Bombay High Court
Amiruddin Mehmood Kazi And Anr vs State Of Maharashtra on 16 September, 2022
Bench: M.S. Sonak, N. R. Borkar
01-IA 2656-22.DOC
Vina Khadpe
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL INTERIM APPLICATION NO.2656 OF 2022
IN
CRIMINAL APPEAL NO.792 OF 2022
AMIRUDDIN MEHMOOD KAZI ... Applicants
AND ANR
Versus
STATE OF MAHARASHTRA ... Respondent
Mr. Gaurav Bhawnani, Advocate i/b. Mr. Khan
Abdul Wahab for the Applicants.
Mr.A. R. Kapadnis, APP for the Respondent -
State.
CORAM: M. S. SONAK &
N.R. BORKAR, JJ.
DATED : 16th September 2022
P.C.:
1. Heard Mr. Gaurav Bhawnani i/b. Mr. Khan Abdul Wahab
for the Applicants and Mr. A.R. Kapadnis, APP for the
Respondent - State.
2. The Applicants have been convicted and sentenced to
life imprisonment, inter alia, for committing an ofence under
Section 302 of Indian Penal Code, 1860 vide Judgment and
order dated 22nd July, 2022 in Sessions Case No.719 of 2017.
They now seek bail pending disposal of the Appeal.
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3. The record bears out that the second Applicant-
Allauddin Mehmood Kazi was on bail during the trial. It is not
disputed that the frst Applicant Amiruddin Mehmood Kazi as of
now sufered incarceration of about fve years.
4. Ordinarily, in a case where the Applicants have been
convicted under Section 302 of the Indian Penal Code and
sentenced to undergo life imprisonment, the bail is not readily
granted unless a very strong case is made out.
5. In this case, however, we think that a strong case has
indeed been made out to enlarge the Applicants on bail.
6. The Prosecution version in this case was that Amiruddin
Mehmood Kazi was the assailant who struck the fateful blow
with a knife on Naziruddin Quazi. The prosecution's star
witness was Rukaiyya Mehmud Quazi (PW1) who, according to
the prosecution, witnessed the commission of crime.
7. PW1, in her deposition has stated the following ;
"3) On the day of Bakari Eid, I and Naziruddin went
to the said room. We were allowed to enter the
room. At that time, Allauddin came from
Bedroom. There was fght amongst us. There
was fght between Amiruddin and Naziruddin.
There was a knife. Knife was not in the hand of
Allauddin. My right eye was operated and I was
not having good vision in right eye. (Witness has
been asked time in again in whose hand the
knife was but she has taken considerable time
without answering the question.) Nazir was
assaulted with knife on chest. After assaulting
with knife, he left the room. At that time I was
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in the said room. I was also assaulted by knife
on my chest. I do not know who assaulted me
and my brother with knife. I called for help.
Allauddin did not assault. Neighbours came for
help. I and my brother Nazir were taken to J.J.
Hospital. Thereafter I came to know that Nazir
died. I was given treatment at J.J. hospital."
8. Considering the above, we thought that the prosecution
would have declared this witness as hostile. However, the
record bears out that this witness was not declared hostile and
cross-examined.
9. PW1 claims that there was fght between Amiruddin and
Nnaziruddin. A specifc query was repeatedly posed to this
witness as to in whose hand the knife was, this witness after
considerable pause failed to respond and fnally she stated
that she does not know who assaulted her and her brother. She
even stated that Allauddin did not assault assault any one.
10. PW1 was shown the CCTV footage. She stated that three
persons are visible at screen but she could not identify them.
11. Even the Investigating Ofcer (IO) in this case clearly
deposed that in the CCTV footage there was no coverage of
actual assault. He deposed that the CCTV footage does not
show accused persons either holding a knife or even without.
Even he admitted that the CCTV footage does not show the
accused persons coming down from the building or proceeding
towards the building. He admitted not having found any
witness to prove this aspect of the matter.
12. Mr. Bhawnani at our request took us through the fnding
recorded by the learned Sessions Judge while convicting the
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accused persons. The fnding are entirely contained in
paragraphs 27 and 28 of the impugned judgment and order.
Prima facie, we fnd that the fnding are vulnerable.
13. Learned Sessions Judge says that the accused persons
can be seen in the CCTV footage. Atleast, prima facie this
appears to be fnding backed by no evidence on record, rather,
contrary to the evidence on record. Besides, the learned
Sessions Court reasons that since only Naziruddin (deceased)
and two accused persons were in the room, it was for the
accused persons to explain the circumstance in which
Naziruddin was stabbed and ultimately succumbed to the
injuries. Mr. Bhawnani points out that the learned Sessions
Judge has entirely ignored the presence of PW1 who was in the
same room along with the accused persons and deceased
Naziruddin. He points out that the learned Sessions Judge has
invoked the provisions of Section 106 of the Evidence Act
without stating so in so many words when infact this provision
could never have been invoked considering the presence of
PW1 in the same room.
14. Atleast, prima facie, there is merit in the contention of
Mr. Bhawnani.
15. Besides as we have noted earlier, Allauddin was also on
bail during the trial. Considering prima facie efect of the
evidence now pointed out by us and the reasoning in the
impugned order, we think strong case has been made out to
enlarge the Applicants on bail.
16. We make it clear that the observations in this order are
only prima facie for the purpose of considering the issue of
suspension of sentence and grant of bail.
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17. Accordingly, we suspend the sentence and enlarge the
present two Applicants on bail subject to the following
conditions;
(a) The Applicants shall furnish before
the trial Court a P.R. Bond in the sum of
Rs.25,000/- each with one or more sureties in
the like amount;
(b) Till the decision of Appeal, the
Applicants shall attend the Sir J.J. Marg Police
Station, Mumbai, on the last Saturday of each
month and mark their presence;
(c) The Applicants shall provide their
current address and contact numbers and
other details to the concerned police station
within 15 days from the date of release;
18. Interim Application No.2656 of 2022 is disposed of in the
above terms.
( N.R. BORKAR, J) (M. S. SONAK, J)
16th September 2022
