1` IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Cri. APPA No. 151/2009 In Criminal Appeal No. 470/2009 Abdul Karim s/o Jabbar Sheikh @ Indumiya Sheikh vs. State of Maharashtra, through P.S.O. Bhisi Police Station, District: Chandrapur.. ----------------------------------------------------------------------------------- Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. CORAM : A.P.Lavande & P.D.Kode,JJ DATE OF RESERVING : 17.02.2010 DATE OF PRONOUNCEMENT : 23.02.2010 Heard Mr. R.M. Patwardhan, learned counsel for the applicant and Mr. J.B.Jaiswal, learned A.P.P. for the respondent. 2. By this application under Section 389 of Cr.P.C. the applicant seeks suspension of sentence and bail. The applicant has been convicted for the offence of murder of his wife Mumtaj by the Judgment and order dated 17th June, 2009 passed by the Additional Sessions Judge,Warora in Sessions Case No. 31/2008. 3. Deceased Mumtaj was married to the applicant about 14 years prior to the incident which occurred on 29.11.2006 at Shankarpur. The parents of deceased 2` Mumtaj were also residing at Shankarpur. The applicant was in the habit of drinking and assaulting Mumtaj. The applicant was residing at Shankarpur along with his wife, daughter and two sons. The mother of the applicant had visited Shankarpur and she was there for about 2-3 months. On the earlier day of the incident she along with daughter and one son of the accused went to Warashioni and the applicant, his deceased wife Mumtaj and their son Ahir were at the house. According to the prosecution, on 29.11.2006 at about 9.00 p.m. the applicant assaulted his wife with the axe causing serious injuries on her vital parts resulting her death. Pursuant to the report lodged by P.W.1 Sheikh Ahemad – father of the deceased investigation was taken up and charge sheet was filed. In Sessions Case No. 31/2008 the prosecution examined four witnesses. The trial Court convicted the application for the offence punishable under Section 302 and acquitted him of the offence punishable under Section 498-A of the Indian Penal Code. 4. The learned trial court relied upon the evidence of P.W.1 Sheikh Ahmed and P.W.2 Altaf Sharif Sheikh the neighbour Altaf deposed that on the day of incident in the morning he along with the applicant, deceased Mumtaj and 2-3 persons had gone to jungle to collect firewood and they returned in evening. He had been to the house of the applicant at about 8.00 p.m. and at that time the applicant, his wife Mumtaj and son Sahel were in the house. At about 9 p.m. he heard some commotion from the house of the 3` applicant. Thereafter, he informed the father of the deceased. After the door of the house was opened dead body of Mumtaj was found with no clothes on her person and a blood stained axe was found on the spot. The applicant was not in the house. 5. Mr. Patwardhan, the learned counsel appearing for the applicant submitted that there is absolutely no evidence on record to connect the applicant with the crime. Mr. Patwardhan further submitted that the applicant was residing at Warashioni in Madhya Pradesh and he was arrested on 25.11.2007 when he came to Shankarpur. He further stated that on the day of the incident he was not in the house and he had left along with his mother, son and daughter to Warashioni and he came to know about the death of his wife after his arrest. According to Mr. Patwardhan, the motive has not been proved which is fatal to the prosecution case. 6. Per contra, Mr. Jaiswal the learned A.P.P. for the respondent submitted that the evidence of Altaf (P.W.2) clearly proves that the applicant was in the village Shankarpur on the day of the incident and, therefore, his defence that on the previous day he had gone to Warashioni cannot be accepted. The learned A.P.P. further submitted that the applicant was absconding for almost the period of one year which clearly proves his complicity in the crime. 4` 7. Having considered the rival submissions and having perused the record we are of the considered opinion that there is evidence against the applicant to connect him with the crime. At this stage, we have no reason to disbelieve the version of Altaf that the applicant was in the house at 8 p.m. on the day of incident. The applicant has not placed any material on record to substantiate his defence that on the previous day of the incident he had left village Shankarpur and had gone to Warashioni along with his mother and two children. The post mortem report clearly discloses that deceased Mumtaj was brutally assaulted with an axe which was found on the spot which resulted the death of Mumtaj on the spot. No doubt except Altaf no other witness has been examined to establish the presence of the applicant in the village Shankarpur on the day of incident. But we have no reason to disbelieve the version of Altaf that the applicant was in the village Shankarpur on the day of the incident. The evidence of Altaf coupled with the fact that the applicant was arrested on 25.11.2007 clearly proves the complicity of the applicant in the commission of the murder of his wife Mumtaj. Insofar as the motive is concerned, even if the argument of Mr. Patwardhan that the prosecution has not been able to prove the motive on the part of the applicant is accepted, the same by itself is not sufficient to hold that the prosecution has not proved complicity of the applicant in the crime. In our considered opinion, there is evidence on 5` record to prove that the applicant committed murder of his wife Mumtaj. 8. For the reasons aforesaid, we do not find any merit in the application. Hence, the applicant stands dismissed. JUDGE JUDGE patle