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Burden of proof is on accused to prove the voluntary consent of the deceased



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

NARENDRA                                             ….Appellant


STATE OF RAJASTHAN                             … Respondent

Dated;September 2,  2014


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
(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.

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

New Delhi;
September 2,  2014


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