Binod Gantayat & Another vs State Of Orissa
2025 Latest Caselaw 10806 Ori

Orissa High Court

Binod Gantayat & Another vs State Of Orissa on 9 December, 2025

       THE HIGH COURT OF ORISSA AT CUTTACK

                         CRA No. 63 of 1994

(In the matter of an application under Section 374(2) of the Criminal
Procedure Code, 1973)

Binod Gantayat & another        .......                    Appellants
                               -Versus-

State of Orissa                 .......                   Respondent

For the Appellants : Mr. Bijaya Kumar Ragada, Amicus Curiae For the Respondent : Ms. Suvalaxmi Devi, ASC

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 27.11.2025 :: Date of Judgment: 09.12.2025

S.S. 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:-

"26. The next question that now remains for decision is whether the charge under section 302/34 of IPC can be sustained against both the accused persons. It is, therefore, to be seen how far the prosecution has established a common intention which is a sine qua non for application of section 34 of IPC. Section 34 IPC embodies principles of joint liability in doing of a criminal act essence of which is existence of common intention. To attract culpability, there must be participation in action with common intention though different accused might have played different parts. A meeting of mind to commit offence and participation in the commission of offence in

furtherance of that common intention attracts the application of this section. The question is whether a common intention and the act complained of was done in furtherance of common intention as a question of fact dependant on the circumstance of each case. On a close scrutiny of the prosecution evidence on record, it is found that no evidence has been led by the prosecution to show that the accused persons in furtherance of their common intention to do away with the life of the deceased attacked him at the time of occurrence in course of which accused Gunadhar caught hold of him and accused Binod dealt a blow to the left side of his head causing injury which consequently resulted in his death. From the evidence of P. Ws. 2, 3, 4 and 12 who are acceptedly independent witnesses it is seen that the act of assault on the deceased was on account of a sudden quarrel that ensued between the deceased and the accused persons on the spur of the moment and there was no premeditation amongst the accused persons to do away with the life of the deceased. Thus the question of common intention as contemplated under section 34 IPC is not established by the evidence on record. That being the position it would be unsafe to hold that the alleged act of assault which resulted in the death of the deceased was done in furtherance of the common intention. The evidence on record clearly establishes that accused Gunadhar caught hold of the deceased and accused Binod dealt the fatal blow by the lathi (M.O.I) which consequently resulted in the death of the deceased. Since accused Gunadhar only caught hold of the deceased at the time of occurrence and there was no premeditation

and meeting of mind between him and the accused Binod to commit the murder of the deceased, he cannot be held liable for the offence under section 302 IPC. So the charge under section 302 IPC can never sustain against him. But the offence under section 342 IPC is clearly made out against him from the evidence on record.

27. Resultant death of the deceased was attributable to the head injury alone as found out from the medical evidence. In the earlier discussion it has been held that the act of assault on the deceased was also by sudden quarrel on the spur of the moment between the parties. As it appears from the evidence on record, accused Binod coming to the spot being armed with the weapon of offence, i.e. the lathi (M.O.I) gave the fatal blow to the left side head of the deceased causing compression of vital organ like brain due to fracture of the left parietal bone. The antemortem and fatal injury noticed by the doctor on a vital part of body of the deceased has clearly established that accused Binod had the intention of committing murder of the deceased and with that intention he has caused the above injury likely to cause death. Accused Binod can be attributed with the intention that the injury which he inflicted to the deceased was likely to cause death of the deceased. Therefore, charge under section 302 IPC cannot sustain against him. But the offence under section 304 IPC is well-founded against him from the evidence on record and a conviction under section 304 IPC must be sustained against him.

28. In view of the above discussion of all the aspects of the case, I am inclined to hold that

the prosecution has been able to prove its case against accused Binod Gantayat under section 304 IPC and against accused Gunadhar Gantayat under section 342 IPC beyond all reasonable doubts. Accordingly, accused Binod Gantayat is held guilty under section 304 IPC and accused Gunadhar Gantayat is held guilty under section 342 IPC and are convicted thereunder."

8. Mr. Ragada, learned Amicus Curiae for the appellants, urged

that the incident occurred in the sudden heat of passion without

premeditation and the sentence imposed is harsh and excessive

considering mitigating factors. He also placed reliance on the

decision of the Hon'ble Supreme Court in Hussainbhai Asgarali

Lokhandwala v. State of Gujarat, reported in 2024 INSC 609,

wherein the offence was held to have occurred in the heat of the

moment and the sentence was reduced to the period already

undergone. It was held thus:-

"25. That being the position and since the High Court had brought down the charge from Section 304 Part I IPC to Section 304 II IPC, we feel that it would be in the interest of justice if the sentence of the appellant Hussainbhai Asgarali Lokhandwala is further modified to the period of incarceration already undergone by him while maintaining the conviction.

26. Much water has flown down the river by this time. The unfortunate incident leading to

the loss of a precious life and sustaining of injuries by a couple of others had happened in a spur of the moment. Therefore, while concurring with the impugned judgment of the High Court dated 06.05.2016 insofar alteration of the conviction is concerned, we are of the view that the sentence imposed upon the appellant should be altered to the period of incarceration already undergone by him. That being the position, it is not necessary to delve into and elaborate upon the other contentions raised at the Bar.

27. Consequently, Criminal Appeal No. 1691 of 2023 is partly allowed. While maintaining the conviction of the appellant Hussainbhai Asgarali Lokhandwala under Section 304 Part II IPC, his sentence is modified to the period already undergone by him. All the other criminal appeals are, however, dismissed."

9. I have carefully considered the submissions advanced by the

learned Amicus Curiae for the appellants and the learned counsel for

the State and have gone through the records of the case, including

the depositions of the witnesses and the documents produced.

10. Upon careful scrutiny, this Court finds no infirmity in the

conclusion of the learned trial Court regarding the credibility of

eyewitnesses P.Ws. 2, 3, 4, and 12. Merely because they are related

to the deceased does not render their testimony untrustworthy. It is

well settled in criminal jurisprudence that evidence must be

weighed, not counted, and related witnesses are often the most

natural witnesses, unless proven unreliable. In Amar Singh v. State

(NCT of Delhi), reported in 2020 SCC OnLine SC 826, the Hon'ble

Supreme Court held thus:-

"There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony, Courts will insist on corroboration. It is not the number, the quantity but quality that is material. The time- honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise.

xxxxx xxxxx ...ordinarily this Court could be reluctant to disturb the concurrent view but since there are inherent improbabilities in the prosecution story and the conduct of eyewitness is inconsistent with ordinary course of human nature we do not think it would be safe to convict the appellants upon the uncorroborated testimony of the sole eyewitness."

11. From the evidence on record, it is clearly borne out that

P.W.15, the Investigating Officer, has categorically deposed that on

the date of occurrence itself, between 1.20 p.m. and 2.00 p.m., he

conducted a search of the house of accused Binod Gantayat and

recovered the bamboo lathi (M.O.I) concealed underneath the bed.

The said lathi was seized under seizure list Ext. 2/1. In his cross-

examination, nothing material could be elicited to discredit his

testimony with regard to the manner, place, or circumstance of

recovery. His evidence regarding seizure has remained consistent,

cogent, and unshaken. The mere fact that P.W.8, who was cited as a

seizure witness, resiled from his earlier statement and did not

support the prosecution at the trial does not, by itself, render the

seizure doubtful or unreliable.

12. In the present case, the credibility of the seizure is further

strengthened by the fact that the lathi (M.O.I) was found to be

stained with human blood, as detected during chemical and

serological examination. This circumstance provides strong

corroboration to the oral testimony of the eye-witnesses as well as

the medical evidence adduced by P.W.10, who conducted the post-

mortem examination and opined that the fatal injury on the left

parietal region of the head could be caused by a blunt weapon like a

lathi. Thus, the recovery of the weapon of offence from the

exclusive possession of appellant Binod, coupled with the medical

opinion and forensic findings, forms an unbroken chain of

circumstances connecting the appellant with the crime.

13. The prompt FIR, corroborated by medical evidence and

recovery of M.O.I containing human blood stains, supports the

prosecution version. That seizure witness P.W.8 turned hostile does

not discredit the seizure when the I.O.'s testimony remains

unshaken. All these aspects have been exhaustively analysed by the

learned trial Court, and this Court finds no perversity or infirmity in

the conclusions so arrived at.

14. The circumstances establish that there was no preplanned

intention to murder, but a sudden quarrel escalated due to anger

triggered by the bullock trespass incident, resulting in a single blow

to the head. This supports conviction under Section 304 IPC rather

than Section 302 IPC.

15. In the present case, this Court also finds substance in the

submission advanced by learned Amicus Curiae for the appellants

relying upon the ratio laid down by the Hon'ble Supreme Court in

Hussainbhai Asgarali Lokhandwala vs. State of Gujarat(supra),

wherein the Apex Court held that when the act of assault is not

premeditated and has taken place in the heat of passion on a sudden

quarrel without the offender having taken undue advantage or

having acted in a cruel or unusual manner, the case may

appropriately fall under Section 304 Part II IPC and the sentence

should be imposed keeping in view the age, background, and

surrounding circumstances. Applying the said principle to the facts

of the present case, it is evident from the record that the incident had

taken place within the village, arising out of a sudden quarrel over a

stray bullock entering agricultural land. There was absolutely no

prior enmity, nor any evidence of pre-arranged plan or preparation.

The act, therefore, appears to be one done in a sudden fit of anger

without intention to kill, though with the knowledge that such an act

was likely to cause death.

16. Further, this Court cannot remain oblivious to the prevailing

circumstances at the time of occurrence. The conduct of appellant

Binod in dealing a single blow on the head of the deceased and the

immediate efforts by villagers to shift the injured to the hospital

clearly demonstrate the absence of a cold-blooded attempt to

eliminate the deceased. There is nothing on record to suggest any

subsequent attempt to inflict further injuries or to prevent the family

of the deceased from providing medical attention. The appellants are

rustic villagers with no criminal antecedents, and the incident

occurred more than three decades ago. Appellant No.1 was only

about 25 years of age at the time of the commission of the offence.

Keeping in view the prolonged passage of time, the suffering of

incarceration already undergone, and the reformatory spirit

underlying penal law, this Court is of the considered view that the

ends of justice would be sufficiently met if the sentence imposed on

appellant Binod is modified to some extent, while maintaining his

conviction under Section 304 IPC.

17. While upholding the conviction, this Court finds merit in the

prayer of modification of the sentence. The incident dates back more

than 33 years and the appellant has already undergone more than 4

months. Hence, the sentence is accordingly modified. The appellant

is sentenced to undergo R.I. for a period of one year and to pay a

fine of Rs.5,000/- (Rupees five thousand), in default of payment of

the fine amount, to undergo R.I. for a further period of two months.

The period the appellant has already undergone shall be set off from

the substantive sentence.

18. Accordingly, the Criminal Appeal is dismissed and the

sentence is modified in the manner as indicated above.

19. This Court records appreciation of the meaningful and

effective assistance rendered by Mr. Bijaya Kumar Ragada, learned

Amicus Curiae. He is entitled to the honourarium of Rs.7,500/-

(Rupees seven thousand five hundred) as a token of appreciation.

(S.S. Mishra) Judge

The High Court of Orissa, Cuttack Dated the 9th Day of December, 2025/Subhasis Mohanty

Designation: Personal Assistant

Location: High Court of Orissa, Cuttack.