MOHAMMED ASHIF GULAMKADAR SHAIKH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE instant appeal has been preferred by the appellant under section 374 of the Code of Criminal Procedure, 1973 ("the Code" for short) against the judgment and order rendered by learned additional Sessions Judge, Court No. 9, ahmedabad City on 21-2-2004 in Sessions case No. 35 of 2003 whereby the present appellant being the accused of the said Sessions Case came to be convicted for the offence punishable under Section 302 of IPC. The appellant was sentenced to undergo imprisonment for three years and to pay a fine of Rs. 5,000/-, in default, to undergo rigorous imprisonment for six months for the offence established against him under section 498-A, while he was sentenced to undergo imprisonment for life and to pay a fine of Rs. 7,000/-, in default, it was directed that the same shall be recovered in accordance with law. It was directed that both the sentences shall run concurrently.

(2.) AS per the brief case of the prosecution, in this case the deceased is femidabanu, wife of the accused. The appellant and the daughter of the complainant Hajimiya Mohammad Shaikh, resident of Vasna, Ahmedabad. The husband of femidabanu appellant herein was her maternal cousin and wedding took place in 1996 and out of this wedlock, Femidabanu had delivered the child named Mohammad asad. After three months of the marriage of the appellant and Femidabanu, their marriage life was in doldrum and it is alleged that the appellant started doubting chastity of Femidabanu and executed mental as well as physical cruelty. It is alleged that numbers of time during her married life, femidabanu visited the house of her parents and expressed her determined will not to return the home at her in-laws. It is the prosecution case that, however, after considerable persuasion, Femidabanu was sent back to the house of the appellant and the appellant was also requested to behave in a good manner. On 24-10-2001, Sairabanu-sister-in-law of Hajimiya Mohammad Shaikh- complainant - the father of the deceased came around 9. 30 in the morning and conveyed to the complainant that Femidabanu was sick. In pursuance of this news which he had received, Hajimiya Mohammad shaikh visited the house of the parents of the appellant and it was found by him that femidabanu - his daughter had already died. According to his case, the appellant conveyed to him that at around 8. 30 in the morning, Femidabanu had vomiting and convulsion which resulted into her death. It was also at that juncture heard by the complainant that Femidabanu had committed suicide by hanging on fan and undoubtedly there were marks of ligature around her neck. On the same day, i. e. on 24-10-2001, the complaint came to be filed by the father- Hajimiya Mohammed Shaikh before the police i. e. before the Assistant Commissioner of Police, "c" Division, Ahmedabad which was recorded and initially came to be registered against the accused under Section 498-A and 306 of IPC. During the investigation and from the postmortem note, it was found that the death was homicidal and, therefore, charge under Section 302 was added and charge-sheet was filed against the accused appellant before the Court of learned Metropolitan Magistrate who in turn committed the case to the Court of Sessions and was made over to learned trial Judge.

(3.) INITIALLY, charge came to be framed against the appellant accused by the trial court vide Exh. 4 on 9-5-2003 for the offence punishable under Sections 498-A and 306 of IPC. However, thereafter after passing the detailed order below Exh. 4, further charge came to be framed against the accused on 17-9-2003 whereby the accused was also charged alternatively for the offence punishable under Section 302 as well. The charge was read over to the accused who pleaded not guilty. The prosecution, therefore, examined as many as 11 witnesses as under. <FRM>JUDGEMENT_3582_CRLJ_2009Html1.htm</FRM>