NATHIA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal of Nathia appellant is directed against the judgment of the learned Sessions Judge, Udaipur dated Feb. 24th, 1972 where by the appellant has been convicted under section 302 I P.C. and sentenced to imprisonment for life. He has also been convicted under section 324 Indian Penal Code to cause simple injuries to his wife Andu and sentenced to one year rigorous imprisonment.

(2.) The facts giving rise to this case are not much in dispute. Deceased Wajia was the real brother of Nathia appellant. On the night between 17th and 18th May, 1971 Wajia was seen by the accused having sexual intercourse with his wife Mst. Andu. The accused, it is alleged, caused injuries with a sword on the person of Wajia which resulted in his instantaneous death. Accused was arrested next day and at the time of his arrest he was found to be in possession of sword Ex. 1 which was not found to be stained with blood. The Dhoti which the accused was wearing was however found to be blood stained and therefore it was ceased by the arresting officer. Dhoti when sent to the Chemical Examiner and the Scrologist, was found to be blood stained.

(3.) Mst. Andu, wife of the accused, the sole eye-witness divulged the prosecution story at the stage of enquiry (vide Ex. P. 7) like this : that the accused on that fateful night told her that his camel had been lost and, therefore, he was going in search of that camel ; but instead of going out of the house he hid himself behind the Kothi. Deceased Wajia came to her house in the night and indulged in the sexual intercourse with her. Thereafter both Andu and Wajia slept for sometime. When for the second time both of them indulged in sexual intercourse, Nathia appeared at the scene and inflicted sword blows on the person of Wajia. Wajia tried to go out of the house but no sooner he icached the chowk, he fell down and died. At the trial Mst. Andu resiled from this portion of her previous statement that Nathia had hidden himself behind the Kothi. On the request of the prosecution the previous statement of Mst. Andu Ex. P. 7 recorded before the committing court was brought on the record in evidence under section 288 Cr P. C. Learned Sessions Judge while' placing reliance on the previous statement of Mst. Andu and rejecting the case set up by the defence that the accused acted under the grave and sudden provocation held that the provocation no doubt, was grave when the accused saw his wife actually indulging in sexual intercourse with his brother Wajia but it was not sudden as Nathia had hid himself with a sword in his hand behind the kothi to witness the infidelity of his wife towards him and, therefore, in the opinion of the learned Judge the case of the appellant did not fall within the Exception I to section 300 Indian Penal Code