The court emphasized that the intensity of the attack and the proportionality of the response to alleged provocation are crucial in determining the applicability of provocation as a defense in murder cases.

JUDGMENT :

(M. Zothankhuma, J.)

1. Heard Mr. N. Hasan, learned Amicus Curiae for the appellant. Also heard Ms. B. Bhuyan, learned Additional Public Prosecutor for the State.

2. This appeal has been filed against the impugned judgment dated 15.03.2019 passed by the Court of the Sessions Judge, Tinsukia in Sessions Case No.86(T)/2016, by which the appellant has been convicted under Section 302 IPC and sentenced to undergo rigorous imprisonment for life with a fine of Rs.25,000/-, in default to suffer imprisonment for 3 (three) months.

3. The prosecution case in brief is that the appellant had surrendered before the Tongona Police Station on 31.12.2015 along with the severed head of his aunt and a dao (long knife), which was used by him to severe the head of the deceased. An FIR dated 01.01.2016 was submitted by PW-2, who is the husband of the deceased to the Officer-in-charge, Tongana Police Station. In the FIR it was stated that around 7 p.m. on 31.12.2015, the appellant had killed PW-2’s wife Anita Praja, by slitting her throat with a sharp weapon. Consequent to the FIR, Tongana P.S. Case No.01/2016 under Section 302 IPC was registered.

4. PW-12 was made the Investigating Officer (IO) and after investigation and interrogation of various persons, the IO filed a charge-sheet, on finding a prima facie case under Section 302 IPC against the appellant. Charge was thereafter framed by the learned Trial Court under Section 302 IPC against the appellant, to which he pleaded not guilty and claimed to be tried.

5. The learned Trial Court examined 13 (thirteen) prosecution witnesses during trial. The appellant was thereafter examined under Section 313 Cr.P.C and the learned Trial Court passed the impugned judgment dated 15.03.2019, on coming to a finding that the appellant was guilty of having killed his aunt with a dao. The appellant was accordingly convicted and sentenced in terms of the impugned judgment dated 15.03.2019.

6. The learned Amicus Curiae for the appellant submits that due to the fact that the appellant had surrendered before the police with the severed head and the dao, with which he severed the head of the deceased, coupled with the fact that there was an eyewitness to the crime and the admission by the appellant in his examination under Section 313 Cr.P.C that he had committed the crime, the fact that the appellant was the cause of death of his aunt was proved. However, the evidence also shows that the reason for the appellant taking the life of his aunt was due to the abuse and scolding suffered by the appellant from his deceased aunt. He accordingly submits that as there was provocation on the part of the deceased against the appellant, the conviction of the appellant may be altered to conviction under Section 304 Part-II from Section 302 IPC.

7. Ms. B. Bhuyan, learned Additional Public Prosecutor, on the other hand submits that the evidence clearly proved that the appellant had killed his aunt. Further, the abuse/scolding given by the deceased to the appellant, would not justify the appellant’s act in killing his aunt and subsequently severing her head from her body. The daughter of the deceased was an eyewitness to the crime and as the appellant, by his action and words, had admitted to the crime in question, the impugned judgment should not be interfered with.

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

9. As can be seen from the evidence adduced by the prosecution witnesses and especially the eyewitness (PW-3), the appellant had first entered the house of the deceased on the night of 30.12.2015. However, he was caught entering the house by the deceased, her daughter (PW-3) and the son of the deceased. Thereafter, the appellant had again come to the house of the deceased on the next day, i.e. 31.12.2015 and severed the head of the mother of the PW-3 with a dao. The appellant had thereafter taken the severed head and the dao to the police station, where he surrendered himself. The police seized the dao th