Point of Law: It is settled law that retaliation has to be proportionate to provocation.

JUDGMENT :

M.Zothankhuma, J.

Heard Mr. N. Hasan, learned Amicus Curiae. Also heard Ms. Jahan, learned Addl. Public Prosecutor.

2. This appeal has been filed against the impugned Judgment dated 30.03.2021 passed by the Additional Sessions Judge (FTC), Biswanath Chariali, Assam in Sessions Case No. 50/2019, by which the appellant has been convicted under Section 302 IPC for killing his younger brother. The appellant was thereafter sentenced to undergo R.I for life with a fine of Rs. 10,000/-, i.d. S.I for 6 months.

3. The prosecution case in brief is that an FIR dated 21.08.2018 was submitted by the father of the appellant to the Officer-in-charge, Biswanath Chariali Police Station stating that around 7:30 P.M on 20.08.2018, the appellant picked up a quarrel with his youngest son inside their house with the intention of killing him. The appellant attacked the youngest son with a sharp meat chopping knife causing serious injury. The injured was taken to Biswanath Civil Hospital by Ambulance. The deceased was brought to the hospital, where he was declared dead. In pursuant to the FIR, Biswanath Chariali P.S. Case No. 205/18 under Section 302 IPC was registered on 21.08.2018.

4. After investigation was completed, the Investigating Officer (I.O) submitted a Charge-sheet, on finding a prima facie case against the appellant under Section 302 IPC for having killed his younger brother. Charge under Section 302 IPC was thereafter framed by the learned Trial Court against the appellant, to which he pleaded not guilty and claimed to be tried.

5. The learned Trial Court thereafter examined 7 Prosecution witnesses and after examination of the appellant under Section 313 Cr.PC, came to a finding that the appellant was guilty of having killed his younger brother. The appellant was thus convicted under Section 302 IPC and sentenced accordingly.

6. The learned Amicus Curiae submits that the evidence of the cousin (PW-3) of the appellant, is to the effect that he had heard that the appellant had caused the death of his younger brother from his younger sister Manisha Gowala. However, Manisha Gowala was not made a witness by the prosecution. He also submits that while the 1st I.O (PW-7) had done the investigation, the 2nd I.O had collected the post mortem report and submitted the Charge-sheet. However, the 2nd I.O was not examined by the learned Trial Court. He also submits that the appellant was provoked by the deceased, as the evidence of PW-1 showed that the appellant had asked the deceased as to why he had assaulted their father, which was denied by the deceased and was told to ask their father about it. It was because of the provocation on the part of the deceased that the appellant stabbed his younger brother and as such, the First Exception to Section 300 IPC was attracted to this case. He also submits that as the appellant had stabbed the deceased only once, the same showed that there was no intention to cause the death of the appellant. He accordingly prays that the conviction of the appellant should be under Section 304 Part-II IPC.

7. Ms. S. Jahan, learned Addl. Public Prosecutor, on the other hand submits that the deposition of PW-1, who is the wife of the deceased and the extra judicial confession made to PW-3, which is reflected in the cross examination of PW-3, coupled with the Doctor’s evidence proves that the appellant had caused the death of the deceased. She further submits that the father of the deceased had submitted the FIR and had also taken the appellant to the Police Station.

Further, the weapon (knife) had also been seized from the possession of the appellant, when he surrendered before the Police. Thus, the above facts having proved the fact that the appellant had caused the death of the deceased, the impugned Judgment passed by the learned Trial Court should not be interfered with.

8. We have heard the learned counsels for the parties.

9. As can be seen from the Trial Court records, the FIR has been filed by the father of the appel