieved by the aforementioned Judgment of Conviction and
Order of Sentence, an appeal was preferred by the present respondents,
in which the learned 1st Additional Sessions Judge, while re-
appreciating the entire evidence on record, disagreed with the findings
recorded by the learned J.M.F.C. and found that the prosecution had
failed to establish the essential ingredients of the offences beyond
reasonable doubt. The appellate court closely scrutinised the testimony
of the material prosecution witnesses, particularly with regard to the
alleged demand of additional dowry on 18.01.1988, and found several
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inconsistencies and improbabilities in the prosecution case. It also
examined the omissions and contradictions in the evidence of the
complainant and other prosecution witnesses, the non-production of the
earlier complaint allegedly lodged before the Dowry Prohibition Cell,
and the surrounding circumstances relating to the alleged demand of
dowry. Upon such re-appraisal of the evidence, the learned appellate
court held that the prosecution had failed to discharge the burden cast
upon it and that the conviction recorded by the learned trial Court could
not be sustained. Accordingly, the judgment of conviction and order of
sentence were set aside. The relevant observations of the learned
appellate court are extracted hereinbelow:
“11. Adverting to the veracity of the witnesses in regard to the
demand made by the accused persons on 18.1.88, the learned lower
court has observed in paragraph-8 of its judgment that just because
P.W.1 has got no house at village Routraypur, he cannot be
disbelieved. But I am unable to agree with the finding of the lower
court for the reason that P.W.1 has stated in paragraphs 19 and 20
that he is not staying at village Routraypur from his childhood and
when at the time deposing in favour of the complainant, he was
staying at Jholasahi with the complainant. Therefore, the possibility
of going to village Routraypur on a particular day to witness the
demand made by the accused persons on 18.1.88 is remote. The
other feature appearing in his evidence in paragraph 13 that he
asked accused Golab Khan and others as to why they they are not
taking back Chhara Khatoon to their house, to which the accused
persons replied that unless they are paid Rs.15,000/-, they will not
take back Chhara Khatoon (P.W.5) to their house. Surprisingly,
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P.W.1's testimony in the second line of chief showing his
acquaintance with accused-appellant No.1 Rafique Khan only. All
other accused persons were not known to him by name, for which
chief was deferred. It is admitted by P.W.5 and also P.W.2 that
accused Rafique Khan did not come on the date of demand i.e.,
18.1.88. But all other accused persons had come. So all the accused
persons were not known to P.W.1 and it is not believable at all that
they will answer to the question of an unknown man regarding their
demand, which is certainly their family affairs.
12. The complainant (P.W.2) cannot be believed for the
reasons that he along with his sister had tried to hide the actual
matters from the court. It has been mentioned clearly in paragraph-
6 of the complaint petition that no information was lodged before
any authority, but in cross-examination P.W.2 and also P.W.5 have
stated that the complainant lodged information before the Dowry
Prohibition Cell stating the present occurrence prior to the lodging
of the complaint before the court and as they did not investigate the
case, he also reported the matter to the Superintendent of Police in
writing. The complainant has failed to produce the copy of his
report, nor it has been proved. It is not known as to what sort of
complaint was lodged at the first instance and what was its fate in
the investigation. So the witnesses, who have not come with clean
hands, can never be believed. P.W.3, who claims to have gone as a
gentleman to effect compromise, in the year 1988, has not stated
anywhere in the chief that the accused persons demanded
Rs.15,000/- at any point of time. It is in his testimony that he along
with P.Ws.1, 4 and another had been to the house of the accused
persons in the year 1988. But evidence of P.W.4 in paragraph 2 of
chief is that P.Ws.1, 3 and himself had gone to the house of the
accused persons in December, 1987 to effect the compromise. At
that time, the accused persons demanded Rs.15,000/- for bringing
P.W.5 back to their house. Therefore, the story advanced by the
complainant that the demand was made by the accused persons at
their house at Routraypur in the year 1988, cannot be true. Further
P.W.4's sworn testimony in paragraph 3 of cross-examination is
that the wife of accused No.2 came to take the sister of the
complainant twice or thrice, but the sister of the complainant did
not go. In view of this evidence, the demand of Rs.15,000/- was
never a condition precedent to take P.W.5 back to their house.
P.W.5, the complainant's sister herself was not a witness to the
demand as per her evidence that she was not present at the time of
settlement of marriage and dowry demand. In view of the above
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evidence, the claim of P.W.5 that accused Nos. 2 to 5 came to their
house and demanded Rs.15,000/- on 18.1.88 cannot be believed.
13. In regard to the burden saddled on the accused u/s 8(a) of
the Dowry Prohibition Act is not that onerous as it is on the
prosecution. In this regard, I may take notice of the decision A.I.R.
1987 S.C. at page 2080, wherein their Lordships have held:-
“The approach of a court has to be an objective approach taking
into account all the relevant circumstances and considerations in
order to strike a balance between the need to preserve the
community on the one hand and the need to preserve the liberty of a
citizen on the other.”
14. For the above analysis, I hold that the prosecution has failed to
prove its case. The conviction and sentences awarded by the lower
court is hereby set aside. ”
7. Aggrieved by the judgment of acquittal dated 07.12.1994 passed
by the learned 1st Additional Sessions Judge, Cuttack in Criminal
Appeal No.75 of 1992 (29/92), whereby the judgment of conviction and
order of sentence passed by the learned J.M.F.C., Cuttack in I.C.C. Case
No.45 of 1988 were set aside, the complainant has preferred the present
appeal challenging the legality and correctness of the said judgment of
acquittal.
8. With the help of learned counsel appearing for the appellant, I
have gone through the entire case records and analysed the reasoning
recorded by the learned J.M.F.C., Cuttack in his judgment as well as
st
learned 1 Additional Sessions Judge, Cuttack. Essentially, this is an
Page 11 of 22
appeal against acquittal. The Court of the learned J.M.F.C., Cuttack, on
analysis of the evidence on record, arrived at a conclusion that the
respondents-accused persons are guilty of the offences punishable under
Sections 4 and 6 of the Dowry Prohibition Act and on that count,
sentenced them. However, on appeal, at the instance of the respondents,
st
the learned 1 Additional Sessions Judge, Cuttack has reversed the
findings recorded by the learned Court below and acquitted the
respondents.
9. There are two views emanating from the records, i.e., one by the
st
learned J.M.F.C., Cuttack and another by the learned 1 Additional
Sessions Judge, Cuttack. Both the views are the culmination of
appreciation of evidence brought on record by the prosecution and the
defence put-forth by the respondents.
10. It is settled principle of law that a view, which is tilted in favour of
the accused is to be adopted to give advantage of the benefit of doubt to
st
an accused. Since the learned 1 Additional Sessions Judge, Cuttack, by
a detailed and reasoned judgment and by appreciating the evidence
brought on record by the prosecutor, has arrived at a view that this Court,
Page 12 of 22
at this belated stage, exercising the appellate jurisdiction, is not inclined
to interfere with the view. The incident relates back to the year 1984.
The learned J.M.F.C., Cuttack passed the judgment on 07.05.1992,
st
which was challenged in appeal before the learned 1 Additional
Sessions Judge, Cuttack, which resulted into the final judgment dated
07.12.1994. The appeal has been pending before this Court since 1998
after this Court granted leave under Section 378(4) of Cr. P.C. to the
appellant to assail the impugned judgment vide its order dated
19.08.1998.
11. At the stage of grant of leave, the question of its maintainability
was also raised. This Court, vide order dated 10.01.1996 passed in Crl.
Misc. Case No.2511 of 1994 allowed the application by a detailed order
concluding that a leave application under Section 378(4) Cr. P.C. in the
facts and circumstances of the case is maintainable. Paragraphs- 6 and 7
of the said order reads as under:
“6. It is to be noted that prior to the amendment of
corresponding old section 417 by Act 26 of 1955, no one other than
the State Government could prefer an appeal against an order of
acquittal in any case. When the accused has been improperly
acquitted in a prosecution for a grave crime, it is beyond
controversy that State should be primarily concerned, for the fact
that a guilty person escapes the retribution of justice even where
Page 13 of 22
materials warranting his conviction are adequate is one which
affects public interest and welfare of the State. Law has taken
precaution that no frivolous or vexatious appeal is filed at the
instance of a private prosecutor.
7. In view of analysis made above, the inevitable conclusion
is that the application for grant of leave under section 378(4) of the
Code is maintainable.”
12. I have carefully gone through the evidence on record and also the
submissions made by Counsel for the appellant. Being conscious about
the jurisdiction of the Appellate Court to interfere with the Judgment of
acquittal passed way back in the year 1998 the evidence has been
appreciated. True is that, if the submission made by the appellant is
taken into account an alternate view could be possible to be arrived at by
the appreciation of the evidence, but that may not be a ground to
interfering with the reasoned acquittal order by substituting the another
possible view. Therefore, at this belated stage, this appeal against the
acquittal judgment may not succeed.
13. 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
Page 14 of 22
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 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;
Page 15 of 22
(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. ”
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
Page 16 of 22
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
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
Page 17 of 22
that the 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. As already discussed
hereinbefore, no perversity or impossibility could
be found in the approach adopted by the learned
trial Judge.
Page 18 of 22
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
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: -
(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;
Page 19 of 22
(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, 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.
Page 20 of 22
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 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 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.
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14. 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 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.
15. Accordingly, the Criminal Appeal stands dismissed.
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack
th
Dated the 25 August, 2026/Subhasis Mohanty
Signature Not Verified
Digitally Signed
Signed by: SUBHASIS MOHANTY
Designation: Personal Assistant
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 31-Aug-2026 20:32:50
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