PATHERYA J. - (1.) THIS appeal is directed against the judgment and order of conviction and sentence dated 21st September, 2000 and 22nd September, 2000 respectively in Sessions Trial No. 3(12)/99 passed by the Additional Sessions Judge, Hooghly under Section 302 IPC. By virtue of said judgment the appellant has been sentenced to imprisonment for life and a fine of Rs. 3,000.00 in default whereof to suffer R.I. for six months. The case of the prosecution is that the appellant killed his wife on 27th January, 1999. On the same day an FIR was lodged by Sailen Mukherjee who is a seizure list witness with the Dadpur P.S. The FIR was registered and investigation initiated. On completion of investigation charge-sheet was submitted against the accused person/appellant under Section 302 IPC. Charges were framed under the section mentioned above to which the appellant pleaded "not guilty" and sought trial.
(2.) IN course of trial 11 prosecution witnesses were examined and documents exhibited. On consideration of the evidence and documents exhibited, the Additional Sessions Judge found the appellant guilty and passed the impugned order of conviction and sentence on 21st September, 2000 and 22nd September, 2000 respectively. It is against the order of conviction and sentence that this appeal has been filed. Counsel for the appellant submits that the case is not one under Section 302 IPC but is one covered by Exception 4 of Section 300 IPC. The death of the victim was the result of a fit of rage of the appellant which was not premeditated or pre-planned. The doctor attached to the medical shop where PW 2 for the first time was brought for treatment was not examined. The doctor who treated PW 2 at Chinsurah was also not examined. The only relevant evidence is that of PW 2, PW 3 and PW 4. Section 304 IPC deals with punishment for culpable homicide not amounting to murder and there was no intention of the appellant to cause the death of the victim. From the post mortem report it will appear that the victim had been hit by the blunt end of the axe first as a depression was found. It was an act done in a fit of rage and anger therefore the appellant be given the benefit of Exception 4 of Section 300 IPC and the charge be modified from Section 302 IPC to Section 304 Part II IPC and the sentence of life be reduced as held in 2011(1) CHN (Cal) 121.
(3.) IT has also not been proved by the prosecution that there was any bad blood between the accused and the victim and as held in (2006) 1 SCC (Cri) 540 the offence be altered. The act of the appellant can only be attributed to his inability to control his rage.;