Bombay High Court
Mohd. Ayyaz Ab. Wahab And Others vs State Of Mah. Thr. Government Pleader, ... on 24 January, 2024
Author: M. W. Chandwani
Bench: M. W. Chandwani
2024:BHC-NAG:1028
29.appa.1200.23 1/4
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Criminal Application [APPA] No.1200 of 2023
in
Criminal Appeal No.746 of 2023
Mohd. Ayyaz Ab. Wahab and others
vs.
State of Maharashtra, through Government Pleader, High Court, Nagpur Bench, Nagpur
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
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Mr. S.V. Sirpurkar, Advocate for the Appellants/Applicants.
Mr. H.D. Futane, A.P.P. for the Respondent/Non-Applicant.
CORAM : M.W. CHANDWANI, J.
DATE : 24th JANUARY, 2024.
By the present application, the applicants seek suspension
of substantive sentence passed in Session Trial No.205/2015 by the
Additional Sessions Judge, Akola vide judgment and order dated
25/10/2023, thereby convicting the applicants as under :
1) All the accused are hereby convicted for the offence p.u.s.
307 r/w 149 of the Indian Penal Code, 1860, for which,
they are hereby sentenced to suffer imprisonment for a
period of five years and pay a fine of Rs.10,000/- (Rupees
Ten Thousand Only) each i/d the accused shall undergo
simple imprisonment for a further period of six months.
The imprisonment of the accused Mohd. Riyaz Ab. Wahab
shall be rigorous whereas, the imprisonment of other
accused shall be simple in nature.
2) Accused Shaikh Mobin Shaikh Munaf and Mohd. Riyaz Ab.
Wahab are hereby convicted for the offence p.u.s. 148 of
the Indian Penal Code, 1860, for which, they are hereby
sentenced to suffer imprisonment for two years and a fine
of Rs.2,000/- (Rupees Two Thousand Only) each i/d they
shall undergo simple imprisonment for a further period of
one month. The imprisonment of the accused Mohd. Riyaz
Ab. Wahab shall be rigorous whereas, the imprisonment of
Shaikh Mobin Shaikh Munaf shall be simple in nature.
3) Accused Shaikh Jamil Shaikh Munaf, Abdul Jahir Abdul
Jamir and Mohd. Ayyaz Ab. Wahab are hereby convicted for
the offence p.u.s. 147 of the Indian Penal Code 1860, for
which, they are hereby sentenced to suffer simple
imprisonment for one year and pay a fine of Rs.1,000/-
(Rupees One Thousand Only) each, i/d they shall undergo
simple imprisonment for a further period of fifteen days.
4) Accused Mohd. Riyaz Ab. Wahab is hereby convicted for the
offence p.u.s. 3 r/w sec. 25 of the Arms Act, 1959, for
which, he is hereby sentenced to suffer rigorous
imprisonment for two years and a fine of Rs.10,000/-
(Rupees Ten Thousand Only), i/d he shall undergo simple
imprisonment for a further period of one month.
02] It is contended on behalf of the applicants that the trial
Court did not take into consideration the fact that there is no injury by
the weapon-sword, which accused No.1-Shaikh Mobin was holding.
According to him, there was no incised wound on the person of the
victim. Therefore, there was no intention of the accused-applicants to
kill the victim. According to him, the evidence on record suggests that
no case under Section 307 of I.P.C. is made out and, therefore, the
applicants have fair chance to succeed in the appeal.
03] Per contra, the learned A.P.P. for the State objected the
application on the ground that injury is not a criterion for considering
the offence punishable under Section 307 of I.P.C. It is submitted that
the acts of the applicants were intentional and, therefore, the roles
attributed to them are material. According to him, the evidence on
record shows that the victim sustained injury by the weapon, which
was used in the crime. It is submitted that the trial Court has rightly
appreciated the evidence and, hence, sought rejection of the
application.
04] Perusal of the record and evidence goes to show that there
are allegations of using of sword, but none of the witnesses suggests
that the injury sustained by the victim was caused by the weapon-
sword. A case is made out to consider the evidence in detail at the time
of final hearing of the appeal. That apart, the applicants have been
convicted for a fixed term of five years. The hearing of the appeal may
take time. In case the applicants succeed in appeal, the position will be
irreversible. Therefore, considering both these aspects, a case is made
out for suspension of sentence and grant of bail. Hence, the following
order is passed :
I. The substantive sentence passed in Session Trial
No.205/2015 by the Additional Sessions Judge, Akola vide
judgment and order dated 25/10/2023, shall remain
suspended during pendency of the appeal.
II. Applicants-Mohd. Ayyaz Ab. Wahab, Abdul Jahir Abdul
Jamir and Mohd. Riyaz Ab. Wahab shall be released on bail
on their furnishing P.R. Bond in the sum of Rs.20,000/-
each with one solvent surety of the like amount for each,
before the trial Court.
III. The appellants shall appear before this Court at the time of
final hearing, as and when directed.
IV. The application is allowed and disposed of in the aforesaid
terms.
V. Criminal appeal be listed as per its turn.
JUDGE
*sandesh
Signed by: Mr. Sandesh Waghmare
Designation: PS To Honourable Judge
Date: 25/01/2024 17:31:26
