DILVARKHAN HAMIDKHAN PATHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In this appeal filed under Section 374 of the Criminal Procedure Code, the appellant-Dilvarkhan Hamidkhan Pathan has challenged his conviction under Section 302 of the Indian Penal Code ("IPC" for short) as well as the sentence of R.I. for life and fine of Rs. l,000/- in default further three months R. I. recorded by me learned Additional Sessions Judge, Rajkot, in Sessions Case No.134 of 1995 vide judgment arid order dated 21-3-1997.

(2.) The relevant facts leading to me filing of the present appeal are that the incident in question is alleged to have taken place on 29th April, 1995 at the newly rented residential house of the accused at Jangaleshwar Sheri No. 27 at Rajkot. The deceased Hasina daughter of the complainant had married with the appellant accused who was residing at ;Hapa Village six years prior to the date of incident. Thereafter, both the appellant accused and the deceased Jived there happily with her husband the accused and her in-laws for about one and a half years but later on the accused started consuming liquor and the deceased Hasina was subjected to physical torture and mental cruelty by beating her for no reasan lt was further the case of the prosecution that since the deceased Hasina became pregnant she was taken to her parental home i.e. the house of the complainant and she gave birth to a baby boy. Even thereafter, the appellant accused continued to beat the deceased and ill-treat her. In fact, the deceased was completely fed up while residing at the place of her in-laws itself. Deceased Hasina used to disclose such incidents of beating whenever she used to visit the house of her father the complainant as a result of which the complainant did not send the deceased back to her matrimonial home. Even then, after the birth of the son, the sister and sister's husband and other relatives of the accused came to the house of the complainant and after arriving at a settlement deceased Hasina was taken to the place of her in-laws, where again she was meted out with ill treatment of the same nature. However, she stayed there for about eight months. Thereafter, as there was a marriage in the family at Rajkot, deceased Hasina, as also the accused and other family members of the accused came to Rajkot where the complainant who was also invited was also present. There the deceased Hasina on meeting her father-the complainant told him that her husband the accused is still treating her with mental and physical torture by beating her for no reason.Thereupon, the complainant after discussing this fact with the accused and his brother, under intimation to them, took the deceased Hasina to his house,and since then, the deceased Hasina and her son stayed there at her parental home for four years. Thereafter, before about one and half months to the date of incident a notice came to be Issued to the accused and after 15 days thereof the accused came to the house of the complainant admitted his mistake, and tendered; apology.So a compromise was entered into between the parties and a Court settlement took place. The accused and the deceased Hasina with their five year old son Akram, then, started residing separately in a newly rented house at Jangleshwar Sheri No 27, Rajkot, owned by one Hemiben vaghri From there, the accused used to attend his factory and they stayed there till a week prior to the date of the incident.

(3.) It was further the case of the prosecution that at about 6.00 p.m. On the date of incident, the deceased Hasina along with her son Akram visited the house of the complainant and told the complainant that the accused was at home (newly rented house at Jangaleshwar Sheri No. 27, Rajkot) and that he has to attend night shift duty at the factory. She also added that she had come after preparing khichadi. So saying she left her son Akram at the house of the complainant her father and returned back to their said residence at Rajkot by informing the complainant that she would be back after having dinner in the accompany of her husband the accused and from there her husband the accused would go for work. Thereafter, the complainant came on a stroll at the house of deceased Hasina and, at that time, found that the main door of her house was closed from outside by applying a chain. On opening the door and finding a closed curtain, he gave a call and since no one responded, he went inside the room and found that Hasina was lying straight on her back on the ground with her face upwards. At that time, the accused was not present in the house. He then noticed that blood and froth had Come but of deceased Hasina's mouth and that thick electric wire was encircled round her heck and she was strangulated to death. Thereupon, the complainant came out of the house of deceased Hasina crying loudly. He then went to his house and informed the family members and other relatives about the incident. His relative Yunusbhai then informed the Police by making a telephone call from the house of Ganuben residing in his street. Thus, the case of the prosecution is to the effect that even after the compromise the accused had been continuously ill-treating the deceased Hasina as he did not want to keep her with him, and therefore, with a view to get rid of her, deceased wife, the accused had encircled electric wire round her neck, strangulated her to death and fled away. Thereafter, a complaint was lodged by the complainant at Rajkot City"B" Division Police Station. PSI Avadhh Vast who was then discharging his duties at the said Police Station record the complaint and registered the offence.The investigation was handed over to P.I Chudasma who after carrying out the necessary formalities, on completion of the investigation submitted chargesheet in the Court of Chief Judicial Magistrate (F.C.), Rajkot, and on receiving information the accused was arrested on 30th April, 1995 from Jamnagar and the, case was committed to the Sessions court at Rajkot. The learned Sessions Judge had framed charge against the appellant-accused for offence punishable under Section 302 of the Indian Penal Code. The charge was read over and explained to the appellant who pleaded not guilty to the same and claimed to be tried. The prosecution therefore, examined: (i) PW 1 Alibhai Husenbhai Kureshi at Exh. 7, (ii) PW2 Dr. Navalbhai Devshankerbhai at Exh. 8, (iii) PW 3 Abdul Hameed Gafarbhai at Exh. 14, (iv) PW 4 Razakbhai Allarakhbhai at Exh. 15, (v) PW 5 Dhirubhai Jivabhai at Exh. 17, (vi) PW 6 Hasinaben Mamadbhai at Exh. 18, (vii) PW 7 Yunusbhai Basheerbhai at Exh. 20, (vii) PW 8 Hemiben Kachrabhai at Exh. 21 (ix) PW 9 Jubedaaben Hasambhai at Exh. 22, (x) PW 10 Abdul Habibbhai at Exh. 23, (xi) PW 11 Ganuben Prabhatbhai at Exh. 24, (xii) PW 12 Head constable Ramvilas Shivpujansingh at Exh. 25, (xiii) PW 13 Head Constable Manharlal Meghjibhai at Exh. 19, (xiv) PW 14 P. I. Narendrasinh Kiritsinh Chudasma at Exh. 31, (xv) PW 15 Dhirubhai Manubhai at Exh. 35, (xvi) PW 16 Ramabhai Badriprasad Gupta at Exh. 36, (xvii) PW 17 Head Constable Kedarnath Ramlal Avadhvasi Exh. 38, (xviii) PW 18 Dilip Bachubhai at Exh. 42, and also produced documentary evidence such as P. I. R. filed by the complainant Alibhai Husenbhai Kureshi the father of the deceased at Exh. 40, Panchnama of clothes worn by the deceased at Exh. 32, Post Mortem Reports, Inquest Report at Exh. 19, compromise entered into between the accused and the deceased at Exh. 13, yadies sent to PSI and PI etc. to prove its case against the appellant. After recording of evidence of prosecution witnesses was over, the learned Judge recorded the statement of the appellant under Section 313 of the Code of Criminal Procedure. In his further statement, the appellant's case was of total denial, but did not examine any witness in support of his defence.