MOHAMMEDSALIM IBRAHIM MEMON Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE appellant came to be tried by Sessions Court, Surat, for the offence of murder of his wife, Jameelabanu, allegedly committed by him on 26th December, 2001, at about 3. 00 P. M. , in his residence located at Aarifbhai Chokshi Compound, Ved Road, Surat, by inflicting multiple stab injuries. The Sessions Court, by judgment and order dated 13th June, 2003, rendered in Sessions Case No. 72 of 2002, convicted the appellant for the offence of murder and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 5000/-, in default, to undergo further simple imprisonment for six months.

(2.) THE prosecution case, as emerging from the record and proceedings of the Trial Court, is that the appellant used to stay with his wife, Jameelabanu, and minor children at Aarifbhai Chokshi Compound, Ved Road, Surat. He had suspicion about the fidelity of his wife, Jameela. On the eventful day, i. e. 26th December, 2001, at about 3. 00 P. M. , when they were at home, there was quarrel between the two and the appellant assaulted his wife with knifes and inflicted multiple blows on her persons, as a result of which, she died. This incident was seen by two minor children of the appellant. The appellant, thereafter, went to Chowk Bazar Police Station, presented himself and narrated the occurrence, on the basis of which an offence was registered and investigation made. The Investigating Agency having found sufficient material against the appellant, filed charge sheet against him in the Court of 2nd Joint Judicial Magistrate, First Class, Surat, which, in turn, committed the case to the Court of Sessions and Sessions Case No. 72 of 2002 came to be registered. The charges were framed against the appellant at Exhibit 4 for offences punishable under Section 302 of the Indian Penal Code read with Section 135 of the Bombay Police Act. The appellant-accused pleaded not guilty to the charge and claimed to be tried. The Sessions Court, after considering the evidence, found that the prosecution proved the charge of murder against the accused-appellant and recorded conviction and sentence as mentioned above. The Trial Court, however, came to a conclusion that the prosecution failed to prove the charge for offence punishable under Section 135 of the Bombay Police Act and recorded his acquittal therefor.

(3.) LEARNED Advocate, Mr. Devang Joshi, appearing for learned Advocate, Mr. Devang T. Shah, for the appellant submitted that, as per the prosecution, the incident was witnessed by two daughters of the deceased, but they have not supported the prosecution case and, therefore, there is no direct evidence so far as the incident is concerned. He submitted further that the conviction is founded on the basis of circumstantial evidence by the Trial Court. He submitted that the circumstance of discovery of weapon by the accused is not proved by the prosecution properly as the Panch witnesses have not supported the prosecution case. Similarly, the recovery of clothes of the accused is also not properly proved by the prosecution as those Panch witnesses have also not supported the prosecution case. With these two important links missing in the chain of circumstances, the Trial Court could not have recorded conviction of the appellant. He, therefore, submitted that the appeal may be allowed and the conviction may be set aside.