1975 P Cr (PLP)

(2) An incised wound, 2 " x " bone cut (neck of the mandible cut) on the right cheek., (3) An incised wound, 1 " x " x 2/3' (cutting main blood vessel and muscle) on the right side of the neck. (b) Mst. Bhirawan deceased‑ (1) An incised wound, 5' x 2/3' bone cut (frontal and nazal bone cut) on the left frontal region extending to the nose. (2) An incised wound, 6-1/3" x " blood vessels and muscle cut, trachea cut on the front and both sides of the neck. (3) An incised abrasion, 2 " x 1/8", on the front of left chest. (c) Mst. Taj Mai deceased (1) An incised wound, 4" x 1 " bone cut (lower jaw cut) on the front of neck. (2) An incised wound, 1-2/3" x " x 2" (muscle and main blood vessels of the neck of the left side were cut). Death in the case of Hassan Bakhsh had occurred due to shock and haemorrhage as a result of injuries Nos. 1 to 3 while in the case of Mst. Bhirawan and Mst. Taj Mai as a result of injuries Nos. 1 and 2, which were suffcient to cause death in the ordinary course of nature. All the injuries on the deceased were caused by sharp‑edged weapon. Doctor Nazir Ahmad, Medical Officer, Duayapur examined Mithoo P. W. on 25th April 1970, at 8 a.m. and found two incised wounds and two abrasions on his person. Incised wound 5 " x 1" x 1" on the scalp was declared grievous and the others were declared simple. The incised wounds were caused by sharp‑edged weapons and the abrasions with blunt weapon.

5. The appellant refused to make any statement before the committing Magistrate and stated that he would give a detailed statement before the trial Court. Before the trial Court he admitted that Mst. Taj Mai was married to him and that she had started living with him in the area of Mumtazabad. He denied that he ever suspected his wife to be of bad character, but admitted that 3/4 months prior to the occurrence she had left his house and started living with her parents in Chak No. 371/WB. When questioned about the incident which took place on the night between 24th/25th July 1970, he made the following statement :‑ "I went to Chak No. 371/WB to bring back my wife Mst. Taj Bibi and when I reached the house of the complainant Ghulam Qadir and Mithoo P. Ws. at 2 a.m. on the night of the occurrence, I saw Mst. Taj Bibi and Hassan Bakhsh were having sexual intercourse and on account of this I lost my self‑control and I killed both of them with a kulhari and not with kassi P.

1. I did not see Ghulam Qadir, Mithoo P. W. and Mst. Bhirawan in the ihata at that time." The appellant denied to have made any murderous assault on Mithoo P. W. He stated that he had not been caught red‑handed with kassi P.

1. He disowned the recovery of kasst P. 1 from his possession as well as the recovery of shirt P. 8 and chaddar P. 9 which had been removed from his person by the police officer. While pleading innocence he stated that he had murdered Mst. Taj Mai and Hassan Bakhsh under grave and sudden provocation. About the killing of Mst. Bhirawan he stated that he had been falsely implicated in this case.

6. The prosecution case rests on the ocular evidence of Ghulam Qadir, (P. W. 5), Mithoo (P. W. 8) and Khuda Bakhsh (P. W. 9) as well as the recovery of kassi P. 1 produced by Khuda Bakhsh, which was found to be stained with human blood vide Serologist's report Exh. P. Y. Reliance was also placed on the post‑mortem examination of the three deceased and the medico‑legal report of Mithoo P. W.

7. As already observed, the appellant admitted to have killed Mst. Taj Mai and Hassan Bakhsh and the trial Court accepting his plea of grave and sudden provocation gave him the concession which he was entitled to in law. This finding of the trial Court has not been challenged either by the State or by the private party. The point which needs consideration is whether the conviction of the appellant for the murder of Mst. Bhirawan under section 302, P. P. C. and sentence is in accordance with law and so is the other conviction under section 307, P. P. C. Ghulam Qadir, the first informant, and Mithoo P. W. are real brothers. Mst. Bhirawan deceased was the wife of Mithoo, while Mst. Taj Mai, wife of the appellant, was the daughter of Mithoo. Hassan Bakhsh deceased was neither related to the complainant side nor to the appellant and as such' was a stranger to the family, but was present in the house of Ghulam Qadir as a guest on the night when he was killed. Ghulam Qadir P. W. admitted that the appel lant suspected his wife to be carrying on with Hassan Bakhsh. The witness further said that when he woke up be saw the appellant giving kassi blows to Hassan Bakhsh and the appellant after finishing him injured Mst. Taj Mai. According to Ghulam Qadir Mst. Bhirawan was sleeping when Hassan Bakhsh had been attacked and when she woke up, she tried to rescue Mst. Taj Mai. This witness also deposed how Mithoo was injured. Ghulam Qadir admitted that the appellant had charged his wife of illicit intimacy with Hassan Bakhsh. He further admitted that on coming to know of this he felt disgrace and even warned Mst. Taj Mai not to see Hassan 'Bakhsh in future nor should he come to the house of Mst Taj Mai. The sugges tion that Mst. Taj Mai was lying with Hassan Bakhsh when they were killed, was denied by the witness. Ghulam Qadir also denied that either he or Mithoo killed Mst. Bhirawan due to her illicit relations with one Muhammad Khan barber. Mithoo P. W., whose presence at the spot cannot be doubted as he was injured, deposed that he woke up on hearing the alarm of his wife Mst. Bhirawan. She was being injured with kassi by the appellant and by that time Hassan Bakhsh and Mst. Taj Mai were lying murdered on their cots. He alongwith his brother Ghulam Qadir tried to intervene and then the appellant gave him kassi blows on his head. The appellant was caught red‑handed at the spot with the kassi. Khuda Bakhsh (P. W. 9) alongwith Ghulam Sarwar came to the spot on hearing the alarm from the house of Ghulam Qadir and Mithoo P. Ws. and noticed that the appellant was holding a kassi. He was then inflicting blows on Mst. Bhirawan. According to Khuda Bakhsh three blows were given to her, one on the forehead, second on the neck and the third on the right shoulder. Khuda Bakhsh saw Mst. Taj Mai and Hassan Bakhsh lying murdered there. He admitted that he had stated before the commit tiDg Magistrate that the appellant killed the three deceased due to Illicit connections of Mst. Bhirawan and Mst. Taj Mai with fIassan Bakhah.

8. All the aforesaid three witnesses were very consistent in their state ments about the murder of Mst. Bhirawan and so in their testimony about the attack on Mithoo P. W. The only point to be considered now is whether the plea of grave and sudden provocation would also be available to the appellant for the murder of Mst. Bhirawan. The prosecution case itself is that Mst. Taj Mai was suspected of having illicit relations with Hassan Bakhsh, The presence of Hassan Bakhsh in the house of Ghulam Qadir P. W. on the night of occurrence is quite significant. He was not related to the complainant party and thus the only explanation of his presence was the attraction of Mst. Taj Mai. The occurrence, according to the prosecu tion, took place at about midnight. All the occupants of the house were asleep at that time. The first person who woke up was Ghulam Qadir P. W. He admitted that it was Hassan Bakhsh who had been attacked first and subsequently Mst. Taj Mai was injured. One thing which is very important in the evidence of this witness is that he did not depose as to whether Hassan Bakhsh and Mst.‑ Taj Mai were sleeping on separate cots and, therefore, the possibility that both were sharing the same bed cannot be ruled out. The report of the Chemical Examiner that the vaginal swabs of Mst. Taj Mai were not found to be stained with semen may prove that they were not found in part delicto. Nevertheless, it would still be a case of grave and sudden provocation if the appellant noticed his wife lying with a stranger in the middle of night. Keeping all the facts in view the plea taken by the appellant appears to be more plausible. In this connection this fact cannot be ignored that Hassan Bakhsh could not be present in the house of Ghulam Qadir P. W on that night without the knowledge of the occupants of the d house which included Mst. Bhirawan as well. It would, therefore, be too much to expect from a person acting under grave and sudden provocation to at once restrain and control himself once he had been completely deprives of self‑control. I am therefore, of the view that when Mst. Bhirawan was killed, the appellant acted under grave and sudden provocation.

9. For the foregoing reasons I am of the view that the conviction of the appellant under section 302, P. P. C. and his sentence is not legally maintainable. The same is, therefore, altered to one under section 304, Part 1, P. P. C. and his sentence is reduced to a period of five years. His convictions under sections 307, 304 Part 1, P. P. C. in my view are in according with law and the same are accordingly maintained. All the sentences would run concurrently with the result that the appeal is partially allowed. Order accordingly.