Nagarik Suraksha Sanhita vs State Of Odisha on 31 July, 2026

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    Orissa High Court

    Nagarik Suraksha Sanhita vs State Of Odisha on 31 July, 2026

    Author: Sanjeeb K Panigrahi

    Bench: Sanjeeb K Panigrahi

                                                                                                  CRLA/860/2023
                                                                                                ODHC010599302023
                                                                                                  2026:OHC:10
    
    
    
                                             IN THE HIGH COURT OF ORISSA AT CUTTACK
    
                                                            CRLA No.860 of 2023
                                                          CNR No-ODHC010599302023
                                      (In the matter of an application under Section 415(2) of Bharatiya
                                      Nagarik Suraksha Sanhita, 2023 corresponding to Section 374(2) of the
                                      Criminal Procedure Code, 1973).
    
                                     Budhuram Padhan & Ors.                   ....            Appellant (s)
                                                                   -versus-
    
                                     State of Odisha                          ....          Respondent (s)
    
                              Advocates appeared in the case through Hybrid Mode:
    
                                     For Appellant (s)         :          Mr. Dhirendra Kumar Mohapatra,
                                                                                S. Panda, A. Meheta, Advs.
    
                                     For Respondent (s)        :                   Ms. Gayatri Patra, ASC
                                               CORAM:
                                               DR. JUSTICE SANJEEB K PANIGRAHI
    
                                                   DATE OF HEARING:-13.07.2026
                                                  DATE OF JUDGMENT:-31.07.2026
                              Dr. Sanjeeb K Panigrahi, J.
    

    1. The instantCriminal Appeal has been preferred by the Appellants under

    Section 374(2) of the Code of Criminal Procedure, 1973 / Section 415(2) of

    SPONSORED

    the Bharatiya Nagarik Suraksha Sanhita, 2023, invoking the appellate

    jurisdiction of this Court. The appeal is directed against the Judgment of

    Conviction and Order of Sentence dated 10.07.2023 passed by the

    learned Additional District & Sessions Judge, Kuchinda, District-

    Sambalpur in S.T. Case No.16 of 2018 arising out of G.R. Case No.811 of

    2016 corresponding to Kuchinda P.S. Case No.268 dated 27.12.2016. By

    Signature Not Verified
    Digitally Signed
    Signed by: BHABAGRAHI JHANKAR
    Page 1
    Designation: AR-CUM- SR. SECRETARY
    Reason: Authentication
    Location: ORISSA HIGH COURT, CUTTACK
    Date: 05-Aug-2026 18:06:56
    the impugned judgment, the Appellantshave been found guilty and

    convicted for the offences punishable under Sections 452/34 of the I.P.C.

    2. Upon such conviction, the learned Trial Court sentenced the Appellants

    to undergo simple imprisonment for a period of 3 (three) months each

    and to pay fine of Rs.1,000/- (Rupees one thousand) each for the

    commission of offences under Section 452/34 of IPC and on default in

    making the payment of fine amount to undergo 15 (fifteen) days simple

    imprisonment.

         I.                   FACTUAL MATRIX OF THE CASE:
    
             3.               The brief facts of the case are as follows:
    
                              (i)          As revealed from the case record, the prosecution case originates
    
    

    from the F.I.R. lodged on 27.12.2016 by the informant before the

    I.I.C., Kuchinda Police Station is thatin the afternoon of 26th

    December, 2016 while the informant was in his shop, the accused

    persons came there and assaulted him. Thereafter, they forcefully

    took away a sum of rupees twelve thousand to fourteen thousand

    from the drawer of the shop and snatched away the cell phone of

    the informant.Thereafter, they abused him in obscene languages

    and threatened him to face dire consequences. Soon after the said

    occurrence, the informant became senseless and accordingly, was

    shifted to the nearby hospital for treatment.

    (ii) The conflict between the Appellants and the informant arises out

    ofnon-payment of house rent to the Appellants in time. In order to

    resolve the dispute though the informant as per the direction of the

    village committee, had deposited the entire house rent amount

    before the said village committee, the accused persons refused to
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    Signed by: BHABAGRAHI JHANKAR
    Designation: AR-CUM- SR. SECRETARY
    Reason: Authentication
    Location: ORISSA HIGH COURT, CUTTACK
    Date: 05-Aug-2026 18:06:56
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    take the said amount.Accordingly, the above noted occurrence had

    occurred. Soon after the aforesaid occurrence, the above noted FIR

    was lodged in the local Police Station. Upon lodging of the FIR and

    completion of investigation, the S.T. Case No.16 of 2018 was

    instituted before the Court of learned Additional District &

    Sessions Judge, Kuchinda which is disposed of vide impugned

    judgment dated 10.07.2023.

    (iii) Being aggrieved by the aforesaid facts and circumstances and the

    judgment dated 10.07.2023 passed in the above noted S.T. Case, the

    Appellantshave been constrained to approach this Court by way of

    the present criminal appeal.

    II. SUBMISSIONS ON BEHALF OF THE APPELLANT:

    4. The learned counsel for the Appellantsrespectfully and earnestly made

    the following submissions in support of his contentions:

    (i) The Appellants submits that the impugned judgment of conviction

    and order of sentence passed by the learned Additional District &

    Sessions Judge, Kuchinda in S.T. Case No. 16 of 2018 arising out of

    G.R. Case No.811 of 2016 corresponding to Kuchinda P.S. Case

    No.268 dated 27.12.2016, are contrary to the evidence available on

    record, suffer from serious factual and legal infirmities, and have

    been rendered without proper appreciation of the material

    evidence and settled principles of law.

    (ii) It is contended that the findings recorded by the learned Trial

    Court are perverse, unsustainable, and unsupported by the

    prosecution evidence, resulting in a grave miscarriage of justice.

    Accordingly, the Appellants pray that the impugned judgment of
    Signature Not Verified
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    Signed by: BHABAGRAHI JHANKAR
    Designation: AR-CUM- SR. SECRETARY
    Reason: Authentication
    Location: ORISSA HIGH COURT, CUTTACK
    Date: 05-Aug-2026 18:06:56
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    conviction and consequential order of sentence, including the

    sentence of rigorous imprisonment and imposition of fine, be set

    aside by this Court.

    (iii) The Appellants further submitsthat the learned Trial Court has

    failed to properly appreciate the evidence and materials brought

    on record and has proceeded to record the order of conviction on

    an erroneous assessment of the facts and circumstances of the case.

    It is contended that the findings returned by the learned Court

    below are contrary to the weight of the evidence and suffer from

    manifest infirmities.

    (iv) The learned Trial Court has failed to adhere to the cardinal

    principles of criminal jurisprudence, particularly the settled

    standards governing appreciation of evidence in a criminal trial,

    and has overlooked material inconsistencies and deficiencies in the

    prosecution case. Consequently, the impugned judgment of

    conviction is vitiated by misappreciation of evidence and non-

    application of the settled principles of law, rendering the same

    legally unsustainable and liable to be set aside.

    (v) Appellant No. 1 Budhuram Padhan is a retired Govt. teacher. Due

    to the order of conviction recorded by the learned trial court, he is

    not receiving any post retrial benefits. The other Appellants are

    farmers of the same locality.

    (vi) This is a case wherein the appellants had been charge sheeted for

    the commission of offences under Sections 452/395 of IPC. The

    learned trial court has acquitted the Appellants from the

    commissioning ofoffences under Section 395 of the IPC due to
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    Signed by: BHABAGRAHI JHANKAR
    Designation: AR-CUM- SR. SECRETARY
    Reason: Authentication
    Location: ORISSA HIGH COURT, CUTTACK
    Date: 05-Aug-2026 18:06:56
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    failure of the Prosecution to prove the said offenceunder Section

    395 of the IPC. But, the learned trial court though hadtaken note of

    the fact that the Appellants have no criminal antecedents and

    incident took place out of anger,the said Court has convicted the

    Appellants to undergo simple imprisonment for 3 (three)months

    for commission of offencesunder Sections 452/34 of the IPC which

    is the subject matter of the present Appeal.

    (vii) During trial the Informant named Rabindra Kumar Khamari

    passed away before recording of evidence. The prosecution

    examined altogether 12 witnesses including the wife of the

    Informant to substantiate the case. In order to come to the

    conclusion, the learned trial court mainly relied upon the

    deposition of wife of the deceased informant Sanjukta Khamari

    (PW-6) and one independent witness named Makaradwaja

    Kumbhati (PW-7) for conviction under Sections 452/34 of the IPC.

    (viii) Short points fall for consideration:-

    “Whether actually house trespass has been occurred
    within the definition of Sections 441 and 442 of the
    IPC in order to record the conviction under Section
    452
    of the IPC.”

    (ix) PW-6, Sanjukta Khamari, who is the wife of the deceased

    Informant in her deposition has categorically stated that the

    Appellant “‘Budhiram was standing near our rented house, called

    my husband, while he went outside, accused Budhuram assaulted

    on his head by means of a stick.”But, in cross Examination at Para-

    5 has stated that”It is a fact that while hearing hulla, I came

    Signature Not Verified
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    Signed by: BHABAGRAHI JHANKAR
    Designation: AR-CUM- SR. SECRETARY
    Reason: Authentication
    Location: ORISSA HIGH COURT, CUTTACK
    Date: 05-Aug-2026 18:06:56
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    outside, I found the accused persons were assaulting my husband

    on village road. I had not gone to the occurrence spot.”

    (x) PW-7, Makardeaja Kumbhati, have not stated any place of

    occurrence.PW-1, Rajiv Kumar Naik in his cross examination at

    PARA-3 stated that “It is a fact that I have not seen the

    occurrence.”PW-2- Bipin Kisan, who turned hostile and in cross

    examination at Para-3 he has stated that “It is a fact that I am not

    aware of occurrence took place in the shop of the informant.”PW-3,

    Minaketan Bag has not stated anything about place of occurrence.

    He turned hostile.PW-4, turned Hostile.

    (xi) PW-5, Atish Kumar Nayak did not depose about the place

    ofoccurrence.PW-8, Sunil Kumar Khuntia did not depose about the

    place ofoccurrence. However, in the cross examination part at

    para-4 has stated that “I had not seen the assault on the informant

    by the accused Budhuram and Nabin but I had seen bleeding on

    his person.”

    (xii) PW-9 was not examined by the Police.

    (xiii) PW-10, Parbati Kisan, turned hostile. In her cross examination she

    stated at Para-3 that “It is a fact that I have not seen the alleged

    incident and have not given any statement before the police.”

    (xiv) The above evidence is abundantly clear that the accused persons

    had never entered into the rented house/shop of the deceased

    informant and the occurrence was never taken place in the house.

    Having regard to the provisions contained in Sections 441, 442 read

    with 452 of the IPC, it appears that in order to convict a person for

    the offence under Section 452, it has to be proved beyond
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    Signed by: BHABAGRAHI JHANKAR
    Designation: AR-CUM- SR. SECRETARY
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    Location: ORISSA HIGH COURT, CUTTACK
    Date: 05-Aug-2026 18:06:56
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    reasonable doubt that the accused must have committed a house

    trespass within the meaning of Section 442. The prosecution has to

    prove that the accused persons had committed the house trespass

    by entering into or unlawfully remaining in any building, tent or

    vessel used as a human dwelling or any building used as a place

    for worship, or as a place for the custody of property, as

    contemplated in Section 442 IPC.

    (xv) So far as the facts of the present case are concerned, the

    prosecution has failed to prove that the incident had occurred

    within the rented house/shop of the deceased informant and,

    admittedly, the incident had taken place in village road, which

    cannot be said to be either a place used for human dwelling or for

    worship or for the custody of the property. Hence, the very

    ingredients of the offence under Section 452, namely, the criminal

    trespass as contemplated in Section 441 and house trespass as

    contemplated in Section 442 have not been made out by the

    Prosecution. Therefore, the Appellants are liable to be discharged

    from the charges leveled against them for the commission of

    offence under Section 452 of the IPC.

    (xvi) In order to strengthen the stand of the Appellants, learned counsel

    for the Appellants relies on the judgment of the Apex Court in

    Sonu Choudary versus State of NCT Delhi1 (Para- 9).

    (xvii) It is a matter of regret that during the pendency of the present

    Criminal Appeal, the Opposite Parties have made all set to stop the

    provisional pension of the Appellant No.1. In case the provisional

    1
    Signature Not Verified
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    2024 SCC OnLine SC 4096
    Signed by: BHABAGRAHI JHANKAR
    Designation: AR-CUM- SR. SECRETARY
    Reason: Authentication
    Location: ORISSA HIGH COURT, CUTTACK
    Date: 05-Aug-2026 18:06:56
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    pension of the Appellant No.1 is stopped, he may face hardship.

    The Appellant No.1 is only receiving the provisional pension for

    his survival and deprived of getting his superannuation benefit.

    (xviii) The learned court below has committed illegality and pass

    theerroneous judgment without evaluating the evidence the

    witnesses mainly the eye witnesses i.e. the informant’s wife

    Sanjukta Khuntia who in her chief has stated that on the

    occurrence date at about 5 PM the accused Buduram was standing

    in the rented house called my husband while my husband went

    outside, the accused Budhuram assaulted on his head by means by

    means of a stick, but in the cross-examination it has come out that

    “at the time of alleged occurrence she was inside the house and

    while hearing the hulla, she came outside of her house and

    thereafter, she found the accused person assaulting her husband”.

    These contentions/ averments which have come out from the

    deposition of Sanjukta Khuntia i.e. PW-6 is clearly reveals the truth

    that there was no house trespass on the date of occurrence and so

    far the assault part is concerned, Budhuram Pradhan has never

    assaulted her husband, rather, it is omnibus allegations and the

    said Sanjukta Khuntia is the post occurrence witness. In that

    scenario convicting the Appellant No.1 named Budhuram Pradhan

    for commissioning the offence u/s 452 of IPC is not sustainable in

    law.

    (xix) So also evidence of the PWs.7, 8 and 9 are not properly considered.

    It is also unsafe and unfair to pass a judgment when the informant-

    Signature Not Verified
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    Signed by: BHABAGRAHI JHANKAR
    Designation: AR-CUM- SR. SECRETARY
    Reason: Authentication
    Location: ORISSA HIGH COURT, CUTTACK
    Date: 05-Aug-2026 18:06:56
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    victim himself named Rabindra Khamari has passed away before

    deposing his evidence and witnesses.

    (xx) The quantum of sentence is highly disproportionate and the

    learned trial court has acted emotionally in convicting and

    sentencing the Appellants.

    (xxi) Learned counsel for the Appellants submits that since the sentence

    is for 3 (three) months and out of which all the accused/appellants

    have already spent one month fourteen days inside judicial

    custody, (Section 428) Cr.P.C, the judgment of the learned trial

    Court’s recording conviction of the accused persons for 3 (three)

    months under Sections 452/34 of the IPC may be set aside.

    III. SUBMISSIONS ON BEHALF OF THE RESPONDENT:

    5. Per contra, the learned counsel for the Respondent earnestly made the

    submission that the present CRLA deserves to be rejected in limine.

    (i) The Respondent submits that, the learned Trial Court, upon proper

    appreciation of the oral and documentary evidence available on

    record, has rightly passed the impugned judgment of conviction

    and order of sentence against the Appellants. The findings

    recorded by the learned Trial Court are well-reasoned, based on

    cogent and credible evidence. Learned counsel for the

    State/Respondent, in the process, prays for upholding the

    judgment of conviction and order of sentence passed by the

    learned Trial Court and dismissing the appeal preferred by the

    Appellants.

    Signature Not Verified
    Digitally Signed
    Signed by: BHABAGRAHI JHANKAR
    Designation: AR-CUM- SR. SECRETARY
    Reason: Authentication
    Location: ORISSA HIGH COURT, CUTTACK
    Date: 05-Aug-2026 18:06:56
    Page 9
    IV. FINDINGS OF THE ADDITIONAL DISTRICT & SESSIONS JUDGE, KUCHINDA:

    6. The learned Court below firstly dealing with the above submissions has

    made the following observations:

    7. After the assault, the injured became senseless and shifted to the

    hospital. There is nothing in the evidence of P.w.12 that the informant

    was in a condition to explain anything regarding the cause of the injuries

    sustained by him. There is nothing on the evidence of P.W.12 that he had

    ever seen or having any opportunity to interact with the attendants of

    the injured at any point of time.

    8. It is further submitted by the defence that the evidence against the

    accused persons is shaky, omnibus and inconsistent. On this

    background, if the evidence of the only eye witnesses such as P.W.6 is

    taken into consideration, she has deposed that first the accused

    Budhuram assaulted on the head of Rabindra by means of a stick,

    thereafter the other joined and assaulted her husband. Not a single

    question has been put to P.W.6 on the question of identification of the

    accused persons or her prior knowledge about them. In the F.I.R, the

    names of other accused persons have been specifically mentioned. The

    injury report reveals that the injured has sustained three injuries which

    are possible by hard and blunt object. So, the injuries on the body of the

    informant/victim are possible by the stick as well as fist and kick blows

    as deposed by the witnesses. Hence, the participation of the other

    accused persons, in view of such positive evidence cannot be denied.

    9. So far as the allegation relating to using of stick by accused Budhuram is

    concerned; only the broken part of the stick was produced before the

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    Signed by: BHABAGRAHI JHANKAR
    Designation: AR-CUM- SR. SECRETARY
    Reason: Authentication
    Location: ORISSA HIGH COURT, CUTTACK
    Date: 05-Aug-2026 18:06:56
    Page 10
    Medical Officer, who confirmed that the injuries on the body of the

    victim is possible by the stick.

    10. The untamed evidence as discussed above is clearly constituting an

    offence under Section 323 of the IPC. But, the accused persons were not

    facing trial for commission of offence of voluntarily causing hurt. They

    were facing trial for commission of the offence under Sections 452 and

    395 of IPC which are completely distinct from the offence of causing any

    type of hurt. Therefore, it would not be safe to punish the accused

    persons upon which they were not facing trial.

    11. So far as the allegation under Section 452 of the IPC is concerned; it is the

    admitted case that the informant/victim Rabindra was running a shop

    attached to his house. According to the evidence of P.W.6, she saw the

    accused persons assaulting the victim on the road in front of their house.

    In the cross-examination she made it clear that at the time of incident she

    was inside the house, but hearing hulla she came out and saw the

    incident. P.W.1 and P.W2 have deposed that the informant had a shop

    and the occurrence took place three years back in the shop of the

    informant at about 6.00 P.M. They have not supported the other aspects

    of the prosecution case and for which they were declared hostile who

    were conveyed to the court by the Prosecution that they both are the eye

    witnesses to the occurrence. Even though, P.W.1 and P.W.2 have not

    supported the Prosecution case, their substantive evidence relating to the

    place of occurrence corroborates the prosecution case. So, it is quite

    natural that the accused persons with all sort of preparation have

    entered into the shop of the injured and dragged him out. While they

    were assaulting, P.W.6, the wife of the injured came out and saw the
    Signature Not Verified
    Digitally Signed
    Signed by: BHABAGRAHI JHANKAR
    Designation: AR-CUM- SR. SECRETARY
    Reason: Authentication
    Location: ORISSA HIGH COURT, CUTTACK
    Date: 05-Aug-2026 18:06:56
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    accused persons assaulting her husband on the road in front of the shop

    of her husband. The entire discussion making it crystal clear that the

    accused persons according to their plan came to the shop of the injured

    and demanded the outstanding rent. Accused Budhuram was holding a

    stick and thereafter, they assaulted the victim. This is a preplanned act in

    concert which clearly constituted the offence under Sections 452/34 of the

    IPC against the accused persons.

    12. So far as the allegation under Sections 395 of IPC is concerned, the

    prosecution case is that the accused persons have committed theft of a

    mobile hand set and cash of Rs.l4 to 15 thousands from the drawer of the

    victim. According to P.W.11, the investigating officer, during

    investigation has seized the mobile hand set from the accused

    Maheswara Kisan and left in the zima of the informant. He admitted the

    seizure list as Ext.P-1 and the zimanama as Ext. P-2. P.W.5 in the cross-

    examination has deposed that the number of the seized mobile phone

    was 8018059053 which was a Nokia phone. But the wife of the victim

    who is the eye witness to the occurrence has deposed in her cross-

    examination that she called P.W.5 from the telephone bearing

    No.8018059053. The seizure list vide Ext.P-1 reveals that a Nokia mobile

    hand set bearing No.8018059053 which has been seized and left in the

    zima. This evidence is quite impossible to believe for the reason that at

    the time of incident the alleged mobile hand set was all along with

    P.W.6, the wife of the victim. So, the question of snatching away the said

    mobile hand set from the victim is just impossible. Therefore, the seizure

    list vide Ext.2 and the zimanama vide Ext.6 appears to have no

    connection with the allegation of theft. That apart, not a single pie has
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    Signed by: BHABAGRAHI JHANKAR
    Designation: AR-CUM- SR. SECRETARY
    Reason: Authentication
    Location: ORISSA HIGH COURT, CUTTACK
    Date: 05-Aug-2026 18:06:56
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    been recovered from the accused persons. The Investigating Officer has

    not whispered a single word relating to theft of any cash by the accused

    persons. His investigation relating to the recovery or disposal of the

    stolen cash by the accused persons, if any, is empty. In such

    circumstances, case under Section 395 of the IPC is made out against the

    accused persons. In view of the aforenoted facts and findings, the

    learned Court below considered decision of this Court that the accused

    persons are liable for the offence under Sections 452/34 of IPC, but they

    are not liable for the offence under Section 395 of IPC.

    13. Under the above facts and discussions, the learned Court below found

    that the Prosecution has well proved the offences under Sections 452/34

    of the Indian Penal Code against the accused persons. As such the

    learned Court below hold the accused persons guilty for the

    commissioning of offences under Sections 452/34 of Indian Penal Code

    and accordingly, convicted them under Sections 235 (2) of the Cr.P.C.

    But, the accused persons are found not guilty of the offence under

    Section 395 of IPC and acquitted them from the offences under Sections

    235(1) CrPC. Considering the nature and gravity of the offence

    committed by the convicts the learned Court below was not inclined to

    extend the benefit of the Probation of Offenders Act.

    V. COURT’S REASONING AND ANALYSIS:

    14. Heard learned counsel for the Appellants and learned counsel for the

    Respondent-State at length. This Court has also carefully perused the

    entire material placed on record, including the depositions of the

    prosecution witnesses, the F.I.R., the injury report, the seizure list (Ext.P-

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    Signed by: BHABAGRAHI JHANKAR
    Designation: AR-CUM- SR. SECRETARY
    Reason: Authentication
    Location: ORISSA HIGH COURT, CUTTACK
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    1), the zimanama (Ext.P-2), and the impugned Judgment of Conviction

    dated 10.07.2023.

    15. At the outset, this Court is of the view that an Appellate Court exercising

    jurisdiction under Section 374(2) of the Cr.P.C./ Section 415(2) of the

    BNSS, while hearing an appeal against conviction, possesses powers of

    re-appreciation of evidence coextensive with those of the Trial Court. It

    is the bounden duty of the Appellate Court to independently scrutinize

    the evidence on record and satisfy itself that the guilt of the accused has

    been established beyond reasonable doubt, and that the conviction does

    not rest on conjecture, surmise, or a strained inference unsupported by

    the direct testimony of the prosecution’s own witnesses.

    16. The short point that falls for consideration as has been presented by the

    learned counsel for the Appellants is whether the essential ingredients of

    “house-trespass” within the meaning of Sections 441 and 442 of the I.P.C.

    stand established as per record of the case so as to sustain a conviction

    under Section 452 read with Section 34 of the I.P.C. In fact, Section 441 of

    the I.P.C. defines “criminal trespass” which is extracted below:

    “Whoever enters into or upon property in the possession of
    another with intent to commit an offence or to intimidate,
    insult or annoy any person in possession of such property,
    or having lawfully entered into or upon such property,
    unlawfully remains there with intent thereby to intimidate,
    insult or annoy any such person, or with intent to commit
    an offence, is said to commit “criminal trespass”.

    Further, Section 442 of the I.P.C. defines “house trespass” which is

    extracted below:-

    “Whoever commits criminal trespass by entering into or
    remaining in any building, tent or vessel used as a human
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    Signed by: BHABAGRAHI JHANKAR
    Designation: AR-CUM- SR. SECRETARY
    Reason: Authentication
    Location: ORISSA HIGH COURT, CUTTACK
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    dwelling or any building used as a place for worship, or as a
    place for the custody of property, is said to commit “house-
    trespass”.

    Explanation.–The introduction of any part of the criminal
    trespasser’s body is entering sufficient to constitute house-
    trespass.”

    17. Section 452 of the I.P.C., in turn, criminalises house-trespass committed

    after preparation made for causing hurt, assault, or wrongful restraint.

    The offence under Section 452 is built upon the foundational ingredient

    of house-trespass as defined under Section 442 without any cogent proof

    of such trespass hence the superstructure of Section 452 is on the verge of

    collapse.

    18. Examining the evidence on this touchstone, the deposition of P.W.6,

    Sanjukta Khamari who is the wife of the deceased informant and the sole

    witness projected by the prosecution as an eye-witness assumes central

    importance. While in her examination-in-chief she stated that the

    Appellant Budhuram was standing near the rented house and calling out

    to her husband, who went outside and was thereupon assaulted, she

    categorically resiled from this version in her cross-examination, further

    stated in unambiguous terms that she was inside the house at the

    relevant point in time, she came outside only upon hearing a commotion

    (“hulla”), and that she found the accused persons assaulting her husband

    on the village road. She further admitted that she had not gone to the

    spot of occurrence. This is not be considered to be a minor or peripheral

    contradiction rather it goes to the very root of the prosecution case, as it

    determines the situs of the alleged trespass and assault.

    19. Significantly, the learned Trial Court, in paragraph 11 of the impugned

    judgment recorded that P.W.6 saw the accused persons assaulting the
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    Signed by: BHABAGRAHI JHANKAR
    Designation: AR-CUM- SR. SECRETARY
    Reason: Authentication
    Location: ORISSA HIGH COURT, CUTTACK
    Date: 05-Aug-2026 18:06:56
    Page 15
    victim on the road in front of their house and at the time of incident she

    was inside the house. Having recorded this finding which squarely

    establishes that the assault, insofar as it was witnessed at all, occurred on

    the public road and not within the four walls of the dwelling house. The

    learned Trial Court nonetheless proceeded to hold without any

    corresponding evidentiary basis, that the accused persons have entered

    into the shop of the injured and dragged him out. This inferential leap is

    not traceable to the testimony of P.W.6 or to any other witness. A finding

    of guilt cannot be solely based upon an inference that runs contrary to

    the direct testimony of the prosecution’s own star witness and such a

    course amounts to substituting conjecture for evidence, which is contrary

    to the spirit of criminal jurisprudence.

    20. Further, reliance was placed by the learned Trial Court on the

    “substantive evidence” of P.W.1 and P.W.2 to bridge this evidentiary gap

    does not further the prosecution case. Both witnesses were declared

    hostile, and it is well settled that the evidence of a hostile witness does

    not become wholly effaced but the portions relied upon must be

    corroborated by other credible evidence to inspire confidence. Here, the

    bald assertion that the informant had a shop and the occurrence took

    place in the said shop. Further, three years prior to deposition is a

    general and unparticularized statement, unaccompanied by any details

    of entry, preparation, the manner of trespass which stands in direct

    conflict with the more specific cross-examined account of P.W.6 placing

    the assault on the village road. Such uncorroborated and inconsistent

    testimony cannot be pressed into service to establish the ingredient of

    house-trespass beyond reasonable doubt.

    Signature Not Verified

    Digitally Signed
    Signed by: BHABAGRAHI JHANKAR
    Designation: AR-CUM- SR. SECRETARY
    Reason: Authentication
    Location: ORISSA HIGH COURT, CUTTACK
    Date: 05-Aug-2026 18:06:56
    Page 16

    21. The remaining witnesses lend no further credence to the prosecution on

    this material aspect. P.W.7 did not depose with reference to the place of

    occurrence at all. P.W.1, in cross-examination, admitted that he had not

    witnessed the occurrence; P.W.2, though declared hostile, admitted that

    he was unaware of any occurrence in the shop of the informant. P.W.3

    and P.W.4 turned hostile and were silent on the place of occurrence.

    P.W.5 and P.W.8 likewise did not speak about the place of occurrence

    and P.W.9 was not even examined by the Investigating Officer. In these

    circumstances, the prosecution has failed to lead cogent, consistent, and

    reliable evidence establishing that the Appellants entered into or

    remained within the rented house/shop which was used as a human

    dwelling or for the custody of property within the meaning of Section

    442 of the I.P.C.

    22. Learned counsel for the Appellants has drawn the attention of this Court

    to the decision of the Hon’ble Supreme Court in Sonu Choudary v. State

    NCT of Delhi (supra) for the proposition that entry into a dwelling house

    is an indispensable and strictly provable ingredient for sustaining a

    conviction under Section 452 of the I.P.C., and that in the absence of

    unimpeachable evidence establishing such entry, a conviction under the

    said provision cannot be allowed to stand. This Court finds the said

    principle squarely applicable to the facts of the present case.

    23. It is also relevant to notice that the learned Trial Court, while dealing

    with the charge under Section 395 of the I.P.C. found the prosecution

    version regarding the seizure of the mobile handset to be inherently

    improbable since the very handset which was said to have been snatched

    from the victim and was on the evidence of P.W.6 herself, in her own
    Signature Not Verified
    Digitally Signed
    Signed by: BHABAGRAHI JHANKAR
    Designation: AR-CUM- SR. SECRETARY
    Reason: Authentication
    Location: ORISSA HIGH COURT, CUTTACK
    Date: 05-Aug-2026 18:06:56
    Page 17
    possession and used at the relevant time coupled with the total absence

    of recovery of the alleged stolen cash. The Trial Court acquitted the

    Appellants of the charge under Section 395 I.P.C. This finding has not

    determinative value in so far as the charge under Section 452 is

    concerned. Nonetheless, it reflects upon the overall unreliability and

    embellishment that pervades the prosecution’s narrative as a whole and

    reinforces the need for a due caution before accepting the residual case

    regarding house-trespass on the strength of the very same set of facts

    and witnesses.

    24. The learned Trial Court has further observed in paragraph 10 of the

    impugned judgment, that the untainted evidence on record would, at

    best, constitute an offence under Section 323 of the I.P.C. (voluntarily

    causing hurt), but has correctly declined to convict the Appellants of an

    offence with which they were never charged. By parity of the same

    reasoning and the same quality of evidence, the Trial Court ought not to

    have proceeded to convict the Appellants under Section 452 I.P.C.

    merely on the strength of an assault simpliciter on the public road

    without proof of the distinct and essential ingredient of house-trespass.

    25. This Court also takes note of the mitigating circumstances placed on

    record that is the Appellants have no criminal antecedents which is a fact

    noticed even by the learned Trial Court. The above noted occurrence

    arose out of a sudden altercation flowing from a bona fide dispute

    regarding non-payment of house rent and not out of any premeditated

    criminal intention. Further, Appellant No.1 is a retired Government

    teacher who’s post-retiral and pensionary benefits stand jeopardized on

    account of the impugned conviction. The other Appellants are
    Signature Not Verified
    Digitally Signed
    Signed by: BHABAGRAHI JHANKAR
    Designation: AR-CUM- SR. SECRETARY
    Reason: Authentication
    Location: ORISSA HIGH COURT, CUTTACK
    Date: 05-Aug-2026 18:06:56
    Page 18
    agriculturists of modest means and they were from the same locality.

    These factors, though not by themselves determinants of the guilt or

    innocence but it does reinforce the conclusion that the ends of justice

    would be ill-served by permitting a conviction to stand on an infirm and

    self-contradictory evidences.

    VI. CONCLUSION:

    26. For the reasons recorded hereinabove, this Court is of the considered

    view that the prosecution has failed to prove beyond reasonable doubt

    especially the essential ingredient of “house-trespass” as contemplated

    under Sections 441 and 442 of the I.P.C., without which the conviction

    recorded under Section 452 read with Section 34 of the I.P.C. cannot be

    sustained in law. The finding of the learned Trial Court that the

    Appellants entered into the shop of the informant, recorded in the very

    same breath as its own finding that the sole eye-witness placed the

    occurrence took place on the village road which is based not on evidence

    but on conjecture and surmises. Hence, it renders the impugned

    judgment perverse and unsustainable to that extent.

    27. In the result, the Criminal Appeal is allowed. The Judgment of

    Conviction and Order of Sentence dated 10.07.2023 passed by the

    learned Additional District & Sessions Judge, Kuchinda, District-

    Sambalpur in S.T. Case No.16 of 2018, insofar as it convicts and sentences

    the Appellants under Sections 452/34 of the I.P.C., is hereby set aside.

    The Appellants are acquitted of the said charges and are entitled to the

    benefit of doubt.

    Signature Not Verified
    Digitally Signed
    Signed by: BHABAGRAHI JHANKAR
    Designation: AR-CUM- SR. SECRETARY
    Reason: Authentication
    Location: ORISSA HIGH COURT, CUTTACK
    Date: 05-Aug-2026 18:06:56
    Page 19

    28. The fine amount, if already deposited by the Appellants, shall be

    refunded to them forthwith. The bail bonds/personal bonds executed by

    the Appellants shall stand discharged. The Appellants, who are stated to

    have already undergone a period of custody, shall be set at liberty

    forthwith, if not required to be detained in connection with any other

    case.

    29. Accordingly, The Criminal Appeal stands disposed of in the above

    terms. No order as to costs. Let the Trial Court Records (T.C.R.) be

    transmitted back to the learned Trial Court forthwith, along with a copy

    of this Judgment for information and necessary compliance.

    30. Interim order, if any, passed earlier stands vacated.

    (Dr. Sanjeeb K Panigrahi)
    Judge
    Orissa High Court, Cuttack,
    Dated the 31st July, 2026/

    Signature Not Verified
    Digitally Signed
    Signed by: BHABAGRAHI JHANKAR
    Designation: AR-CUM- SR. SECRETARY
    Reason: Authentication
    Location: ORISSA HIGH COURT, CUTTACK
    Date: 05-Aug-2026 18:06:56
    Page 20



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