Bombay High Court
Mohd. Usman Bashir Ahmed Shaikh vs The State Of Maharashtra And Anr. on 14 August, 2025
2025:BHC-AS:35257-DB ia-1935-2025-in-a peal-1437-2023-OR.doc
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 1935 OF 2025
IN
CRIMINAL APPEAL NO. 1437 OF 2023
Mohd. Usman Bashir Ahmed Shaikh,
Age: 55 years, Occupation: Business,
Residing at: B/201, A1 Salehin Bldg,
M.H. Mohani Road, Near Kedar Palace,
Mumbra, Thane - 400 612
(Currently lodged in Ratnagiri Open Jail) ...Applicant
~ versus ~
1. State of Maharashtra,
Through, Mumbra Police Station,
Thane, Sessions Case No. 168/2016,
C.R. NO. I-41/2016
2. Nasreen Bano Sajid Ansari,
SHEPHALI Age: 36 years, Occupation: nil,
SANJAY
MORMARE R/a: Room No. 101,Ground Floor,
Digitally signed by
SHEPHALI SANJAY
A wing, Sultana Palace,
MORMARE
Date: 2025.08.14 Khadi Machine Road, Mumbra,
17:49:09 +0530
Thane - 400 612. ...Respondents
A PPEARANCES
For the Applicant Mr Aabad Ponda, Senior Advocate,
i/b Shrinidhi Sonak
For Respondent No. 1-State Mr VA Kulkarni, APP
For Respondent No. 2. Ms Ilsa Shaikh.
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CORAM : SUMAN SHYAM &
SHYAM C. CHANDAK, JJ
RESERVED ON : 8TH AUGUST 2025.
PRONOUNCED ON : 14TH AUGUST 2025.
ORDER (Per Suman Shyam, J):
-
1. The Applicant herein was tried along with two other co-
accused, viz., Abdul Majid @ Ganna Abdul Rashid Kazi and Siddiqi
Kazi for committing offence punishable under Section 302 read
with Section 34 of the Indian Penal Code ("IPC"). On conclusion of
Trial, by the Judgment dated 8th December 2023 passed by the
learned Additional Sessions Judge, Thane, in Sessions Case No.
168 of 2016, all the three accused persons, including the present
Applicant were convicted under Section 302/34 of the IPC for
committing the murder of one Sajid Ansari and sentenced to
undergo imprisonment for life till death. Each of the accused
persons was also sentenced to pay fine of Rs. 10,000/-, in default
to suffer simple imprisonment for five months.
2. Assailing the Judgment and Order dated 8th December
2023, the Applicant/Appellant has preferred Criminal Appeal No.
1437 of 2023, which is pending disposal before this Court. The
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Applicant was arrested on 21st January 2016 and since then he is
in custody. Therefore, he has already suffered jail incarceration for
a period exceeding nine years and six months. Moreover, the co-
accused, viz., Abdul Majid @ Ganna Abdul Rashid Kazi (accused
No.1) and Mohd. Siddique Kazi (accused No.3) have already been
released on bail by the order dated 14th June 2024 passed by the
coordinate Bench (Bharati Dangre & Manjusha Deshpande, JJ) in
Interim Application No. 1344 of 2024 and by the order dated 30 th
January, 2024 passed by (Coram : A.S. Gadkari & Shyam C.
Chandak, JJ.) in Interim Application No. 81 of 2024, both the
Interim Applications arising out of the same Criminal Appeal No.
1437 of 2023. The present Application has been filed by the
Applicant (accused No.2) under Section 389 of the Code of
Criminal Procedure 1908 ("CrPC") (relatable to Section 430 of
Bhartiya Nagrik Suraksha Sanhita, 2023 ("BNSS")) with a prayer
to suspend his jail sentence and also to release him on bail.
3. The case of the prosecution is based on the testimony of the
informant (PW-1), who is an injured eyewitness as well as two
other eyewitnesses to the occurrence, viz., PW-3 and PW-4.
Evidence available on record suggests that death of the deceased
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had occurred due to multiple injuries sustained on his body. PW-1,
PW-3 and PW-4 have ascribed specific role to the co-accused as
well as to Applicant by deposing that it was the Applicant who had
caused stab injury on the back of the deceased. According to PW-1,
after giving the stab injury on the waist of the deceased, Sajid
Ansari by a knife, the Applicant had twisted the knife inside.
4. The evidence of PW-3 indicates that while the other two co-
accused persons were assaulting the victim by means of cricket
stumps and kick blows on his head, the Applicant came from
behind and assaulted the victim with a knife.
5. PW-4, who is the other eyewitness to the occurrence, has
deposed in similar lines by stating that the Applicant had stabbed
the victim on the left side of the stomach with a knife and twisted
it. He has also stated that while the other accused persons were
assaulting the victim by fists and kick blows, the Applicant had
stabbed the victim with a knife.
6. Based on such evidence, the leaned Trial Court had
convicted all the three accused persons for committing offence
under Section 302 read with 34 of the IPC for acting with a
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common intention to cause death to the victim and sentenced
them as aforesaid.
7. Referring to the materials on record, Mr Ponda, learned
Senior Counsel appearing for the Applicant has argued that the
incident has its genesis to some animosity between the deceased
and the Accused No. 1, in which the Applicant did not have any
involvement. According to Mr Ponda, the role ascribed to the
Applicant by the eyewitness is of a single injury on the buttock
area, which is non-vital part of the body. Pointing out at the
inconsistencies/contradictions in the testimony of the eyewitness,
Mr Ponda has argued that the Doctor, who has conducted
postmortem examination, i.e., PW-6, did not mention about any
damage caused to the vital organs so as to substantiate the
testimony of the prosecution witnesses that after inflicting the stab
injury, the Applicant had twisted the knife. Contending that the
buttock area is not the vital part of the body and, therefore, it is
evident that there was no intention on the part of the Applicant to
cause death to the deceased, Mr Ponda has submitted that this is a
case coming within the fold of one of the exceptions laid down in
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Section 300 of the IPC and, hence, could invite a lesser sentence
for the Applicant.
8. Mr Ponda, learned Senior Counsel has further argued that
since his arrest on 21st January 2016, the Applicant has not moved
any application for bail either during the trial stage or during the
pendency of the Criminal Appeal before this Court. Moreover, the
Applicant had displayed exemplary conduct during his
incarceration, as a result of which, he has been transferred to the
open jail due to his good behavior. Recently the Applicant was
granted parol for a period of one month, during which, he had
complied with all the conditions and surrender before the
authority without any breach of the conditions of parol. Since the
co-accused have already been released on bail, hence, submits Mr
Ponda, the present is a fit case where the Applicant also deserves
to be released on bail during the pendency of the connected
Criminal Appeal.
9. The learned Senior Counsel has assured this Court that if
bail is granted to the Applicant, he would scrupulously adhere to
any and all the conditions imposed by this Court on such behalf.
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10. Responding to the above arguments, Mr VA Kulkarni,
learned APP, has submitted that the conviction of the Applicant is
on the basis of testimony of three eye witnesses, viz., PW-1, PW-3
and PW-4, whose evidence have been found to be reliable by the
learned Court below. Since a specific role of causing stab injury to
the deceased has been ascribed to the present Applicant by the eye
witnesses and the said fact having been established through the
medical evidence, there is no justifiable ground for releasing the
Applicant on bail by invoking the principle of the parity, since the
case of the present Applicant stands on a different footing, as
compared to the accused Nos.1 and 3.
11. Supporting the above arguments, Ms Ilsa Shaikh learned
Counsel for the intervenor/respondent No. 2 has argued that the
Applicant has brutally attacked the deceased with a knife and
acted in a cruel manner by twisting the knife so as to ensure that
death is caused to the victim. She further submits that the
Applicant had arrived at the scene after the other accused, by
carrying a knife which goes to show the premeditation and/intent
on the part of the Applicant to cause death to the deceased. In
such view of the matter, this is not a fit case for invoking the
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principle of parity. The bail application, therefore, be rejected by
this Court.
12. We have considered the submissions advanced at the bar and
have also carefully gone through the material brought before us for
considering the bail application.
13. From the testimony of PW-1, PW-3 and PW-4, we find that
these eye witnesses have clearly ascribed a specific role to the
Applicant by deposing in unison that he was the one who had
caused stab injury in the back side of the deceased.
14. From the evidence of PW-6, it appears that there were
multiple injuries on the body of the victim, including a stab injury
over the left buttock area. However, the postmortem report does
not indicate of any damage to the vital organs in the body of the
deceased due to such stab injury caused by a sharp pointed
weapon. In other words, the version of the eye witnesses that the
Applicant had twisted the knife after stabbing the victim does not
find support from the medical evidence. Be that as it may, the fact
remains that the allegation brought against the Applicant is of
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causing single stab injury over the left buttock causing hemorrhage
and shock leading to his death. However, it can not be denied that
the left buttock ,where the injury was, is not the vital part of the
body of the victim. Therefore, whether there was any intention to
cause death of the deceased would call for deeper scrutiny by the
Court which would be possible only during the final hearing of the
Criminal Appeal which is likely to take some time.
15. We have noticed that the Applicant has been awarded the
sentence of "rigorous imprisonment for life till death". Therefore,
such a sentence would amount to curtailing the power of remission
of the sentence which power is available to the appropriate
authority under the Rules. However, after the decision of the
Supreme Court in the case of Union of India Vs V Sriharan @
Murugan & Ors,1 law is settled that imposing such a sentence is
impermissible in the eyes of law.
16. In Gauri Shankar vs State of Punjab ,2 while dealing with an
issue of similar nature, it has been held by the Apex Court that
1 (2016) 7 SCC 1.
2 (2021) 3 SCC 380.
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imposing life imprisonment for remainder of life was not within
the domain of the Trial Courts.
17. The aforesaid aspect of the matter has again been dealt with
by the Supreme Court in the case of Vikas Chaudhary vs (NCT of
Delhi).3 After taking note of the principles evolved in the case of
Union of India vs Sriharan @ Murugan & Ors (Supra), it was held
in the case of Vikas Chaudhari (Supra) as follows:
"18. It is hence clear that the trial courts, are
foreclosed from imposing such a modified or specific
term sentence, or life imprisonment for the remainder of
the convict's life, as an alternative to death penalty. The
court, when trying an offence punishable by death
penalty or life imprisonment, has merely these two
options. While the principles evolved in Sriharan are
clear, there are nevertheless issues which still remain
unexplored and unresolved. Whenever the state
proposes and urges for imposition of death sentence, it
has to, per force provide material to facilitate the court
to carry out the exercise of balancing the aggravating
factors with the mitigating circumstances-the test
propounded in Bachan Singh and examined in many
cases; the recent trend being that the reformative
element acquires equal attention. The obligation to
carry out this balancing interest is upon the courts
imposing the sentence in the first instance, i.e., the trial
courts; the prosecution (per Bachan Singh) is also under
an obligation to show that the mitigating circumstances
are absent especially that there are no chances of
reformation of the accused. Since this exercise is
mandated whenever a heinous capital crime is
committed, at the stage of conviction, the court has no
3 (2023) 19 SCC 144.
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idea that the prosecution may urge for capital sentence.
When that stage occurs, and the prosecution seeks a
capital sentence, the court has to carry out the exercise
of conducting a review of aggravating circumstances
(which are already on the record, being factors that lead
to the conviction of the accused) and balancing the
mitigating circumstances (which are not matters of the
record and have to be adduced by the prosecution and
the accused)."
(emphasis supplied)
18. From the above, it is apparent that the Trial Court did not
have the jurisdiction or authority to impose the sentence of "life
imprisonment till death "upon the Applicant. Therefore, whether
the jail sentence awarded by the learned Trial Court upon the
Applicant would at all be sustainable in the eyes of law, would, be
a subject matter of consideration by this Court at the time of final
hearing the Appeal.
19. We have also noted that the assertion of the Applicant that
due to his good behavior, he has been shifted to the open jail has
not been contested by the Respondents. If that be so, as per the
applicable rules, the period of remission of sentence applicable in
the case of the Applicant would be different in as much as he could
be entitled to substantial remission of the jail sentence due to the
period spent in the open jail.
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20. We have also noted that by the orders dated 30 th January,
2024 and 14th June 2024, the co-accused Mohd. Siddique Kazi
and Abdul Majid @ Ganna Abdul Rashid Kazi have been released
on bail by a co-ordinate Bench of this Court by setting out clear
terms and conditions of bail. We see no valid reason, as to why a
similar consideration should not be extended by this Court to the
present Applicant as well.
21. There is yet another significant aspect of the matter which
cannot be lost sight of. As has been noted above, the Applicant has
been convicted along with two other accused persons for
committing the murder of Sajid Ansari. His conviction under
Section 302 of the IPC is with the assistance of Section 34 of the
IPC. Since, it is a case of common intention, which to cause death
to the deceased, as held by the learned trial Court, hence, the role
ascribed to the individual accused persons will pale into
insignificance, as the presumption will arise that the end goal of all
the convicted accused persons was one and the same, i.e., to cause
death to the deceased. In such circumstances, regardless of the
specific role ascribed to the convicted accused, the fact that the co-
accused persons have been released on bail, in our considered
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opinion, would be an additional ground which will weigh in with
the Court while considering the bail application of the Applicant.
Viewed from that angle, principle of parity will come into play
while considering this bail application, on this count as well.
22. We have taken note of the period of incarceration already
suffered by the Applicant. We are also persuaded to accept the plea
taken by the learned senior Counsel for the Applicant that the
possibility of a reduced sentence being imposed upon that
Applicant cannot be ruled out in this case. Therefore, having
regard to the facts and circumstances of the case as well as the
period of incarceration undergone by the Applicant, we are of the
view that the present is a fit case for releasing him on bail, more
so, since the two co-accused persons have already been released on
bail.
23. We, accordingly, order as follows:-
ORDER
(a) The Applicant, viz., Mohd. Usman Bashir Ahmed
Shaikh shall be forthwith released on bail in
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connection with (Sessions Case No. 168 of 2016) C.R.
No. I-41/2016, registered with the Mumbra Police
Station, Thane on his executing P .R. bond of a sum of
Rs. 50,000/- with one or two sureties in like amount
to the satisfaction of the learned Trial Court.
(b) The Applicant shall appear before the Mumbra Police
Station, Thane on the first Monday of every month
between 10:00 a.m. and 12:00 noon to record his
presence till the Criminal Appeal is disposed of.
(c) The Applicant shall furnish his contact number and
permanent residential address to the Investigating
Officer and shall keep him updated in case of any
change thereof.
(d) The Applicant shall not leave the jurisdiction of Thane
District without prior permission of the Trial Court.
(e) The Applicant shall keep the surety alive for the
purpose of this bail.
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(f) The Applicant shall desist from threatening or in any
manner intimidating the complainant, or any other
family members of the informant.
(g) The Applicant shall maintain good behaviour and shall
not commit any offence or indulge in any anti social
activity while on bail.
(h) The Applicant shall ensure due representation before
this Court as and when his Criminal Appeal is taken
up for hearing.
24. We make it clear that the observations made herein-above
are prima-facie in nature and have been made for the limited
purpose of disposing of the bail application.
25. It is also made clear that violation of the above conditions
shall be viewed seriously and can also lead to cancellation of the
bail.
26. With the above observations, the Interim Application is
allowed and the same stands disposed of.
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27. The Registry is directed to forthwith communicate this order
to the concerned Jail Authorities at Ratnagiri Open Prison.
(SHYAM C. CHANDAK, J.) (SUMAN SHYAM, J.)
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