The act of the appellant falls within the First Exception to Section 300 IPC, as it was done suddenly due to provocation and without premeditation or intention to kill. The charge is altered to Section 304 Part-I IPC.

JUDGMENT :

(M. Zothankhuma, J.)

1. Heard Mr. K Goswami, learned Senior Counsel and Amicus Curiae appearing for the appellant. Also heard Ms. S Jahan, learned Additional Public Prosecutor appearing for the State respondent.

2. This appeal has been filed against the impugned judgment dated 30.04.2013 passed by the learned Sessions Judge, Morigaon in Sessions Case No. 59/2008, by which the appellant has been convicted under Section 302 IPC and sentenced to undergo rigorous imprisonment for life with a fine of Rs.10,000/-, in default to undergo rigorous imprisonment for a further period of 1 (one) year. The appellant was also acquitted of the charge under Section 324 IPC.

3. The prosecution case in brief is that an FIR dated 26.07.1988 was submitted by the Informant/Prosecution Witnesses-1 (PW-1), who is the son of the deceased. In his FIR, the informant states that on 26.07.1988, when his mother went to a bamboo grove in order to cut bamboo at around 1:30 p.m., the appellant saw her and taking a spear in his hand severely injured her with the spear, which led to her death. The FIR also states that there were eyewitnesses to the crime and that the appellant thereafter fled from the place of occurrence. In pursuance to the FIR, Laharighat P.S. Case No. 135/1988 under Sections 302/326 IPC was registered. Thereafter, the Investigating Officer investigated the case and on finding a prima facie case under Sections 302/324 IPC against the appellant, the Investigating Officer submitted his charge-sheet on 28.09.1988. However, as the appellant had absconded and could not be traced, the case remained pending before the learned Trial Court. The appellant was arrested by the Police 10 (ten) years later, i.e., on 08.09.2008. Thereafter, the learned Trial Court framed charges under Sections 302/324 IPC against the appellant on 16.10.2008. In the trial proceedings, the learned Trial Court examined 6 (six) Prosecution Witnesses. Examination of the appellant was thereafter undertaken under Section 313 Cr.PC. The learned Trial Court came to a finding that the appellant was guilty of having committed the murder of the deceased and he was accordingly convicted under Section 302 IPC. However, the learned Trial Court acquitted the appellant from the charge under Section 324 IPC. Subsequent thereto, the learned Trial Court sentenced the appellant, as indicated in the earlier paragraphs.

4. The learned Amicus Curiae submits that a perusal of the evidence adduced by the learned Trial Court shows that there were eye-witnesses to the crime and that the incident had occurred due to a dispute involving ownership of a bamboo, which was claimed by the family of the deceased and the appellant as their property. He submits that one of the bamboos amongst the bamboo clump was touching an electric wire, which required an electrician of the Assam State Electricity Board to cut the said bamboo. On the said bamboo being cut, the appellant was in the process of taking the said bamboo home, which was however objected to by the deceased and her husband. Thereafter, due to a provocation that followed, involving ownership of the bamboo which had been cut, the appellant pierced the neck of the deceased with a spear, which led to the death of the deceased. He submits that Section 302 IPC is not attracted to the facts of the case, as there was no premeditation or intention to kill the deceased and the entire action had arisen out of a sudden provocation, with regard to the ownership of the cut bamboo. He submits that Exception 1 of Section 300 IPC would be attracted to the case in hand and not Section 302 IPC. He accordingly prays that the impugned judgment may be set aside and the charge under Section 302 IPC may be altered to Section 304 Part-II as Exception 1 of Section 300 IPC was applicable to the facts of the case.

5. Ms. S Jahan, learned Additional Public Prosecutor submits that it appears from the evidence on record that the appellant had acted due to provocation, as