Jagdishbhai Girdharlal Soni vs State of Gujarat

A.L. Dave, J.—The appellant came to be convicted by the learned Additional Sessions Judge, Fast Track Court, Navasari, for the offence of murder of his wife Rekhaben, by judgment and order dated 13.02.2004, in Sessions Case No. 100/2002.

The alleged incident took place on 17.4.2002 on the bank of river Kaveri near Bilimora. The case against the accused-appellant was initiated by the prosecution and accepted by the trial Court on circumstantial circumstances.

As per the prosecution case, the appellant was married to his wife Rekhaben about eleven months prior to the incident. He suspected fidelity on the part of his wife Rekhaben and there was dispute on this aspect between them. It is the case of the prosecution that few weeks prior to the incident, the appellant had told his father-in-law Prakashchandra Ishwarlal (PW.9) that he should not interfere in the affair or else, some novel action will be taken by the appellant. The appellant used to visit a shrine at Bilimora Desara-Shamala Falia on the bank of river Kaveri, and he had gone to that shrine about a week prior to the incident. He stayed there with his wife and used to go out for meals with his wife. This was in the knowledge of PW.10 Bipinbhai and PW.11 Mahendrabhai. On 18.4.2002, dead body of Rekhaben was found by PW.10 Bipinbhai, who, in turn, informed PW.11 Mahendrabhai and also the police about the same, on the basis of which, an occurrence report was registered, panchnama was drawn and postmortem was performed. The cause of death was found to be asphyxia due to strangulation. It was revealed by Pw.11 Mahendrabhai that in the late evening of the previous day i.e. 17.4.2002, the appellant had borrowed the bicycle of the witness, as he wanted to go for meal with his wife Rekhaben. Parallel to this, the appellant came to be arrested from Chikhali by Chikhali police on 19.4.2002 u/s 41 of the Code of Criminal Procedure. He was found to be possessing bicycle belonging to Mahendrabhai (PW.11). The police thereafter concluded the investigation and filed charge sheet in the Court of learned J.M.F.C. Gandevi, who, in turn, committed the case to the Sessions Court at Navsari where Sessions Case No. 100/2002 came to be registered. The charge was framed against the accused-appellant at Exh.1, to which he pleaded not guilty and came to be tried.

The trial Court, after considering the evidence, came to the conclusion that there is no direct evidence involving the appellant, but, circumstances established the complete chain connecting the appellant with the offence. The trial Court indicated five circumstances in the judgment, viz. (1) the appellant had gone to the shrine along with his wife about 5-6 days prior to the incident and were staying there; (2) the appellant and his wife had visited the shrine about 5-6 months prior to the incident and, therefore, he had come into contact with PW.10 Bipinbhai and PW.11 Mahendrabhai and were, therefore, known to each other; (3) there is evidence to show that during their stay, the appellant and his wife used to go for dining together and used to sleep in the courtyard of the shrine; (4) the appellant had approached PW.11 Mahendrabhai for borrowing his bicycle at about 11.00 P.M on 17.4.2002 for going for meal with his wife, and (5) the appellant was apprehended by Chikhali police, along with the bicycle borrowed by him from witness Mahendrabhai, two days after the incident. The trial Court, therefore, on the basis of the above circumstances convicted the appellant for murdering his wife and sentenced him to undergo life imprisonment and to pay a fine of Rs. 5000/-, in default, to undergo further imprisonment for one month.

We have heard learned advocate Mr. Qureshi for the appellant and learned A.P.P. Mr. Nanavati for the respondent-State.

Learned Advocate Mr. Qureshi submitted that the case depends on circumstantial evidence and chain cannot be said to be complete. He submitted that major of the circumstances considered by the trial Court emerge from the deposition of witnesses Mahendrabhai and Bipinbhai. They are in the form of last seen together and nothing beyond. Mr. Qureshi submitted that the conduct of the accused would be relevant, but, merely because he did not lodge any FIR for missing of his wife, it cannot be considered a circumstance against him.

6.1 Mr. Qureshi has placed reliance on the decision of the Apex Court in the case of Mula Devi and Anr. v. State of Uttarakhan, 2009(3) G.L.H. 283 to support his argument that non-lodging of FIR regarding the death of wife by the husband would not be a factor against the accused in cases where case depends on circumstantial evidence.

Mr. Qureshi, therefore, submitted that the appellant''s appeal may be accepted and the trial Court''s judgment may be set aside.

Learned A.P.P. Mr. Nanavati has opposed the appeal. According to him, apart from five circumstances indicated by the trial Court, there are other circumstances, which also establish a complete chain to link the appellant with the offence. He submitted that the appellant was suspecting fidelity of his wife. He had threatened his father-in-law of some innovative action about 5 days prior to the incident and, therefore, he had a strong motive. Mr. Nanavati submitted that in the past, the appellant had beaten up Rekhaben and for that purpose, a complaint was lodged against him with the police.

7.1 Mr. Nanavati submitted that the appellant and the deceased were seen together in the proximity of the time of the incident and thereafter the appellant absconded and was arrested by Chikhali police after two days from a different town called Chikhali, which is at a distance of about 15 to 20 Kms from Bilimora. He was found to be in possession of the bicycle of witness Mahendrabhai for two days. Not only the appellant absconds, but, he does not inform Mahendrabhai that he is leaving Bilimora and that too along with his bicycle. He has not attempted to explain his visit to Chikhali with the bicycle when he came to be arrested by Chikhali police, independent of the knowledge about the incident.

7.2 Mr. Nanavati further submitted that the appellant did not bother even to inquire about his wife if really he was unaware about the incident, which is not a natural conduct of a husband. Mr. Nanavati, therefore, submitted that the appeal may be dismissed.

We have examined the record and proceedings in the context of the rival side submissions.

It is true that the case against the appellant is based on the circumstantial evidence. The chain of circumstances, which gets established by the evidence, can be narrated thus: (1) The appellant was married to his wife about 11 months prior to the incident and had been suspecting her fidelity; (2) During this short span of married life, the appellant had beaten up his wife Rekhaben for which a complaint was lodged; (3) 15 days prior to the incident, the appellant threatened his father-in-law of doing something novel with his wife; (4) the appellant and his wife Rekhaben were seen together by the two material witnesses Mahendrabhai and Bipinbhai till late evening hours of the previous day when they left together; (5) In the very next morning i.e. on 18.4.2002, dead body of Rekhaben was found; (6) the appellant was missing since thereafter; (7) the appellant was arrested by Chikhali police after two days on 19.4.2002 along with the bicycle of Mahendrabhai; (8) During these two days, the appellant does not take any step to locate his wife if he was unaware about what had happened; (9) the appellant left Bilimora without intimating about his departure or without intimating that he is leaving along with the bicycle of Mahendrabhai for whatsoever reason; (10) The deceased died of asphyxia due to strangulation, which was opined to be possible with dupatta of the deceased which was recovered from her dead body.

The factum of marriage is not disputed. The factum of previous quarrel suspecting fidelity of the deceased is proved through the evidence of father Prakashchandra and mother Hiraben of the victim. The evidence that the appellant was at the shrine with his wife deceased Rekhaben for about six days and that he left the place in the evening of 17.4.2002 is established through the evidence of PW.11 Mahendrabhai. The dead body of Rekhaben was found from the bank of river Kaveri by PW.10 Bipinbhai. The appellant was arrested by Chikhali police on 19.4.2002 along with the bicycle of Mahendrabhai is established through the evidence of police officer PW.13 Ayubbhai Habibkhan, and the conduct of the appellant of escaping from Bilimora along with the bicycle of Mahendrabhai without informing him, and the conduct of not taking any steps to locate his wife Rekhaben if he was at all unaware about the incident; the conduct of his not informing his father-in-law about the incident along with the discovery of place of incident by the appellant, provide a strong and complete chain of circumstances, which would connect the appellant with the offence. It may be noted that the defence by the appellant was that of total denial.

There cannot be any dispute on the aspect that non-lodging of FIR regarding death of wife by the husband would not be a factor against accused in cases where case depends on circumstantial evidence, but, the subsequent conduct of the accused would certainly be relevant. In the instant case, if the appellant was unaware about the incident, his normal conduct would have been to approach witness Mahendrabhai and to tell him that his wife was missing, or to inform Mahendrabhai that since his wife was missing, he was leaving Bilimora with Mahendrabhai''s bicycle. The appellant has done neither of the two and he was found roaming at Chikhali and he came to be arrested u/s 41 Cr.P.C. Therefore, this judgment cannot be helpful to the appellant.

For the foregoing reasons, the appeal must fail and stands dismissed.