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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.  

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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  

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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  

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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.  

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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  

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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  

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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.

(7) Bruise 5 cm. x 4cm on right hand posteriorly.”

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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  

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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.  

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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  

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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  

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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  

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