Radhanath @ Radhakanta vs State Of Orissa on 28 July, 2026

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    Orissa High Court

    Radhanath @ Radhakanta vs State Of Orissa on 28 July, 2026

    Author: V. Narasingh

    Bench: V. Narasingh

              IN THE HIGH COURT OF ORISSA AT CUTTACK
                             CRLREV No.50 of 2004
    
         In the matter of an application under Section 401 of
         Cr.P.C., 1973.
                              ------------------
    

    1. Radhanath @ Radhakanta …. Petitioners
    Das (Since deceased)

    2. Rangadhar Das

    SPONSORED

    3. Bimbadhar Das

    -versus-

    State of Orissa …. Opposite Party

    For Petitioners : Mr. A.K. Biswal, Advocate

    For Opposite Party : Mr. C.R. Swain, AGA

    CORAM:

    JUSTICE V. NARASINGH

    DATE OF HEARING : 21.07.2026

    DATE OF JUDGMENT : 28.07.2026

    V. Narasingh, J. Heard learned counsel for the

    Petitioners and learned AGA for the State.

    1. This Criminal Revision has been filed

    assailing the judgment dated 05.01.2004 passed by

    the learned Additional Sessions Judge, Bhadrak in

    Criminal Appeal No.32 of 2000 while affirming the

    Page 1 of 15
    CRLREV No. 50 of 2004
    judgment of conviction passed by the learned

    C.J.M.-cum-Asst. Sessions Judge, Bhadrak in S.T.

    Case No.105/103 of 1998 and reducing the

    sentence and directing the Petitioners to undergo

    Rigorous Imprisonment for six months and to pay a

    fine of Rs.2,500/- each, in default, to undergo R.I.

    for three months for commission of offences under

    Sections 436/34 of the Indian Penal Code

    (hereinafter referred to as „IPC‟).

    2. As noted by the order dated 21.07.2026 that

    since during the pendency of this Revision,

    Petitioner No.1 (Radhanath @ Radhakanta Das) has

    passed away, the present Revision is confined to

    Petitioner Nos.2 & 3 (Rangadhar Das & Bimbadhar

    Das).

    3. The case of the prosecution is that in the

    night of 22.02.1997 at about 2 a.m. the accused

    persons illegally set fire to the dwelling house of the

    informant-Mani Das (P.W.3), as a result of which

    the entire house and her belongings were burnt to

    ashes. Being aggrieved with such illegal act of the
    Page 2 of 15
    CRLREV No. 50 of 2004
    accused persons, the informant lodged a written

    report basing upon which the local police

    investigated into the matter. During course of

    investigation, the I.O. visited the spot, examined

    the witnesses, seized incriminating materials,

    arrested the accused persons, forwarded them to

    court and after completion of investigation

    submitted charge-sheet against all the three

    accused persons under Sections 436/34 of the IPC.

    4. To drive home the charge, the prosecution

    examined eight witnesses, of whom P.W.3 is the

    victim-informant and is an eye witness to the

    alleged occurrence. P.W.1 is her son, P.W.5 is her

    daughter-in-law, P.Ws.2, 4 and 6 are the local

    villagers and P.Ws.7 and 8 are the I.Os.

    Though no oral evidence was admitted,

    several documents were exhibited on behalf of the

    prosecution.

    5. Taking into account the evidence adduced

    primarily by P.W.3 as well as P.Ws.2, 4 and 6, the

    learned Trial Court, rejecting the plea of alibi
    Page 3 of 15
    CRLREV No. 50 of 2004
    advanced by the Petitioners, convicted them for

    commission of offences under Sections 4361/342 of

    the I.P.C. and directed them to undergo R.I. for four

    years and to pay a fine of Rs.2,500/- (Rupees two

    thousand five hundred only), in default of payment,

    to undergo R.I. for three months.

    An appeal having been preferred, the

    learned Appellate Court did not find any reason to

    interfere with the finding of guilt recorded by the

    learned Trial Court and, accordingly, affirmed the

    conviction while reducing the sentence to six

    months.

    6. It is the submission of the learned counsel

    for the Petitioners, Mr. Biswal that both the Courts

    below have failed to appreciate the plea of alibi as

    advanced even in the face of unrebutted materials

    1

    436. Mischief by fire or explosive substance with intent to
    destroy house, etc.–Whoever commits mischief by fire or any
    explosive substance, intending to cause, or knowing it to be likely that he
    will thereby cause, the destruction of any building which is ordinarily
    used as a place of worship or as a human dwelling or as a place for the
    custody of property, shall be punished with imprisonment for life, or with
    imprisonment of either description for a term which may extend to ten
    years, and shall also be liable to fine.
    2

    34. Acts done by several persons in furtherance of common
    intention.–When a criminal act is done by several persons, in
    furtherance of the common intention of all, each of such persons is liable
    for that act in the same manner as if it were done by him alone.

    Page 4 of 15
    CRLREV No. 50 of 2004
    being brought on record that the surviving

    Petitioners were, at the relevant time, away

    attending a religious conference from 20.02.1997 to

    23.02.1997, admittedly the occurrence having taken

    place on 22.02.1997.

    6-A. Section 113 of the Evidence Act, 1872 deals

    with the plea of alibi.

    7. It is the settled position of law that the

    burden lies solely on the accused to prove the plea

    of alibi to the hilt and only if the accused is able to

    discharge such burden then only he can

    substantiate the plea of false implication.

    Reference in this regard can be made to the

    judgment of the Apex Court in the case of Binay

    Kumar Singh v. State of Bihar4, wherein it has

    been observed thus:-

    “xxx xxx xxx

    3

    11. When facts not otherwise relevant become relevant.– Facts
    not otherwise relevant are relevant–

    (1) if they are inconsistent with any fact in issue or relevant fact;
    (2) if by themselves or in connection with other facts they make the
    existence or non-existence of any fact in issue or relevant fact highly
    probable or improbable.

    4

    Binay Kumar Singh v. State of Bihar, (1997) 1 SCC 283

    Page 5 of 15
    CRLREV No. 50 of 2004

    23. The Latin word alibi means “elsewhere”
    and that word is used for convenience when
    an accused takes recourse to a defence line
    that when the occurrence took place he was
    so far away from the place of occurrence that
    it is extremely improbable that he would
    have participated in the crime. It is a basic
    law that in a criminal case, in which the
    accused is alleged to have inflicted physical
    injury to another person, the burden is on
    the prosecution to prove that the accused
    was present at the scene and has
    participated in the crime. The burden would
    not be lessened by the mere fact that the
    accused has adopted the defence of alibi. The
    plea of the accused in such cases need be
    considered only when the burden has been
    discharged by the prosecution satisfactorily.
    But once the prosecution succeeds in
    discharging the burden it is incumbent on the
    accused, who adopts the plea of alibi, to
    prove it with absolute certainty so as to
    exclude the possibility of his presence at the
    place of occurrence. When the presence of
    the accused at the scene of occurrence has
    been established satisfactorily by the
    prosecution through reliable evidence,

    Page 6 of 15
    CRLREV No. 50 of 2004
    normally the court would be slow to believe
    any counter-evidence to the effect that he
    was elsewhere when the occurrence
    happened. But if the evidence adduced by
    the accused is of such a quality and of such a
    standard that the court may entertain some
    reasonable doubt regarding his presence at
    the scene when the occurrence took place,
    the accused would, no doubt, be entitled to
    the benefit of that reasonable doubt. For that
    purpose, it would be a sound proposition to
    be laid down that, in such circumstances, the
    burden on the accused is rather heavy. It
    follows, therefore, that strict proof is
    required for establishing the plea of alibi.
    This Court has observed so on earlier
    occasions (vide Dudh Nath Pandey v. State of
    U.P.
    [(1981) 2 SCC 166]; State of
    Maharashtra v. Narsingrao Gangaram
    Pimple
    [AIR 1984 SC 63].

    xxx xxx xxx”

    8. On the touchstone of the above relating to

    the plea of alibi, the submission of the learned

    counsel for the Petitioners is to be examined and for

    the said purpose, this Court deems it proper to

    scrutinize the evidence on record more particularly

    Page 7 of 15
    CRLREV No. 50 of 2004
    that of the I.O.-P.W.7 who conducted the initial

    investigation and P.W.8-the I.O. who submitted the

    charge-sheet.

    8-A. P.W.7-I.O. has stated thus in paragraph-2 of

    his cross-examination:-

    “In connection with the present incident

    no information was lodged before me prior

    to 10.03.1997. The S.P., Bhadrak supervised

    the case on 20.3.97. Accused Rangadhar

    and Radhanath alias Radhakanta took the

    plea that at the relevant point of time they

    attended a religious conference at

    Madhuban, Baripada. In order to ascertain

    the truth of the said plea, I examined some

    witnesses who disclosed that the aforesaid

    accused persons were at the religious

    conference of Madhuban, Baripada from

    20.2.97 till 23.2.97. However, I did not

    affect arrest of the accused persons as I had

    to examine some other witnesses in

    connection with the said plea.”

    Page 8 of 15

    CRLREV No. 50 of 2004

    8-B. P.W.8, the I.O. who took over the

    investigation and submitted the charge-sheet, has

    stated thus in paragraph-2 of his cross-

    examination:

    “I have perused the C.D. of the previous

    I.O.. I have verified the register of

    Nigamananda Samillani held at Baripada

    from 21.2.97 to 23.2.97. On verification I

    came to Know that one Radhakanta Das was

    the delegate in the said Samillani. I have not

    examined witnesses namely Nirmala Nayak,

    Basanta Nayak, Sarat Nayak, Sripati Nayak,

    Basudev Nayak, Radhashyam Das, Upendra

    Das. The houses of the accused persons are

    situated nearby the house of the informant

    Mani Das. I have not seized any documents

    standing in the name of Mani Das. It is not a

    fact that I have submitted charge sheet

    against the accused persons without any

    rhyme and reason.”

    Page 9 of 15
    CRLREV No. 50 of 2004

    9. P.W.7 in his cross examination has stated

    that the accused-Petitioners took the plea that, at

    the relevant time, they were attending the religious

    conference at Madhuban, Baripada. To ascertain the

    veracity thereof, he examined some witnesses

    who disclosed that the aforesaid accused

    persons were at the religious conference from

    20.02.1997 till 23.02.1997.

    9-A. At the cost of repetition, it is apt to note that

    the occurrence in question admittedly took place on

    22.02.1997.

    10. In the face of the materials which have

    come to the fore and which prima facie substantiate

    the plea of alibi, as found by P.W.7- the I.O., it was

    incumbent upon him to make further investigation.

    For reasons best known, threads were left hanging

    and P.W.8, in his cross-examination as quoted

    above, submitted that he verified the register of

    Nigamananda Samillani held at Baripada from

    21.02.1997 to 23.02.1997 and, on verification,

    found that one Radhakanta Das (since dead),
    Page 10 of 15
    CRLREV No. 50 of 2004
    Petitioner No.1, was a delegate in the said

    Samillani, but curiously enough, P.W.8, who took

    over the investigation, did not mention anything

    about the present Petitioners.

    10-A. The presence of Petitioner Nos.1 and 2

    assumes significance in the light of the specific

    stand taken by them that they were at the religious

    congregation, the same having been corroborated

    by the persons examined by P.W. 7 with reference

    to the plea of alibi put forth by the Petitioners.

    10-B. The factum whether the Petitioners 2 and 3

    were present at the site or not could have been

    easily checked from the register, which was, in fact,

    verified in respect of Petitioner No. 1 (since

    deceased). However, inexplicably, no attempt was

    made to unravel the truth and evidently the

    investigation was slipshod relating to the stand of

    the Petitioners regarding their presence along with

    Petitioner No. 1.

    11. The approach of the Trial Court as well as

    the Appellate Court in scrutinizing the evidence so
    Page 11 of 15
    CRLREV No. 50 of 2004
    far as the plea of alibi is concerned leaves much to

    be desired. Neither Court discussed anything

    relating to the positive assertion which could be

    brought out from the evidence of P.W.7 that the

    Petitioners were away at another place on the

    relevant day, and no investigation having been

    made on the said account, the Appellate Court

    simply glossed over the same and, curiously

    enough, in its wisdom, dealt with the probable

    defence of the accused and drew an adverse

    inference because the accused did not take the plea

    that they were on the roof trying to douse the fire.

    Such an approach is unknown to criminal

    jurisprudence.

    12. Coming back to the question of alibi, it is the

    settled position of law that the burden lies very

    heavily on the person asserting the plea of alibi.

    But, once he is able to discharge such burden, the

    prosecution is required to establish its case beyond

    reasonable doubt.

    Page 12 of 15
    CRLREV No. 50 of 2004

    13. In the case at hand, taking into account the

    evidence on record, this Court is of the considered

    view that Petitioner Nos. 2 and 3 have been able to

    discharge the initial burden in terms of Section 1065

    of the Evidence Act, 1872.

    For reasons best known, the prosecution did

    not address the issue, and such an important aspect

    having not been considered in its proper perspective

    by the learned Trial Court as well as the learned

    Appellate Court, this Court is of the considered view

    that the appreciation of evidence is, thus, ex facie

    perverse so as to warrant interference by this Court

    in exercise of its revisional jurisdiction.

    14. This Court is not oblivious of the limitations

    of exercising revisional jurisdiction as stated in the

    case of New India Assurance Company Ltd. v.

    Krishna Kumar Pandey6, wherein the Apex Court

    has held thus;

    5

    106. Burden of proving fact especially within knowledge.–When
    any fact is especially within the knowledge of any person, the burden of
    proving that fact is upon him.

    6

    New India Assurance Company Ltd. v. Krishna Kumar Pandey, (2021)
    14 SCC 683

    Page 13 of 15
    CRLREV No. 50 of 2004
    “xxx xxx xxx

    7. The scope of the revisional jurisdiction of

    the High Court (or Sessions Court) under

    Section 397 CrPC, is limited to the extent of

    satisfying itself as to the correctness,

    legality or propriety of any finding,

    sentence or order passed by an inferior

    court. The Revisional Court is entitled to

    look into the regularity of any proceeding

    before an inferior court. As reiterated by this

    Court in a number of cases, the purpose of

    this revisional power is to set right a

    patent defect or an error of jurisdiction

    or law.

    xxx xxx xxx”

    15. In the given facts of the present case, this

    Court is of the considered view that in the event

    revisional jurisdiction is not exercised in the face of

    perverse appreciation of the evidence on record, by

    the Trial as well as Appellate Court as discussed

    Page 14 of 15
    CRLREV No. 50 of 2004
    above, relating to the defence plea of alibi, the

    same will result in miscarriage of justice.

    Accordingly, the order of conviction and

    imposition of sentence(s) by the Trial Court and as

    affirmed by the Appellate Court is hereby set aside.

    The Petitioners 2 & 3 stand acquitted of the

    charges.

    16. The CRLREV is accordingly allowed.

    (V. Narasingh)
    Judge

    Orissa High Court, Cuttack,
    Dated the 28th July, 2026/Ayesha
    28.07.2026/Uploaded

    Signature Not Verified
    Digitally Signed
    Signed by: AYESHA ROUT
    Reason: Authentication
    Location: High Court of Orissa, Cuttack
    Date: 28-Jul-2026 19:07:54

    Page 15 of 15
    CRLREV No. 50 of 2004



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