The court confirmed that repeated and severe assaults infer intent to kill, regardless of claimed provocation, thus upholding a murder conviction.

JUDGMENT

Meenakshi Madan Rai, J. - This Appeal assails the Judgment and Order on Sentence, dated 26-10-2021 and 28-10-2021 respectively, of the Learned Sessions Court, West Sikkim, at Gyalshing, in Sessions Trial Case No.01 of 2020.

2. The Appellant on 04-01-2020, having caused the death of his wife by assaulting her with a stone on her head, at Ramgaythang, West Sikkim, surrendered before the In-Charge, Yuksom Police Outpost, West Sikkim at around 1.40 p.m. and informed P.W. 3, the Assistant Sub-Inspector of Police (ASI), of the incident. P.W. 3 immediately took him into custody and reported the incident to P.W. 17, the Station House Officer (SHO), Gyalshing Police Station, who directed him to file a Report. P.W. 3 accordingly lodged Exhibit 7 at the Gyalshing Police Station at around 3.00 p.m. Gyalshing Police Station, Case No.01/2020, dated 04-01-2020, under Section 302 of the INDIAN PENAL CODE , 1860 (hereinafter, the 'IPC'), was then registered against the Accused/Appellant. P.W. 7 took up for the investigation and submitted Charge-Sheet against the Appellant under Section 302 of the IPC and Supplementary Charge-Sheet containing the Forensic Report.

3(i). The Appellant pleaded 'not guilty' to the Charge under Section 302 of the IPC before the Learned Trial Court which led to the Prosecution examining seventeen witnesses to establish their case. The Appellant was afforded an opportunity to explain the incriminating evidence against him under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter, the 'Cr.P.C'), where he denied having gone to the Yuksom Police Outpost, West Sikkim, but did not deny the evidence that appeared against him. Pursuant to the final arguments of the parties, the Learned Trial Court on consideration of the entire evidence, convicted the Appellant under Section 302 of the IPC and Sentenced him to undergo life imprisonment and to pay a fine of Rs.10,000/- (Rupees ten thousand) only.

(ii) Assailing the Judgment of conviction under Section 302 of the IPC, Learned Counsel for the Appellant submitted that the offence committed by the Appellant falls within the ambit of Section 304 PART I I of the IPC and not under Section 302 of the IPC. That, mens rea which constitutes an essential element in an offence under Section 302 of the IPC was lacking when the incident occurred, on the spur of the moment, due to grave and sudden provocation meted out by the victim to the Appellant. The incident was not premeditated therefore taking it out of the ambit of Sections 300 and penalty under Section 302 of the IPC. That, the statement of the Appellant under Section 27 of the Indian EVIDENCE ACT , 1872 (hereinafter, the 'Evidence' Act) was correctly disregarded by the Learned Trial Court for the reason that P.W. 11 one of the witnesses to the Disclosure statement, Exhibit 16 failed to prove that it was made in his presence. That, the Appellant has no criminal antecedents and the incarceration of the Appellant is in fact penalising his child who was two years old at the time of the incident is now in foster care, devoid of the care and affection of his father.

(iii) Relying on the ratio of Kusha Laxman Waghmare v. State of Maharashtra (2014) 10 SCC 298, it was urged that the Hon'ble Supreme Court while considering a matter in which the Appellant had assaulted and killed his wife with a wooden stick, on analysing the entire evidence was of the view that it was not a fit case where conviction could be sustained under Section 302 of the IPC, as there was no cogent evidence to show that the Appellant had beaten the deceased with an intention to cause her death. That, in such circumstances, the conviction of the Appellant under Section 304 PART I I of the IPC was held to be just and proper. That, in Yatendrasingh Ajabsingh Chauhan v. The State of Maharashtra Criminal Appeal No.822 of 2018 decided on 04-08-2022 by the SCI : 2022 LiveLaw (SC) 664, the Appellant was working as a security guard in the bungalow of a