Bombay High Court
Tabrej @ Tabbu Darvesh Khan And Anr vs State Of Maharashtra on 17 January, 2024
Author: Revati Mohite Dere
Bench: Revati Mohite Dere
2024:BHC-AS:3084-DB
26-Ia-4237-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 4237 OF 2022
IN
CRIMINAL APPEAL NO. 997 OF 2022
1. Tabrej @ Tabbu Darvesh Khan
2. Salim Aktarhussain Siddique .... Applicants
Versus
State Of Maharashtra .... Respondents
Mr. Ashok P. Mundargi, Senior Counsel i/b Mr. Nitin Sejpal & Mrs.
Pooja Sejpal, for the Applicants.
Mr. V. B. Konde Deshmukh, A.P.P for the Respondent - State.
CORAM : REVATI MOHITE DERE &
MANJUSHA DESHPANDE, JJ.
DATE : 17th JANUARY 2024
P.C. :
1. Heard learned Counsel for the parties.
2. At the outset, learned Senior Counsel for the applicants
does not press the application qua applicant No.1, at this stage. He
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states that liberty be granted to the said applicant to prefer a fresh
application for bail after one year.
3. As far as the applicant No.2 is concerned, learned Senior
Counsel for the applicant No.2 seeks suspension of the applicant No.2's
sentence and enlargement on bail, pending hearing and final disposal of
his aforesaid appeal.
4. The applicant No.2 vide Judgment and Order dated 22 nd
September, 2022 passed by the learned Additional Session Judge,
Dindoshi, Mumbai, in Sessions Case No. 290 of 2017, has been
convicted as under :
- for the offence punishable under Section 302 read with
Section 34 of the I.P.C., to undergo rigorous imprisonment for life and
pay fine of Rs.1,000/-, in default S.I. for 10 days;
- for the offence punishable under Section 392 read with
Section 34 of the I.P.C., to undergo rigorous imprisonment for 5 years
and pay fine of Rs.1,000/-, in default S.I. for 10 days;
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- for the offence punishable under Section 427 read with
Section 34 of the I.P.C., to undergo rigorous imprisonment for 1 year
and pay fine of Rs.1,000/-, in default S.I. for 10 days;
- for the offence punishable under Section 201 read with
Section 34 of the I.P.C., to undergo rigorous imprisonment for 1 year
and pay fine of Rs.1,000/-, in default S.I. for 10 days. All the substantial
sentences were directed to run concurrently.
5. Perused the application. The prosecution case rests on direct
as well as circumstantial evidence. The prosecution has examined three
eye witnesses in the said case, i.e. P.W.1 - Gulab Shaikh; P.W.6 - Jaffar
Shaikh; and P.W.7 - Dharmendra Verma. As far as P.W.6 - Jaffar Shaikh
and P.W. 7 - Dharmendra Verma are concerned, both the said witnesses
have turned hostile.
6. From a perusal of the evidence of P.W.1 - Gulab Sahab, it
appears that the incident took place on the night of 17 th April, 2017,
post dinner. It is the prosecution case, that Tabrej @ Tabbu came to the
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spot and told them that they were removing their nets and he would
show that other people had put nets. Pursuant thereto, all of them i.e.
Tabrej @ Tabbu, the applicant No.2, Jaffar, Dharmendra and Shoaib
(deceased) went in the boat. It is the prosecution case, that when the
boat was in the middle of the lake, Tabrej @ Tabbu removed a knife
and asked for the mobile phones of all the persons; that Tabrej @
Tabbu threw the mobile phones of all the persons in the water, and
thereafter, assaulted Shoaib with a knife; that after assaulting Shoaib,
Tabrej @ Tabbu pushed Shoaib in the water; and, when Shoaib tried to
get in the boat, Tabrej @ Tabbu assaulted Shoaib on his neck.
According to P.W.1 - Gulab, the applicant No.2 "started beating".
7. Learned Senior Counsel submitted that it is not clear from
the evidence of the P.W.1 - Gulab as to whom the applicant No.2
assaulted. He submitted that, recovery of a knife, at the instance of the
applicant No.2 is of no consequence, in as much as, there is nothing to
show, that the applicant No.2 was armed with a knife or that he
assaulted Shoaib with a knife. He submits that even the knife has no
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blood stains. He further submits that the applicant No.2 is in custody
since 2017, for more than 6 years.
8. Considering the evidence qua the applicant No.2, as stated
above, the application is allowed, and accordingly the applicant No.2's
sentence is suspended and he is enlarged on bail, on the following terms
and conditions.
ORDER
(i) The applicant No.2 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 No.2 shall report to the trial Court, once
in four months on the day/date specified by the trial
Court, till his Appeal is finally disposed of;
(iii) The applicant No.2 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;
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(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.
9. The Application qua the applicant No.2 is allowed in the
aforesaid terms, and is accordingly disposed of.
10. As far as, the applicant No.1 is concerned, we make it clear
that we have not heard his prayer for bail on merits. Hence, the prayer
for bail by the applicant No.1 is disposed off as not pressed, with liberty,
as prayed for.
11. All concerned to act on the authenticated copy of this order.
MANJUSHA DESHPANDE, J. REVATI MOHITE DERE, J.
CHAITANYA by CHAITANYA
ASHOK Date:
JADHAV 2024.01.22
18:58:54 +0530
