Bombay High Court
Javed Shaikh Jaan Mohd. And ... vs The State Of Maharashtra on 7 July, 2023
Bench: V. V. Kankanwadi, Abhay S. Waghwase
-1- Cri.Appln.1283.2023
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 1283 OF 2023
IN
CRIMINAL APPEAL NO. 252 OF 2023
1. Javed Shaikh Jaan Mahd.
Age : 34 years, Occu. : Driver,
R/o. As above.
2. Athar @ Attu Baig Jafar Baig,
Age : 40 years, Occu. : Driver,
R/o. Dhobi Galli, Sillod, Tq. Sillod,
Dist. Aurangabad. ... Applicants.
Versus
The State of Maharashtra ... Respondent.
...
Mr. Satej S. Jadhav, Advocate for Applicant/Appellant.
Mr. S. D. Ghayal, APP for Respondent - State.
...
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
RESERVED ON : 19th JUNE, 2023
PRONOUNCED ON : 07th JULY, 2023
ORDER (PER ABHAY S. WAGHWASE, J.) :
1. Both applicants herein have moved instant application
with prayer for suspension of sentence and grant of bail on account
of conviction recorded against them in Sessions Case No.336 of
2021 tried and decided by learned Additional Sessions Judge,
Aurangabad for commission of offence under section 302 of Indian
Penal Code (IPC).
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2. Heard learned advocate Mr. Satej Jadhav for
applicants and learned APP Mr. S. D. Ghayal for respondent - State.
3. In favour of relief, learned counsel for applicants
pointed out that, present applicants are named as accused nos.2
and 3. That, no role is attributed to them except stating that there
was scuffe with deceased Shafuddin. It is pointed out that, in fact
there was no grudge or quarrel between present applicants and
deceased or complainant party. Learned counsel submitted that
main incident allegedly took place between accused no.1 Sadik and
deceased and even he alone is shown to be armed with wooden
stick. Therefore, applicants ought not to have been impleaded on
the strength of such material by invoking section 34 of IPC. It is
submitted that there is no material to suggest any common
intention. However, learned trial Judge has convicted present
applicants along with main accused and therefore, both applicants
have also preferred criminal application against the said judgment
and order of conviction dated 16.03.2023. Appeal has also already
been admitted, however much more time would be required for
decision of the appeal. Resultantly, in the light of above
submissions it is prayed that, sentence awarded be suspended and
applicants be set at liberty as they are ready to abide all conditions
imposed by this Court.
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4. Opposing the relief, learned APP would point out that
from the evidence of direct eye witnesses, it is very clear that
applicants had accompanied main accused. There was some
instances between deceased and accused at the initial stage,
however main accused came armed with article stick, at that time
both applicants had accompanied him. Therefore, they had
approached to the spot to carryout assault on deceased with
common intention. Learned APP pointed out that, there are
allegations of both applicants scuffing with deceased. Thus, it is
submitted that it cannot be said that there is no role. According to
learned APP, there was incidence of death of deceased Shafuddin
and therefore, for all above reasons learned APP opposed the relief
raised herein.
5. In the light of above submission, we have gone through
the evidence on record. Admittedly, there are eye witnesses to the
incident. The genesis of the crime seems to be questioning by
deceased to main accused Sadik for rash and negligent driving of
vehicle while he was standing on the road. It seems from the
evidence of prosecution that, there was minor quarrel between
main accused and deceased and after 20 minutes or so accused
Sadik came along with present applicants. Informant himself
speaks about present applicants scuffing with deceased and
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thereafter main accused hitting deceased on the head from the
backside. Therefore, prima facie role attributed to present
applicants is scuffing with deceased.
6. Therefore, taking into account the role attributed to
the present applicants, it is desirable that available evidence needs
to be scanned and re-examined to ascertain whether there was
common intention entertained by these applicants. In the light of
such circumstances, we are convinced that a case is made out for
suspension of sentence and grant of bail.
7. For the aforesaid reasons, following order is passed:
ORDER
(i) Application stands allowed and disposed of.
(ii) The substantive sentence imposed against both
applicants in Sessions Case No. 336 of 2021 by learned Additional
Sessions Judge, Aurangabad, on 16.03.2023 stands suspended till
the hearing and disposal of Criminal Appeal No.252 of 2023.
(iii) The applicants, (i) Javed Shaikh Jaan Mahd. and (ii)
Athar @ Attu Baig Jafar Baig be released on P.R. Bond of
Rs.30,000/- each with two solvent sureties of Rs.15,000/- each.
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(iv) The applicants shall not commit any criminal activity.
(v) The applicants shall remain present before the learned
trial Judge once in six months, till fnal hearing and disposal of the
appeal, commencing from the date they tender bail papers and
thereafter, the trial Judge to fx dates for their subsequent
appearance.
(vi) In case of two consecutive defaults on the part of the
applicants to remain present before the trial Court, the trial Court
to inform this court about the same and in that eventuality, the
prosecution would be at liberty to fle an application for
cancellation of the bail granted to the applicants.
(vii) Bail before the trial Court.
(ABHAY S. WAGHWASE, J.) (SMT. VIBHA KANKANWADI, J.)
Tandale
