IN THE GAUHATI HIGH COURT

(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA MANIPUR, TRIPURA, MIZORAM AND

ARUNACHAL PRADESH)

CRIMINAL APPEAL NO.156 (J) OF 2005.

1. Mustt. Nigar Sultana Borah

W/O, Late Rejak Bora,

Resident of 3 No. Dagaon,

P.S. Bokakhat.

2. Mustt. Farham Sultana Borah

D/O, Late Rejak Bora,

Resident of 3 No. Dagaon,

P.S. Bokakhat.

3. Mustt. Robinaj Sultana Borah

D/O, Late Rejak Bora,

Resident of 3 No. Dagaon,

P.S. Bokakhat.

… APPELLANTS

-Versus-

State of Assam.

…RESPONDENTS

P R E S E N T

HON’BLE THE CHIEF JUSTICE

THE HON’BLE MR. JUSTICE A.C. UPADHYAY

For the appellants : Mr. I.A. Talukdar, Amicus Curiae

For the Respondent : Mr. K.A. Mazumdar, Addl. P.P.

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Date of hearing : 7.2.2012.

Date of Judgment : 25.4.2012

JUDGMENT AND ORDER

(A.C. Upadhyay, J)

1. The appellants above named were put on trial, for

alleged commission of offence under Section 302/201/34

IPC, in Sessions Case No.164/2004, in the Court of learned

Sessions Judge, Golaghat. On conclusion of the trial, the

appellants above named were convicted under Section

302/201 IPC read with Section 34 IPC and each of them

were sentenced to imprisonment for life and also to pay a

fine of Rs.2,000/- each in default to undergo RI for one year

each, for commission of offence under Section 302/34 IPC.

They were further sentenced to suffer Rigorous

Imprisonment for five (5) years and also to pay a fine of

Rs.1,000/-, each in default to undergo Rigorous

Imprisonment for six (6) months, for commission of offence

under Section 201/34 IPC.

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2. The prosecution story, in brief, is that on 9.8.2004 at

about 12 P.M. at No.3, Dagaon, under Bokakhat P.S., the

police recovered dead body of Md. Rezak Borah from the

premises of his house by digging a pit. It was alleged that

the accused above named committed the murder of Rezak,

prior to 9.8.2004 and concealed the dead body in their

premises by digging a pit, for screening themselves from

legal punishment. On receipt of the FIR to the effect

aforesaid, a case was registered by the Bokakhat Police and

investigation was launched.

3. On completion of the investigation, the Investigating

Officer submitted charge sheet against the accused

appellants named above, alleging commission of offence

under Section 120 (B)/302/201 IPC.

4. The case was committed to the Court of Session at

Golaghat for trial. During the trial, the learned Sessions

Judge framed charges under Section 302/201/34 IPC,

against the accused appellants severally and individually. On

reading over and explaining the charges aforesaid, all the

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accused-appellants pleaded not guilty and claimed to be

tried.

5. The prosecution side examined as many as 15

witnesses to establish the charges against the accused

appellants. On closing of the prosecution evidence, the

statements of the accused appellants were recorded.

Accused-appellants, namely, Must. Robinaj Sultana Borah,

in her statements under Section 313 CrPC, took the stand of

total denial and further stated that on 28.7.2004, she had

gone to Jorhat and Golaghat with one Jasmine Khan,

daughter of Md. Bipul Khan and she returned home only on

9.8.2004. Therefore, she did not know anything about the

occurrence.

However, the accused-appellant Mustt. Nigar Sultana

Borah, wife of the deceased admitted that she had buried

the dead body of her husband in the pit and further stated

that on 28.7.2004 her elder daughter accused Rabinaj had

gone to Jorhat and Golaghat with Bipul Khan’s daughter

Jasmine Khan and Rabinaj came back home only on

9.8.2004 and that she was not present at home at the time

of the incident.

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Accused Nigar Sultana stated that on 31.7.2004, at

night her deceased husband had physical relationship with

her younger daughter, Farhan Sultana Borah. When she

tried to save her, the deceased armed with Dao tried to

chop her daughter, but she could manage to snatch the Dao

and save the life of her daughter. Thereafter, the deceased

husband by taking the Dao in his hand charged at her in

order to assault her. At that she pushed him on the ground.

Then she went outside the house. After a little while, when

she came back home and enquired about her husband, she

found her husband was lying dead with blood oozing out

from his body. Therefore, by taking into consideration her

daughter’s future, both she and her daughter Farhena

dragged the dead body and buried it in the pit dug, for

keeping beetle nuts.

6. Accused appellant Mustt. Farhan Sultana Borah, in

her statement under Section 313 CrPC stated that on

28.7.2004, her elder sister accused appellant Rabinaj

Sultana had gone for traveling with Bipul Khans daughter

Jasmine and she returned only on 9.8.2004.

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Appellant Farhana, further stated that on

31.7.2004, when her father, the deceased demanded

physical relationship with her, she resisted him, but then

the deceased armed with Dao threatened her. At that,

her mother snatched the Dao from the deceased.

Thereafter, the deceased father once again charged at her

mother taking the Dao in his hand, in order to cut her.

Then, her mother pushed the deceased with force and went

outside. Sometime, after that they found that father had

already died. After the death of her father, they dug the pit

outside the house and buried the dead body.

7. The accused-appellants did not adduce any evidence

in defence. Jasmine was also not examined, to prima-facie

prove the plea of alibi. On conclusion of the trial, learned

Sessions Judge, convicted and sentenced the accused-

appellants as aforesaid giving rise to this appeal.

8. Mr. I.A. Talukdar, learned counsel for the appellants

submitted that the accused-appellants in their statement

under Section 313 CrPC admitted the commission of

offence. However, the offence was committed by the

accused-appellants, when the deceased had tried to molest

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his own daughter, therefore the accused persons deserve

to be leniently dealt with.

9. Learned counsel for the appellants pointed out that

when family members of the deceased themselves had

killed the head of the family, it could not have been without

reasons. If the statement given by the accused-appellants is

to be believed then the deceased was killed by the accused-

appellants in order to save their own life, as they were

challenged by the deceased with a Dao in his hand. Learned

counsel for the appellants submitted that in the peculiar

facts and circumstances of the case, the accused-appellants

deserve to be leniently dealt with.

10. Mr. K.A. Mazumdar, learned Addl. P.P. on the other

hand submitted that the accused appellants committed the

murder cool bloodedly and buried the dead body in the

premises in order to cause dis-appearance of evidence and

to screen the offender. Learned counsel pointed out that if

such was the reason for causing death of the deceased ,

the accused should have come forward to prima-facie

prove establish such a plea . According to, learned counsel

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for the State respondent, defence plea is nothing but an

afterthought to gain sympathy of the Court.

11. In order to appreciate the argument advanced by the

learned counsel for the appellants, as well as the

respondent-State, it would be apposite to discuss herein

below the core of the prosecution evidence.

12. Dr. Aboni Kumar Barthakur, (P.W10) carried out the

post mortem examination of the deceased Md. Rezak Borah

and found the following injuries –

External appearance :

Wearing a white Pyjama covered with soil. Body is grossly swollen. Skin is pilled off from the body except over the area covered by Pyjama. Sockets of the eye balls are empty due to putrefactive changes. Hair present at the temporal region 1” in length, grey colour partly, otherwise appears bold, Rigormotis absent. Very foul smell emanated from the body. Injuries : Incised cut over the left side of the neck, injuries. 1. Incised cut over the left side of the neck, 10 cm x 4

cm x bone deep with fracture of left clavicle. The muscles over the left side of the neck and vessels cut over the injury.

2. Incised cut over the left shoulder joint, 2.5 cm x

1.5 cm x muscle deep.

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3. 3.4 incised cuts over the left arm each 2.5 cm x 1.5 cm x muscle deep.

4. Incised cut over left elbow lateral aspect, 3 cm x

2cm x muscle deep.

5. Incised cut over the left wrist ulna border that cuts through half the girth of the wrist. Two carpet bones are cut through.

6. Incised cut over the sternum, 2.5 cm x 1 cm x

bone deep.

7. Incised cut over the left foot dorsal aspect two in numbers, each 2.5 cm x 1 cm x bone deep. One of these also cuts through three middle metatarsal bones at the dossal aspect.

8. Incised cut over parietal area of head, 3 cm x 1 cm

x bone deep. The left parietal bone is also cut underneath with the formation of gap of 1.25 x 2.5 cm. There is laceration of meanings over this.

9. The brain is liquefied into a dark colour jelly like

other organs are healthy.

All the injuries described are antemortem. The injury No.1 is caused by heavy sharp weapon. The injury NO.1,7 and 8 are grievous in nature. Time since death within about 10 days.” Opinion Death in this case was due to shock and haemorrhage as a result of multiple injuries sustained by the deceased .

13. PW-1, Md. Mukul Khan, who is a Tailor by profession

knew both the accused-appellants as well as the deceased,

as their neighbour. On 10.8.2004, when P.W.1 was in the

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Tailoring Shop at Bokakhat Chariali, at about 2 P.M. he got

the information that one dead body was recovered in the

premises of the accused appellants by digging a pit. P.W.1

stated that he could identify the dead body of Md. Rajak

Borah, the husband and father of the accused appellant

respectively. PW-1 also signed the inquest report exhibit-1,

as a witness. PW-1 further stated in his deposition that

when he had enquired accused-appellant Nigar sultana

about the deceased, a few days prior to recovery of dead

body, he was informed by the accused-appellant that the

deceased had gone to Sibsagar. Thereafter, he saw the

dead body of the deceased in his own premises. PW-2, who

is a mason by profession, knew both accused-appellants, as

well as the deceased. PW-2 also corroborated the testimony

of PW-1 regarding the recovery of dead body from the

premises of the deceased.

14. PW-3, Dr. Niren Kakaty was M&H.O., Bokakhat

Hospital on 9.8.2004. On that day, as per the direction of

Sub Divisional Medical Officer, PW-3 visited the residence of

accused Nigar Sultana at Dagaon along with the Officer-in-

Charge of Bokakhat Police Station. According to PW-3, the

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decomposed dead body was dug out in his presence.

Accused-appellant Nigar Sultana acknowledged the dead

body, to be of her husband. PW-3, saw mark of injury on

the neck, head and in the hand of the deceased. The body

was kept tied with a rope. PW-3 stated to have signed the

inquest report prepared by the Police Officer.

PW-4, Dr. Syed Tabique Hussain, who was

also posted at Bokakhat CHC, happened to accompany Dr.

Niren Kakaty, PW-3, to the place of occurrence. PW-4 also

corroborated the testimony of PW-3. Md. Matiur Rahman

PW-5, deposed that the deceased as well as the accused

appellants were his neighbours. During the time of

occurrence when he did not see the deceased Rejek Bora in

his shop, he asked accused Nigar Sultana as to whether the

accused had gone. She replied to PW-5 that the deceased

had gone to see his mother. PW-5 did not see the deceased

for about 6 to 7 days in his shop. Thereafter, one day he

heard that the police discovered the dead body of the

deceased in the premises of the accused-appellant. He

came to the place from where the dead body was dug out.

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PW-5 stated that all the accused-appellants identified the

dead body.

15. PW-6, Sri Liladhar Mirdha, a daily labourer by

profession, was engaged by accused-appellant Nigar

Sultana to dig a pit to keep beetle nuts. Accordingly, as per

instruction of accused Nigar Sultana, P.W.6, dug a pit of the

sized of 5 ft. long 3 ft. wide and 2 and 1/2ft deep for

putting beetle nuts. But according to PW-6 after he had dug

the pit, no beetle nut was put in it in his presence. PW-7,

Shri Chandan Tanti and PW-8, Shri Debraj Tanti, a Municipal

Sweeper, deposed to have dug the pit as directed by the

police and stated to have found a dead body of a male

person in the pit. PW-12, Md. Ohid Rahman, PW-13 and

PW-14 deposed that the police took them to the house of

the accused-appellant in connection with the murder case of

Rajek Bora. The aforesaid witnesses further stated that the

police seized one Dao and one axe in his presence. On

being produced by accused Nigar Sultana, the witness also

identified material exhibits in the Court.

16. On careful scrutiny of the entire evidence on record as

discussed above, vis-à-vis, the statement of the accused

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recorded under Section 313 CrPC, it appears that there was

no eye witness to the occurrence and the entire prosecution

story rest on circumstantial evidence coupled with the

admission of the accused appellants in the statement under

Section 313 CrPC.

17. In Hanumant Govind Nargundkar and

Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343),

the Apex Court observed thus:

"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such s to show that within all human probability the act must have been done by the accused."

18. A reference may be made to a later decision in

Sharad Birdhichand Sarda v. State of

Maharashtra, (AIR 1984 SC 1622). Therein, while

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dealing with circumstantial evidence, it has been held that

onus was on the prosecution to prove that the chain is

complete, and the infirmity of lacuna in prosecution cannot

be cured by false defence plea. In the words of the Apex

Court the following conditions precedents, must be fully

established, before conviction could be based on

circumstantial evidence they are:

(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned `must' or `should' and not `may be' established;

(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(iii) the circumstances should be of a conclusive nature and tendency; they should exclude every possible hypothesis except the one to be proved; and

(iv) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

19. These aspects were also highlighted in State of

Rajasthan v. Raja Ram (2003 (8) SCC 180), State of

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Haryana v. Jagbir Singh and Anr. (2003 (11) SCC

261) and Kusuma Ankama Rao v State of A.P.

(2008) 13 SCC 257.

20. Keeping in view the principle laid down by the

Hon’ble Supreme Court in the aforesaid decision it will have

to been seen whether the prosecution has been able to

establish the charges against the accused appellants beyond

all reasonable doubts, on the basis of the circumstantial

evidence. In the present case, the prosecution could prove

the following circumstances against the accused-appellant.

They are as follows –

1) That the deceased Md. Rezak Borah, is the husband of

accused-appellant Mustt. Nigar Sultana Borah and

father of accused Mustt. Farhan Sultana Borah and

Md. Robinaj Sultana Borah died due to shock and

hemorrhage as a result of multiple injuries sustained

by him.

2) That the dead body of Rezak Borah was kept

concealed by digging a pit in the campus of the house

of the accused-appellant. The dead body of the

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deceased was identified by the accused appellants as

well as the local villagers after it was exhumed from

the pit.

3) The dead body was discovered by police by digging

earth on 9.8.2004 in presence of the witnesses and the

accused appellants.

4) That the accused appellant had dug the pit by

engaging labouer Liladhar Mirdha (PW-6) inside the

campus of her residence prior to the recovery of the

dead body.

5) The neighbouring witnesses namely PW-1, 2 and 5 did

not see the deceased in his shop house prior to the

date of recovery of the dead body.

6) On enquiry made by the witnesses about the

deceased, accused wife Mustt. Nigar Sultana Borah

falsely informed them that deceased had gone at

Sibsagar to see his mother.

7) The deceased was found missing from the house for

about 8 to 15 days prior to the recovery of the dead

body.

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8) The weapons of offence i.e. axe and Dao were seized

by police on being on being produced by the accused

Mustt. Nigar Sultana Borah.

9) Appellant Nigar Sultana Borah and accused /appellant

Farhana admitted in her statement under section 313

of Cr.P.C. that the death of her husband inside the

house and concealment of the dead body in the pit

dug for keeping the beetle nut with.

10) Multiple grievous injuries caused by sharp

weapon were found on the dead body of the

deceased.

21. From the above circumstances, it clearly transpires

that the accused-appellant above named could not discredit

the testimony of prosecution witness, nor adduced any

evidence to support their stand. In the statement recorded

under Section 313 Cr.P.C, the accused Mustt. Nigar Sultana

Borah stated that her daughter, Mustt. Robinaj Sultana

Borah was not at her residence at the time of occurrence.

She stated that on the night of 31.7.2004, accused under

the influence of alcohol established physical relationship

with her younger daughter accused Farhana. In such a

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situation, when she tried to save her, the deceased caught

the neck of her daughter and threatened with dire

consequences by flaunting Dao. According to the accused-

appellant, Nigar Sultana , she somehow managed to snatch

away the Dao from the hands of the deceased by following

him. At that accused, Nigar Sultana Borah, admitted to have

pushed the deceased away after which the deceased fell

down on the ground and she came out from her room.

After sometime when she came inside the room her

husband was found dead and blood was coming out.

Therefore, thinking about the future of her daughters

accused admittedly buried the dead body in the pit dug by

the labourer, inside the premises, for the purpose of

keeping beetle nuts .

22. Though, a plea of alibi was raised on

behalf of the accused-appellant, Must. Robinaj

Sultana Borah and the accused-appellant in their

statement tried to establish that the death of Rezak

Borah was an accidental one. But the accused-

appellant could not prima-facie show as to how the

deceased sustained multiple injuries on vital parts of

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his body. The injuries sustained by the deceased

could not have been caused by single fall on the

ground, as sought to be established by the accused-

appellant. As a matter of fact, motive behind the

commission of crime is an essential ingredients of

criminal charge. It is pertinent to mention that

motive is not sine-qua-non, for the commission of

crime. Motive behind the crime is not known to any

other person except the person committing the

crime. However, motive for commission of an

offence become in-consequential when there is

direct and clinching evidence in respect of the

commission of offence by the accused.

23.. The Apex Court in the case of Dilip Kumar Sarma

Vs. State of Madhya Pradesh reported in AIR 1976

SC 133 held as follows: –

“Motiveless murders are not necessarily acts of mad and unhinged people. Prosecution is often unable to collect satisfactory evidence on the motive behind the crime. That does not call for any leniency and indeed where this is so, criminals would prefer, in order to reduce the gravity of their acts, to suppress the motive leading to the crime.”

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24. Further, in the case of Datar Singh Vs.

State of Punjab, reported in AIR 1974 SC 1193, the

Hon’ble Apex Court again held as under –

“If the eye witnesses are relied upon, the mere absence of a strong motive for committing murder or the mode of its commission is of no assistance to the accused.”

25. Now question is whether the plea of alibi as tried to

be postulated by the accused in their defence statement can

be accepted to exonerate the accused Farhana.

26. The accused Farhana pleaded alibi to

improbablise her physical presence at the site of

occurrence. Except, for making a bald assertion

about her absence from her house, the appellant

miserably failed to examine witness before

whom she may have gone to a distant location. She

examined nobody, who could have seen her in the in

the distant location on the date of the incident.

Therefore, the trial court concluded that this plea

of being away from the rented premises at the

relevant time was concocted.

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27. Undeniably, the burden of establishing the

plea of alibi lay upon the appellant. The appellant

herein has miserably failed to bring on record any

facts or circumstances, which would make the plea

of his absence even probable, let alone, being

proved beyond reasonable doubt. The plea of alibi

had to be proved with absolute certainty, so as to

completely exclude the possibility of the presence of

the appellant in her house at the relevant time.

When a plea of alibi is raised by an accused, it is for

the accused to establish the said plea by positive

evidence which is visibly missing in the present

case. (See Shaikh Sattar v. State of

Maharashtra, (2010) 8 SCC 430.

28. The trial court thoroughly scrutinized the

circumstantial evidence to exclude the possibility of

the innocence of the appellants. Accused Farhana

was admittedly living together with other accused

persons. Apparently failure of the accused appellant

to prove the plea of alibi would automatically bring

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her together with other accused person, who

committed the crime.

29. It is now well-settled that with a view

to base a conviction on circumstantial evidence,

the prosecution must establish all the pieces of

incriminating circumstances by reliable and

clinching evidence and the circumstances so

proved must form such a chain of events as would

permit no conclusion other than one of guilt of the

accused. The circumstances cannot be on any

other hypothesis. It is also well-settled that

suspicion, however, grave may be, cannot be a

substitute for a proof and the courts shall take

utmost precaution in finding an accused guilty only

on the basis of the circumstantial evidence.

30. The last-seen theory, furthermore,

comes into play, where the time gap between the

point of time when the accused persons and the

deceased were last seen alive and the deceased is

found dead is so small that possibility of any

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person other than the accused being the author of

the crime becomes impossible. Even in such a case

courts should look for some corroboration.

31. However, in the present case, the accused

appellants were seen by many people, together

with the deceased. More so, the deceased was

admittedly residing together with the accused

appellants in the same house. The appellants

admitted such fact of being together with the

deceased just before his death. It has been proved

that the deceased had sustained severe injuries, on

his person; as a result of he died, in their presence.

In such circumstances, it is obligatory on the part of

the accused to come forward to explain reasons

for causing of such injuries. In the present case, the

appellants came forward to explain the reasons for

causing death of the deceased and his subsequent

burial within the premises.

32. Since the case of the prosecution rests

purely on circumstantial evidence, the trial court

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examined all the material circumstances as

discussed above and proved beyond reasonable

doubt the death of the deceased in the hands of

the appellants and his burial within his own

premises. We see no reason to disagree with the

conclusion arrived at by the trial court.

33. However, the appellants in their statement under

Section 313 CrPC, admitted the death of the deceased after

a brief scuffle and subsequent concealing of the dead body

in a pit dug inside the premises. The appellants emphatically

stated that the deceased had made an attempt to commit

rape on his own daughter. And the deceased, who was

holding deadly weapon had to be prevented by the

appellants from committing the heinous offence.

Thus in the peculiar facts and circumstances of the

case it is required to be examined as to whether the

deceased was done to death by accused-appellants on

account of grave and sudden provocation, for advancing

to commit heinous offence of rape upon his own daughter

in presence of his wife . In normal circumstances, the

deceased, father of two grown up daughters , who was

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regularly earning from his vocation would not have met

the fate of being killed by his own family members had

there been no incident, as alleged by the appellant wife. As

admitted by the accused appellants in no other

circumstances, a wife would have killed her dear husband in

presence of her grown-up daughters.

34. The accused appellant-wife disclosed that ,

the deceased in an inebriated state aggressively lurched to

commit heinous offence of rape upon his own daughter in

her presence. Obviously, such episode would have the

potential to trigger sudden emotional outburst , which led

to deep and sudden provocation to stop the accused from

committing such heinous crime. As a matter of fact culpable

homicide is not murder, if it is committed without

premeditation in a sudden heat of passion upon or on

sudden quarrel.

35. In Mohammedd. Asif Vs. State of Uttaranchal

reported in (2009) 11 SCC 497, the Apex Court

observed in para 25 and 26 as follows –

25. The question with regard to finding out the intention on the part of the accused to cause death depends upon the facts and circumstances of each case. No hard-and-fast rule can be laid down therefore.

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26. Section 300 of the Code provides that subject to the exceptions contained therein culpable homicide would be murder if the act by which the death is caused is done with the intention of causing death. Exception 1 thereto providing for a situation when culpable homicide is not murder. In terms of Exception 1:

“Exception 1.—When culpable homicide is not murder.—Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.”

The said provision is, however, subject to the following provisos:

“First.—That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly.—That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

Thirdly.—That the provocation is not given by anything done in the lawful exercise of the right of private defence.”

The Explanation appended thereto states that:

“Explanation.—Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.”

36. There is no standard of a reasonable man for the

application of the doctrine of "grave and sudden"

provocation. It may not be possible to formulate

reasonableness of a man. Behaviour of a reasonable man

depends upon his education, upbringing, customs, manners,

way of life, traditional values etc. Influence of ethnic,

societal and emotional background on the reasonable man

cannot be ruled out. ‘In our vast country there are social

groups ranging from the lowest to the highest state of

civilization. It is neither possible nor desirable to lay down

27

any standard with precision: it is for the court to decide in

each case, having regard to the relevant circumstances.’

In K.M. Nanavati v. State of Maharashtra, 1962 Supp (1) SCR 567 the Apex Court observed as follows:

The Indian law, relevant to the present enquiry, may be stated thus: (1) The test of “grave and sudden” provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the First Exception to Section 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise

giving room and scope for premeditation and calculation.

38. On careful analysis of the facts and

circumstances we find that the dead body of the deceased

was recovered in a decomposed state after several days, in

a pit situated within their own premises. There were no eye

witnesses to the occurrence. Apparently, there was no deep

rooted motive to commit murder of the deceased. It

appears that the incident occurred suddenly, when the

deceased in an inebriated state attempted to rape his own

daughter in presence of his own wife which provoked the

accused wife so much as to lose her self-control.

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39. When the deceased wanted to lead an immoral

life with his own grown up daughter and his wife, the

accused, reproached him, while the deceased instead of

being remorseful, defying everyone in the family, wanted to

continue his scornful act. And the accused wife , being

enraged assaulted the deceased . As result of which the

deceased was killed. Apparently the fatal assault can be

clearly traced to the influence of passion arising from that

provocation and not after the passion had cooled down by

lapse of time, or otherwise giving room and scope for

premeditation and calculation. The immediate provocation

was sufficient to bring the case within the first exception to

s. 300 of the Indian Penal Code.

40. In the present case in our view, while

adjudging the behaviour of the accused, we cannot confine

to the actual moment, when the blow, which ultimately

proved to be fatal was struck, but also take into

consideration the event which took place immediately

before the fatal attack. The whole unfortunate affair must

have triggered agony and hatred on the part of the wife

and children, which must have provoked the accused wife

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so much, as to lose her self-control, which must have led to

the assault upon the deceased, resulting in his death. Under

these circumstances we think that the provocation would be

both grave and sudden. The fact that the accused wife had

seen the attempt of the deceased to continue illicit

closeness with his daughter could certainly give her a

mental shock all of a sudden, it should be deemed to have

given her a grave and sudden provocation

41 The overt act on the part of the deceased,

which instigated provocation to the mother of the victim as

well as the accused victim, was surely grave and sudden.

Neither the provocation was sought for by the accused

appellants, nor got the provocation triggered by any lawful

action of the deceased.

42. After giving thoughtful consideration on the

entire gamut of facts leading to the occurrence, we find that

the present case would fall within the scope of exception to

Section 300 IPC and accordingly the appellant would be

entitled to claim that the offence should be punishable

under Section 304 Pt-II IPC.

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43. For the foregoing reasons, the appeal is partly

allowed. The conviction of the appellants under Section 302

r/w 34 IPC is altered to one under Section 304 Part II of

IPC. Consequently, the sentence of life imprisonment

awarded to the appellants is set aside and they are

sentenced to rigorous imprisonment for the period they

have already undergone, in the meantime. But, the

conviction and sentence imposed for commission of offence

under section 201/ 34 IPC, against the appellants are

confirmed, however, considering the facts and

circumstances discussed above, they are sentenced to

rigorous imprisonment, for the period they have already

undergone, in the meantime.

44. With the above modification in the conviction of the

accused-appellants the appeal shall stand disposed of.

45. Let the accused-appellants be released forthwith

unless they are required to be detained in connection with

any other case.

46. For the services rendered by Mr. I.A.

Talukdar , learned Amicus Curiae, we direct the

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Assam State Legal Services Authority to remunerate

him to the extent of Rs.3,500/-.

47. Send back the L. C. Records along with a copy of

this judgment.

JUDGE CHIEF JUSTICE

TDR

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