Bombay High Court
Mohd. Niyaz Mohd. Siraj Hashmi vs The State Of Maharashtra on 9 October, 2023
Bench: R.P. Mohite-Dere, Gauri Godse
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 2911 OF 2021
IN
CRIMINAL APPEAL NO. 970 OF 2021
Mohd. Niyaz Mohd. Siraj Hashmi ...Applicant
Versus
The State of Maharashtra ...Respondent
Mr. Ranjit Singh for the Applicant.
Mrs. P.P.Shinde, A.P.P for the Respondent-State.
CORAM : REVATI MOHITE DERE &
GAURI GODSE, JJ.
DATE : 9th OCTOBER, 2023
P.C. :
1. Heard learned Counsel for the parties.
2. By this application, the applicant seeks suspension of his
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sentence and enlargement on bail, pending the hearing and final
disposal of his aforesaid appeal.
3. The applicant alongwith other co-accused, vide Judgment
and Order dated 27th October, 2021, passed by the learned Additional
Sessions Judge, Mumbai, in Sessions Case No. 88 of 2018, has been
convicted for the offence punishable under Section 302 r/w 34 of the
Indian Penal Code and is sentenced to suffer imprisonment for life and
to pay fine of Rs.10,000/-, in default of payment of fine, to suffer
rigorous imprisonment for one year; in addition, the applicant
alongwith other co-accused has also been convicted for the offence
punishable under Section 394 r/w 34 of the Indian Penal Code, and is
sentenced to suffer imprisonment for life and to pay fine of
Rs.5,000/-, in default of payment of fine, to undergo rigorous
imprisonment for six months. Both the aforesaid sentences were
directed to run concurrently.
4. Perused the papers. Admittedly, prosecution case rests
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entirely on circumstantial evidence i.e. on extra judicial confession,
last seen, recovery of ornaments and recovery of weapon at the
instance of the applicant.
5. As far as the circumstance of extra judicial confession is
concerned, the prosecution has examined two witnesses i.e. P.W.5 -
Shan Mohd. Jan Mohd. Hashmi and P.W.12 - Gulnaz Bano Shan
Mohd. Hashmi. Admittedly, both the said witnesses have resiled from
their statements and accordingly, declared hostile. As far as the
circumstance of last seen is concerned, the prosecution has examined
two witnesses i.e. P.W.9 - Sahil Sattar Shaikh and P.W.10 - Ranno
Shivshankar Agrahari. As far as P.W.9 - Sahil is concerned, a perusal
of his examination-in-chief does not show that the applicant was last
seen in the company of deceased - Ajay Jaiswal. As far as P.W.10 -
Ranno is concerned, the said witness has turned hostile. As far as
recovery of ornaments is concerned, ornaments were recovered at the
instance of co-accused Mohd. Sharif Shaukat Ali Shaikh and not the
applicant.
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6. As far as the applicant is concerned, there is recovery of a
knife at the instance of the applicant. Perused the evidence of P.W.19
- Manoj Shirsat, panch to the recovery of knife. A perusal of the
evidence of the said witness would show that there is nothing in the
substantive evidence to suggest that the knife that was allegedly
recovered at the instance of the applicant was blood stained. It is not
in dispute that co-accused - Mohd. Sharif Shaukat Ali Shaikh was
enlarged on bail by this Court vide order dated 25 th July, 2022,
pending his appeal.
7. Considering the evidence as stated aforesaid qua the
applicant and the fact that the applicant is in custody for more than
six years i.e. from 2017, the application is allowed and 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;
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ORDER
i) The applicant be enlarged on bail on furnishing
P.R. Bond in the sum of Rs. 25,000/- with one or two
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 her Appeal is finally disposed of;
iii) The applicant shall keep the trial Court
informed of her 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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8. The Application is allowed in the aforesaid terms and is
accordingly disposed of.
9. All concerned to act on the authenticated copy of this
order.
GAURI GODSE, J. REVATI MOHITE DERE, J.
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Signed by: Rupali Wakodikar
Designation: PA To Honourable Judge
Date: 10/10/2023 17:23:29
