IMPORTANT POINT
Death of a person under suicide pact at the hands of the other. Death not pre premeditated. Accused sustaining stab injuries. Offence falls u/s 304 Part- I and not 302.

JUDGMENT :

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 ca