SULTAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal is preferred against the judgment passed by Addl. Sessions Judge, Nohar on November 1, 1985 in Sessions Case No. 3/84 by which he convicted accused -appellant Sultan for offence Under Section 302 IPC and sentenced him to imprisonment for life and a fine of Rs. 200/ -, in default of payment of fine two months' further rigorous imprisonment was awarded. He also convicted accused -appeallant Mani Ram for offence Under Section 302 read with Section 34 IPC and sentenced him to imprisonment for life and a fine of Rs. 200/ -, in default of payment of fine to further undergo two months' rigorous imprisonment.

(2.) DOGMATIC attitude and intolerance for intercaste marriages resulting in brutal I murder of the younger sister Mst. Aashki aged 16 years, by caste Chamar and her boy friend Gulab aged 18 years by caste Mirasi is short and sad story of this case. On December 22; 1983 I at 12.30 P.M. a report was lodged at the police station Pallu, District Sri Ganganagar by Shanker, brother of deceased Gulab, wherein it was alleged by him that there was illicit relation between his younger brother Gulab and Bhura Meghwal's daughter Mst. Aashki. Two days earlier than the fateful day both of them left the village in the night. When they did not return in the morning enquiries were made. Bhura Ram, father of the girl Aashki along with his two sons Sultan and Maniram went in their search and on the previous night brought both of them in the village. Both of them were tied with ropes in a room. Shanker has further alleged that the members of his family went and requested to Shri Gulab but they did not agree and stated that they will take the boy to the police station. At about 9.00 or 9.30 A.M. Mani Ram was taking both, his brother Gulab and Aashki after tying their hands to the police station, he also followed them. They reached near Gangaram's field then Sultan accused son of Bhura and brother of Aashki armed with Gandasi, came running and after giving filthy abuses stated that he will kill both of them. Seeing this Mani Ram also exhorted and fell Gulab down on the ground. Sultan gave a Gandasa blow on his neck, as a result of which Gulab died. He then turned towards his younger sister Aashki and gave another Gandasi blow on her, as a result of which she also expired. Safi and Moola saw this incident from a distance. Thus the report was lodged within 2 1/2 hours of the incident at a distance of 16 kms. The police immediately arrived at the spot and started investigation. Inquest report was prepared thereafter site plan and the site inspection memo were prepared. An autopsy of the corps of Gulab and Mst. Aashki was got conducted and post -mortem report obtained. After completing investigation a charge -sheet was submitted in the court of Judicial Magistrate 1st class, Nohar against the accused Sultan and Maniram. Both of them were committed to Sessions for trial. The learned Additional Sessions Judge, Nohar to whom the case was entrusted for trial reach over the charge Under Section 302 and in the alternate Under Section 302/34 IPC to Sultan who who denied the charge and claimed to be tried. Charge for offence Under Section 302 read with Section 34 IPC was read over to accused Maniram.

(3.) TWO arguments have been advanced by the learned Counsel for the accused -appellants in view of the admission of the accused Sultan in his statement Under Section 313 Cr. P.C. First is that the incident did not take place in the manner alleged by the prosecution to the extent that the boy and the girl were kept ties with a rope in a room over -night and in the morning they were being taken to the police station duly tied with ropes by Mani Ram and consequently Mani Ram was also not present when the incident took place, his implication therefore, is false. Secondly that accepting the story doubtful by the accused and even not corroborated by the prosecution evidence the accused - appellants are entitled to get benefit of exception 1 to Section 300 IPC as his act of killing Gulab and Aashki was the result of grave and sudden provocation. His submission is that so far as Moola named in the F.I.R. an independent witness is concerned, he has not been examined by the prosecution and the other eye - witness named Saffi who was examined as PW. 3, has been disbelieved by the learned trial court itself. Thus the only evidence is that of Shanker auther of the F.I.R., brother of the deceased Gulab who firstly is a highly interested witness and secondly his statement does not find corroboration from the post - mortem reports. Learned Counsel for the appellnts in support of his submission regarding grave and sudden provocation has placed reliance on Shanker Pandit v. State of Rajasthan: 1971 RLW page 486, State of Rajasthan v. Kantilai. 1978 RLW page 230, hire Govindan: 1975 Cri. L.J. page 114 and 77ie State of Karnataka v. Kamalaksha: 1978 Cri. L.J. 290. On the strength of the aforesaid case law it was submitted that offence Under Section 302 IPC is not made out against the accused -appellants in the circumstances of this case and they can only be convicted for offence Under Section 304 Part 1 IPC for which lesser sentence may be awarded.