Bombay High Court
Fazal Sikandar Patel vs The State Of Maharashtra on 21 December, 2022
Bench: R. G. Avachat, R. M. Joshi
APPLN-2476-21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 2476 OF 2021
IN
CRIMINAL APPEAL NO. 519 OF 2021
Fazal Sikandar Patel ..APPLICANT
VERSUS
State of Maharashtra ..RESPONDENT
....
Mr. S.S. Jadhav, Advocate for applicant
Mr. S.P. Deshmukh, A.P.P. for respondent - State
....
CORAM : R.G. AVACHAT AND
R.M. JOSHI, JJ
DATE : 21st DECEMBER, 2022
PER COURT :
1. This is an application for suspension of substantive sentence of
imprisonment passed by the learned Additional Sessions Judge, Aurangabad
in Sessions Case No. 300 of 2013 vide judgment and order dated 16 th
September, 2021. The applicant has been convicted for the offence
punishable under Section 302 of the Indian Penal Code (I.P.C.) and therefore,
sentenced to suffer life imprisonment and to pay fine of Rs.5,000/-, in default
to suffer simple imprisonment for six months.
2. Heard. Issue notice to the respondent. Learned A.P.P. waives
service of notice for respondent - State.
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3. Learned counsel for the applicant would submit that the applicant
has been behind the bars for little over nine years. Two of the three eye
witnesses did not stand by the prosecution. Presence of the third one was
doubtful. Our attention was adverted to the reasons therefor. Learned
counsel, therefore, urged for grant of the application.
4. Learned A.P.P. would, on the other hand, submit that the case was
based on eye witness account. The trial Court has convicted the applicant
with sound reasons. Hearing of the appeal could be expedited. He,
therefore, urged for rejection of the application.
5. Considered the submissions advanced. Perused the impugned
judgment and the relevant evidence relied on. The applicant committed
murder of one Mohammad Hussain Khan on 07th April, 2013. About twenty-
five injuries were noticed on his person. The deceased died of head injury.
6. The case was based on evidence of three eye witnesses. Two of
them did not stand by the prosecution. The third one claimed to have been
residing on rent in the vicinity in which the murder took place. It was
however, brought on record that the said witness was financially sound. He
has his own house to reside in away from the scene of offence. A witness was
examined in defence to prove that he was residing in the premises in which
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the said witness claimed to have been residing at the material time. As such,
it is a matter of re-appreciation of evidence of an eye witness, based on
whose account the applicant has been convicted. These are the prima facie
observations.
7. The applicant has been behind the bars for little over nine and half
years (minus covid bail for one or two years, if any). The appeal is of 2021.
It is not likely to come up for hearing by its turn in the near future. We are,
therefore, inclined to allow the application. Hence, the following order :-
ORDER
(i) Criminal application is allowed in terms of prayer
clause (B).
(ii) Pending the appeal, execution of substantive sentence
of imprisonment imposed by the trial Court is suspended. The
applicant be released on bail on his executing P.R. bond in the
sum of Rs.15,000/- (Rupees Fifteen Thousand) with one surety in
the like amount.
(iii) Bail before the trial Court.
( R.M. JOSHI, J. ) ( R.G. AVACHAT, J. )
SSD
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