Sk. Mohd. Ahemad S/O. Sk. Mohd. ... vs The State Of Maharashtra
2022 Latest Caselaw 13005 Bom

                                                         Cri. Appln. No.1654.2021.odt


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                  CRIMINAL APPLICATION NO.1654 OF 2021
                                   IN
                     CRIMINAL APPEAL NO.373 OF 2021

1. Sk. Mohd. Ahemad s/o. Sk. Mohd. Umar,
2. Sk. Mohd. Issaq s/o. Sk. Mohd. Umar,
3. Sk. Mohd. Imran s/o. Sk. Mohd. Isaq                        ..Applicants

              Vs.

The State of Maharashtra and anr.                             ..Respondents

                                 ----
Mr.N.S.Ghanekar, Advocate for applicants
Mr.R.B.Bagul, APP for respondent no.1
Mr.A.L.Kanade, Advocate for respondent no.2
                                 ----

                                  CORAM : R.G.AVACHAT AND
                                           R.M.JOSHI, JJ.

DATE : DECEMBER 14, 2022 ORDER :-

This is an application under Section 389 of the Code of

Criminal Procedure. Vide order dated 28.06.2021 passed by learned

Special Judge under (POA) Act, Aurangabad, in Special Case No.316 of

2016, the applicants/appellants (original accused nos.2, 5 and 6) have

been convicted for the offence punishable under Section 302 read with

Section 34 of Indian Penal Code and therefore, sentenced to suffer

rigorous life imprisonment and to pay fine of Rs.1,000/- each, with the

default stipulation.

2. Heard learned counsel for the parties. Perused the

impugned judgment and the evidence relied on.

3. The applicants along with three others were prosecuted

for the offence punishable under Section 302 of Indian Penal Code

and other offences. The other three accused, i.e. original accused

nos.1, 3 and 4, have been acquitted of the offences with which they

were charged. There was dispute over a house site. On the fateful

day, construction activities were in progress on the house site. A civil

suit was filed by the applicants against the deceased and his family

members. The deceased died of head injuries. The applicant

(original accused no.2) is alleged to have assaulted the deceased on

the head with stone. The other applicants allegedly caught hold of

the deceased to facilitate the blow on his head. This evidence of the

informant was found to be an improvement over the averments

made by her in the FIR. True, another eye witness gave evidence

consistent with the same.

4. The fact is that the acquitted accused - Jakir assaulted

on the head of the deceased with stick. There was another injury in

the nature of abrasion on the head of the deceased. The Medical

Officer opined that the head injury, which proved to be fatal, was

caused with a stick. Admittedly, the stick blow on the head of the

deceased, is attributed to Jakir (acquitted).

5. The incident took place on account of dispute over a plot.

The applicants have been in jail for little over six years. It will take

time for the appeal to come up for hearing. It is, therefore,

desirable to allow the application. Hence, the following order:-

(i)                The application is allowed;


(ii)               During pendency of the appeal, the substantive sentence

of imprisonment imposed vide order dated 28.06.2021 passed by

learned Judge under (POA) Act, Aurangabad, in Special Case No.316

of 2016, to stand suspended. The applicants be released on bail on

executing P.R. Bond in the sum of Rs.15,000/- (Rupees Fifteen

Thousand) each with one surety each in the like amount.

          [R.M.JOSHI, J.]                           [R.G.AVACHAT, J.]

                                        .......



KBP