Punjab-Haryana High Court
Kundan Singh vs State Of Punjab on 22 January, 2010
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal, Jora Singh
Crl.Appeal No.599-DB of 2001 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl.Appeal No.599-DB of 2001
DATE OF DECISION: JANUARY 22, 2010
Kundan Singh
.....APPELLANT
Versus
State of Punjab
....RESPONDENT
CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL
HON'BLE MR.JUSTICE JORA SINGH
---
Present: Mr. A.S. Virk, Advocate,
for the appellant.
Ms. Gurveen H. Singh, Addl.A.G., Punjab,
for the respondent.
..
SATISH KUMAR MITTAL, J.
1. Appellant Kundan Singh and his son Kulwinder Singh were tried by Sessions Judge, Amritsar on the charge under Sections 302 read with Section 34 of the Indian Penal Code for committing the murder of Kamaljit Kaur, aged 19 years (unmarried daughter of appellant Kundan Singh) and Angrej Singh son of Santokh Singh, aged 20 years, a resident of the same village.
2. The trial Court vide its judgment dated September 10, 2001 has convicted the appellant Kundan Singh under Section 302 IPC for committing the murder of Angrej Singh and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs.5000/-, and in default of payment of fine, he was to undergo rigorous imprisonment for six months. He was further sentenced under Section 302 IPC for committing Crl.Appeal No.599-DB of 2001 -2- the murder of Kamaljit Kaur and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs.5000/-, and in default of payment of fine, he was to undergo rigorous imprisonment for six months. Both the sentences have been ordered to run concurrently. However, his son Kulwinder Singh was acquitted of the charge framed against him by giving him the benefit of doubt.
3. The deaths of the aforesaid two persons were committed in the house of the appellant in the intervening night of 1/2.3.1999. The dead bodies of both of them were found in the house of the appellant in the morning. Thereupon, on the statement of Santokh Singh (PW5), father of deceased Angrej Singh, which was made by him to SHO Jagdeep Singh (PW11) at 9.30 a.m., the formal FIR (Ex.PC) was recorded at 9.55 a.m. on 2.3.1999 at Police Station Lopoke, District Majitha. In his statement (Ex.PB), Santokh Singh stated that he was a resident of village Lawve and doing the work of agriculture. His elder son Angrej Singh was running a tailor shop outside village Pandhri, in the fields. He used to come to his house daily in the evening after closing his shop. On previous night, i.e., 1.3.1999, his son Angrej Singh did not come to home. On 2.3.1999 in the morning, he and his uncle Sadha Singh went to the shop of his son outside village Pandhri. They found that his shop was lying closed and many persons were gathered in front of the shop. There he came to know on inquiry that in the previous night, Kundan Singh (appellant) and his son Kulwinder Singh (another accused) had committed the murder of his son Angrej Singh and Kamaljit Kaur, daughter of Kundan Singh, at his house as his son Angrej Singh was having illicit relations with Kamaljit Kaur. When he along with Sadha Singh went to the house of Kundan Singh, nobody was Crl.Appeal No.599-DB of 2001 -3- present there. They found that the dead body of his son Angrej Singh was lying in the court-yard besmeared with blood and the dead body of Kamaljit Kaur was lying in the room besmeared with blood. While leaving Sadha Singh near the dead body, he went to inform the police.
4. On the basis of the above-said statement, the police after registering the case against both the accused under Sections 302/34 IPC went to the place of occurrence along with the complainant Santokh Singh and found the dead body of Angrej Singh lying in the court-yard of the house of appellant and dead body of Kamaljit Kaur was lying in a room of the house. The blood lying near the dead bodies of both the deceased was taken into possession in two separate parcels vide recovery memos Ex.PR and Ex.PR/1, respectively. On conducting search of the dead body of Angrej Singh, letters (Ex.P1 to Ex.P4) in Punjabi and Hindi languages were recovered vide recovery memo Ex.PS, attested by the witnesses. The statements of the witnesses under Section 161 Cr.P.C. were recorded. Rough site-plan (Ex.PT) of the place of recovery with correct marginal notes was prepared.
5. After preparing the injury statements of both the deceased (Ex.PD and Ex.PH) and inquest reports (Ex.PE and Ex.PJ), in presence of the witnesses, the dead bodies of Angrej Singh and Kamaljit Kaur were sent to Civil Hospital for post-mortem examination.
6. On 2.3.1999, on the application of the police, Dr.Gurmanjit Rai (PW1) conducted the post-mortem examination of the dead body of Angrej Singh at 3.10 p.m. and during the post-mortem examination, he found the following injuries on his body:-
"1) Incised chopped wound 14 x 4.5 cm on front of neck Crl.Appeal No.599-DB of 2001 -4- obliquely placed, clotted blood present. On dissection, underlying soft tissues structure of neck, traches, vessels, muscles, verteberal bodies and spinal cord were found cut.
Neck was found joint by a ford of skin on its back. Clotted blood was present.
2) 9 x 4.5 cm incised wound on front of left side of chest over the clevicle in its middle. On dissection, clevicle was found cut fractured. Clotted blood was present.
3) Incised wound 4 x 2 cm on front of head vertically placed. It was scalp deep and clotted blood was present.
4) Incised wound 6 x 2.5 cm present on left side of front of chest, obliquely placed. Scalp deep. Clotted blood present.
5) Incised chopped wound 6 x 2.5 cm on left mastoid region of back of ear, underlying bone was found cut fractured. Clotted blood was present.
6) Incised wound 2.5 x 2 cm on back of left ear pinna muscle deep. Clotted blood was present.
7) Incised wound 11 x 4 cm on right side of face on chin.
Mandible was found cut fractured. Clotted blood was present.
8) Incised chopped wound 20 x 9 cm on back of head and right side of neck obliquely placed. On dissection, underlying occipital bone was found cut fractured. Membranes and brain was found cut.
9) Incised wound 5 x 1 cm on outer aspect of upper one third of left upper arm. It was muscle deep. Clotted blood was present.
10) Incised wound 2 x 1 cm on middle of front of left upper arm. It was muscle deep.
11) Incised wound 4.5 x 2 cm present on back of left hand in its middle. It was muscle and bone deep.
12) Incised wound 3.5 x 1 cm on front of left forearm in its middle. Muscle deep.
13) Incised wound 5 x 2 cm on back of right forearm in its middle. It was vertically placed and muscle deep. Clotted blood was present.
14) Incised wound 3 x 7 cm on front of left leg in its lower one third. Clotted blood was present. Both tibia and fibula bones Crl.Appeal No.599-DB of 2001 -5- were found cut fractured on dissection.
15) Incised wound 4 x 1 cm on front of right wrist. Muscle deep. Clotted blood was present.
16) A reddish brown grazed abrasion 15 x 10 cm on back of right side of chest in scapular region."
7. The doctor also found that the clothes were blood stained and torn at places. The deceased was wearing grey and white check shirt, grey pant, white banayan. The right leg was found polio affected. Rigor mortis was present all over the body. In his opinion, the cause of death was due to injuries to brain, spinal cord and neck structures, which were sufficient to cause death in the ordinary course of nature. All the injuries were ante- mortem in nature, and except injury No.16, all were caused by heavy sharp cutting weapons. The probable duration of injuries and death was within about few minutes and between death and post mortem was 12 to 24 hours.
8. On the same day, Dr.Gurmanjit Rai (PW1) also conducted post-mortem examination of the dead body of Kamaljit Kaur at 5.10 p.m. and found the following injuries on her person:-
"1) Incised chopped wound 18 x 3.5 cm on left side of front of neck 2 cm below ear lobule obliquel placed. Clotted blood was present.
2) Incised chopped wound 9 x 1.5 cm on left side of neck 1.5 cm below injury no.1 obliquely placed. Clotted blood was present.
3) Incised wound 8 x 1.5 cm on left side of neck 1 cm below injury no.2. On dissection of injuries No.1 and 2, underlying soft tissues, traches, vertebera, spinal cord and carotid vessels were found cut.
4) Incised wound 7 x 0.5 cm on front of neck, skin deep.
Clotted blood was present.
5) Incised chopped wound 10 x 4 cm on right side of neck 2 cm below ear lobule obliquely placed. Clotted blood present.
Crl.Appeal No.599-DB of 2001 -6-
6) Incised wound 7 x 2.5 cm on right side of neck 1.5 cm below injury no.5. Clotted blood was present. On dissection of injuries No.5 and 6, underlying soft tissues, muscles, neck vessels of right side were found cut. Neck was found joined to body with posterior skin folds. On dissection of chest, both lungs were found pale on cut section and on dissection of abdomen, stomach was having about 30 cc of fluid. Liver, spleen and kidneys were found pale. All other organs were normal."
9. The doctor also found that the clothes of the deceased were blood stained and were torn. The deceased was wearing a black coloured shirt, salwar, with white spots and a white banayan. Rigor mortis was present all over the body. In his opinion, the cause of death was due to injuries to neck and spinal cord, which were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem in nature, which were caused by heavy sharp edged weapons. The probable time between injuries and death was immediate and between death and post mortem was 12 to 24 hours.
10. During the investigation, the accused were arrested on 27.3.1999. On the disclosure statement of accused Kulwinder Singh, Kulhari (Ex.P10) and an iron rod (Ex.P11) were got recovered vide recovery memo (Ex.PX/2).
11. After completion of the investigation, the challan was presented against both the accused. They were charge-sheeted under Section 302 read with Section 34 IPC to which they pleaded not guilty and claimed trial.
12. In support of its case, the prosecution examined 11 witnesses.
13. PW1-Dr.Gurmanjit Rai, who conducted post-mortem examination of the dead bodies of both the deceased. PW2-LC Davinder Singh proved his affidavit to the effect that dead bodies were handed over Crl.Appeal No.599-DB of 2001 -7- to him for post mortem examination. PW3-Constable Surjit Singh has proved his affidavit to the effect that two parcel small boxes of plastic containing blood stained earth of dead bodies of Kulwinder Kaur and Angrej Singh and two parcels containing blood stained clothes of dead bodies of both the said persons were deposited by him in the office of Chemical Examiner, Patiala. Similarly, PW4-Constable Kulwinder Singh proved his affidavit to the effect that he had deposited the case property and one parcel of Kulhari blood stained in the office of Chemical Examiner, Patiala. PW5-Santokh Singh, complainant, on whose statement the formal FIR was registered. PW6-Darshan Singh, real brother of the complainant. He stated that on the day of the occurrence, at about 3/4 P.M., he was going to Anandpur Sahib from his house and was to take lift in a truck from Gharinda. When he was passing from near the dera/house of the accused, which is situated on the road itself, he heard raula of `Mar Dita, Mar Dita' from the inside of the house. Thereupon, he went near the gate of the house and noticed that Kundan Singh was armed with an iron rod and Kulwinder Singh was armed with an axe, and they were giving blows with the same to a young boy, who had fallen on the ground. Both accused Kundan Singh and Kulwinder Singh were shouting that they had already killed Kamaljit Kaur and they will kill him also. Since he was to go to Anandpur Sahib, therefore, he proceeded towards Gharinda from where he returned back on the next day. On reaching his home, he came to know that accused had killed Angrej Singh and Kamaljit Kaur as the accused were suspecting illicit relations between them. PW7-HC Bikramjit Singh, who was posted as MHC at Police Station Verowal. The said witness proved his affidavit to the effect that he had sent the sealed parcel of this case to Chemical Examiner from Crl.Appeal No.599-DB of 2001 -8- Malkhana. PW8-Constable Sewa Singh, who proved his affidavit to the effect that special reports of the case were handed over to him and that he had delivered the same on the same day to the Illaqa Magistrate. PW9- Sawinder Singh, Sarpanch, who is the material witness and before whom the extra-judicial confession was made by both the accused. This witness does not support the prosecution version and was declared hostile, and was cross-examined by the public prosecutor. PW10-Inspector Ajit Singh (Retired), who partly investigated the case. PW11-SHO Jagdeep Singh, Investigating Officer, who recorded the statement of Santokh Singh (PW5), on the basis of which the formal FIR (Ex.PC) was registered. The said witness has proved recording of the statements and recovery of certain articles.
14. In his statement under Section 313 Cr.P.C., accused Kulwinder Singh pleaded innocence and stated that he has been falsely implicated in this case. However, accused Kundan Singh stated that he along with his family members was residing in the farm house situated in the area of village Pandhri. On the midnight of the occurrence, he got up from his bed and started going towards his fields . He heard some sound from one of the rooms. He was carrying a torch in his hands at that time. When he flashed the torch into that room, he saw that his daughter Kamaljit Kaur and Angrej Singh were lying on a cot inside the room in an objectionable position. On seeing his daughter in the arms of Angrej Singh, who was a lame person and was working as a tailor in their village, he got enraged and lost control on himself. He could not tolerate his daughter having love affairs with Angrej Singh. Out of anger, he took a Toka and inflicted injuries with it to both Angrej Singh as well as his daughter Kamaljit Kaur. Both of them died on Crl.Appeal No.599-DB of 2001 -9- account of the injuries at the spot. Thereafter, he went to Police Station and informed Inspector Jagdeep Singh about the occurrence. The Inspector took him into custody and brought to the spot. The said witness also summoned the parents of Angrej Singh to the spot. Thereafter, with due deliberations and consultations, the police implicated him in this case on 2.3.1999 at about 1.00 P.M. His son Kulwinder Singh is a Medical Practitioner and he used to reside along with his family in village Khiala. He was not present in his room on the night of the occurrence. His daughter Kamaljit Kaur was a student of 10th Class in Government High School, Pandhri. Angrej Singh was illiterate and a lame person and was working as a tailor in his village.
15. In defence, no witness was examined. When PW11-SHO, Jagdeep Singh was examined in the Court, a suggestion was put to him about confession of the accused made before him and his arrest on the intervening night of 1/2.3.1999. He has denied the said suggestion and stated that it was incorrect that both the accused were already arrested before cremation of Kamaljit Kaur was done. Rather, as per the record, both the accused were arrested after 26 days of the occurrence, i.e., 27.3.1999.
16. After hearing the arguments of the learned counsel for the parties and going through the evidence and other material available on the record, the trial Court acquitted accused Kulwinder Singh of the charge framed against him while observing that the prosecution has not been able to produce any cogent and reliable evidence, either, direct, or, circumstantial to connect accused Kulwinder Singh with the murders of Angrej Singh and Kamaljit Kaur. As far as accused Kuldan Singh was concerned, the trial Court while rejecting the contention of the counsel for Crl.Appeal No.599-DB of 2001 -10- the appellant that the appellant had committed the murder of Angrej Singh and Kamaljit Kaur due to sudden provocation, held that the attending circumstances suggest that accused Kundan Singh had sufficient time to convert his intention into practical achievement by killing both Angrej Singh and Kamaljit Kaur. Therefore, the case shall not, certainly, fall under the provisions of Section 304 Part-II IPC, rather it shall be covered under Section 302 IPC. The trial Court further observed that since accused Kundan Singh had admitted his guilt in his statement under Section 313 Cr.P.C., there was no reason as to why the same should not be acted and relied upon. Accordingly, the trial Court held that accused Kundan Singh intentionally and knowingly killed Angrej Singh and Kamaljit Kaur and, thus, convicted him under Section 302 IPC and sentenced him, as referred to above.
17. Against the said judgment, the instant appeal has been filed by the appellant.
18. Though in the grounds of appeal, it has been pleaded that the appellant has been convicted only on the basis of his statement made under Section 313 of the Code of Criminal Procedure, therefore, his conviction under Section 302 IPC for committing the murder of two persons, is not sustainable, but during the course of arguments, learned counsel for the appellant only argued that the case of the appellant falls under Exception 1 of Section 300 IPC, therefore, at the most, he could only be convicted under Section 304 IPC. Learned counsel argued that in the instant case when during the midnight the appellant had seen his unmarried younger daughter Kamaljit Kaur and Angrej Singh, who was a tailor in the village, on a cot inside a room of his house in an objectionable position, he lost control on Crl.Appeal No.599-DB of 2001 -11- himself and in a grave and sudden provocation, took a `toka' lying in the house and inflicted injuries with it to both Angrej Singh as well as his daughter Kamaljit Kaur, as a result of which both of them had died. Therefore, the culpable homicide of Kamaljit Kaur and Angrej Singh does not amount to murder and the same is punishable under Section 304 Part II IPC. Learned counsel argued that the appellant has already undergone 10 years of sentence, therefore, for committing the culpable homicide of the aforesaid two persons, he should be sentenced as already undergone. In support of his contention, learned counsel for the appellant has relied on certain observations made by the Supreme Court in K.M. Nanavati v. State of Maharashtra, AIR 1962 SC 605, Ajit Singh v. State of Punjab, 1989 Supp (2) SCC 147 and State of U.P. v. Shyam Veer and others, (2005) 10 SCC
611.
19. On the other hand, learned counsel for the respondent-State, while referring to certain facts, i.e., that during the post-mortem examination the clothes of both the deceased were found torn, the dead bodies of both the deceased were lying at two different places (one inside the room and other in the court-yard), that Angrej Singh was a lame person and was working as a tailor in their village; and the subsequent conduct of the appellant, argued that the case of the appellant does not fall under Exception 1 of Section 300 IPC. Learned counsel argued that in the facts and circumstances of the case the alleged act of provocation was not sufficient to cause total loss of self control and was not sufficient to cause the death of two persons one after the other. Learned counsel further argued that the act of sudden provocation should have been done during the continuation of that statement of mind, but in the instant case there was a Crl.Appeal No.599-DB of 2001 -12- time for passion to cool and for reason to regain dominion over the mind. But in spite of that, the appellant gave fatal blows to Kamaljit Kaur and Angrej Singh. Learned counsel argued that the instant case falls under Proviso first of Exception 1 of Section 300, therefore, the appellant cannot be punished under Section 304 IPC.
20. We have heard the learned counsel for the parties at length and gone through the record of the case. In our view, the instant case is a case of honour killing. As per the evidence available on the record, the dead bodies of unmarried daughter of appellant, namely, Kamaljit Kaur, aged 19 years and Angrej Singh, aged 20 years, were found in the house of the appellant in the morning of 2.3.1999. As per the statement of Dr.Gurmanjit Rai (PW1), who conducted the autopsy of both the deceased, 16 injuries were found on the body of Angrej Singh, which were caused by heavy sharp edged cutting weapons (except injury No.16). He also found six incised wound injuries on the body of Kamaljit Kaur, which were also caused by heavy sharp edged weapons. The doctor also found that the clothes of both the deceased were torn at places. In the opinion of the doctor, the cause of death of both the persons was due to injuries caused to brain, spinal cord and neck structures, which were sufficient to cause death in the ordinary course of nature. Though on the record there is no direct evidence to the effect that appellant Kundan Singh and his son Kulwinder Singh had caused those injuries as the statement of PW6-Darshan Singh that he heard the noise and saw the accused causing injuries to a young person, has not been believed by the trial Court, and the alleged extra-judicial confession made by both the accused before PW9-Sawinder Singh, Sarpanch, has not been proved as he has not supported the prosecution case. But, in the facts and circumstances Crl.Appeal No.599-DB of 2001 -13- of the case when the death of two persons, particularly when one of them was the younger daughter of the appellant, had occurred in the midnight in the house of the appellant, then under Section 106 of the Indian Evidence Act, it is for the appellant to explain how two persons had been killed in his house and by whom. In his statement under Section 313 Cr.P.C., the appellant had stated that he had killed both the deceased in a grave and sudden provocation and his son Kulwinder Singh was not present in the house at that time. By accepting the said defence, the trial Court has convicted the appellant Kundan Singh under Section 302 IPC and sentenced for life and acquitted Kulwinder Singh by giving him the benefit of doubt. As far as the defence of the appellant that he had caused the death of two persons in a grave and sudden provocation, was not accepted by the trial Court. Learned counsel for the appellant has not disputed the committing of culpable homicide of Angrej Singh and Kamaljit Kaur, by appellant Kundan Singh, but he argued that the culpable homicide of these two persons is not amounting to murder as the case of the appellant falls in Exception 1 to Section 300 IPC.
21. Now the question arises for consideration is whether in the facts and circumstances of the case there was a grave and sudden provocation which prompted the appellant to cause death of two persons one after the other. Exception 1 to Section 300 provides 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 mistake or accident."
Under IPC, the act of sudden provocation has not been defined. It is for the Crl.Appeal No.599-DB of 2001 -14- Court to decide in each case on this issue having regard to all relevant circumstances. In K.M. Nanavati's case (supra), it has been observed that no abstract standard of reasonableness for applying the doctrine of grave and sudden provocation can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc. The Court is to decide in each case having regard to the relevant facts and circumstances of each case. It has been further held by the Supreme Court that certain factors are to be taken into consideration while deciding the plea of grave and sudden provocation, while making the following observations:-
"85. The Indian law, relevant to the present enquiry, may be stated thus : (1) The test of "grave and sudden" provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self- control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to S. 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation."
22. In our opinion, what is required to accept the plea of grave and sudden provocation is that it should be of a character to deprive the offender of its self-control. The act of provocation is so grave and sudden that result into complete loss of self-control. It must be distinguished from a Crl.Appeal No.599-DB of 2001 -15- provocation which inspires an actual intention to kill. The act of offence should have been done during the continuation of that statement of mind i.e. before there was time for passion to cool and for reason to regain dominion over the mind. It is also to be seen that the fatal blow should be clearly traced to the influence of passion arising from the provocation.
23. Further, the plea of grave and sudden provocation does not fall under Proviso to Exception 1 of Section 300 IPC, which provides that the plea of provocation is not to be sought as an excuse for killing any person. In the facts and circumstances of the instant case, we are of the opinion that the plea of grave and sudden provocation taken by the appellant has not been proved. Under Section 105 of the Indian Evidence Act, the burden of proving the existence of circumstances bringing the case within the general exceptions in the Indian Penal Code or within any special exception or proviso contained in any other part of the same Code, lies on the accused and the Court shall presume the absence of such circumstances. However, it is not necessary that where the burden of proof lies on the accused, he is required to discharge the burden by leading evidence to prove his case beyond reasonable doubt. The Court has to see the probabilities of the case, and to see whether the preponderance of probabilities lies with the defence version or with the prosecution version, irrespective of the presumption which is sought to be rebutted by the accused person, because it is a fundamental principle of Criminal Jurisprudence that an accused is presumed to be innocent and, therefore, overall burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt.
24. In the instant case, the appellant in his defence statement had stated that on the midnight of the occurrence when he got up from his bed to Crl.Appeal No.599-DB of 2001 -16- go to his field, he heard some noise from one room and then in the light of torch he saw his daughter Kamaljit Kaur and Angrej Singh lying on a cot in an objectionable position and on seeing his daughter in the arms of Angrej Singh, who was a lame person and was working as a tailor in the village, he got enraged and lost control on himself and could not tolerate his daughter having love affairs with Angrej Singh, and out of anger, he took out a Toka and inflicted injuries to both of them, as a result of which they had died.
25. There are certain important factors and circumstances which are emerging from the evidence on the record which clearly distinguish the plea of provocation and circumstances with an inspiration and actual intention to kill. As per the medical evidence, 16 injuries were found on the body of Angrej Singh and six injuries were found on the body of Kamaljit Kaur. All the injuries (except injury No.16) were of incised wound and caused by heavy sharp edged weapons. The body of the boy was lying in the court- yard and the body of the girl was lying in a room. As per the MLR, the clothes of both the deceased were found torn. These facts clearly indicate that the act of killing of two persons was not on account of grave and sudden provocation. Both the persons were killed at two different times and not simultaneously. If the daughter was first killed, then the boy might have run away. It appears that first the boy was killed by causing 16 injuries and thereafter the girl, who was in the room, was killed. In our opinion, by the time the accused had killed one of them, his passion might be cool when he caused the death of second person. Further, it has not been proved by the appellant that the alleged sudden provocation continued with the same state of mind when the second death was caused by him. The defence taken by the appellant that on seeing his daughter on a cot with Angrej Singh in a Crl.Appeal No.599-DB of 2001 -17- compromise position, he lost his control and took out a Toka and inflicted injuries to both of them simultaneously, does not find any support from the evidence available on the record. The further explanation given by the appellant that after causing the death of two persons simultaneously, he went to the Police Station and confessed his guilt, has also not been found correct because the appellant was arrested after 26 days of the occurrence and on his disclosure statement the weapon used in the crime was recovered. Keeping in view all the facts and circumstances of the case, we are of the opinion that the appellant had committed the death of two persons not in a sudden provocation but it was committed when the reason regained dominion over his mind. In his statement under Section 313 Cr.P.C., the appellant had stated that he become upset because his daughter was having love affair with a lame person, who was working as a tailor master in the village. In our opinion, no reasonable man can commit the death of two persons only on seeing his 19 years old daughter in the company of a young boy, with whom she was having love affair, particularly when they were not indulging in sexual activity. In order to set up a sudden and grave provocation as a defence, it is not enough to show that the accused was provoked into losing his self control. It must also be shown that the provocation was such as would in the circumstances have caused a reasonable man to lose his self control. In our opinion, by seeing his daughter in a room in the night with a boy, there may be loss of some self control, but the said provocation was not of such nature that the appellant lost his self control to such an extent to cause death of two persons one after the other in a brutal manner by causing 16 injuries to the boy and 6 injuries to the girl. Keeping in view the time gap, which might have been taken in Crl.Appeal No.599-DB of 2001 -18- causing those injuries to both of them at two different locations, we are of the opinion that by the time the appellant committed the second death, his passion was cool and his mind was not in the same loss of self control. Thus, in our opinion, the plea of defence of sudden provocation taken by the appellant in committing the alleged crime, was after thought and he has taken the said plea in order to save himself from the alleged crime, and he has been rightly convicted and sentenced by the trial Court. Thus, we do not find any illegality, infirmity or perversity in the impugned judgment of conviction and order of sentence passed by the trial Court.
26. Resultantly, the appeal is dismissed.
(SATISH KUMAR MITTAL)
JUDGE
January 22, 2010 ( JORA SINGH )
vkg JUDGE