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
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
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judgment of conviction passed by the learnedC.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
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CRLREV No. 50 of 2004
accused persons, the informant lodged a writtenreport 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
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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.
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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
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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,
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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
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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.”
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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.”
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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),
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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
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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.
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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
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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
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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
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