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Judgment
S.S. Mishra, J. The appellant is aggrieved by the judgment dated 12.08.1997 passed by the learned SDJM, Patnagarh in ICC No. 34/1993 (Trial No. 378 of 1993), whereby the respondents have been acquitted under Section 354/34 of IPC.
The appellant has filed Criminal Misc. Case No. 3581 of 1997 seeking leave of this Court to challenge the impugned judgment of acquittal. This Court, vide order dated 06.03.1998 granted leave to appeal to challenge the impugned judgment of acquittal and that is how the appeal has remained for consideration before this Court since 1998.
When the appeal was taken up for hearing, continuously none appeared either for the appellant or for the respondents. Therefore, on 10.08.2026 this Court appointed Ms. Devyani Lal and Mr. Asim Kumar Das, learned counsels, who are present in Court to assist the Court as Amicus Curiae on behalf of the appellant and respondent respectively. Both the counsels have obtained the soft copy of the trial court record and rendered effective assistance, for which this Court records appreciation.
The allegation in the complaint, in terse and brief, is that on 06.07.1993 at about 5.00 P.M. the complainant while washing her hand and feet after returning from the latrine, the accused persons came near the complainant and abused her in filthy language. Thereafter the accused persons pulled down her saree and took her photograph. At that time hearing hulla of the complainant’s, her sister-in-law came to the spot and they raised alarm, hearing which the complainant’s husband came to the spot, the accused persons fled away. The husband of the complainant complained the incident before the villagers. Thereafter, he filed complaint before the police. Since police did not pay any heed to the complaint, the complaint case was filed.
The plea of the accused persons is one of the complete denial and false implication. The complainant relied upon four witnesses including her husband and sister-in-law, whereas the defence examined three witnesses and also relied upon one document. The learned trial court by analyzing the evidence brought on record arrived at a conclusion that the complainant could not prove her case beyond all reasonable doubt brining the guilt of the respondents for the alleged commission of offence under section 354/34 IPC, hence, recorded the acquittal. The findings returned by the learned trial court in para-7 and 8 have been extensively relied upon by both the counsels appearing for the parties. Therefore, the same are reproduced below:-
“7.As remain the evidence of the complainant, while perusing the same no doubt the sequence at incident as narrated by each at the witnesses are linked well to each other to give a chain of the circumstances, to the complaint's Case. But, though denied by the complainant and witnesses. There is existence at enmity between the complainant's family with the accused persons and the same is self-evident from the complainant petition itself. Also, the same is apparent from the cross examination evidence at P.W.3.
Hence, keeping in back ground the hostile relationship of the parties and the conduct of the witnesses as shown in this case, it seldom inspires confidence to at once believe the case of the complainant. Because, it is stated by the P.W.1 and P.W.2 that the accused persons getting down from the roof, uprooted the dry-fury fence and uttering, abusive words, one of the accused pulled down the wearing saree of P.W.1 and while so, the other accused took photograph and after that P.W.1 and 2 raised alaram, hearing which P.W.3 arrived. The above being so, the roof raising at the alarm by P.W.1 and P.W.2 at the very sight of the accused persons and their proceeding towards the complainant is an aggressive manner uprooting the fence and rather, the raising of the alarm after the accomplishment at the incident as alleged, is the conduct which is against the normal conduct of human being. Also, the presence of P.W.1 in the same naked condition till the arrival, of her husband the spot of occurrence and the presence of the accused too during the arrival of P.W.3 too are the doubtful circumstances which makes the case of the complainant unbelievable.
8.Leaving aside, the above, the doubtful evidence lodging the FIR as stated by P.W.1 and P.W.3 and as alleged the entailment at an investigation by the Police, who in spite of the same did not initiate any action, also makes the entire case of the complainant unbelievable. Because, the Ext.A' to which, the complainant has allowed to mark an exhibit without any objection is self-explanatory in nature and as such it can safely be held that there was no information to Police by the complainant on the date of occurrence or next day. Moreover, there is no reason assigned by the complainant as to why the Police did not initiate any action against the accused persons in spite of a serious allegation against the accused persons by the complainant. This is also a strong doubtful circumstances appearing against the complainant‟s case.”
Ms. Lal, learned Amicus Curiae for the appellant submitted that the learned trial court primarily acquitted the accused persons by relying upon the following four findings:-
Personal enmity between two groups leading to filing of the complaint;
Conduct of the prosecution witness no.1 (complainant), her sister in law (P.W.2) and the eye witness of the occurrence, i.e., P.W.3, the husband of the complainant, who is the post occurrence witness, creates a doubt in the prosecution;
Whether an FIR was in fact registered or not is doubtful from the evidence of the complainant; and
The circumstance narrated by the complainant in the evidence is also doubtful.
This four grounds, on which the acquittal order is based, reflected in para-7 and 8 of the judgment, as reproduced above.
The learned Amicus Curiae for the appellant submitted that the learned trial court erred in law and facts in holding that there are pre-existing enmity between the complainant family and accused persons. Therefore, the consistent evidence of P.Ws.1, 2 and 3 has been discarded by the learned trial court, even if there is no specific deposition of those witnesses by their cross examination to the effect that there is no enmity between them. The learned trial court has selectively appreciated the evidence only to give the benefit of doubt to the accused persons to which they are not entitled. In support of the submission, Ms. Lal, relied upon the judgment of the Kerala High Court in the matter of Kumaran vrs. State of Kerala, CRL. A. No. 1078 of 2017, and submitted that the consistent and corroborating evidence of the witnesses cannot be discarded merely on the ground that the contending parties have enmity. She further submitted that the evidence on record clearly shows that the complainant raised alarm at the time she was being stripped which was being witnessed by P.W.2, the sole eye witness and the husband P.W.3 also corroborated the same being the post occurrence witness. Contrary to the evidence, the findings recorded by the learned trial court that the complainant was in a naked condition till arrival of his husband, is perverse and contrary to the evidence on record. Drawing attention to para-13 of the cross examination of P.W.3, Ms. Lal submitted that P.W.3, the husband of the complainant deposed that when he reached the spot the accused fled away and the complainant was simultaneously trying to retrieve her fallen saree to cover herself. Similarly, by pointing out the evidence vis-a vis the findings of the trial court, Ms. Lal submitted that the findings recorded by the trial court are perverse. She further submitted that while the ingredients of the offence under section 354/34 are satisfied on the basis of the evidence on record, the trial court could not have discarded the evidence only on the ground that there are existence of some prior enmity between the parties. Existence of prior enmity between the parties is a circumstance, which acts as a double edged weapon. It furnishes the motive for commission of offence. It is equally by a suggestive motive for false implication. She has relied upon the judgment of the Hon’ble Supreme Court in the case of Ramkripal vrs. State of Madhya Pradesh, reported in (2007) 11 SCC 265. In that regard, she submitted that mere existence of past enmity ought not to have been a reason for selectively appreciating the evidence and discarding the victim evidence as well as eye witness.
Mr. Asim Kumar Das, learned Amicus Curiae for the accused persons on the contrary has submitted that the findings recorded by the learned trial court are justifiable and culmination of true appreciation of evidence. The learned trial court has taken note of unnatural conduct of the complainant P.W.1 and the eye witness P.W.2. He has submitted that despite being present at the spot, no alarm was raised by both the witnesses at the time of accused persons uprooted the fence and advance towards the complainant. The alarm only was raised after the alleged occurrence of lifting of saree and taking photographs, which is abnormal conduct of a human being as truly appreciated by the trial court. He contended that the learned trial court has rightly arrived at the conclusion that there was no prior FIR registration regarding the alleged incident. Absence of any FIR/complaint before the police on the date of occurrence or the next day, despite a serious allegation of outraging modesty, creates a serious doubt regarding the prosecution story. The accused persons relied upon Ext.A, which disclosed that no FIR or station diary entry existed on writing or oral complaint of the complainant, P.W.1 on 07.07.1993. He further submitted that the acquittal order was passed way back in the year 1997, at that point of time the accused persons were at their early twenties. Much water has already been flown under the bridge by now. At present the accused persons are in their fifties and well integrated in the society. The acquittal order passed in their favour has been concretized and remained in force for about more than three decades. Therefore, interference at this stage by the Appellate Court against the acquittal order, would be travesty of justice. To substantiate his submission, he has relied upon the judgment of the Hon’ble Supreme Court in the matter of Chandrappa and others vrs. State of Karnataka, (2007) 4 SCC 415 and Mohinder Singh vrs. State of Punjab, (2018) 18 SCC 540.
I have carefully gone through the evidence on record and also the submissions made by both the learned Amicus Curiae and also taken note of the detail written submissions filed by them. I am conscious about the jurisdiction of the Appellate Court to interfere against the order of acquittal passed way back in the year 1997. True is that if the submission made by the appellant is taken into account an alternate view could be possible on the appreciation of the evidence, but that may not be a ground for interfering with the acquittal order by substituting the another possible view. Therefore, at this belated stage, this appeal against the acquittal judgment may not succeed.
It is apt to note that interfering with an order of acquittal, this Court is required to bear in mind the well-settled principles governing an appeal against acquittal. In Tulasareddi @ Mudakappa & Anr. v. State of Karnataka & Ors., reported in 2026 INSC 67, the Hon'ble Supreme Court has reiterated that where two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court. It has further been held that if the view taken by the trial Court is a possible view based on the evidence available on record, the appellate Court cannot overturn the order of acquittal merely because another view is also possible. Interference is warranted only when the judgment of acquittal suffers from patent perversity, is based on misreading or omission of material evidence, or where compelling and substantial reasons exist showing that the acquittal is clearly unreasonable. The relevant part of the aforesaid judgment is reproduced herein for ready reference:-
“29.From the aforesaid decisions rendered by this Court, it can be said that if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the findings of acquittal recorded by the Trial Court. Further, if the view taken is a possible view, the Appellate Court cannot overturn the order of acquittal on the ground that another view was also possible. The following principles have to be kept in mind by the Appellate Court while dealing with the appeals against an order of acquittal:
(a)whether the judgment of acquittal suffers from patent perversity;
(b)whether the judgment is based on misreading/omission to consider the material evidence on record;
(c)an order of acquittal is to be interfered with only when there are “compelling and substantial reasons” for doing so. If the order is “clearly unreasonable”, it is a compelling reason for interference.
(d)the appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;
(e)if the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and
(f)the appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.”
The aforesaid principle has also been reiterated by the Hon'ble Supreme Court in Ballu v. State of Madhya Pradesh, reported in (2024) 12 SCC 202, wherein it has been observed that suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt and that an accused is presumed to be innocent unless proved guilty beyond reasonable doubt. The Hon'ble Supreme Court, while dealing with reversal of an acquittal, further held that interference by the appellate Court would not be warranted unless the finding of acquittal is found to be perverse or impossible. Even where two views are possible and the trial Court has adopted one of them, the appellate Court would not be justified in interfering unless the view taken by the trial Court is shown to be perverse or impossible. The Hon'ble Supreme Court observed:
“12.It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt.
13.Apart from that, it is to be noted that the present case is a case of reversal of acquittal. The law with regard to interference by the appellate court is very well crystallised. Unless the finding of acquittal is found to be perverse or impossible, interference with the same would not be warranted. Though, there are a catena of judgments on the issue, we will only refer to two judgments which the High Court itself has reproduced in the impugned judgment [State of M.P. v. Ballu, 2018 SCC OnLine MP 1924] , which are as reproduced below: (Ballu case [State of M.P. v. Ballu, 2018 SCC OnLine MP 1924] , SCC OnLine MP paras 13-14)
“13.In Sadhu Saran Singh v. State of U.P. [Sadhu Saran Singh v. State of U.P., (2016) 4 SCC 357 : (2016) 2 SCC (Cri) 275] , the Supreme Court has held that: (SCC pp. 365-66, paras 20-21)
„20. … In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity of fact and law. However, we believe that the 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.
35.In any case, even if two views are possible and the trial Judge found the other view to be more probable, an interference would not have been warranted by the High Court, unless the view taken by the learned trial Judge was a perverse or impossible view.”
The scope of such appellate scrutiny has also been summarised by the Hon'ble Supreme Court in H.R. Sundara v. State of Karnataka, reported in 2023 INSC 858, the Hon'ble Supreme Court has summarised the principles governing the exercise of appellate jurisdiction in an appeal against acquittal. It was held thus:-
“7.In this appeal, we are called upon to consider the legality and validity of the impugned judgment rendered by the High Court while deciding an appeal against acquittal under Section 378 of the Code of Criminal Procedure, 1973 (for short, „Cr.P.C.‟). The principles which govern the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of Cr.P.C. can be summarised as follows: -
(a)The acquittal of the accused further strengthens the presumption of innocence;
(b)The Appellate Court, while hearing an appeal against acquittal, is entitled to re-appreciate the oral and documentary evidence;
(c)The Appellate Court, while deciding an appeal against acquittal, after re-appreciating the evidence, is required to consider whether the view taken by the Trial Court is a possible view which could have been taken on the basis of the evidence on record;
(d)If the view taken is a possible view, the Appellate Court cannot overturn the order of acquittal on the ground that another view was also possible; and
(e)The Appellate Court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.”
This principle has been further explained in Mallappa & Ors. v. State of Karnataka, reported in 2024 INSC 104, the Hon'ble Supreme Court has held that the presumption of innocence, which every accused enjoys during trial, gets strengthened and concretized once the trial culminates in an order of acquittal. Consequently, while exercising appellate jurisdiction against an acquittal, a higher threshold is required to rebut such reinforced presumption. Unless the findings recorded by the trial Court are manifestly unsustainable or perverse, the appellate Court ought to exercise great restraint in upsetting the acquittal. It was held thus:-
“24.We may firstly discuss the position of law regarding the scope of intervention in a criminal appeal. For, that is the foundation of this challenge. It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused, unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concretized when the case ends in acquittal. It is so because once the Trial Court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened and a higher threshold is expected to rebut the same in appeal.”
Thus, the appellate jurisdiction in an appeal against acquittal, though undoubtedly wide enough to permit re-appreciation of the evidence, is not intended to facilitate a mere substitution of the opinion of the trial 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.
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.
Accordingly, the Criminal Appeal stands dismissed.
This Court acknowledges the effective and meaningful assistance rendered by Ms. Devyani Lal, learned Amicus Curiae for the appellant and Mr. Asim Kumar Das, learned Amicus Curiae for the respondents. Learned Amicus Curiae are entitled to an honorarium of Rs.5,000/- (Rupees five thousand) each to be paid as a token of appreciation.