INDRESWAR KALITA Vs. STATE OF ASSAM

JUDGEMENT

(1.) THE short point that falls for consideration in this criminal appeal is whether there was grave and sudden provocation which prompted the appellant to deal a dao blow on the deceased. A corollary question came, up for consideration is whether the accused was otherwise in proper mental frame at or about the time of the occurrence. It may be stated that the accused has not pleaded insanity as defence.

(2.) AT all relevant time the accused was aged hardly 18iety to which the appellant belongs. To us, the statement appears to be higher provocative and as a result whereof a person is more likely to lose his mental equilibrium. It was an imputation and a most degrading and humiliating statement used against none but the mother of the appellant. A mother carries a child for over 10 months, gives the child the right to see the light of the world, rears it up and to a son there can be no other human being nearer or dearer than that of the mother. The accused being human, the provocation by any standard of civilised norm must be condemned, declared and described as horrifying and awful. We have no hesitation in arriving at the conclusion that the imputation brought against the mother of the accused was not only sudden but was the gravest kind of provocation that a son can have. This is our feeling and contraction. But, what the class of persons living in village consider about the effect of the horrifying statement ? We are not to go further but to peruse the evidence of P.W. 1. Tileswar Kalita who himself states that the statement was enough to infuriate any person. It may be opinion. Opinion is not evidence. However, even if we leave that aside we do not find any evidence emanating from the prosecution that the ugly horrible and intolerable imputations were considered "decent" by the persons living in the society to which the accused belongs. We have given considerable thought over the conclusion arrived at be the learned Sessions Judge, who held that such a statement did not tantamount to grave and sudden provocation. We respectfully differ from the view of the learned Sessions Judge for the reasons alluded.

(3.) IT is undoubtedly culpable homicide as the act of giving the blow took away the life of a human being, it is not a culpable homicide amounting to murder because the accused dealt the dao blow whilst being deprived of the powers of control by grave and sudden provocation. In our opinion, the case is fully covered by the provision of Section 300, Exception I of the Indian Penal Code. We conclude that it is a case of culpable homicide riot amounting to murder, but the case falls under Section 304 Part II of the Indian penal Code. We set aside the order of conviction and sentence of the accused under Section 302 Indian Penal Code and convict him under Section 304 part II Indian Penal Code and the sentence is reduced to 6 (six) years only.