The incident constituted sudden provocation without premeditation, justifying a conviction under Section 304 IPC and allowing for a sentence modification based on mitigating factors.

JUDGMENT :

SIBO SANKAR MISHRA, J.

The present Criminal Appeal is preferred by the appellants, challenging the judgment of conviction and order of sentence dated 03.02.1994 passed by the learned Additional Sessions Judge, Balasore in S.T. Case No. 1/146 of 1993/92, whereby the learned trial Court convicted appellant No. 1 Binod Gantayat under Section 304 IPC and sentenced him to undergo rigorous imprisonment for ten years, and convicted appellant No. 2 Gunadhar Gantayat under Section 342 IPC and sentenced him to undergo rigorous imprisonment for ten months and pay a fine of Rs.500/- in default to R.I. for two months more.

2. Pursuant to the order dated 31.07.2025, the I.I.C., Basta Police Station, has submitted a written report dated 05.08.2025, inter alia stating that appellant no.2 has expired. Accordingly, the present appeal qua him stands abated in the absence of application U/s.394 Cr.P.C. by either the LRs or the next friend of the deemed appellant. In so far as Appellant no. 1 is concerned, he is alive. The report is already on record.

3. The appeal has been pending since 1994. Consistently, none appeared for the appellants despite repeated calls. Therefore, this Court requested Mr. Bijaya Kumar Ragada, learned counsel, who was present in the Court, to assist the Court in the capacity of Amicus Curiae, and he obtained the paper book and assisted the Court effectively.

4. Heard Mr. Bijaya Kumar Ragada, learned Amicus Curiae appearing for the appellants and Ms. Suvalaxmi Devi, learned Additional Standing Counsel appearing for the Respondent-State.

5. The case of the prosecution is that on 20.01.1992 at about 7:00 AM, the deceased Girish Chandra Maikap, a school teacher, was drying his clothes after taking bath. At that time, the wife of appellant No.1, Renuka (D.W.9), was driving a stray bullock forward and the animal strayed into the bari of the deceased, causing damage to his plants. When the deceased asked P.W.12 and P.W.4 to drive away the animal, they did not respond, he himself chased it. The bullock then ran into the bari of the appellants, whereupon D.W.9 raised hulla, calling upon the appellants.

It is alleged that appellant No.2 caught hold of the deceased and appellant No.1, who was holding a lathi, gave a blow on the left side of the head of the deceased, resulting in a bleeding injury. When P.W.12 ran to help, he was also assaulted by appellant No.2. The deceased succumbed to the injury while being taken to the hospital. P.W.12 lodged the FIR promptly at Basta P.S. A case under Sections 302/34 IPC was registered and P.W.15 (I.O.) investigated the matter. The weapon of offence, a bamboo lathi (M.O.I), was seized from the house of appellant No.1. Charge-sheet was filed.

6. The appellants denied the allegations and pleaded alibi contending that the deceased fell on a stony patch with bamboo pegs during a quarrel over the bullock and sustained the fatal injury accidentally. They further alleged false implication due to prior land dispute.

7. The learned trial Court, having considered the evidence of 16 prosecution witnesses and 9 defence witnesses, concluded that although the offence under Section 302/34 IPC was not fully established, appellant No.1 was clearly guilty of the offence under Section 304 IPC for assault with intention to cause such bodily injury likely to cause death, and appellant No.2 was guilty under Section 342 IPC for wrongful restraint. Convictions and sentences were accordingly imposed. The relevant portion of the aforesaid judgment is extracted herein below for ready reference:-

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