JUDGMENT : Arvind Singh Chandel, J. 1. Invoking criminal appellate jurisdiction of this Court, the present criminal appeal under Section 374 (2) of CrPC has been filed by the appellant herein calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 31.08.2017 passed by the Sessions Judge, Mungeli, District Mungeli in Sessions Trial No.30/2017 whereby the appellant has been convicted under Section 302 of the Indian Penal Code (hereinafter referred to as ‘the IPC’) and sentenced him to undergo imprisonment for life and fine of Rs.2,000/-, in default of payment of fine, additional rigorous imprisonment for three months. 2. Brief facts of the case as projected by the prosecution and accepted by the Trial Court are that on 19.03.2017, the appellant was sleeping in his room along with his son Nikhil Kumar Khande (deceased) who was aged about seven years. The daughter of the appellant was sleeping with her grandmother Sunabai (PW-2) in the another room. The wife of the appellant had already left the house of the appellant and was residing separately in her parental home. On the said night about 4:00 AM, upon hearing the cry of Nikhil, Sunabai, mother of the appellant informed Neelkamal Khande (PW-1) that the appellant is beating his son Nikhil (deceased) inside the room which was closed from inside. After some time, son of the appellant stopped crying, then the appellant opened the door. At that time the appellant had lathi in his hand which was stained with blood and the deceased was lying inside the room, blood was oozing out from his head and the same was witnessed by his brother Neelkamal (PW-1). Deceased Nikhil had suffered grievous injuries on his head due to which he died on the spot. 3. Merg intimation (Ex.P/5) regarding death of Nikhil Khande (deceased) was recorded by Neelkamal Khande (PW-1), brother of the appellant. He also lodged the FIR (Ex.P-6) before the Police Station City Kotwali, Mungeli. Inquest proceeding was conducted vide Ex. P/2 and the dead body of Nikhil was subjected to post-mortem which was conducted by Dr. G.B. Singh (PW-6) and his report is Ex.P/13 in which the cause of death was opined as severe head (brain) injuries and its complication and the nature of death was homicidal. Nazri Naksha was prepared vide Ex.P/4. Inquest proceeding was conducted vide Ex. P/2 and the dead body of Nikhil was subjected to post-mortem which was conducted by Dr. G.B. Singh (PW-6) and his report is Ex.P/13 in which the cause of death was opined as severe head (brain) injuries and its complication and the nature of death was homicidal. Nazri Naksha was prepared vide Ex.P/4. Thereafter, statements of the witnesses were recorded under Section 161 of the CrPC. During course of investigation, memorandum statement of the appellant was recorded and vide Ex.P/15 i.e. property seizure memo, one lathi which was stained with blood was recovered from the appellant and the same was sent for chemical examination. However, no FSL report is produced by the prosecution before the Trial Court. 4. After completion of the investigation, the appellant was charge-sheeted for the aforesaid offence before the concerned jurisdictional Criminal Court from where the case was committed to the Court of Sessions and after committal, the matter was received by the Court of Sessions Judge, Mungeli, District Mungeli for trial and its disposal in accordance with law, in which the appellant abjured his guilt, took a plea of false implication and entreated for trial. 5. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 10 witnesses and exhibited 22 documents. In defence, no witness has been examined. Statement of the appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence brought on record, pleaded innocence and false implication. 6. After conclusion of the trial, the Trial Court, by the impugned judgment dated 31.08.2017, on appreciation of oral and documentary evidence available on record, has reached to the conclusion that the prosecution has been able to duly establish its case beyond reasonable doubt and accordingly convicted the appellant herein for the aforesaid offence and sentenced him in the manner as mentioned in para-1 of this judgment, which led to the filing of the present appeal. 7. Mr. Keshav Dewangan, learned Counsel appearing for the appellant, would make a solitary contention that it is a case which would fall under Exception 1 to Section 300 of IPC. 7. Mr. Keshav Dewangan, learned Counsel appearing for the appellant, would make a solitary contention that it is a case which would fall under Exception 1 to Section 300 of IPC. He would submit that grave and sudden provocation employed in Exception 1 to Section 300 of IPC would include sustained provocation also, as in this case the appellant at the relevant point of time was residing with his two young children aged about 7 years and 5 years and on account of some domestic dispute, his wife is said to have deserted him and was residing separately with her parents at her parental home. On account of the said reasons, the appellant was distressed and was also suffering from mental trauma. Learned Counsel would finally submit that it is a clear case of sustained provocation and therefore, the conviction of the appellant under the aforesaid offence is liable to be set aside as his case is covered by Exception 1 to Section 300 of IPC and he be sentenced to the period already undergone as he is in jail since 19.03.2017 and the appeal be allowed accordingly. 8. Mr. Rahul Tamaskar, learned Government Advocate, would submit that it is a pure and simple case of committing murder of Nikhil Khande (deceased) by his father i.e. the appellant which has been established beyond reasonable doubt by the prosecution. He would thus submit that the case of the appellant would not fall under grave and sudden provocation or for that matter sustained provocation under Exception 1 to Section 300 of IPC and the Trial Court has rightly convicted the appellant for the said offence and the appeal deserves to be dismissed. 9. We have heard learned counsel for parties, considered their rival submissions made herein-above and also gone through the records with utmost circumspection. 10. The first question as to whether the death of deceased Nikhil Khande was homicidal in nature, has been answered by the Trial Court in affirmative relying upon the post-mortem report, Exhibit P/13, proved by Dr. G.B. Singh (PW-6) holding the death of deceased Nikhil to be homicidal and the cause of death to be severe head (brain) injuries and its complication, which, in our considered opinion, is a correct finding of fact based on the evidence available on record and it is neither perverse nor contrary to the record. G.B. Singh (PW-6) holding the death of deceased Nikhil to be homicidal and the cause of death to be severe head (brain) injuries and its complication, which, in our considered opinion, is a correct finding of fact based on the evidence available on record and it is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding of the Trial Court. 11. Now, the next question as to whether the appellant is author of the crime, the finding of the Trial Court is based upon the statements of Neelkamal Khande (PW-1) who is brother of the appellant and Sunabai (PW-2) who is the mother of the appellant. In their Court statements, they both have categorically deposed that on the date of incident, during night, the appellant was sleeping with his son Nikhil (deceased) inside the room and the said room was closed from inside. These two witnesses were also sleeping separately in the different rooms. Sunabai (PW-2) was sleeping with the younger daughter of the appellant. She has deposed that at about 4:00 AM, she heard cry of Nikhil and sound of marpeet. Both these witnesses went near the appellant’s room which was closed from inside. They tried to open the door but the appellant did not open the door. After 10 minutes, the appellant opened the door and at that time, he was having lathi in his hand which was stained with blood and the deceased Nikhil was lying down in the room. On being enquired, the deceased was found dead. Both these witnesses remained firm during their cross-examination. There is nothing specific in their cross-examination on the basis of which their statements can be disbelieved. From the oral statements of both these witnesses, it is well-established that in the night of the date of alleged incident, the appellant was sleeping alone with his son Nikhil (deceased) inside the room which was closed from inside and about 4:00 AM, on hearing the cry of Nikhil, the mother of the appellant Sunabai (PW-2) and brother of the appellant, Neelkamal (PW-1) reached near the door of the said room tried to open the door and after sometime, when the appellant opened the door, he was having lathi in his hand which was stained with blood and his son Nikhil was lying dead on the loor inside the room. Thus, it is well-established that it is the appellant who committed the homicidal death of his son Nikhil, which in our considered opinion is a correct finding of fact based on the evidence available on record. Accordingly, we hereby affirm the said finding of the Trial Court. 12. Now, the next question is, whether the case of the appellant would fall under Exception 1 to Section 300 of the IPC, as contended by learned Counsel for the appellant? 13. At this stage, it would be appropriate to reproduce Exception 1 to Section 300 of the IPC which states as under:- “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 mis- take or accident. The above exception is 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 any- thing done in the lawful exercise of the right of private defence. Explanation.—Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.” 14. The word ‘provocation’, which is essential condition for invoking Exception 1 to Section 300 of IPC, must be grave and must be sudden. 15. In Sankarlal @ Sankarayee v. State, (1989) Law Weekly (Cri.) 468 the Division Bench of the Madras High Court has recognized that grave and sudden provocation under Exception 1 to Section 300 of IPC would include sustained provocation also and held as under:- "When there is positive evidence to show that there was grave and sudden provocation at or about the time of occurrence, there would be no difficulty in applying the said principles. There are other type of cases, where there has been sustained provocation for a considerable length of time and there would not have been a real sudden provocation immediately preceding the murder. There are other type of cases, where there has been sustained provocation for a considerable length of time and there would not have been a real sudden provocation immediately preceding the murder. In such cases, the Courts have given the benefit of Exception 1 to Section 300 of IPC on the ground that the provocation which is the route cause for the commission of the offence need not arise at the spur of the moment." 16. In Vashram Narshibhai Rajpara v. State of Gujarat, 2002 (9) SCC 168 the Supreme Court has also recognized the sustained provocation, as the house purchased by the accused was not to the liking of his wife and daughter and they continuously rebuked him, unable to bear this at one point of time he killed them. The Supreme Court has held that though they were all living together, the continuous harassment and constant nagging could have very well affected his mental balance and as such sustained provocation could have reached a boiling point resulting in the dastardly act and ultimately set aside the death sentence and awarded him life sentence. 17. The Supreme Court in the matter of Dauvaram Nirmalkar v. State of Chhattisgarh, 2022 SCC Online SC 955 again considered the sustained provocation and held that cumulative or sustained provocation test would be satisfied when the accused’s retaliation was immediately preceded and precipitated by some sort of provocative conduct which would satisfy the requirement of sudden or immediate provocation, and observed in para- 12, 13 & 16 as under:- "12. The question of loss of self-control by grave and sudden provocation is a question of fact. Act of provocation and loss of self-control, must be actual and reasonable. The law attaches great importance to two things when defence of provocation is taken under Exception 1 to Section 300 of the IPC. First, whether there was an intervening period for the passion to cool and for the accused to regain dominance and control over his mind. Secondly, the mode of resentment should bear some relationship to the sort of provocation that has been given. The retaliation should be proportionate to the provocation [See the opinion expressed by Goddard, CJ. in R v. Duffy (supra)]. The first part lays emphasis on whether the accused acting as a reasonable man had time to relect and cool down. Secondly, the mode of resentment should bear some relationship to the sort of provocation that has been given. The retaliation should be proportionate to the provocation [See the opinion expressed by Goddard, CJ. in R v. Duffy (supra)]. The first part lays emphasis on whether the accused acting as a reasonable man had time to relect and cool down. The offender is presumed to possess the general power of self- control of an ordinary or reasonable man, belonging to the same class of society as the accused, placed in the same situation in which the accused is placed, to temporarily lose the power of self-control. The second part emphasises that the offender’s reaction to the provocation is to be judged on the basis of whether the provocation was sufficient to bring about a loss of self-control in the fact situation. Here again, the Court would have to apply the test of a reasonable person in the circumstances. While examining these questions, we should not be short-sighted, and must take into account the whole of the events, including the events on the day of the fatality, as these are relevant for deciding whether the accused was acting under the cumulative and continuing stress of provocation. Gravity of provocation turns upon the whole of the victim’s abusive behaviour towards the accused. Gravity does not hinge upon a single or last act of provocation deemed sufficient by itself to trigger the punitive action. Last provocation has to be considered in light of the previous provocative acts or words, serious enough to cause the accused to lose his self-control. The cumulative or sustained provocation test would be satisfied when the accused’s retaliation was immediately preceded and precipitated by some sort of provocative conduct, which would satisfy the requirement of sudden or immediate provocation. 13. Thus, the gravity of the provocation can be assessed by taking into account the history of the abuse and need not be confined to the gravity of the final provocative act in the form of acts, words or gestures. The final wrongdoing, triggering off the accused’s reaction, should be identified to show that there was temporary loss of self-control and the accused had acted without planning and premeditation. The final wrongdoing, triggering off the accused’s reaction, should be identified to show that there was temporary loss of self-control and the accused had acted without planning and premeditation. This has been aptly summarised by Ashworth13 in the following words: “[T]he significance of the deceased’s final act should be considered by reference to the previous relations between the parties, taking into account any previous incidents which add colour to the final act. This is not to argue that the basic distinction between sudden provoked killings and revenge killings should be blurred, for the lapse of time between the deceased’s final act and the accused’s retaliation should continue to tell against him. The point is that the significance of the deceased’s final act and its effect upon the accused – and indeed the relation of the retaliation to that act – can be neither understood nor evaluated without reference to previous dealings between the parties." 16. For clarity, it must be stated that the prosecution must prove the guilt of the accused, that is, it must establish all ingredients of the offence with which the accused is charged, but this burden should not be mixed with the burden on the accused of proving that the case falls within an exception. However, to discharge this burden the accused may rely upon the case of the prosecution and the evidence adduced by the prosecution in the court. It is in this context we would refer to the case of the prosecution, which is that the deceased was addicted to alcohol and used to constantly torment, abuse and threaten the appellant. 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 sudden loss of self-control on account of a ‘slow burn’ reaction followed by the final and immediate provocation. There was temporary loss of self-control as the appellant had tried to kill himself by holding live electrical wires. Therefore, we hold that the acts of provocation on the basis of which the appellant caused the death of his brother, Dashrath Nirmalkar, were both sudden and grave and that there was loss of self- control." 18. There was temporary loss of self-control as the appellant had tried to kill himself by holding live electrical wires. Therefore, we hold that the acts of provocation on the basis of which the appellant caused the death of his brother, Dashrath Nirmalkar, were both sudden and grave and that there was loss of self- control." 18. In the light of above mentioned law relating to provocation particularly sustained provocation, reverting to the facts of the present case, it is quite vivid that the appellant is the father of the deceased Nikhil. On account of some domestic dispute, appellant’s wife had already deserted him and was living separately with her parents and due to desertion, the appellant was residing with his two young children who are aged about seven years and five years. It is also established that the appellant was having responsibility of his two young children and due to that he was distressed and was facing mental trauma which led serious nervous exasperation causing suffering, anxiety and sustained provocation leading to about death of his son Nikhil which is sufficient to constitute sustained provocation in law, making the appellant to be entitled for the benefit of Exception 1 to Section 300 of the IPC by converting his conviction under Section 302 of the IPC to that of Part-I of Section 304 of the IPC. 19. Accordingly, we set aside the conviction of the appellant for the offence punishable under Section 302 of the IPC and the sentence of Imprisonment for Life awarded thereunder as well. Instead, we convict the appellant for the offence punishable under Part-I of Section 304 of the IPC and sentence him to undergo R.I. for 10 years. However, the fine amount of Rs.2,000/- with its default clause is hereby maintained. 20. This criminal appeal is partly allowed to the extent indicated herein-above. 21. Let a certified copy of this judgment along with the original record be transmitted forthwith to the concerned Trial Court and also the Superintendent of Jail, for necessary information and action.