Judgement on sentenced to undergo imprisonment for the period already undergone.

In the present case, the accused has taken the defence plea of
suicide pact even in the trial court while being questioned under
Section 313 Cr.P.C. The defence version is probabilized by the above
facts and circumstances of the case. The death of deceased was not
premeditated and the act of the accused causing death of Nathi, in our
view, appears to be in furtherance of the understanding between them to
commit suicide and the consent of the deceased and the act of the accused
falls under Exception 5 of Section 300 IPC. Since the accused
intentionally caused the death; the appellant is found guilty under
Section 304 Part I IPC. The appellant is stated to be in custody for more
than 10 years.
18. In the light of the foregoing discussion, the conviction of the
appellant under Section 302 IPC is modified and the appellant is
convicted under Section 304 Part I IPC and sentenced to undergo
imprisonment for the period already undergone by him and the appeal is
allowed in part. The sentence of imprisonment for conviction under
Section 309 IPC is ordered to run concurrently. The appellant is in jail,
and he be released forthwith if not required in any other case.

——————————————————————————————————————————————————————————————-

Non-Reportable

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1902 OF 2014
(Arising out of SLP (Crl.) No. 1800 of 2014)

NARENDRA ….Appellant

Versus

STATE OF RAJASTHAN … Respondent

J U D G M E N T

R. BANUMATHI, J.
Delay condoned. Leave granted.
2. This appeal is directed against the judgment dated 9.11.2011
passed by the Jodhpur Bench of Rajasthan High Court in D.B. Crl. Appeal No.
950/2004 by which the High Court has confirmed conviction of the appellant
under Sections 302 and 309 IPC and the sentence imposed upon him.
3. Briefly stated, the case of the prosecution is that Nathi,
sister of PW-3 Naresh Salvi, got married to Magan Salvi. About two years
prior to the incident, due to differences with her husband, Nathi left her
matrimonial house and she was residing at her parents’ house, Mauza Basti,
District Udaipur. While staying at her parents’ house, Mauza Basti, Nathi
developed intimacy with Narendra- the accused. About three months prior to
the incident, Nathi and the accused eloped and returned to the village
after 10-15 days. On 19.03.2003, the parents of the deceased and the
complainant went for work. PW-3 was also not at home and he was
participating in some events pertaining to Holi festival and Nathi was all
alone at home. At about 2.30 p.m., on returning home, PW-3 found the main
gate closed, and despite calling, the gate was not opened from inside.
Thereafter PW-3 entered into the interior open floor of the house through
the outer wall, wherefrom he saw Nathi and Narendra standing in a room
with closed door. From the peep-hole of the door, PW-3 saw the accused
with a sword in his hand and the accused inflicted sword blows on the
deceased and caused stab injuries on the chest and the abdomen. On hearing
the alarm raised by PW-3, neighbours Kalu Lal and Shankar Lal and others
came to the place of occurrence and the door of the room was opened. Nathi
was found on the floor with stab injuries bleeding all over and accused
was also found having stab wounds in his abdomen.
4. On oral information given by PW 1- Shankar Lal, Sarpanch Kishan
Singh had telephoned to police and FIR was registered against the accused.
PW 7 – Dr. M.L. Purbia conducted autopsy on the body of the deceased Nathi
and opined that the cause of death was due to shock and excessive bleeding
in the chest. PW-7 examined the injuries on the person of accused and
issued Exhibit P-12 Injury Certificate. After completion of investigation
the accused was challaned for the offences punishable under Sections 302
and 309 IPC.
5. To bring home the guilt of the accused, prosecution examined
PWs -1 to 17 and exhibited documents and material objects. The accused was
questioned under Section 313 Cr.P.C about the incriminating evidence and
circumstances. The accused stated that he is innocent and he had not
committed the offence. The accused further stated that himself and Nathi
were in love which was not accepted by the villagers and hence they tried
to commit suicide in which he survived and the deceased Nathi died.
6. The trial court, on consideration of evidence, convicted the
appellant under Section 302 IPC and sentenced him to undergo imprisonment
for life and imposed a fine of Rs.2,000/-, in default of payment of fine to
further undergo three months simple imprisonment. The trial court also
convicted the appellant under Section 309 IPC and sentenced him to undergo
simple imprisonment for six months and a fine of Rs.500/- was imposed and
both the sentences were ordered to run concurrently. On appeal, the High
Court confirmed the conviction and sentence imposed on the appellant under
Sections 302 and 309 IPC. Being aggrieved, the appellant has preferred
this appeal.
7. The learned counsel for the appellant contended that as per the
evidence of PW 3, the appellant and the deceased Nathi were in the closed
room and PW 3 could not have viewed the occurrence inside the room and the
site sketch does not make a mention about the peep-hole of the door and
while so, the courts erred in placing reliance upon the evidence of PW-3 to
convict the accused. It was contended that the accused and the deceased
were in deep love and both belonged to the same caste and the villagers
were not ready to accept the relationship of the accused and deceased and,
therefore, both of them tried to commit suicide and only on the consent of
the deceased, the accused inflicted injuries on the deceased and the
offence committed by the accused attracts Exception 5 of Section 300 IPC
punishable under Section 304 Part I IPC.
8. The learned counsel for the State took us through the evidence
of PW 3 and submitted that PW 3 being reliable witness, based on his
evidence, the courts below rightly held the appellant guilty of the
offence. The learned counsel contended that the stab injuries inflicted in
the chest and the abdomen of the deceased clearly show that the accused
intentionally inflicted the injuries to cause death of the deceased and the
courts rightly disbelieved the defence version and convicted the appellant.
9. We have carefully considered the submissions of the learned
counsel appearing for the parties. The explanation of the accused whether
he acted in furtherance of the suicide pact and whether the homicide falls
under Exception 5 of Section 300 IPC and whether the conviction of the
appellant is to be modified under Section 304 Part I IPC are the points
falling for our consideration.
10. The essential facts are not in dispute. That deceased Nathi
after leaving her matrimonial house, while she was residing at her
maternal home, she has developed love and intense relationship with the
accused Narendra. There is adequate evidence which clearly show the love
affair between the deceased and the accused. Since the deceased and the
accused were of the same gotra, their relationship was not accepted by the
villagers. PW-3 admits that Nathi and accused were in love and that
Nathi and the accused eloped and lived together for about 10-15 days. A
panchayat was convened after Nathi returned home. In his evidence PW 3
stated that Nathi having left her previous husband, wanted to marry the
accused; but to Gotra of both being one the marriage could not be
held. As their desire of marriage was not accepted by the villagers,
perhaps accused and the deceased were dejected.
11. In the incident, the accused had inflicted injuries with
the sword on the chest and the abdomen and from Ex.P.13-post mortem
report, it is seen that the deceased had sustained the following injuries:
“External Injuries:
(1) Stab wound with one end (edge) is sharp and other is rounded 4.5 cm.
X 2cm. X intra thorax deep on left breast in 5 the inter coastal space
going obliquely postero medially piercing right ventricle of heart of apex.
(2) Stab wound 4.5 x 2cm. x intra abdominal Horizontal – on Supra pubic
region 6cm. below umbilicus in mid low piercing peritoneum and intestine
one and is sharp.
(3) Stab wound 4.5 cm x 2cm x abdominal deep on right side abdomen 6 cm
lateral to umbilicus piece of intestine come out.
(4) Incised wound 6cm x 3cm x bone deep on middle 1/3 of left forearm,
muscles and blood vessels cut down.
(5) Incised wound 3.5cm x 2cm x muscles deep x 3cm proximal to 4th
injury.
(6) Incised wound 2.5cm x 0.2cm x skin deep right elbow.
Bruise 5 cm. x 4cm on right hand posteriorly.”

PW-7 Dr. M.L. Purbia opined that the death was due to shock and haemorrhage
and injury No.1 was sufficient to cause the death.
12. The accused also had the following stab injuries.
“1. Stab wound- 2cm x 1cm. x intra abdominal deep- near umbilicus –
reserved sharp.
2. Stab wound- 1.5cm x 1 cm x deep intra abdominal- on umbilicus 1 cm
away from injury No.1- reverse sharp.
3. Stab wound- 2 cm. x 1 cm x intra abdominal – near umbilicus 1.5 cm
below injury No.2 -reverse sharp.”

The accused self inflicted the above injuries and tried to commit suicide.

13. The trial court and the High Court recorded concurrent findings
that the accused caused the death of Nathi and he also attempted to commit
suicide and the said findings are unassailable. While explaining the
circumstances in which he caused the death of the deceased, the appellant
stated that he and deceased, Nathi were in love and they also solemnized
their marriage and since the appellant and deceased belonged to the same
sub-caste, the villagers had objections for their relationship and
therefore both himself and Nathi tried to commit suicide. The defence
version is that acting on the consent of Nathi, appellant inflicted
sword injuries on Nathi and Nathi died but before however the appellant
could kill himself, there was intervention and therefore he could not kill
himself and the act of the accused causing death of Nathi falls under
Exception 5 of Section 300 IPC punishable under Section 304 Part I IPC.
Reliance is placed upon the circumstance that the accused had also
sustained stab injuries.
14. The High Court disbelieved the defence version by saying that
to bring the accused within the four corners of Exception 5 of Section
300 IPC, there must be cogent evidence to show that the deceased had given
such consent and there is no material on record to establish such free and
voluntary consent of the deceased for her death. The High Court also
observed that there was no evidence to show that the deceased was
experiencing intolerable mental sufferings with no prospect of improvement
and that she took the decision that death was the only resort.
15. Under Exception 5 to Section 300 IPC “culpable homicide is not
murder when the person whose death is caused, being above the age of
18 years, suffers death or takes the risk of death with his own consent.”
To attract Exception 5 to Section 300 IPC, there must have been free and
voluntary consent of the deceased person. The onus of proving consent of
the deceased person is on the accused. Exception 5 of Section 300 IPC
must receive a strict and not a liberal interpretation. In applying the
said Exception, the act alleged to be consented to or authorized by the
victim must be considered by a close scrutiny. The court must in each case
consider the evidence and the surrounding circumstances while considering
the question of consent.
16. In the present case, in our view, there are formidable
circumstances discernible from the evidence which probablise the defence
version which are as under:
(a) Deceased Nathi and the accused were in love and they were
intending to get married. Since they belonged to the same gotra, their
relationship was not accepted by the villagers and they objected to the
same;
(b) About three months prior to the incident, Nathi and accused
left the village and lived together for about 10-15 days and thereafter
Nathi returned to her matrimonial house;
(c) On 19.3.2003, the parents of the deceased went for work and PW-3 was
also engaged in some events pertaining to Holi festival and Nathi was
alone in the house;
(d) When the accused came to the house of the deceased, he was not
armed; he had taken the sword from inside the room of the house;

(e) PW-3, nowhere stated that at the time of the incident his sister
quarrelled with the accused. When the accused inflicted sword blows,
deceased Nathi had not raised any alarm nor shouted for help;
(f) the accused was also having the stab injuries on his person.
17. In the present case, the accused has taken the defence plea of
suicide pact even in the trial court while being questioned under
Section 313 Cr.P.C. The defence version is probabilized by the above
facts and circumstances of the case. The death of deceased was not
premeditated and the act of the accused causing death of Nathi, in our
view, appears to be in furtherance of the understanding between them to
commit suicide and the consent of the deceased and the act of the accused
falls under Exception 5 of Section 300 IPC. Since the accused
intentionally caused the death; the appellant is found guilty under
Section 304 Part I IPC. The appellant is stated to be in custody for more
than 10 years.
18. In the light of the foregoing discussion, the conviction of the
appellant under Section 302 IPC is modified and the appellant is
convicted under Section 304 Part I IPC and sentenced to undergo
imprisonment for the period already undergone by him and the appeal is
allowed in part. The sentence of imprisonment for conviction under
Section 309 IPC is ordered to run concurrently. The appellant is in jail,
and he be released forthwith if not required in any other case.

………………………….J
(T.S. Thakur)
………………………….J
(R. Banumathi)

New Delhi;
September 2, 2014

———————–
12

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