Sayyad Gaus S/O. Sayyad Noor vs The State Of Maharashtra
2022 Latest Caselaw 10187 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                  914 CRIMINAL APPLICATION NO.2785 OF 2021
                             IN APPEAL/344/2019


                          SAYYAD GAUSS S/O SAYYAD NOOR
                                       VERSUS
                             THE STATE OF MAHARASHTRA
                                          ...
                     Mr. G.K. Naik Thigle, Advocate for applicant
                          Mr. S.D. Ghayal, APP for respondent
         Ms. Pournima Salve, Advocate h/f Mr. S.J. Salunke, Advocate
                  for respondent No.2 in Appeal/344/2019
                                          ...

                                    CORAM :     SMT. VIBHA KANKANWADI AND
                                                RAJESH S. PATIL, JJ.

                                    DATE :      04th OCTOBER, 2022


PER COURT :




1              Present application has been filed by original accused No.12 for

suspension of sentence and releasing him on bail. He is sentenced thus -

1) Accused No.12 Sayyad Gaus Sayyad Noor is hereby convicted under Section 235(2) of the Code of Criminal Procedure for the offence punishable under Section 147 of the Indian Penal Code and sentenced to suffer Rigorous Imprisonment for two (02) years and also pay the fine of Rs.5,000/- (Rupees Five Thousand only), in

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default of payment of fine he shall undergo Rigorous Imprisonment for one (01) month.

2) Accused No.12 Sayyad Gaus Sayyad Noor is hereby further convicted under Section 235(2) of the Code of Criminal Procedure for the offence punishable under Section 148 of the Indian Penal Code and sentenced to suffer Rigorous Imprisonment for three (03) years and also pay the fine of Rs.5,000/- (Rupees Five Thousand only), in default of payment of fine he shall undergo Rigorous Imprisonment for one (01) month.

3) Accused No.12 Sayyad Gaus Sayyad Noor is hereby convicted under Section 235(2) of the Code of Criminal Procedure for the offence punishable under Section 302 read with Section 149 of the Indian Penal Code and sentenced to suffer Rigorous Imprisonment for life till his death and also pay the fine of Rs.20,000/- (Rupees Twenty Thousand only), in default of payment of fine he shall undergo Rigorous Imprisonment for four (04) month.

        4)       All the sentences shall run concurrently.


2              Heard learned Advocate Mr. G.K. Naik-Thigle for the applicant

and learned APP Mr. S.D. Ghayal for the respondent.


3              It will not be out of place to mention here before proceeding

further that co-accused Nos.11 and 14 Nitin and Mahendra had also filed

application for suspending the sentence imposed against them bearing

Criminal Application No.1064 of 2020 in Criminal Appeal No.344 of 2019

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and it came to be rejected by this Court on 13.07.2020.

4 The learned Advocate for the applicant submitted that the role

played and evidence that has been adduced by the prosecution against the

present applicant is different from the accused Nos.11 and 14 and, therefore,

the rejection of their application will not have adverse effect on the present

application. Learned Trial Court has held that the offence has proved against

the present applicant on three counts; one is - discovery under Section 27 of

the Indian Evidence Act of the sword, second is - alleged statements of the

eye witnesses and third is - his identification. However, the observations in a

lengthy Judgment would show that at many places the learned Judge has

himself expressed doubt about the prosecution story and even the eye

witnesses have not been believed. Another piece of evidence, that is, taken

against the present applicant is the blood stains on his clothes and the non

explanation of the same by the present applicant. In fact, unless the

involvement of the applicant in the crime is established beyond reasonable

doubt, no question arises regarding his explanation about the alleged blood

stains on his clothes. The applicant is behind the bars since last 11 years and,

therefore, he deserves to be released on bail by suspending the sentence, in

view of the quality of evidence that has been adduced against him.

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5              The learned APP as well as learned Advocate for the original

informant have objected the application and supported the reasons given by

the learned Trial Judge.

6 At the outset, it is to be noted that as per the prosecution story in

all 17 accused were involved in the crime. Out of them accused Nos.1 and 2

were discharged by the Court and the trial proceeded against others; yet,

accused Nos.10 and 16 were absconding. When it comes to the offence of

formation of unlawful assembly as well as criminal conspiracy, even if any

accused is absconding; yet, his presence as per the prosecution story will

have to be counted. The original accused No.17 appears to have released

under Section 169 of the Code of Criminal Procedure. One Balu @ Ravindra

Dashrath Khakal is stated to have been murdered. It is the contention of the

prosecution that he was assaulted by sword, stick and at the point of pistol.

We are more concerned with the role attributed to the present applicant as

well as the evidence that has been adduced as well as considered by the Trial

Court. This Court while rejecting the application filed by accused Nos.11 and

14 has made observations that the record shows that there is evidence on the

point of motive. The first incident that had taken place on 26.09.2010. At

that time, there was an attempt to eliminate the deceased by some of the

accused persons, however, at that time 'B' Summary was reported. The

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second and ultimate incident took place on 11.10.2011. Deceased as well as

witness Shaker were on one motorcycle as well as other witnesses were on

the other motorcycle. When their motorcycles were intercepted near Bus

Stand of Kerul by the accused persons, who had come in car, it appears from

the evidence that some of the witnesses were knowing some of the accused

and others were unknown to them. Accused persons were holding firearm as

well as dangerous weapons like sword, knife etc. The evidence that has been

led appears to be positively against accused Bhausaheb, Mahendra, Krishna

and Ashok. Now, as regards the present applicant is concerned, though the

Trial Court has not believed the entire version of the eye witnesses; yet

portion of the same has been accepted. The circumstantial evidence has been

considered. No doubt, the Trial Court has expressed doubt about the

Identification Parade and it appears that the eye witnesses have given the

different place of the accused where he was standing at the time of

Identification Parade. The question would be - As to whether we can give

importance to the number where the accused was standing or to the basic

fact that he is identifying the accused ? We also require to interpret Section

291-A of the Code of Criminal Procedure which deals with identification

report of the Magistrate and by this provision which was duly inserted in

2006 was with an intention to make the report of the Identification Parade

admissible in evidence without the examination of the Magistrate. Further,

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we are also require to consider as to what was the time gap between the

Identification Parade and the testimony of the eye witnesses. If there is too

much gap, then memory fails.

7 It can be seen that this Court accepted the fact at the time of

order dated 13.07.2020 that the Trial Court has not believed the eye

witnesses, but material on record shows that all eye witnesses were in the

company of the deceased, and they were consistent in saying that they were

present at the time of incident. Therefore, it is also required to see whether

the circumstantial evidence can be mingled with the direct evidence and

whether such evidence was before the Court to consider it as beyond

reasonable doubt. However, at this stage, it can be said that when prima

facie evidence is there and an opinion as well as conclusion has been drawn

upon the churning of the evidence by the Trial Court and taking into

consideration the brutality of the murder, this cannot be considered as a fit

case where a sentence would be suspended and the applicant can be released

on bail. Application stands rejected.

( Rajesh S. Patil, J. )                        ( Smt. Vibha Kankanwadi, J. )



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