Bombay High Court
Ashfak Islam Khan @ Kallu vs The State Of Maharashtra on 19 January, 2022
Bench: Prakash Deu Naik
28. Ia-95-2022-in-Apeal-1042-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 95 OF 2022
IN
CRIMINAL APPEAL NO.1042 OF 2021
Ashfak Islam Khan @ Kallu ...Applicant/
Appellant
Versus
State of Maharashtra ...Respondent
....
Mr. Nitin Sejpal, Advocate for the Applicant/Appellant.
Mr. S. V. Gavand, APP for the Respondent - State.
CORAM : PRAKASH D. NAIK, J.
DATE : 19th JANUARY, 2022.
PER COURT:
1. This is an application for suspension of sentence
and grant of bail pending criminal appeal No. 1042 of 2021.
2. The applicant has been convicted for the offence
under Section 304( Part I) of Indian Penal Code (for short
"IPC") and sentenced to suffer rigorous imprisonment for 10
years with fine of Rs.2,10,000/-.
3. The accused Nos. 2 and 3 were convicted for
offence under Section 324 of IPC and sentenced to suffer
rigorous imprisonment for 3 years with fine of Rs.5,000/-.
Digitally
signed by
SAJAKALI
SAJAKALI LIYAKAT Sajakali Jamadar 1 of 4
LIYAKAT JAMADAR
Date:
JAMADAR 2022.01.20
14:25:56
+0530
28. Ia-95-2022-in-Apeal-1042-2021.doc
4. The case of the prosecution is that on 20th August,
2016 the tempo driver Mustak Ahmad Khan was driving his
tempo and taking it in reverse direction. During the process
the tempo hit the plastic drum kept in front of shop of the
accused No.1. Therefore, the applicant assaulted Mustak
Ahmad by Bami. The co-accused were involved in assaulting
another person. The accused were prosecuted for offence
under Section 302 of IPC, however, the trial Court has held
that the accused No.1 (applicant) could be convicted for
offence under Section 304( Part I) of IPC.
5. The observations of the trial Court in Para-180 of
the impugned judgment indicate that the incident had
occurred during the sudden quarrel under heat of passion.
6. It is noted that the applicant is in custody for a
period of about 5 years and 5 months. The co-accused were
convicted for offence under Section 324 of IPC. Their
sentence of imprisonment has been suspended and they have
been granted bail. Learned counsel for the applicant had
submitted that there are no criminal antecedents against the
applicant.
7. Learned APP submitted that the applicant was
prosecuted for offence under Section 302 of IPC, however he
Sajakali Jamadar 2 of 4
28. Ia-95-2022-in-Apeal-1042-2021.doc
has been convicted for offence under Section 304 (Part-I) of
IPC. There is sufficient evidence against the applicant.
8. Considering the fact that the applicant has been
convicted for offence under Section 304( Part I) of IPC and he
has undergone custody for 5 years and 5 months, and taking
into consideration the fact that incident had occurred by
sudden quarrel without premeditation in the heat of passion.
sentence of imprisonment can be suspended.
9. Hence, I pass the following order:
ORDER
i. Interim Application No. 95 of 2022 is allowed;
ii. During the pendency of Criminal Appeal No. 1042
of 2021, the sentence of imprisonment imposed vide
judgment and order dated 7th December, 2021 passed by
learned Additional Sessions Judge, Borivali Division,
Dindoshi, Mumbai, in Sessions Case No.439 of 2016 is
suspended and the applicant is directed to be released on
bail on executing P.R. Bond in the sum of Rs.25,000/-
with one or more sureties in the like amount;
iii. The applicant shall deposit the compensation
amount of Rs.2,10,000/- at the time of execution of bail
bond.
Sajakali Jamadar 3 of 4
28. Ia-95-2022-in-Apeal-1042-2021.doc
iv. The release of applicant on bail is subject to
condition that the compensation amount of Rs.2,10,000/-
is deposited before the trial Court.
v. The applicant is permitted to furnish cash bail in
the sum of Rs.25,000/- for a period of ten weeks in lieu of
surety.
vi. The applicant shall attend the trial Court once in
six months on first Saturday of the month between 11.00
a.m. to 1.00 p.m.
vii. In the event there are two consecutive default to
attend the trial Court, the prosecution will be at liberty
to move an application for cancellation of bail.
viii. Interim Application stands disposed of
accordingly.
(PRAKASH D. NAIK, J.)
Sajakali Jamadar 4 of 4
