Judgment:
1. This appeal is directed against the judgment and order dated 17-4-1995 in Sessions Case No. 1/1994. The accused stood charged with having committed the double murder of his younger sister Avvamma as also of one Challappa with whom she is alleged to have been in love. According to the prosecution case, deceased Avvamma was only about 16 years old and she was working with PW9. Challappa was also employed by PW9 and the two of them got friendly with each other and decided to get married. It is necessary to point out that Avvamma and Challappa belonged to two different communities and obviously, quite apart from this aspect of the matter there was one other factor which may not have been very conducive to the proposed marriage, namely the fact that Challappa was aged 30 years and there was a big age difference also between the two of them. On 7-9-1993 the accused who was the brother of the girl, is alleged to have been searching for her and he finally located them in the house of PWs 5 and 9. From what transpired, it was clear that two of them had decided to get married and this was something that would have had rather violent repercussions. It was finally decided to go to the Police in the hope of finding some solution to the problem. On the way, while proceeding in the jeep the accused desired to talk things over with Challappa and his sister for which reason the jeep was stopped and the three of them proceeded to some distance from where the the others were waiting in the jeep. It is not clear as to what precisely the nature of the conversation was, but one may reasonably assume in the background of the case that the young couple were quite adamant about their decision and all of a sudden, the accused is alleged to have stabbed and killed both of them by inflicting multiple stab injuries with a small pen knife which he had on his person. The matter came to be reported to the Police who registered an offence and proceeded with the investigation. The accused is alleged to have produced the weapon in question and on completion of the investigation, he was charge-sheeted and put up for trial. The learned Sessions Judge accepted the prosecution evidence and convicted the accused and awarded him a sentence of R.I. for life. This appeal is directed against that conviction and sentence.
2. At the hearing, Mr. Gourishankar, learned counsel who represents the appellant did do his very best to assail the prosecution evidence on which the learned trial Judge has relied. He did point out to us a few inconsistencies and it was his contention that the evidence on record does not conclusively establish the charge and that the accused is entitled to the benefit of doubt. The main thrust of the argument was that the caliber of the evidence leaves something to be desired and that having regard to the fact that the charge is one of murder, that the standard of proof in respect of each of the heads of evidence must be much higher. We do not dispute the proposition but we also take note of the fact that the quality of the evidence would be dependent on the status of the parties, the literacy levels as also the time factor namely the question as to how much of time has elapsed since the date when the incident took place and the point of time when the witness is deposing. We cannot lose sight of the fact that the witnesses are estate workers, they are virtually semi-literate labourers and they would therefore have their own imitations which have got to be realistically accepted. From this background, we have re-assessed the material before the Court by the prosecution and we find it extremely difficult to uphold the submission that the evidence does not establish the charge. There is eye witness evidence on record, there is supportive evidence and there is also some circumstantial evidence and a combination of all of these brings home the charge beyond reasonable doubt. This is one of the few cases where the material on record conclusively establishes the charge and despite the arguments canvassed by the learned counsel, in our considered view, the findings of the lower Court will have to be confirmed.
3. There is a subsidiary argument canvassed by the learned counsel for the appellant when he very strongly submitted that the Court must virtually assess the position of the accused by almost stepping into his shoes. The learned counsel has laid great emphasis on one aspect of the matter namely that in the social set up to which the parties belong, a lot of sanctity is attached particularly with regard to the marriage and ethical aspects of a young woman and that anything that encroaches on these factors provokes very strong re-action. He has demonstrated to the Court that the girl was aged only 16, that she was a minor and incapable of giving valid consent to a marriage and that she belonged to the Muslim community. She was the younger sister of the accused and as is traditional, the learned counsel points out to us that the accused brother would normally and naturally have been protective of her. He submits that starting from this premise, and taking cognizance of the social set up particularly in that level of strata of society in this country, that it would have been absolutely unthinkable of Avvamma's family agreeing to an inter-communal liason. Learned counsel was at pains to impress upon us the fact that it was common knowledge to all concerned that the girl and Challappa were very much in love with each other to the extent that they were contemplating marriage and as inevitably happens, that they would have eloped since the families would not have agreed to any such marriage. Learned counsel submitted that the situation was virtually volatile in so far as it was imminent that if her family did not agree to the marriage, that she would have run away with Challappa and this is invariably considered to be an affront worse than death particularly at those levels of society. He submits that the gravity of the situation being what is was that a desparate attempt was made to take the couple to the Police in the hope that the Police would explain to Challappa the consequences of running away with a minor girl, the effect of such a provocative act would have on the respective families and their communities and the possible flare up that could ensue and he submitted that when the jeep was stopped and the accused desired to make a final appeal to the couple, that the Court should take into account the mental make up of the accused at that point of time in the light of the aforesaid background. He states that it is obvious that the couple refused to budge and that the accused took it as not only a direct confrontation but as a sudden provocation to him and that unfortunately, he re-acted very violently.
4. The learned counsel has sought to emphasise one other aspect of the matter namely that the girl is the younger sister of the accused and that there was no background of hostility between them but on the other hand, it is the love that the accused had for the sister which sent him in search of her and it was the interest that he had for her welfare that impelled him to try and stop her from doing something that would take her head long into disaster. In this situation, he submitted that if the accused whipped out his knife and stabbed not only the girl but Challappa also, that it is obvious that he must have been provoked beyond any reasonable limits and that he must have been pushed to such a sense of fury that he lost sight of the fact that he was attacking his own younger sister. It is on the basis of these aspects of the case that he has canvassed a strong plea that even if the allegations are proved against the accused that the conviction should be brought down to one under S. 304, Part-I, IPC.
5. The learned S.P.P. has very vehemently opposed this submission because he points out that this is not a case in which the girl had in fact eloped nor was it a case in which Challappa had either kidnapped her or subjected her to any confinement which could provoke a strong re-action from family relatives. Secondly, he pointed out that the parties were on their way to the Police and it is not as though, in the immediately preceding moments of incident anything happened which could have thrown the mental balance of the accused out of equilibrium. Thirdly, he submitted that this is a double murder case in which the accused has inflicted five serious injuries on each of the deceased which clearly indicates that he has systematically and in a calculated fashion attacked them which could not be the situation if he was acting under sporadic provocation. Fourthly, what he submitted was that everything which the appellant's learned Advocate submitted could at the highest be regarded as extenuating circumstances which may justify the lesser of the two punishments prescribed under S. 302, IPC.
6. We have bestowed our anxious consideration to the facts of this case which are undoubtedly out of the ordinary. The appellant's learned Advocate is right when he started by pointing out that a murderous assault on a young sister is something so very exceptional that it could only have been triggered off by something equally strong and undoubtedly grave. The conduct of the accused prior to the incident indicates that he was gravely disturbed by the developments, principally the fact this his minor sister was virtually hell-bent on going away with Challappa and had in fact left the house in preparation thereof. It is true that the two of them had been found by the accused but the record indicates that the girl was in no mood to come back to her family and the couple were being taken to the Police obviously as a final attempt to get them to see reason. The accused did not assault either of them when they were found or for that matter when they were on the way to the Police Station though the pen knife was very much in his custody all through that period. It is only when the talk took place between the three that he flew into such a range that he virtually killed both of them even before anybody could intervene. It is the psychology of a small mind which some times uses a matter of honour as being more important than life itself and conversely that dishonour is worse than death. This was precisely the situation that triggered of the uncontrollable rage or frenzy which resulted in the unfortunate incident. Provocation need not necessarily be confined to a physical or verbal attack but there could be that small class of exceptional situations when the situation provocation gives rise to commission of an offence and even though the concept is comparatively lesser known in criminal jurisprudence, it is not foreign to it. We do feel therefore that on a very realistic basis that the second plea put forward by the appellant's learned Advocate deserves to be upheld on the exceptional circumstances of this case. It is clear to us that the accused held out an ultimatum to the couple, that they stood up to him in defiance and that in a flash of a moment he totally and completely lost control of his sense of reasoning and attacked the two of them. The manner in which the attack took place, the number of injuries inflicted, the fact that one of the victims was a young girl and the blood sister of the accused are factors that go very heavily against him in so far as even if on legal technicalities the conviction would have to be altered to one under S. 304, Part-I, IPC, having regard to the aforesaid and particularly the fact that it is a case of double murder, we propose to award a sentence of 10 years R.I. under S. 304, Part-I, IPC.
7. In the result, the appeal partially succeeds. The conviction and sentence awarded to the appellant under S. 302, IPC are set-aside. The appellant is convicted of the offence punishable under S. 304, Part-I, IPC and sentenced to R.I. for ten years. The appellant will be entitled to set off for the period already undergone by him.
8. Order accordingly.