Page 1 IN THE HIGH COURT OF ORISSA AT CUTTACK CRLLP No.72 of 2008 (In the matter of an appeal under Section 378 (1) & (3) of the Code of Criminal Procedure, 1973). State of Odisha …. Appellant (s) -versus- Kalia @ Jeydev Dip & Anr. …. Respondent (s) Advocates appeared in this case through Hybrid Arrangement Mode: For Appellant (s) : Ms. Gayatri Patra, ASC For Respondent(s) : Mr. Malaya Kumar Swain, Adv. CORAM: DR. JUSTICE SANJEEB K PANIGRAHI DATE OF HEARING: -17.04.2026 DATE OF JUDGMENT: -22.05.2026 Dr. Sanjeeb K Panigrahi, J. 1. The present application has been filed by the State-petitioner seeking leave to prefer an appeal against the judgment of acquittal dated 17.03.2008 passed by the learned Additional Sessions Judge (FTC), Bargarh in Criminal Trial No.156/9 of 2006-2007, whereby the opposite parties were acquitted of the charges under Sections 395/397 of the IPC. I. FACTUAL MATRIX: 2. The prosecution case, in short, is that on 08.04.2006 at about 7 P.M., two persons came to the house of P. Krishna Murty and enquired Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 27-May-2026 15:45:01 Signature Not Verified Page 2 about him from the informant and thereafter, at about 9 P.M., the said two persons again came there and requested for drinking water. 3. When P.W.7 gave water through her piusi nani (P.W.8), by then eight to nine other persons came out and all of them captured P.W.8 and took both of them inside the house. After threatening them, the culprits committed dacoity of gold ornaments, cash and other articles belonging to P. Krishna Murty, the father-in-law of the informant. Thereafter, they locked the room from outside and fled away from the spot. 4. After some time, B. Satish Kumar (P.W.1) came there and witnessed the incident. He opened the door and, after learning about the occurrence, informed the villagers and others. 5. At about 12:15 A.M., P.W.7 lodged an oral report before the O.I.C. of Bhaden P.S., which was reduced into writing. 6. After completion of investigation, charge-sheet was submitted against the accused persons under Sections 395/397 of the IPC. 7. In order to prove its case, the prosecution examined 14 witnesses. 8. The learned Addl. Sessions Judge (FTC), Bargarh, by judgment and order dated 17.03.2008, acquitted the accused persons/respondents of the charges framed against them. 9. Being aggrieved by the said judgment and order dated 17.03.2008 passed by the learned Addl. Sessions Judge (FTC), Bargarh in Criminal Trial No.156/9 of 2006-07, the petitioner-State seeks leave to prefer the present CRLLP. Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 27-May-2026 15:45:01 Signature Not Verified Page 3 II. SUBMISSIONS OF THE APPELLANT/ STATE 10. Learned counsel for the petitioner made the following submissions in support of his contentions: i. The petitioner submitted that the judgment and order of acquittal passed by the learned Addl. Sessions Judge (FTC), Bargarh is illegal and contrary to the materials available on record. ii. The petitioner further contended that the learned trial Court erred in acquitting the accused persons without properly appreciating the statement of P.W.7, particularly in Para-3 of her deposition, wherein she stated that she had seen accused Jeydev Dip 4 to 5 days prior to the occurrence when he had approached them for the purpose of plastering the wall. She further deposed that prior to the dacoity, accused Jeydev Dip along with another person came to their house and asked for water and, while she was giving a glass of water, accused Jeydev Dip caught hold of her piusi (P.W.8) by pressing her mouth. iii. The petitioner further contended that the learned trial Court failed to properly appreciate the evidence of P.W.8 (Laxmi), who corroborated the testimony of P.W.7 regarding identification of accused Jeydev Dip. However, the learned trial Court did not take the statements of these witnesses into account while passing the order of acquittal. iv. The petitioner further contended that the learned trial Court erred in acquitting the accused persons/respondents on the observation that the informant (P.W.3) had neither stated in his evidence nor Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 27-May-2026 15:45:01 Signature Not Verified Page 4 mentioned in the F.I.R. the details of the culprits or that he had learnt such facts from his wife (P.W.7). On careful perusal of the deposition of P.W.3 in Para-3, it appears that his wife narrated the incident to him, whereafter he orally reported the matter to the police. Similarly, the F.I.R. discloses the features and descriptions of the culprits in detail. Hence, the order of acquittal passed in favour of the opposite parties/respondents is liable to be set aside. v. The petitioner further contended that the judgment/order passed by the learned Addl. Sessions Judge (FTC), Bargarh is bad in law and liable to be set aside. III. SUBMISSIONS OF THE RESPONDENTS: 11. Per contra, learned counsel for the respondents made the following submissions in support of their contentions: i. The respondents contended that the ingredients of the offence under Section 395 IPC have not been made out. P.W.10, who reduced the oral report into writing, registered the F.I.R. against unknown persons and, after completion of investigation, the I.O. submitted charge-sheet against the respondents. However, the prosecution failed to disclose who the other co-accused persons were or who had participated in the alleged crime and the other witnesses are also silent in this regard. ii. The respondents further contended that the essential ingredients of the offences under Sections 395/397 IPC require that five or more persons conjointly commit or attempt to commit robbery, or conjointly aid such commission or attempt. However, in the present case, Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 27-May-2026 15:45:01 Signature Not Verified Page 5 participation of five or more persons in committing or attempting to commit robbery has not been proved. iii. The respondents further contended that no T.I. Parade was conducted. Identification of the accused persons in Court for the first time is a weak piece of evidence. The purpose of a T.I. Parade is to test and strengthen the trustworthiness of the evidence given before the Court. iv. The respondents further submitted that the F.I.R. was registered against unknown persons. P.W.7, in her evidence, stated that she had seen the accused on the date of occurrence and thereafter on the date of evidence. In a criminal case, identification of an accused only in the dock without prior T.I. Parade is improper. Though holding of a T.I. Parade is not mandatory in every case, in the present case P.Ws.7 and 8 had allegedly seen accused Jaydev Dip for the first time on the date of occurrence and were not previously acquainted with him. Therefore, a T.I. Parade ought to have been conducted and, in absence thereof, their identification in Court is not convincing. v. The respondents further contended that the informant (P.W.3), in his evidence before the Court, remained silent regarding narration by his wife (P.W.7) of the details of the culprits who had come to the house of P.W.4. Though the oral report was made on the same night and the statement of P.W.7 was recorded, there is nothing incriminating therein against accused Kalia @ Jaydev Dip. Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 27-May-2026 15:45:01 Signature Not Verified Page 6 vi. The respondents further contended that P.W.8, in her evidence before the Court, stated that she could not properly identify the persons as the occurrence had taken place two years earlier. vii. The respondents further contended that the statement of accused Manbhulu Seth under Section 313 Cr.P.C. had not been recorded, though the same is mandatory in nature. Examination of the accused under Section 313 Cr.P.C. after closure of prosecution evidence is intended to afford the accused an opportunity to explain the incriminating circumstances appearing against him and failure to put such incriminating questions causes serious prejudice to the accused and vitiates the trial. IV. COURT’S REASONING AND ANALYSIS: 12. Heard learned counsel for the parties and perused the material placed on record. 13. At the outset, it is well settled that while dealing with an appeal against acquittal, the Appellate Court should be slow in interfering with the findings recorded by the learned trial Court unless the same are perverse, contrary to the evidence on record or suffer from manifest illegality. Where two views are possible on the basis of the evidence available on record, the view favourable to the accused should ordinarily be adopted. In this regard, reference may be made to Chandrappa v. State of Karnataka1 where it was observed: 1 Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 27-May-2026 15:45:01 Signature Not Verified Page 7 “(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If 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.” 14. In the present case, the F.I.R. was admittedly lodged against unknown persons. Though the prosecution alleged commission of offences under Sections 395/397 IPC, the evidence on record does not Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 27-May-2026 15:45:01 Signature Not Verified Page 8 satisfactorily establish participation of five or more persons so as to attract the ingredients of the offence of dacoity under Section 395 IPC. Except making a general allegation that 8 to 9 persons had entered into the house, the prosecution has not been able to establish the identity and involvement of the other alleged culprits. 15. The principal evidence against accused Jaydev Dip is the identification made by P.Ws.7 and 8. However, admittedly no Test Identification Parade was conducted during investigation. It is settled law that identification of an accused in Court for the first time without prior T.I. Parade is a weak piece of evidence, particularly when the witnesses had no prior acquaintance with the accused. In cases where the accused is a stranger to the witness and no T.I. Parade has been conducted, the Court is required to exercise greater caution while accepting dock identification. In this regard, reference may be made to Kunjumon v. State of Kerala2. 16. Though P.W.7 stated in her evidence that accused Jaydev Dip had come to their house 4 to 5 days prior to the occurrence for plastering work, such evidence has not been corroborated by any independent material. Further, P.W.8 herself stated that she could not properly identify the persons as the occurrence had taken place about two years earlier. In such circumstances, the learned trial Court was justified in extending benefit of doubt to the accused persons. 17. It further appears from the record that the statement of accused Manbhulu Seth under Section 313 Cr.P.C. had not been recorded. 2 (2012) 13 SCC 750 Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 27-May-2026 15:45:01 Signature Not Verified Page 9 Examination under Section 313 Cr.P.C. is not a mere formality. It is intended to afford the accused an opportunity to explain the incriminating circumstances appearing against him in the prosecution evidence. Failure to examine the accused on such incriminating materials may cause prejudice to the defence and assumes significance in a case resting substantially on identification evidence. In such circumstances, the view taken by the learned trial Court in extending benefit of doubt to the accused persons cannot be said to be unjustified. 18. On overall assessment of the evidence available on record, this Court is of the considered view that the findings recorded by the learned trial Court cannot be said to be perverse or contrary to the materials available on record. The view taken by the learned trial Court is a possible and plausible view based on the evidence adduced by the prosecution. V. CONCLUSION: 19. In view of the discussions made hereinabove, this Court is not inclined to grant leave to prefer the appeal against the judgment of acquittal dated 17.03.2008 passed by the learned Addl. Sessions Judge (FTC), Bargarh in Criminal Trial No.156/9 of 2006-07. 20. Accordingly, the CRLLP stands dismissed. 21. Interim order, if any, passed earlier stands vacated. (Dr. Sanjeeb K Panigrahi) Judge Orissa High Court, Cuttack, Dated the 22nd May, 2026/