K. Lahiri, J.
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 18 to 19 years. We find the background of the accused from the evidence of P. W. 4 Malati Bora who states that the accused had a fit of insanity or mental derangement about 2 or 3 years prior to the incident for which finding no other alternative the accused had to be sent to jail and kept in confinement for about 5 months. This background is pictured by the prosecution itself. The allegation against the accused is that he dealt a dao blow on his sister-in-law (elder brother's wife) on 22-11-1975 at about 9.30 A. M. 'Dao' is a common implement used by all and sundry in the State. The appellant was to go out for work and before doing so requested his sister-in-law Kusum Kalita to give him a tea to stimulate him. Instead of a warm pot of tea he was accosted in a very filthy, humiliating and insulting manner bringing dishonour to his mother and upon himself. It is the prosecution case that Kusum sarcastically insulted the accused and his mother by stating that the accused's mother was his wife and to ask tea from her. It is the prosecution story emanating from the evidence of P. W. 1 Tileswar Kalita as well as P. W. 2 Susen Kalita. This is also clear-cut honest statement of the accused when examined in Court. He took upon himself the responsibility and liability of inflicting dao blow on his sister-in-law in view of the atrocious utterances which, according to the accused, gave him grave sudden provocation. Therefore, it is the common story of the accused as well as the prosecution that the blow was given by no other person but the appellant. Now, the only crucial question is whether the utterances could shake the normal bearing of a normal human being living in the Society to which the appellant belongs. The humiliating utterances made by the deceased must be tested by the standard of the society to which the appellant belongs. To us, the statement appears. to be highly provocative and as a result) hereof 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 nearer or dearer than that of the accused being human, the provocation by any standerd of civilized 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 conviction. 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. I. 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 by 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 and the sentence is reduced to 6 (six) years only
4. It is stated at the bar that the accused had already undergone the said sentence as he was in jail throughout, If so, the accused shall be set at liberty but subject to due certificate from the Civil Surgeon that the accused is fit to live in the society and is not insane. If the accused appellant was living 'normal Jail life' as a normal human being he should be released forthwith, if the period of 6 years has expired.
5. In the result, the appeal is allowed to the extent indicated above. Miss, Pritee Das, Amicus Curiae shall be en-titled to fees at the rate of Rs. 85/- per Diem for 3 days, one for preparation of the appeal . The learned public prosecutor ensure that the payment shall be made forthwith
6. Before parting with the records we put it on record that Miss. Pritee Das, Amicus Curiae has exhibited her forensic capacity in conducting the case and the office should see that she is entrusted with more such cases in future. The proper authorities should also consider the question of grooming such budding lawyer.