Samadkhan Yusufkhan And Another vs The State Of Maharashtra
2021 Latest Caselaw 16834 Bom

                                        1             945 application 2363-2021.odt

       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  BENCH AT AURANGABAD

         945 CRIMINAL APPLICATION NO.2363 OF 2021
                    IN APEAL/502/2021


1.   Samadkhan Yusufkhan,
     Age : 60 years, Occu.: Buisiness,
     R/o.: Bundelpura, Beed,
     Tq. and District : Beed.

2.   Raju @ Ferozkhan Yusufkhan,
     Age : 32 years, Occu.: Business,
     R/o.: Bundelpura Beed,
     Tq. and District : Beed.

             VERSUS

     The State of Maharashtra

                     ....
Advocate for Applicants : Mr. Nilesh S. Ghanekar
APP for Respondent-State: Mr. R. V. Dasalkar
Senior Advocate Assisting APP : Mr. R. S. Deshmukh
                     ...

                              CORAM : V. K. JADHAV AND
                                            SANDIPKUMAR C. MORE, JJ.

DATED : 4th DECEMBER, 2021.

                                    .       ..

PER COURT :



1.   Heard both sides.

2. Pending Criminal Appeal No. 502 of 2021 preferred against

the judgment and order of conviction passed by Additional Sessions

2 945 application 2363-2021.odt

Judge, Beed dated 21/09/2021 in Sessions Case No. 159 of 2017

convicting thereby the applicants / accused and one more co-

accused for the ofence punishable under Section 302 read with 34

of IPC and sentencing them to sufer life imprisonment and to pay a

fine of Rs.1,000/-, in default, rigorous imprisonment for 10 days, the

applicants have preferred this application for suspension of the

substantive part of the sentence and for bail.

3. The applicants and co-accused Kalu @ Arbaj in furtherance of

their common intention have committed the murder of deceased

Shahabaz Khan, who was a body builder. He was the owner and

running one gymnasium. The incident had taken place for the

reason that though the sons of applicant Samad Khan used to go to

the said gym however, they were not paying the charges regularly.

Thus, the deceased Shahabaj Khan had questioned about it and

accordingly, they have committed the murder of the deceased

Shahabaj Khan in furtherance of their common intention.

4. Learned counsel for the applicants submits that PW-1 /

informant is not an eye witness to the incident and he was informed

about participation of the present applicants in the alleged crime by

someone else. He has simply witnessed that the applicants and

other co-accused persons running away from the spot when he

3 945 application 2363-2021.odt

reached there. Learned counsel for the applicant submits that as

per the prosecution story, PW-2 Yunus Khan and PW-3 Ayub Khan

are the eye witnesses to the incident and they have made the

allegations against the applicants, who are the original accused

Nos.2 and 3, and also against co-accused Nos. 4 to 6, that they

caught hold the deceased at the time of the alleged incident and

co-accused Kalu @ Arbaj Khan has given a blow of knife on the

chest of the deceased. Learned counsel submits that however, on

the same set of allegations the trial court has acquitted the original

co-accused Nos.4 to 6, who allegedly caught hold the deceased

along with the present applicants. Learned counsel submits that so

far as co-accused no.7 Wajid Khan is concerned, who has allegedly

instigated the other accused persons to kill the deceased Shahabaz

Khan, the trial court has acquitted the said accused. Further more,

PW-3 has materially improved the story by deposing before the

court that the present applicants along with the other co-accused

persons caught hold the deceased at the time of alleged incident.

However, said omission in his police statement was confronted to

him and it has also been proved through the Investigating Ofcer.

Learned counsel submits that both the applicants / accused were

on bail during the trial and they never tried to jump the conditions

of the bail.

4 945 application 2363-2021.odt

5. Learned APP assisted by learned Senior Counsel Mr. R. S.

Deshmukh, submits that the prosecution case rests upon the ocular

evidence. PW-2 Yunus and PW-3 Ayub Khan are the eye witnesses

to the incident. Learned APP submits that the evidence of both

these witnesses is reliable, trustworthy and consistent. Learned

APP has pointed out the observations made by the learned Judge of

the trial court in para 47 of the judgment and submits that the trial

court has rightly distinguished the case of the co-accused nos. 4 to

7 and accordingly acquitted them. So far as the present applicants

are concerned, as per the prosecution story and as deposed by PW-

1 Dastgir Khan that on 15/05/2017 i.e. 2 days prior to the incident

both these applicants went to his house and threatened him about

the dire consequences, if they would claim gym charges to their

siblings. Learned APP submits that at the instance of co-accused

Kalu @ Arbaj, the weapon- knife and his T-shirt having blood stains

came to be recovered. So far as the weapon knife is concerned, it

was recovered from the place which is the a gutter in front of house

of the applicant no.1 Samad Khan and further, T-shirt of co-accused

Kalu @ Arbaj came to be seized at his instance from the washing

machine of the applicant no.1 Samad Khan. The human blood was

detected on the said T-shirt belonging to co-accused Kalu @ Arbaj.

Learned APP submits that the incident had taken place in the city at

about 7.00 to 7.30 p.m. Learned APP submits that the trial court

5 945 application 2363-2021.odt

has granted set of to the present applicants and thus, it appears

from the said order that these applicants were not on bail during

the trial. However, learned counsel for the applicants and the

learned APP both have gone through the record and proceedings

and thus agree that these two applicants were on bail during the

trial.

6. We have carefully gone through the notes of evidence,

particularly the evidence of PW-1 Dastagir, PW-2 Yunus Khan and

PW-3 Ayub Khan. It appears that the incident had taken place on

17/05/2017 at about 7.00 to 7.30 p.m. So far as the role attributed

to the present applicants is concerned, PW-2 Yunus an eye witness

and PW-3 Ayub have deposed that these applicants along with co-

accused nos. 4 to 6 have caught hold the deceased and co-accused

Kalu @ Arbaj has given a blow of knife on the chest of the

deceased. So far as PW-3 Ayub Khan is concerned, he has

improved the story to the extent of the allegations as made against

the present applicants. He was confronted with his police

statement. However, he could not assign any reason as to why the

allegations as made against the present applicants do not find any

place in his police statement. So far as PW-2 Yunus Khan is

concerned, he has taken the names of co-accused nos. 4 to 6 along

with the present applicants alleging that they all caught hold the

6 945 application 2363-2021.odt

deceased. However, on the same set of allegations, the trial court

has given them benefit of doubt. So far as recovery of the weapon

knife at the instance of co-accused Kalu @ Arbaj is concerned, it

was recovered from the Guttor in front of the house of the applicant

Samad Khan as shown by co-accused Kalu @ Arbaj. Though T-shirt

of Kalu @ Arbaj shown to have been recovered from washing

machine of the applicant Samad Khan and the human blood was

detected on it, however, it is to be noted here that the said T-shirt

has been recovered at the instance of co-accused Kalu @ Arbaj

and not at the instance of applicant Samad Khan. Both the

applicants were on bail during the course of trial. We are thus

inclined to release the applicants on bail by imposing certain

conditions.

7. Learned APP assisted by learned Senior Counsel Mr.

Deshmukh, at this stage submits that strict conditions may be

imposed against the present applicants such as attending

concerned police station once in a week. Hence, we proceed to

pass following order

ORDER

I. Criminal application is hereby allowed.

                                               7                   945 application 2363-2021.odt

II.     Pending the Criminal Appeal No. 502 of 2021 preferred

against the judgment and order of conviction passed by the

Additional Sessions Judge, Beed, dated 21/09/2021 in

Sessions Case No. 159 of 2017, the substantive part of

sentence is hereby suspended and till then applicants no.1)

Samadkhan YusufKhan and no.2) Raju @ Ferozkhan

Yusufkhan, be released on bail on furnishing P.B. of

Rs.25,000/- (Rupees Twenty Five Thousand) each with one

solvent surety each of the like amount with following

condition:

a) The applicants shall attend the concerned police station

on every Sunday, between 8.00 a.m. to 11.00 a.m. for a

period of six months from the date of this order and thereafter

on every 1st Sunday of every month till disposal of the appeal.

III. Criminal application is accordingly disposed of.

(SANDIPKUMAR C. MORE, J.)                                       (V. K. JADHAV, J.)


vsm/-