The judgment establishes the importance of assessing the proportionality of retaliation to provocation in determining the applicability of Exception 1 to Section 300 IPC.

JUDGMENT :

M.Zothankhuma, J.

Heard Mr. N. J. Das, learned Amicus Curiae. Also heard Ms. S. Jahan, learned Addl. Public Prosecutor and Mr. S. Sinha for the informant, respondent No. 2.

2. This appeal has been preferred against the Judgment dated 07.05.2019 passed by the Court of Addl. Sessions Judge, FTC, Biswanath Chariali in Sessions Case No. 156/2017, by which the appellant has been convicted under Section 302 IPC and sentenced to undergo Rigorous Imprisonment for life with a fine of Rs. 5000/-, in default, to undergo Rigorous Imprisonment for two months, for having caused the death of the deceased, who was a 45 year old lady, by hitting her with an axe.

3. The prosecution case in brief is that Prosecution Witness No. 1, who is the brother-in-law of the deceased and the first cousin of the appellant, had submitted an FIR dated 17.02.2017, to the effect that at around 11:15 pm on 16.02.2017, the appellant had hacked Lakhi Barua on her head with an axe and as a result of which, she was taken to Biswanath Chariali Civil Hospital where she died. In pursuant to the FIR, Gingia PS Case No. 74/2017 under Section 302 IPC was registered. After completion of the investigation, the Investigating Officer submitted the charge sheet, on finding a prima facie case under Section 302 IPC against the appellant. Charge under Section 302 IPC was framed against the appellant, to which the appellant pleaded not guilty and claimed to be tried.

4. During trial, 21 prosecution witnesses and 1 defence witness, i.e. the appellant himself, were examined by the learned Trial Court. The appellant was also examined under Section 313 CrPC. The learned Trial Court thereafter came to a finding that though the appellant had taken the stand in his evidence that he had unintentionally killed the deceased by hitting her with an axe on her neck, the same had been done intentionally. Thus, the learned Trial Court came to a finding that the appellant was guilty of the offence under Section 302 IPC and convicted him accordingly.

5. The learned Amicus Curiae, at the outset, submits that there is no denial with the fact that the deceased had died due to being hit by the axe, which was held by the appellant. However, the said act had not been done intentionally. He submits that the son of the deceased had died some 14/15 days back in an accident, where the son was a pillion rider in the bike driven by the appellant. In view of the above, the deceased used to abuse and provoke the appellant regularly. On the fateful day, when the appellant was cutting firewood with an axe, the deceased shoved him from behind and while turning, the appellant’s axe hit the neck of the deceased which led to her death. He submits that there being no intention on the part of the appellant to kill the deceased and as there was a continuous grave and sudden provocation by the deceased against the appellant, the unintentional act of the appellant in causing the death of the deceased would attract Exception 1 to Section 300 IPC. As such, the learned Trial Court had erred in convicting the appellant under Section 302 IPC. He submits that the appellant could have, at best been convicted under Section 304 Part-I IPC and not under Section 302 IPC. In support of his submission that the appellant could not be convicted under Section 302 IPC, but under Section 304 Part-I IPC, he has relied upon the judgment of the Supreme Court in the case of Dauvaram Nirmalkar Vs. State of Chhattisgarh, AIR 2022 SC 3620.

6. Ms. S. Jahan, learned Addl. Public Prosecutor submits that there is no infirmity with the decision of the learned Trial Court in convicting the appellant under Section 302 IPC, as the evidence on record does not suggest that the act of the appellant in hitting the deceased with an axe was unintentional. She submits that the act of provocation and loss of self-control must be actual and reasonable. She