Jitu @ Jitendra Sahu @ Jitendra Kumar Sahu vs State Of Odisha

V. Narasingh, J. Heard learned Senior Counsel for the Petitioner and learned counsel for the State.

The present criminal revision has been filed assailing the order dated 20.01.2026 passed by the learned Additional Sessions Judge, Kodala, Ganjam, in Sessions Trial No.126 of 2025, whereby he rejected the prayer of the Petitioner for discharge from the offences under Sections 103(1)^{11.103. Punishment for murder.— (1) Whoever commits murder shall be punished with death or imprisonment for life, and shall also be liable to fine.}/3(5)^{22.3. General explanations.— (5) 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.} and 61(2)^{33.61. Criminal conspiracy.— (2) Whoever is a party to a criminal conspiracy,— (a) to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Sanhita for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence; (b) other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.} of the BNS.

The accusation against the Petitioner is that he was part of the conspiracy, which resulted in the death of the informant's husband. The principal ground on which the discharge is sought is that, at the time when such conspiracy was being hatched, the Petitioner was engaged as a driver in an ambulance at CHC, Kabisuryanagar, and, as such, it is a patent case of false implication.

Learned Senior Counsel for the Petitioner reiterates that the Petitioner is not a named accused and that the role ascribed to him, even accepting the case of the prosecution, is that of a conspirator.

It is submitted that even if the entire prosecution case is accepted at its face value, on the basis of the materials on record, there is no scope of the Petitioner being adjudged guilty. Hence, he ought not to be subjected to the rigours of the trial.

The FIR, instituted at the instance of the wife of the deceased, states that on 30.03.2025, while the deceased, Kuna @ Laxmi Narayan Paikray, along with one Ramnath Gouda, was going on a motorcycle at about 8.20 A.M. at Patharapalli, six named accused persons, being armed with deadly weapons, restrained them and opened fire. The husband of the informant died on the spot. Three witnesses have also been named, who claimed to have seen the occurrence.

The allegation of the prosecution is that the Petitioner hatched the conspiracy on account of earlier grudge and in furtherance thereof was instrumental in collecting money for hiring the killers.

Admittedly, the Petitioner is not a named accused nor any overt act is attributed to him. However, during the course of investigation, it came to the fore that a conspiracy was hatched to eliminate the deceased and that the Petitioner had an active role in the same. As such, he has been arrayed as an accused. It is the positive stand of the Petitioner that, at the relevant time, he was engaged as a driver in an ambulance at CHC, Kabisuryanagar, and was performing his duties and, therefore, it is a case of false implication. It is contended that such stand, having not been considered in its proper perspective on the basis of the materials on record, the order rejecting the prayer for discharge merits consideration.

During the course of hearing before the Trial Court as well as this court in rebutting the stand of the prosecution relying on the statement of one Harash Tarei-C.S.W.13 that the Petitioner participated in the conspiracy hatched on 10.03.2025 at about 2.00 P.M., it was asserted with vehemence by the learned Senior Counsel for the Petitioner that at the relevant time the Petitioner was engaged as an ambulance driver at Kabisuryanagar CHC and in this context reliance was placed on the recitals of the log book which was obtained under the RTI to counter the allegation of the Petitioner being part of the conspiracy. Referring to the same, it is further urged with vehemence that the Petitioner is admittedly not a named accused and no overt act is attributed to him and, in the light of the RTI information, referred to herein above, indicating that the Petitioner was working as a driver in the ambulance at the relevant time when the conspiracy is stated to have been hatched, he ought not to go through the grind of the trial, as an accused.

The factors which weigh for considering the discharge is no longer res integra. The law having been settled in the case of State of Orissa v. Debendra Nath Padhi^{44.State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568} and has been consistently followed.

The Petitioner is seeking discharge from the accusation on the plea of alibi. Section 9 of the BSA, which corresponds to Section 11^{55.11. When facts not otherwise relevant become relevant.—Facts not otherwise relevant are relevant—} of the Indian Evidence Act, 1872, deals with the plea of alibi, whereas Section 104^{66.(1) if they are inconsistent with any fact in issue or relevant fact;} of the BSA, corresponding to Section 101 of the Indian Evidence Act, 1872, deals with burden of proof, which are extracted hereunder;

In its recent judgment in the case of Rahul v. State of Uttar Pradesh^{77.(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.}, the Supreme Court has considered the ground rules relating to plea of alibi, referring to its earlier judgments in Rajendra Singh v. State of Uttar Pradesh^{88.Rajendra Singh v. State of Uttar Pradesh, (2007) 7 SCC 378} and Shaikh Sattar v. State of Maharashtra^{99.When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.}, by which, it was held that plea of alibi must be proved to the hilt so as to set at naught any possibility of the accused’s presence at the relevant time.

While referring to the same, relying on the judgments of Prashant Bharti v. State (NCT of Delhi)^{1010.Prashant Bharti v. State (NCT of Delhi), (2013) 9 SCC 293} and Rajiv Thapar and Others v. Madan Lal Kapoor^{1111.Rajiv Thapar v. Madan Lal Kapoor, (2013) 3 SCC 330}, the Apex Court held that where the defence material of sterling and unimpeachable quality is placed on record, and such material completely demolishes the prosecution case, the proceedings can be quashed at the pre-trial stage.

9-A. So far as official records are concerned, the Apex Court also referred to the case of Mirza Iqbal alias Golu v. State of Uttar Pradesh^{1212.Mirza Iqbal alias Golu v. State of Uttar Pradesh, (2022) 16 SCC 697}.

9-B. However, while doing so, the Apex Court cautioned that no inflexible rule can be laid down for the appreciation of materials on record to test the veracity of the plea of alibi.

In the backdrop of the latest pronouncement of the Apex Court in Rahul (supra)^{77.Rahul v. State of Uttar Pradesh, 2026 SCC OnLine SC 1538}, the plea of the Petitioner relying on the RTI documents is required to be examined in the light of the accusation. It bears repetition that admittedly no overt act is attributed to the Petitioner, but he is alleged to be part of the conspiracy.

The inherent distinction between a plea of alibi regarding the presence of an accused at the spot of occurrence and the case of an accused, who is stated to have hatched a conspiracy which ultimately led to the commission of the offence cannot be lost sight of. The case at hand admittedly falls within the second category.

11-A. Therefore, the plea of alibi, relying upon the duty chart/logbook showing the Petitioner to have been discharging his duties as an ambulance driver, has to be evaluated in the light of the judgments of the Apex Court in Prashant Bharti (supra)¹⁰ and Rajiv Thapar (supra)¹¹.

On perusal of the materials on record, this Court is not persuaded to hold that the RTI information regarding the Petitioner being engaged as a driver in the ambulance is of such unimpeachable or sterling quality so as to exclude even his possibility of being part of the conspiracy.

Even otherwise, there is material on record which indicates that the Petitioner was part of the conspiracy. Apart from the statement of CSW No.13, there are statements on record which indicate that the present Petitioner, who admittedly had a score to settle with the deceased, had hatched the conspiracy for seeking revenge and in furtherance collected money to hire the killers yet to be nabbed, which ultimately resulted in the husband of the informant being killed by gunshot.

On a conspectus of materials on record, keeping in view the latest dictum of the Apex Court in the case of Rahul (supra)⁷ relating to appreciation of plea of alibi, this Court is not persuaded to hold that the Petitioner has been able to prima facie establish his plea of alibi which in the considered view of this Court has to be tested during trial, in the light of the judgment of the Apex Court in the case of Rajendra Singh (supra)⁸ and Shaikh Sattar (supra)^{99.Shaikh Sattar v. State of Maharashtra, (2010) 8 SCC 430}.

The CRLREV being devoid of merit is dismissed.

It is apt to state here that the observations made herein are only for the purpose of considering the prayer of the Petitioner for discharge and the same ought not to be construed as this Court expressing any opinion regarding the complicity of the Petitioner which has to be established in an independent manner in the ongoing trial.