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
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
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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
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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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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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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
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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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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
Reason: Authentication
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
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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-
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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
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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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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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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
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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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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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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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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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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
Date: 05-Aug-2026 18:06:56
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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
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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
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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
