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2011 DIGILAW 484 (BOM)

Sk. Rahim Sk. Karim v. State of Maharashtra

2011-04-20

M.L.TAHALIYANI, V.K.TAHILRAMANI

body2011
JUDGMENT MRS. V.K. TAHILRAMANI, J. :- This appeal is directed by the appellant - Original accused against the judgment and order dated 11.10.2005 passed by the learned Additional Sessions Judge, Buldhana, in Sessions Trial No. 76 of 2005. By the said judgment and order, the Sessions Judge convicted the appellant under Section 302 and 498A of Indian Penal Code, and sentenced him to suffer imprisonment for life and to pay fine of Rs. 1,000/- in default to suffer further R.I. for three months. 2. The prosecution case briefly stated is as under: Wahidabi was married to the appellant about 15 years before the incident and she was residing with him at Malkapur. They have five children including P.W. 3 - Sheikh Hakim. P.W. 1 - Sayyad Latif is the father of Wahidabi. For two years after marriage, the appellant treated his wife Wahidabi well but thereafter he started illtreating and harassing her. The accused used to demand money and used to illtreat Wahidabi in relation to demand of money. P.W.1 stated that his daughter Wahidabi used to disclose said illtreatment 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 illtreatment or assault on his daughter, P.W.1 borrowed money from his motherinlaw and gave the same to the accused. Thereafter both, the accused and Wahidabi went back to their matrimonial house at Malkapur. After few days, the complainant received a message that his daughter was killed by the accused by pressing her neck and throat by odhani. On receiving the message, the complainant rushed to the house of the accused at Malkapur. He found the dead body of his daughter lying in the Varandha of her matrimonial house. He noticed mark of injury on the neck of Wahidabi. He also noticed mark of injury on her face and chin. He immediately went to Police Station and lodged First Information Report (FIR). Thereafter investigation commenced. The body of Wahidabi was sent for Post Mortem. P.W. 4 - Dr. Manoj Choudhary conducted the post mortem on the body of Wahidabi. He noticed the following injuries on the dead body. 1. Abrasion over left scapular area of back 6 x 3 cm. He immediately went to Police Station and lodged First Information Report (FIR). Thereafter investigation commenced. The body of Wahidabi was sent for Post Mortem. P.W. 4 - Dr. Manoj Choudhary conducted the post mortem on the body of Wahidabi. He noticed the following injuries on the dead body. 1. Abrasion over left scapular area of back 6 x 3 cm. Single large irregular bruise area (ligature mark) seen covering anterior aspect of neck, middle onethird horizontally place, of size 10 x 2 cm. multiple bruises present around ligature mark antemortem. 2. Superior horns of thyroid cartilage fractured Haemorrhage present at fracture site. 3. Bruising of laryangial muscles present. 4. Tracheal rings and laryngial cartilage broken into fragments. 5. Hyoid bone broken into fragment at greater cornea. 6. Submocosal haemorrhage of larynx present. In the opinion of the Doctor, cause of death is 'cardio respiratory failure, secondary to asphyxia, which is due to strangulation’. After completion of investigation, charge sheet came to be filed. In due course, the case was committed to the Court of Session. 3. Charge came to be framed against the appellant - original accused under Section 302 and 498A of IPC. The accused was also charged for the offence punishable under Section 4 of the Prohibition of Dowry Act, 1961. He pleaded not guilty to the said charges and claimed to be tried. His defence is that of total denial and false implication. After going through the evidence adduced by the prosecution, the learned Sessions Judge acquitted the appellant under Section 4 of Prohibition of Dowry Act but he convicted and sentenced the appellant as stated in para 1 above, hence, this appeal. 4. We have heard Shri Mishra, learned counsel for the appellant accused and Shri Mirza, learned APP for the respondent State. We have perused the evidence in this case as well as the judgment and order passed by the learned Sessions Judge. After giving our anxious consideration to the matter, for the reasons stated hereinbelow, we are of the opinion that this appeal deserves to be dismissed. 5. As far as the conviction of the appellant under Section 498A of the IPC is concerned, the prosecution has relied upon the evidence of P.W. 1 Sayyed Latif - who is the father of Wahidabi and P.W. 2 - who is the mother of Wahidabi. 5. As far as the conviction of the appellant under Section 498A of the IPC is concerned, the prosecution has relied upon the evidence of P.W. 1 Sayyed Latif - who is the father of Wahidabi and P.W. 2 - who is the mother of Wahidabi. Both the witnesses have deposed about the repeated demand of money by the accused from them. Both these witnesses have deposed that they used to give money to avoid illtreatment or assault on their daughter. In addition, the complainant- P.W.1 has clearly stated that few days prior to the incident, the accused with his wife Wahidabi visited him, at that time accused demanded Rs.1,000/- from him. The accused threatened that if he is not given money, he would kill his wife Wahidabi. To avoid illtreatment or assault on his daughter, P.W.1 borrowed money from his motherinlaw and gave the same to the accused. Thereafter both, the accused and Wahidabi went back to their matrimonial house at Malkapur. Thus, the evidence of both these witnesses establishes that the accused used to make demand for money and he used to illtreat and harass Wahidabi on account of demand for money. 6. The learned counsel for the appellant has pointed out that there is omission in the evidence of P.W. 1 - Sayyed Latif in relation to demand of money. However, perusal of the evidence shows that the omission is in respect of averment of this witness that the accused used to visit the house of the complainant to bring money. As far as accused actually making demand of money to Wahidabi or her father is concerned, there is no omission. Secondly, he pointed out that the evidence of the petitioner that Wahidabi used to disclose that the accused used to 'beat' her is an omission, however, we have noticed that as far as illtreatment and harassment is concerned, there is no omission, the omission is restricted to "beating" Wahidabi. 7. As far as the actual incident is concerned, the prosecution has relied on the evidence of P.W. 3 - Sheikh Hakeem. He is the son of the accused as well as the deceased. This witness was about 5 years at the time of incident, hence, his presence in the house was very much natural. 7. As far as the actual incident is concerned, the prosecution has relied on the evidence of P.W. 3 - Sheikh Hakeem. He is the son of the accused as well as the deceased. This witness was about 5 years at the time of incident, hence, his presence in the house was very much natural. He has stated that his mother was washing utensils outside the house when his father came and pressed her neck and throat by her "odhani". The learned counsel for the appellant submitted that the entire evidence of P.W. 3 is an improvement and hence no reliance can be placed 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. 8. 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. 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. The law only requires that the evidence of such witness is required to be scrutinized with care, and caution. which we have done. After carefully scrutinizing his evidence, we find that we can safely rely on the same. 9. The learned counsel for the appellant submitted that the post mortem was conducted at about 3.00 P.M. and the evidence of P.W. 4 - Dr. Choudhary, who has conducted the post mortem shows that marks appearing at injury No.2 i.e. ligature marks is within 12 to 14 hours of post mortem. The learned counsel submitted that if the injury is 12 - 14 hours prior to post mortem, then the injury must have occurred between 1.00 to 3.00 A.M. on 20.02.2005. He submitted that in such case, the evidence of the sole eye witness P.W. 3 is falsified. He submitted that if the incident occurred between 1.00 to 3.00A.M., Wahidabi would not have been washing the utensils at that time and the story of P.W. 3 that his father came and pressed her mother's neck and throat by odhani when she was washing utensils, cannot be believed. As far as this aspect is concerned, on perusal of evidence of Dr. Choudhary, we find that in cross examination, he has deposed that reddish marks appearing in injury No.2. in column No. 17 of P.M. was within 12 to 14 hours prior to postmortem. To our mind, this averment does not indicate that the injuries were caused only between 12 to 14 hours prior to post mortem but it in fact indicates that the injury must have been caused before 12 to 14 hours prior to his conducting post mortem. Thus, we find no merit in this submission. 10. Thereafter, learned counsel for the appellant has stated that a number of witnesses have been cited by the prosecution but none of them have been examined. He further submitted that no neighbour or any independent witness has been examined. According to him, on account of non examination of these witnesses an adverse inference must be drawn against the prosecution. 10. Thereafter, learned counsel for the appellant has stated that a number of witnesses have been cited by the prosecution but none of them have been examined. He further submitted that no neighbour or any independent witness has been examined. According to him, on account of non examination of these witnesses an adverse inference must be drawn against the prosecution. It is noticed that none of them were eye witnesses to the incident, P.W. 3 is the only eye witness who has been examined. Thus, examination of those witnesses or neighbours, would not in any way take the prosecution case any further, hence they have not been examined. 11. The learned counsel further submitted that it is the prosecution case that Wahidabi was first strangulated outside the house and if it is so, in that event she would have cried/shouted for help and her screams would have attracted the attention of the neighbours and they would have rushed to the spot, however, no neighbour has rushed to the spot which makes the prosecution case suspect. As far as this submission is concerned, we may advert to the deposition of P.W. 3. He 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". Once the throat of Wahidabi is pressed by odhani, it would not have been possible for her to make any hue and cry or shout. Thus, we find no merit in this submission. 12. We are of the considered opinion that the evidence on record shows beyond reasonable doubt that the appellant committed the crime. Hence, we find no merit in the appeal, the same is, therefore, dismissed. Appeal dismissed.