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Showing contexts for: sudden provocation in Bhagirath vs The State Of Madhya Pradesh on 7 February, 2019Matching Fragments
We have heard Shri Toufiq Warsi, learned counsel for the appellant & Shri Saurabh Shrivastava, learned Govt. Advocate for the respondent/State.
Shri Toufiq Warsi, learned counsel for the appellant argued that the learned trial Court has wrongly convicted the appellant under Section 302 of IPC. It was at the most the case of Section 304 Part 2 of the IPC as the appellant under the sudden provocation and doubt over the character of his wife gave a single blow on her head and due to which she died. There is no evidence to the effect that she died due to strangulation in the neck. The appellant has already undergone 10 years jail sentence, therefore, it is a fit case for converting Section 302 of IPC to Section 304, Part 2 of IPC and reduction of sentence upto 10 years with fine.
Shri Saurabh Shrivastava, learned Govt. Advocate for the respondent/State submitted that the appellant himself has admitted his sin that he killed his wife and kept the dead body inside a box. There is no evidence to the effect that the incident occurred due to sudden provocation. He killed his wife because he was having doubt over her character , therefore, learned Court has rightly convicted him under Section 302 of IPC.
That according to PW1 who is brother of the appellant, the appellant used to create doubt over the character of the deceased and he used to assault her. PW2 i.e. the son of the appellant viz Vinod has also stated that his father and mother used to quarrel regularly and he used to intervene between their dispute. Except these two witnesses, prosecution examined two witnesses to prove seizure of articles. As per the doctor's opinion, Shanti Bai died due to head injury and there is no challenge to the finding recorded by the learned trial Court in respect of death of the accused, therefore, it is not necessary for us to reconsider the same again. Hence the findings in regards to the cause of death are affirms .
Although, this fact is missing in the FIR, but as the appellant has given a single blow on the head of the deceased and due to which she died, therefore, it can safely be held that it was due to sudden provocation as he saw his wife alongwith another man in the house. The assault on the deceased in absence of intention to cause death could was due to sudden fight without premeditation, in the heat of passion and upon a sudden quarrel. We find support to our aforesaid view from the following judgements passed by the Apex Court as well as by this Court:
The Hon'ble Supreme Court has laid down in Prab- hakar Vithal Gholve v. State of Maharashtra, AIR 2016 SC 2292 that if assault on deceased could be said to be on account of sudden fight without pre-meditation, in heat of passion and upon a sudden quarrel, Conviction of the ap- pellant cannot be sustained under S. 302 and altered to one under Section 304 part-I of IPC. Relevant para 7 of the judgment reads thus:
"7. In the facts and circumstances noted above, there appears merit in the submission advanced by learned counsel for the appellant that in view of Exception 1 or Exception 4 in Section 300 of the IPC the case made out against the appellant is that of culpable homicide not amounting to murder. It would be natural for the family members of juvenile offender Balu on hearing his cries, to rush for his help and when injury on the appellant has also been proved there is sufficient material to infer the reasonable possibility of a grave and sudden provocation. The assault on the deceased, in absence of intention to cause death could be on account of sudden fight without pre-meditation, in the heat of passion and upon a sudden quarrel. We therefore feel persuaded to and do set aside the conviction of the appellant under Section 302 IPC and substitute the same with conviction under Section 304 Part I of the IPC. The certificate of imprisonment available on record discloses that the appellant has by now undergone more than 12 years of actual imprisonment. The aforesaid period, in our estimate is sufficient to meet the ends of justice. Hence the sentence of imprisonment for life is reduced to imprisonment for the period already undergone by the appellant. In view of such modification in the sentence, the appellant is directed to be released from custody forthwith if not required to be kept in custody in connection with any other criminal case. The appeal stands allowed to the aforesaid extent."