Page No.# 1/21 GAHC030002822025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRL.A(J)/23/2025 Sh. Lolit Kumar S/o Biti (L) R/o Marpara North, Mizoram VERSUS The State of Mizoram Aizawl Advocate for the Petitioner : Mrs. H Lalmalsawmi (Amicus Curiae) Advocate for the Respondent : P.P./Addl.PP, Mizoram BEFORE HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA HON'BLE MRS. JUSTICE YARENJUNGLA LONGKUMER For the Appellant : Ms. H. Lalmalsawmi, learned Amicus Curiae For the State respondent : Ms. Linda L Fambawl, learned Public Prosecutor Date of Hearing : 22.10.2025 Date of Judgment : 30.10.2025 Page No.# 2/21 JUDGMENT & ORDER (CAV) (Y. Longkumer, J) This is a Criminal Appeal from Jail under Section 383 Code of Criminal Procedure, 1973 against the Judgment dated 11.11.2024 and sentence order dated 14.11.2024 passed by the learned Additional District and Session Judge, Aizawl Judicial District in S.R No. 90/2023 corresponding with CrL. Tr. No. 1582/2023 arising out of Marpara P.S Case No. 1/2023 dated 11.04.2023. By the Judgment dated 11.11.2024 and Sentence order dated 14.11.2024, the accused appellant has been convicted for the offence under Section 302 Indian Penal Code and he has been sentenced to undergo rigorous imprisonment for life with a fine of Rs. 50,000/- (Rupees fifty thousand) and in default, to undergo another period of 10 (ten) months rigorous imprisonment. 2. The first information report (FIR) was lodged before the O.C of Marpara police station on 11.04.2023 by one Modhu Sudhan/PW1. In the FIR it was stated that on the night of 10.04.2023 at around 10:40 PM, the informant’s sister Roma was butchered with a dao by her husband Lolit Kumar in their own residence at Marpara North. The FIR also stated that at the same time he also cut their 6 year old son Abhik Kumar on the right knee inflicting injuries. 3. On the receipt of the said information a case was registered, being Marpara police station case No. 01/2023 on 11.04.2023 under Section 302 IPC. 4. The post mortem examination on the dead body of the deceased was Page No.# 3/21 performed at the West Phaileng PHC on 11.04.2023. After completing the investigation into the case the I.O/PW-13 submitted the Charge sheet under Section 173 of the Code of Criminal Procedure, 1973, vide Charge sheet No. 01/2023 on 20.07.2023, having found a prima facie case for the offence under Section 302 IPC against the appellant/accused. 5. As the charge sheet submitted against the appellant/ accused under Section 302 IPC was exclusively triable by the Court of Sessions, the learned Committal Court, vide an order of commitment dated 17.08.2023, committed the case records to the Court of Sessions Aizawl. On 11.09.2023 the learned sessions Court appointed a defense counsel to conduct the case for the accused/appellant, as the accused expressed his inability to engage an advocate to defend his case. 6. On receipt of the case records the court of sessions registered the case as Session Registration No. 90/2023. Thereafter, the case of the prosecution was opened by the learned Additional Public Prosecutor and after hearing the learned Additional P.P and the learned defense counsel and upon perusal of the materials on record, the learned Trial Court proceeded to frame the charge under Section 302 Indian Penal Code against the accused/appellant. 7. After framing the charge, the charge was read over and explained to the accused, to which he pleaded not guilty and claimed to be tried. During the course of the trial, the prosecution examined 14 witnesses and exhibited 25 documents and one material exhibit. 8. After closure of evidence from the prosecution side, the appellant was Page No.# 4/21 examined under Section 313 CrPC. The plea of the appellant in reply to the questions put to him under Section 313 CrPC was of denial and when asked, the appellant declined to adduce any evidence in his defense. After hearing the learned counsels for the parties and after evaluation of the evidence on record, the learned Trial Court convicted and sentenced the appellant as mentioned above, on the basis of the sole evidence of PW-3, who was the minor son of the appellant and the deceased. 9. We have heard Ms. H. Lalmalsawmi, learned Amicus Curiae for the appellant and Ms. Linda L. Fambawl, the learned Public Prosecutor for the State of Mizoram. 10. Ms. H. Lalmalsawmi, learned Amicus Curiae appearing for the appellant has submitted that none of the prosecution witnesses had seen the incident. The only eye witness in this case is the PW-3/Child witness. The Learned Amicus Curiae relying on the Case of Digamber Vaishnav and Another Versus State of Chhattisgarh reported in (2019) 4 SCC 522 submits that the case of the prosecution is mainly dependent on the testimony of the child witness. The Supreme Court in Digamber Vaishnav (supra) stated that, “Section 118 of the Evidence Act governs the competence of the persons to testify which also includes a child witness. Evidence of the child witness and its credibility could depend upon the facts and circumstances of each case. There is no rule of practice that in every case the evidence of a child witness has to be corroborated by other evidence before a conviction can be allowed to stand but as a prudence, the Court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Only precaution which the Court has to bear in mind while assessing the evidence of a child witness is Page No.# 5/21 that the witness must be a reliable one”. Learned Amicus Curiae further submits that the Supreme Court held that, “evidence of a child witness must be evaluated carefully as the child may be swayed by what others tell him and he is an easy prey to tutoring. Therefore the evidence of a child witness must find adequate corroboration before it can be relied upon. It is more a rule of practical wisdom than law”. 11. The learned Amicus Curiae also submits that the appellant in his Section 164 CrPC statement stated that on the day of the incident when he entered his house, his deceased wife told him not to enter and she cut him with a knife first in two places on his leg. And that she kept plenty of knives on the bed which he was not aware of. Learned Amicus Curiae therefore submits that there was provocation by the deceased before the appellant started hitting her and therefore, at best, the accused/appellant could have been convicted under Section 304 IPC. In this regard, the Learned Amicus Curiae has relied on the case of Dauvaram Nirmalkar Vs. State of Chhattisgarh reported in (2023) 12 SCC 541. Learned Amicus Curiae submits that in the aforementioned case the deceased was addicted to alcohol and used to constantly torment, abuse and threaten the appellant/brother of deceased. On the night of the occurrence, the deceased had consumed alcohol and had told the appellant to leave the house, and if not, he would kill the appellant. There was a sudden loss of self control and on account of a ‘slow burn’ reaction followed by the final and immediate provocation, there was temporary loss of self control and therefore, the Supreme Court held that the acts of provocation on the basis of which the appellant caused the death of his brother were both sudden and grave and there was loss of self control. Applying the provision Exception No.I to Section 300 IPC, the Supreme Court converted the conviction Page No.# 6/21 of the appellant from Section 302 to part 1 of Section 301 IPC. Learned Amicus Curiae therefore submits that the present case is squarely covered by the case of Dauvaram Nirmalkar (Supra). 12. Learned Amicus Curiae has raised another new ground in the present appeal to the effect that the appellant is illiterate and does not speak the Mizo language as he is a Chakma. The appellant does not understand anything which is recorded in the Section 164 Cr.P.C statement. It is submitted that the testimony of the Magistrate/PW-10 who deposed that the appellant understood and spoke the Mizo language is false and fabricated. It is also contended that the appellant did not understand anything during the Section 313 Cr.P.C examination by the Trial Court. As the appellant could not speak the Mizo language except broken bangla (Bengali), the examination was conducted through an interpreter and the appellant could not understand clearly what was asked and recorded. 13. Learned Amicus Curiae has accordingly contended that the conviction of the appellant is not sustainable on the basis of the testimony of the lone eyewitness/PW-3, when his testimony was not corroborated by any other evidence. Learned Amicus Curiae therefore, submits that as there is no other corroborative evidence to sustain the conviction, the Impugned Judgment and Order of conviction and sentence is liable to be set aside. 14. Ms. Linda L Fambawl, learned Public Prosecutor appearing for the State respondent has contended that the death of the deceased was homicidal, as the deceased had sustained a number of grievous injuries, as brought out in the post mortem report and corroborated by the PW-3/Son of the appellant. The Page No.# 7/21 presence of PW3 in the house at the time of the incident has not been disputed and it is not denied that he witnessed the incident as a child of 6 years living with his parents at that point of time. Relying on the case of State of UP Vs. Krishna Master reported in (2010) 12 SCC 324 learned P.P submits that there is no principle of law known to the court that it is inconceivable that a child of tender age would not be able to recapitulate facts in his memory witnessed by him long ago. A child of tender age is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The learned Public Prosecutor submits that if the child understands the questions put to him and gives rational answers to those questions it can be taken that he is a competent witness to be examined. Learned Public Prosecutor therefore submits that the testimony of PW-3 is valid and admissible. Learned Public Prosecutor, relying on the case of Ramanand @ Nandlal Bharti Versus of Uttar Pradesh reported in (2023) 16 SCC 510, submits that the confessional statement made by the accused under Section 164 of the Code of Criminal Procedure, 1973, can be used to corroborate the other evidence and submits that a free and voluntary confession is deserving of highest credit, because it is presumed to flow from the highest sense of guilt.The learned PP contends that the testimony of PW-3 is therefore corroborated by the medical evidence and the confessional statement and other attending circumstances and no interference is called for in the present case, as the learned Trial Court had appreciated and evaluated the evidence in the right perspective, to return a correct finding. 15. 15. We have duly considered the submissions of the opposing parties and have also gone through the materials available in the Case Records of S.R Case No. 90/2023 in Criminal Trail No. 1582/2023 in original, including the testimony Page No.# 8/21 of the prosecution witness and the documentary evidence. 16. From the arguments advanced by the learned Amicus Curiae, it is seen that the question of admissibility of the evidence of the child witness has been raised, as the testimony of the child witness/PW-3 is the main evidence on which the learned Trial Court has reached the finding of guilt. It is therefore appropriate to refer to the evidence on record. 17. PW-1 is the informant who is the brother of the deceased. He deposed that a close neighbor of his deceased sister had called him on the phone on 10.04.2023 and told him that his sister had been assaulted by her husband inside the house by slashing her with a dao. He also deposed that his sister’s son, Abhik Kumar, 6 years old, had sustained injury on his right knee which was inflicted by his father that night. In his cross examination, he stated that a month before the incident, the accused had come to him and told him that the deceased used to sell liquor and was suspected to have affairs with another person. Therefore he called his deceased sister and advised her not to sell liquor and have extra marital affairs with others. PW-1 in his cross examination also deposed that the accused is lazy and he does not know whether he had any intention to commit murder. 18. PW-2 is the mother of the deceased. She deposed that on 10.04.2023, when she was sleeping some neighbors of her daughter came and informed her that her daughter had been assaulted by her husband in their residence by slashing her with a dao. She immediately rushed to the house of her daughter. When she reached the house she saw her daughter lying on the floor on a mattress with multiple cut injuries on her body and she was covered with blood. Page No.# 9/21 She called her name but she did not answer as she was already dead. The son of the accused and her daughter, Abhik Kumar 6 years old had sustained injury on his right knee inflicted by his father that night. On being cross examined PW- 2 deposed that her deceased daughter and the accused used to sell liquor and very often the husband and wife used to quarrel with each other which is known to the local people. PW2 also deposed in her cross examination that they had called her deceased daughter to the house of a Village Council (VC) member in the presence of family members and advised her not to sell liquor and not to allow any other people in their house in the absence of her husband. 19. PW-3 is Abhik Kumar the 6 year old son of the accused/ appellant. He deposed that: “My name is Abhik Kumar. I am six years old, I am the youngest child of the accused. After the death of my mother I live with my grandmother Shanti Loda and she looked after me. I read in KG-II at Mission School, Marpara North. On the night of the incident my father assaulted my mother by inflicting/slashing a dao on her body. While my father was assaulting my mother with a dao I went to my mother and hold her by wrapping my arms around her legs and my father slashed a dao on my right knee and blood comes out from my knee. I am scared and frightened of my father. One of our neighbor Kusi's mother took me inside their house when she heard my cry and after that they took me to the Hospital that night.” His testimony has not been rebutted by the defense. 20. PW-4 is a neighbor of the accused/appellant. She deposed that on the night of 10.04.2023 she was sleeping at home and at around 11:00 PM she was awakened by the cries of PW-3. She went outside and asked PW-3 why he was Page No.# 10/21 crying. She took PW-3 inside their house and saw that he had blood stains on his head and his clothes. When she asked PW-3 what happened to him he told her that “my father had killed my mother”. She cleaned the blood stain on his head and body and changed his clothes and saw that there was a slash wound on his knee. On being cross examined, PW-4 reiterated that PW3 had told her “my father had killed my mother.” She also reiterated that she saw a slash wound on the knee of PW-3. 21. PW-5 is also a neighbor and the husband of PW-4. PW-5 has also given a similar testimony as PW4/his wife. 22. PW-6 is the brother-in-law of the deceased. He deposed that he knew the accused and the deceased for several years and both of them used to consume liquor and quarrel with each other. He used to often advise them not to consume alcohol. On 10.04.2023, at around 10:00 PM, PW-5 contacted him on the phone and told him that the deceased was assaulted by the accused person and succumbed to her injury. 23. PW-7 is a seizure witness. He deposed that he was a witness to the seizure of 3(three) daos, one 18 inches long, one of 16 inches and another one of 20 inches. In his cross examination PW-7 deposed that the three daos were recovered from the house of the deceased and not from the possession of the accused. 24. PW-8 is the Doctor who conducted the post mortem examination. PW-8 deposed that the cause of death of the deceased was due to crushed injury of the neck and cervical bone. She found injury on the back of the neck and Page No.# 11/21 shoulder extending to the left side of the cheek. And there was a lacerated wound on the victim’s neck and back which was 20x10 cm. 25. PW-9 is the Assistant Director of FSL, Mizoram. He has deposed that: “On 21.04.2023 I received requisition from SDPO West Phaileng Sub Division Mamit requesting examination of 7 Biological Exhibits for examination in connection with Marpara P.S Case No-1/23 dated 11/04/2023 U/S 302 IPC. The exhibits were separately packed and sealed in a cardboard box. The exhibits are follows;- 1. Exhibit A- 1 Dao with suspected blood stains. 2. Exhibit A- 2 Dao with suspected bold stains. 3. Exhibit A- 3 Dao with suspected blood stains. 4. Exhibit A- 4 Half Pants (Navy Blue) with suspected blood stains. 5. Exhibit A- 5 Tee shirt (Sky blue) with suspected blood stains. 6. Exhibit A- 6 Dried blood sample of the victim, Roma-i. 7. Exhibit B-10 Liquid blood sample of the accused Lolit Kumar. After examination of the mentioned exhibits my examination results and conclusions are as follows;- Blood of Human origin were detected from the stains of Exhibits A-1, A-4 and A-5. Traces of Human blood were detected from the stains of Exhibit- A-2 and A-3 but the stains. were insufficient for DNA profiling. Page No.# 12/21 After examination and comparison of Exhibits A-1, A-4, A-5, A-6 and B-10 for DNA Profiling it was observed that the female genetic profile generated from Exhibit A- 1, A-4, A-5 matched with the Genetic profile generated from Exhibit A-6. Based on these results and Observations it was concluded that the blood stains from Exhibit A-1, A-4, A-5 were that of the victim i.e Exhibit A-6.” In his cross examination, PW-9 reiterated the statements made in his examination-in-chief. 26. PW-10 deposed that he recorded the confessional statement of the accused. He also deposed that when he recorded the confessional statement, the accused person could understand and speak the Mizo language and there was no difficulty in communication. He recorded the confession in the words as exactly as possible, as spoken by the accused. On being cross examined, PW-10 deposed that before recording the confessional statement he had given 10 to 15 minutes to the accused for reflection time. He also deposed that when he asked the accused whether he accepted the recorded confession, he did not object and he put his signature on the record. At the time of recording the confessional statement, there were no police personnel inside the court room except the accused, his typist and himself. 27. PW-11 is the I.O of the case. He deposed that during investigation, he visited the P.O and found the dead body of the victim lying on the mattress inside their bed room. He conducted inquest upon the dead body and found incised wound on her left cheek which was about 5 inches in length and also found incised wound on her left arm which was 2.6 inches in length, and another incised wound on her left shoulder 4 inches in length. During his Page No.# 13/21 examination of the P.O he also seized 3 Nos. of daos, which were suspected to have been used by the accused for commission of the offence and they were seized in the presence of 3(three) witnesses. He examined the seizure witnesses and also examined the complainant and the other witnesses. He deposed that the accused surrendered himself in the Marpara P.S and informed the Officer on Duty that he had killed his wife inside the residence. When he surrendered himself at the P.S, some blood stains were found on his wearing apparels, namely- navy blue half pants and sky blue t-shirt. The wearing apparels were seized by him in the presence of 2(two) witnesses. He also recorded the statement of the accused who admitted his guilt and who stated that he and his victim wife had an argument about their marriage and the victim often asked him to leave their house but he refused to get separated. The accused further stated that on the night of the incident, i.e. 10.04.2023, when he came back home from their neighbor’s house, his wife got angry at him and they started to quarrel. He lost control as he was furious and took a dao and slashed his wife on her head and other parts of her body multiple times. His wife died subsequently due to his assault with a dao and he immediately went to the Marapara PS and surrendered himself. In the middle of the investigation he was transferred to another Police Station and the case was handed over to PW-12 for further investigation. PW-11 proved the seizure of 3(three) daos, seizure of one knife, seizure of one navy blue half pant and one sky blue t-shirt. He also proved the inquest report and the injury report of PW-3. In his cross examination, PW-11 reaffirmed the deposition made in his examination-in-chief. He also deposed that the incident took place due to the affair between the deceased and a police personnel who was doing service at the Marpara P.S. 28. PW-12 is the second I.O of the case. PW-12 deposed that the Page No.# 14/21 confessional statement of the accused person was already recorded when he took over. He also deposed that the complainant was cross examined and his statement corroborated the FIR. PW-12 stated that the medical report of the PW-3 revealed that the nature of the injury was simple in nature. With the permission of the court, the blood sample and finger prints of the accused were drawn on 18.04.2023 and the seized articles i.e. 3(three) Nos. of daos, wearing apparels of the accused, blood samples of the victim, blood sample of the accused, prints lifted from the dao and specimens of finger prints of the accused were all forwarded to the Director FSL, New Capital Complex for DNA profiling and comparison. After he took over the instant case from the previous I.O, he examined PW-3 and recorded his statement. He also received the Post Mortem report and found that the cause of death was due to crush injuries of the neck and cervical bone. Before the investigation was completed he was also transferred out. The deposition of PW-12 in his cross examination remained the same and were not rebutted. 29. PW-13 is the third I.O of the Case. PW-13 deposed that during his investigation tenure he received the confessional statement of the accused and the FSL report. Having found a prima facie case under Section 324/302 IPC, he submitted the charge sheet against the accused/appellant. PW-13 exhibited and proved the charge sheet, the seizure of blood sample of the accused, the application to the Director FSL for examination of the exhibits, the confessional statement of the accused, the injury report of PW3 and the DNA examination report etc. 30. PW-14 is the seizure witness for collection of blood sample, and finger prints. He proved the drawal of blood samples and finger prints from the Page No.# 15/21 accused. 31. From the above narration of the testimonies of the PWs, it is seen that the case of the prosecution is entirely dependent on the testimony of the child witness and the confessional statement of the accused. PW-3 is the only eyewitness in the case. It is settled law that a child witness, if found competent to testify and found to be a reliable witness, his/her testimony could be the basis for conviction. Even in the absence of oath, the evidence of a child witness can be considered under Section 118 of the Evidence Act, subject to the rider that such child witness is able to understand the questions and able to give rational answers. The evidence of a child witness and the credibility depends upon the facts and circumstances of each case. In the case of State of Madhya Pradesh Vs. Ramesh and Another reported in (2011) 4 SCC 786, the Hon’ble Supreme Court observed that: “11. The evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross-examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The court may ascertain his suitability as a witness by putting questions to him and even if no such questions had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross-examination. A child witness must be able to understand the sanctity of giving evidence on oath and the import of the questions that were being put to him. *********************************************** 14. In view of the above, the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been Page No.# 16/21 tutored, the court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition." 32. In the case of Krishna Master (Supra), the Supreme Court held that a child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child would be able to recapitulate correctly and exactly when asked about the same in the future. In case the child explains the relevant event of the crime without improvement or embellishment, and the same inspires the confidence of the Court, his depositions do not require any corroboration whatsoever. The child at the tender age is incapable of having any malice or ill-will against any person. 33. In the case of State of Madhya Pradesh Vs. Balveer Singh, reported in 2025 INSC 561, the Hon’ble Supreme Court held that the Evidence Act does not prescribe any minimum age for a witness. 34. In view of the above principles laid down by the Supreme Court, the law on the issue is now clear that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there are no embellishments or improvements, the Court may rely on his evidence. Only in case there is evidence on record to show that the child has been tutored, the court can reject his testimony partly or fully. However an inference as to whether the child has been tutored or not can be drawn from the contents of his depositions. 35. In the backdrop of the above principles, we find that when PW-3 was examined and cross examined, he was about 6 years of age and deposed in a Page No.# 17/21 manner where from it does not appear/emerge that he was tutored. The testimony of PW-3 is found to be very clear, specific and reliable regarding the fact that he went to his mother when his father was assaulting her and wrapped his around his legs and his father slashed him with a dao on his right knee. His testimony also aligns with the medical report which is exhibit P-25. PW-3 also deposed that his father assaulted his mother by slashing her with a dao on her body and this fact has also been corroborated by the post mortem report at Exhibit P-21. Even in the cross examination the testimony of PW-3 has remained steadfast and the defence could not demolish his testimony. His testimony has inspired the confidence of this court. PW-3 is a natural eye witness, as it is completely normal for a 6 year old child to be with his parents inside their house at around 10/11 PM in the night. 36. The injuries on the dead body clearly indicate that it is a case of homicide which has resulted in the death of the deceased. What has also emerged from the evidence is that the daos and the knife were recovered at the P.O and the seizures were proved in accordance with law and corresponds with the Post mortem report. All the PWs have testified about the cut injuries on the deceased. The incident took place inside the house of the accused/appellant and there was no one else there in the house at the time of the incident except the appellant, the deceased and the PW-3. When the ocular evidence, the medical evidence and other corroborating evidence as mentioned above, are considered in its entirety, we find that the testimony of PW-3 is trustworthy, reliable and natural and it has received corroboration on all the materials points from the other oral evidence, (especially of PW-2, 4, 5, 8, 9, 11), the documentary evidence and the confessional statement of the accused. Page No.# 18/21 37. Regarding the ground taken that the accused/appellant could not understand the Mizo language it is seen that the said ground is taken for the first time in this appeal and no such plea was ever taken before the trial court. In fact the magistrate/PW-10 who recorded the confessional statement deposed that the accused/appellant understood and spoke the Mizo language. Therefore, the said ground appears to be an afterthought having no basis and is rejected. 38. Having appreciated the evidence on record as discussed above, we do not find any infirmity in the finding of the Trial Court that the prosecution has been able to prove the case beyond all reasonable doubt and that it was the appellant alone who was the perpetrator of the crime. 39. With regard to the submission of the learned Amicus that this case would be covered by Exception No.1 to Section 300 of the Indian Penal Code, it has been contended that the confessional statement of the accused/appellant under Section 164 CrPC corroborated by the evidence of PW-1, PW-2, PW-6 and PW-11 proves that the deceased and the appellant used to fight regularly due to the fact that the deceased used to sell liquor and was having an extra marital affair. Learned amicus Curiae has contended that the confessional statement of the accused/appellant shows that the deceased cut the appellant/ accused with a knife in two places on his leg and that she kept plenty of knifes on the bed about which he was not aware of. Therefore, upon this grave and sudden provocation by the deceased, the appellant lost his self control and slashed the deceased causing the death of his wife/deceased. The learned Amicus Curiae has therefore submitted that this Court may convert the conviction of the appellant from Section 302 to Section 304 part 1 IPC. Page No.# 19/21 40. This Court has evaluated the testimony of PW-1, PW-2, PW-6 and PW- 11 and it is found that the testimony of these PWs corroborate with each other to prove that the deceased used to sell liquor and had extra marital affairs, because of which she was summoned to the house of a VC member, in the presence of family members and advised not to sell liquor and not to have extra marital affairs. It is also proved by their testimony that both the appellant and the deceased used to consume alcohol and quarrel with each other. In his Sec 313 Cr.P.C statement also, the appellant/accused stated that he was drunk at the relevant time and had no knowledge about the matter, and that his wife and one police personnel used to consume alcohol and they often did not allow him to enter into his house. The above testimonies are corroborated by the confessional statement of the accused appellant wherein he stated that he drank three glasses of liquor that day and the deceased also had liquor, and they had a big fight. He also stated in his confessional statement that in the evening when he came home, when he entered the house the deceased told him not to enter and she cut him with a knife in two places on his leg. Therefore he used a blunt knife to chop her neck and he did not know how many times he cut her. The question of loss of self control by grave and sudden provocation is a question of fact. In the case of Dauvaram Nirmalkar (Supra), the Supreme Court said that, “there can be sustained and continuous provocations over a period of time, albeit in such cases Exception 1 to Section 300 of the Indian Penal Code applies when preceding the offence, there was a last act, word or gesture in the series of incidents comprising of that conduct, amounting to sudden provocation sufficient for reactive loss of self contro”. The Supreme Court has defined ‘provocation’ in the aforementioned case as “some act or series of act done by the dead man to the accused which would cause in any Page No.# 20/21 reasonable person, and actually causes in the accused, a sudden and temporary loss of self control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind”. The Apex Court also held that, “Exception 1 to Section 300 recognizes that when a reasonable person is tormented continuously, he may, at one point of time, erupt and reach a break point whereby losing self control going astray and committing the offence. However, sustained provocation principle does not do away with the requirement of immediate or the final provocative act, words or gesture, which should be verifiable. Further this defence would not be available if there is evidence of reflection or planning as they mirror exercise of calculation and premeditation”. In this context we would refer to the prosecution evidence, from where it has emerged that the deceased was addicted to alcohol and used to sell alcohol and had tormented the accused/appellant by having extra marital affairs. Hence, there was sustained provocation over a period of time before the incident. On the day of the incident, the deceased as well as the appellant had consumed alcohol and the deceased told the appellant not to enter their house and slashed him with a knife. There was therefore sudden loss of self control on the part of the appellant on account of the continued series of acts of provocation followed by the final and immediate provocation of not allowing him to enter his own house. 41. Therefore, we hold that the acts of provocation on the basis of which the appellant caused the death of his wife were both sudden and grave and there was loss of self control, thereby attracting Exception-I to Section 300 I.P.C to the facts of this case. Applying the provocation Exception, we convert the conviction of the appellant from Section 302 to Section 304 Part-1 IPC. With regard to the quantum of sentence, we are inclined to modify the sentence of Page No.# 21/21 life imprisonment to 10 (ten) years rigorous imprisonment but the fine amount and default clause is not interfered with. 42. We wish to express our appreciation on record for the services rendered Ms. H. Lalmalsawmi, learned Amicus Curiae and she is entitled to the fees as notified. 43. Having regard to the fact that the deceased had left behind a minor child at the time of her death, the concerned District Legal Service Authority is directed to award the compensation under Section 357 A CrPC/396 BNSS expeditiously, if not already released. The records of the Trial Court be sent back immediately. JUDGE JUDGE Comparing Assistant