1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CRIMINAL APPLICATION NO. 702 OF 2010 IN CRIMINAL APPEAL NO. 105 OF 2008 (Sk. Rahim Sk. Karim vs. State of Maharashtra) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Shri Amit Prasad, Advocate for the applicant. Shri T.A. Mirza, Advocate for the respondent. ….. CORAM : MRS. V.K. TAHILRAMANI & PRASANNA B. VARALE, JJ. MARCH 17, 2011. Heard Shri Prasad, learned counsel for the applicant – original accused and Shri Mirza, learned APP for the respondent – State of Maharashtra. The applicant has been convicted under Section 302 of Indian Penal Code for causing the death of his wife Wahidabi by strangulating her with odhani. The applicant is now seeking bail. P.W. 1 – Sayyed Latif Sayyad Noora, who is father of Wahidabi has stated that in the first two years of her marriage his daughter was properly treated but thereafter the accused started demanding money and beating Wahidabi on account of demand of money. P.W. 1 has stated that the accused himself or along with his daughter used to come to his house and used to demand money. His daughter Wahidabi used to disclose said ill- 2 treatment to her by the accused. A few days prior to the death of Wahidabi, the accused and Wahidabi came and met him. At that time, the accused demanded Rs.1,000/- from him and threatened that if he is not given money, he would kill his wife Wahidabi. To avoid ill-treatment or assault on his daughter, P.W. 1 borrowed money from his mother-in-law and gave the same to the accused. At that time, the accused took oath that he would not beat his wife and he would not again demand money from him. Thereafter both, the accused and Wahidabi went back to their matrimonial house at Malkapur. After few days, the complainant received a telephone call that his daughter was killed by the accused by pressing her neck and throat by odhani. The learned counsel for the applicant submitted that the fact that the accused used to demand money is an omission. To support his contention, he drew our attention to the cross examination of the Investigation Officer – P.W. 5 – Meghrajani, wherein P.W. 5 has stated that the complainant did not tell in his complaint that the accused used to send his wife Wahidabi to him for demanding money. As far as this aspect is concerned, it is noticed that the complainant has also stated that the accused along with Wahidabi used to come to him to demand money. The complainant has clearly stated that few days prior to the incident, the accused with his wife Wahidabi visited him and at that time accused demanded Rs.1,000/- from 3 him. The accused threatened that if he is not given money, he would kill his wife Wahidabi. To avoid ill- treatment or assault on his daughter, P.W. 1 borrowed money from his mother-in-law and gave the same to the accused. Thereafter both, the accused and Wahidabi went back to their matrimonial house at Malkapur. As far as the above averments are concerned, there is no omission brought on record. Thus, we find that P.W. 1 – has fully proved that demand was being made by the accused from his father-in-law and on account of demand, Wahidabi was being harassed and ill-treated. Besides the aspect of demand and cruelty, the prosecution has also relied upon the evidence of P.W. - 3, who is an eye witness to the incident. P.W. - 3 is the minor son of the accused as well as the deceased. P.W. 3 – Sheikh Hakim Sheikh Rahim, has stated that at the time of incident his mother was washing utensils outside the house when his father came and pressed her neck and throat by her “odhani”. Thereafter, he has stated that the accused pressed the mouth of his mother and took her inside the house. This witness has stated that the accused took his mother inside and pressed her neck and throat by her odhani which he saw through the gap between wooden planks of the door of his house. He has stated that the accused thereafter ran away. The learned counsel for the applicant submitted that the entire evidence of P.W. 3 is an improvement and hence no reliance can be placed 4 upon the evidence of P.W. 3. In order to fortify his contention, he has placed reliance upon the evidence of Investigation Officer – P.W. 5 – Meghrajani, wherein P.W. 5 has stated that P.W. 3 – Sheikh Hakim did not state before him that he saw his father pressing neck and throat of his mother with odhani through the gap between wooden planks of the door of his house. As far as this aspect is concerned, it is noticed that this is the latter part of the incident which P.W. 3 has witnessed. Prior to this, he has stated that his mother was washing utensils outside the house at that time his father came and pressed the neck and throat of his mother by odhani, thereafter he has stated that his father took his mother inside the house and thereafter he has stated that he saw it through the gap between wooden planks of the door of his house that his father pressed the neck and throat of his mother with odhani. Thus, this omission is restricted to the later part of the incident. The first part of the incident which was witnessed by him outside the house is sufficient to indicate the involvement of the applicant in this crime. Thereafter the learned counsel for the applicant submitted that P.W. 3 is a child witness and he is an interested witness, hence his evidence cannot be safely relied upon as a child witness can be easily tutored. As far as this aspect is concerned, the Evidence Act does not lay down that the evidence of a child witness or of an interested witness is to be discarded. 5 The law only requires that the evidence of such witness is required to be scrutinized with care and caution, which we have done. Looking to the evidence on record, we do not think that this is a fit case to grant bail. However, looking to the fact that the accused/ applicant is in the custody for over six years, the hearing of the appeal is expedited. As the private paper book has already been furnished by the learned counsel for the applicant, appeal be placed on the final hearing board in the week commencing from 11th April 2011. Criminal Application is disposed of accordingly. JUDGE JUDGE *GS.