IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRIMINAL APPLICATION NO. 920/2009 [ Sheikh Wahid Shaikh Habib ..vs.. State of Maharashtra] - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ---------------------------------------------------------- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -------------------------------------------------------------- - -- CORAM : S.R.DONGAONKAR, J. DATE : 3 rd JULY, 2009 Heard Shri Rizwy, Advocate, for the applicant and Shri Sonare, APP, for respndent. This is an application under Section 439 of Cr.P.C for grant of bail. The case against the accused/applicant is regarding causing murder of the deceased – his wife. The suicidal death was reported earlier, however, after the post mortem , as per the Medical Officer, who had conducted the post mortem, the death was due to strangulation. Therefore, offence under Section 302 of the I.P.C was made out. The statement of the child witness Ahetasham was allegedly not filed along with the charge-sheet. However, vide order dated 1 st July, 2009, it was found that the said statement was filed along with the charge sheet at page 50, but the copy which was supplied to the applicant/accused did not contain that page. Thus, it was found that it was not a case of not filing the statement of eye-witness Ahetasham along with the charge sheet. The statement of eye-witness incriminates the applicant. It is tried to suggest that the post mortem report, particularly opinion recorded, is some-what inconsistant with the statement made by the eye- witness Ahetasham as regards the incident. It is also contended that the witness to the statement of the eye-witness is the father-in-law of the applicant and therefore, an interested witness. The other witness to the statement is Sy.Mujaffar. The statement of Sy. Mujaffar Sy. Sham is contended to be the relative of the complainant. May that as it is, the question is whether the statement of Ahetasham at this stage can be said to be concocted. Prima facie it does not appear so. He appears to be the son of the applicant & deceased. His presence at the relevant time can not be said to be doubtful. Whatever stated by a child of 5 years. It is difficult to say that it is false. No doubt, some inconsistency appears in his statement and the opinion expressed in the post mortem report. But then, that matter is to be considered at the time of trial. Considering the circumstances of the case, it is not possible to grant bail at this stage. The application is rejected. However, liberty to the applicant to move for bail if the trial does not commence within three months from today. Learned trial Judge is directed to expedite the committal of the case as it is informed that the matter is still pending with the J.M.F.C. After committal of the case in the Sessions Court, the learned Sessions Judge is directed to frame the charge within one month from the date of receipt of the R & P by it. It is made clear that the above observations are in prima facie view of the matter and the same shall not influence the learned trial Judge while deciding anything on merits. Application disposed of. JUDGE Rvjalit