Bombay High Court
Abidali Kadarali Shaikh vs The State Of Maharashtra on 8 July, 2022
Bench: R.P. Mohite-Dere, Virendrasingh Gyansingh Bisht
8. IA 3447-2021.doc
Digitally signed
by RUPALI
RAJESH
RUPALI WAKODIKAR
RAJESH
WAKODIKAR Date:
2022.07.08
16:38:38
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL INTERIM APPLICATION NO. 3447 OF 2021
IN
CRIMINAL APPEAL NO. 1027 OF 2018
Abidali Kadarali Shaikh ...Applicant
Versus
The State of Maharashtra ...Respondent
Mr. Sagar A Rane, Appointed Counsel for the Applicant.
Mrs. P.P.Shinde, A.P.P for the Respondent-State.
CORAM : REVATI MOHITE DERE &
V. G. BISHT, JJ.
DATE : 8th JULY, 2022
P.C. :
1. Heard learned Counsel for the parties.
2. By this application, the applicant seeks suspension of his
sentence and enlargement on bail, pending the hearing and final
disposal of his aforesaid appeal.
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8. IA 3447-2021.doc
3. The applicant, vide judgment and order dated 13 th April,
2018, passed by the learned Additional Sessions Judge, Greater
Mumbai, in Sessions Case No.865 of 2014, has been convicted for the
offence punishable under Section 302 of the Indian Penal Code and is
sentenced to suffer life imprisonment and to pay fine of Rs.5,000/-, in
default, to undergo further simple imprisonment for 6 months.
4 Perused the papers with the assistance of the learned
Counsel for the applicant and the learned APP. It appears that two
accused i.e. the applicant and co-accused - Rashid Mohammed Shafi
Shaikh were chargesheeted in connection with the offence punishable
under Section 302 read with 34 of the Indian Penal Code i.e. for
causing the death of Shashi Makwana. After trial, co-accused i.e.
Rashid Mohammed Shafi Shaikh was acquitted by the learned
Additional Sessions Judge and the applicant was convicted as stated
aforesaid. The prosecution case rests entirely on circumstantial
evidence i.e. on last seen and recovery of a cutter blade at the instance
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of the applicant.
5. As far as the last seen evidence is concerned, the
prosecution has examined two witnesses i.e. PW-4 - Ashish Suresh
Palgota and PW-5 - Gulam Abbas Dilwar Hussain Khan. A perusal of
the evidence of PW-4 - Ashish shows that he had seen deceased -
Shashi on 25th April, 2014, however, he has stated that he does not
remember the exact date. He has stated that deceased Shashi and two
other persons were taking drugs at the relevant time i.e. at about 8.30
a.m. and that, since he told them not to take drugs there, Shashi and
two others went away. He has stated that on 26 th August, 2014, at
about 7.30 a.m. when he woke up, he saw Shashi lying in a pool of
blood. The said witness has identified the applicant after almost four
years i.e. during the course of trial in 2017. Admittedly, no test
identification parade was held in the said case.
6. Similarly, PW-5 - Gulam, in his evidence has stated that on
26th August, 2014, he was present in the Pandal of Ganeshotsav
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8. IA 3447-2021.doc
Mandal and that at about 2.00 a.m., the applicant came and
demanded money for dinner from him. He has stated that he paid
him Rs.50/-, after which, the applicant went away. He has further
stated that he had seen both the accused and Shashi (deceased) in the
same lane. He has further stated that on the next morning at about
6.30 a.m., he learnt that the dead body of Shashi was lying below the
staircase of the building and there was a throat cut injury. Prima facie,
we are doubtful that the evidence of PW-4 and PW-5 can be relied
upon in support of the circumstance of last seen. As far as recovery of
a cutter blade is concerned, learned Counsel for the applicant states
that it was found at the instance of the applicant from the meter box
and that the C.A. report with respect to the blood group is
inconclusive.
7. The applicant is in custody since 26 th August, 2014 and he
has no antecedents.
8. Considering the aforesaid, the application is allowed and
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the applicant's sentence is suspended and he is enlarged on bail,
pending the hearing and final disposal of his appeal, on the following
terms and conditions :-
ORDER
i) The applicant be enlarged on bail on furnishing P.R. Bond
in the sum of Rs.15,000/- with one or more local sureties in the like
amount;
ii) The applicant shall report to the trial Court, once in three
months on the day/date specified by the trial Court, till his appeal is
finally disposed of;
iii) The applicant shall keep the trial Court informed of his
current address and mobile contact number and/or change of
residence or mobile details, if any, from time to time;
iv) If there are two consecutive defaults in appearing before
the trial Court, the learned Judge shall make a report to the High
Court and the prosecution would be at liberty to file an application
seeking cancellation of bail.
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9. The application is accordingly disposed of.
10. All concerned to act on the authenticated copy of this
order.
V. G. BISHT, J. REVATI MOHITE DERE, J.
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