Javed Mukhtar Shaikh vs The State Of Maharashtra
2022 Latest Caselaw 13391 Bom

                                                                          902.APPLN.1602.2022.doc




            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD

          CRIMINAL APPLICATION NO.1602 OF 2022
       IN APEAL/356/2022 WITH APEAL/356/2022 WITH
APEAL/363/2022 WITH APPLN/2506/2022 IN APPLN/1602/2022

                  JAVED MUKHTAR SHAIKH
                          VERSUS
                THE STATE OF MAHARASHTRA
                            ...
Mr. A.B. Girase, Advocate for the Applicant.
Mr. S.P. Sonpawale, APP, for the Respondent - State.
Mr. S.A. Kulkarni, Advocate for Respondent No. 2.
                            ...

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

                                                   DATE       : DECEMBER 21, 2022.

PER COURT :

1.             Applicant              -   Javed    is     seeking       suspension            of

substantive             sentence           of     life     imprisonment              imposed

against him in Sessions Case No. 52/2017 by impugned

judgment and order.


2.             Learned Advocate for the Applicant submitted

that there is absolutely no evidence on record to show

that     present           Applicant            used    any    weapon        in      causing

assault on deceased or injured. It is submitted that

specific role has been assigned to the co-accused for

committing the said assault and accepting the case of

prosecution as it is, present Applicant could not have

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been said to have committed offence punishable under

Section 302 of IPC.


3.           Learned                APP      and     learned        Advocate             for

Respondent          No.        2      -     Informant      opposed           the       said

contention by pointing out testimonies of Syed (PW 1),

Sajid (PW 3) Wasim (PW 4) and Tausif (PW 6). According

to them, present Applicant has equally participated in

the assault and there is specific evidence about he

assaulting deceased Saddam with fist and kick blows.

Thus,     according            to         them,    this   accused         is      rightly

convicted with the aid of Section 34 of IPC by the

trial Court and no case is made out for suspension of

sentence.


4.           It is seen from prima facie consideration of

evidence on record that present Applicant had no weapon

with him nor any allegation of assault with any weapon

is attributed to him. Applicant is in jail for about

five years and having regard to his role as it prima

facie appears from record, we are inclined to suspend

substantive sentence imposed against him by impugned

judgment. Hence, the following order:



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                                           ORDER

(a) Criminal Application is allowed in terms of prayer clause 'c'.

(b) Pending the appeal, the 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.

(c) Bail before the trial Court.

(R.M. JOSHI, J.) (R.G. AVACHAT, J.) Malani