Page 1 of 15

CRLREV No. 50 of 2004

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

Das (Since deceased)

2. Rangadhar Das

3. Bimbadhar Das

…. Petitioners

-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 2 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 3 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 4 of 15

CRLREV No. 50 of 2004

advanced by the Petitioners, convicted them for

commission of offences under Sections 436

1

/34

2

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 ordinari ly

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 5 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 11

3

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 Bihar

4

, 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 th e

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 6 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 7 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 8 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 9 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 10 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 11 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 12 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 13 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 106

5

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 Pandey

6

, 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 Pande y, (2021)

14 SCC 683

Page 14 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 15 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 28

th

July, 2026/Ayesha

28.07.2026/Uploaded