Bombay High Court
Jamir Mohammadulla Shafiulla Sharif @ ... vs The State Of Maharashtra on 31 July, 2025
HEMANT
CHANDERSEN
2025:BHC-AS:32416-DB
SHIV
H. C. SHIV 8.IA2578.2024.DOC
Digitally signed by
HEMANT
CHANDERSEN SHIV
Date: 2025.07.31
17:44:14 +0300 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO.2578 OF 2024
IN
CRIMINAL APPEAL NO.246 OF 2020
Jamir Mohammadulla Shafiulla
Sharif @ Jammo ...Applicant
Versus
The State of Maharashtra ...Respondent
_______________________
Mr. Jagdish G. Shetty with Mohd. Ayus Shaikh for the Applicant.
Mr. Vinit A. Kulkarni APP for the Respondent-State.
_______________________
CORAM : SUMAN SHYAM &
SHYAM C. CHANDAK, JJ.
RESERVED ON : 24th JULY, 2025
PRONOUNCED ON : 31st JULY, 2025
ORDER :
(PER : SHYAM C. CHANDAK, J.)
1. This is an Application for bail pending Appeal preferred by the
Applicant who was the Original Accused No.2 in Sessions Case No.345 of
2014, before the Additional Sessions Judge, Mumbai. At the conclusion of
the trial, the learned Judge vide his Judgment and Order dated 27th March
2019 convicted and sentenced the Accused No.1-Mohd. Umar Yusuf Shaikh
@ Salman; Accused No.2-Jamir Mohammadulla Shafiulla Sharif @ Jammo;
Accused No.3-Asif Sayyed Abdul Kadar Sayyed @ Raju; and Accused No.6-
Mohd. Shafique Mohd. Rafiq Khan @ Shafiq Patel U/Sections. 302, 452
506 r/w 34 of the Indian Penal Code. The maximum sentence imposed was
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H. C. SHIV 8.IA2578.2024.DOC
to suffer Imprisonment for life, extending the benefit of set off. However,
the said Accused Nos.1 to 3 and 6 were acquitted for commission of the
offence punishable u/s.143, 144, 147, 148, 323 r/w 149, 504 r/w 149 of the
Indian Penal Code. The Accused Nos.4 and 5 were acquitted of all the
charges.
2. Heard Mr.Shetty, the learned Advocate for the Applicant and
Mr.Kulkarni, the learned APP for the Respondent-State.
3. In short, the prosecution case is that on the relevant date, at time and
place original Accused No.1-Mohd. Umar Yusuf Shaikh, the Applicant along
with Original Accused Nos.3 to 6 forcibly entered the house of the
informant and dragged his brother Azgar outside the house. Accused No.6
gagged the mouth of Azgar and gave him blow with shaving blade ( vastara)
on his stomach and waist. Accused No.3-Asif gave a blow of knife on the
chest of Azgar. Accused No.1 inflicted a blow with a shaving blade on calf of
Azgar, and the Applicant assaulted Azgar by means of a baseball bat.
4. During the course of investigation, the police arrested the accused
persons, recovered from them the weapons used in the offence etc. and on
completion of the investigation, the police submitted the charge-sheet
against all the accused. During trial, the prosecution examined 14 witnesses.
Accepting their testimonies, the trial Court convicted and sentenced the
accused Nos.1 to 3 and 6 as stated above. Hence, the Applicant has
preferred aforesaid Appeal and sought for bail by this Application.
5. The testimony of P.W.5-Aquib Shaikh is that, just prior to the
incident, he saw the assailants armed with weapons. The evidence of the
first informant PW1-Asif Pasha, is that on 12/01/2014, after finishing his
wiring work at about 6.30 pm, while he was returning home, he came to
know that his younger brother-Anis had a quarrel with the Applicant and
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Accused No.1, 3 and 6 on account of parking of motorcycle. They had
assaulted Anis with hand. When his brother Azgar came to know this fact,
he went to question the Applicant and Accused Nos.1, 3 and 6. At that time,
the Applicant and Accused Nos.1, 3 and 6 manhandled Azgar. Thereafter,
Azgar returned to his house. P.W.1 stated that, at about 7.15 pm, he was
seated near one shop. At that time, he saw the Applicant and Accused Nos.1,
3 and 6 coming towards his house. They were armed with sharp weapons
viz., shaving blade, baseball bat and knife. Immediately, P.W.1 went to his
house. But all the four accused forcibly entered his house and thereafter,
dragged Azgar out of house. Two accused persons caught hold of P.W.1.
The accused persons assaulted Azgar. Thereafter, Azgar and P.W.1 were
taken towards Bismillah store. At that time, Accused No.6 had gagged the
mouth of Azgar and assaulted him with shaving blade on his stomach.
Accused No.3 assaulted Azgar by means of a knife on his chest. Accused
No.1 assaulted Azgar on his leg by means of a knife. The Applicant assaulted
Azgar with a baseball bat. Azgar sustained bleeding injuries. The accused
persons threatened to kill anyone who intervenes in their quarrel. They
further threatened P.W.1 and his family members and then they left.
6. The testimony of P.W.3-Ms.Nilofer Khaizar is consistent with that of
P.W.1. The testimony of P.W.4-Mumtaz Shakeel is also on the similar lines.
7. Considering the evidence of the aforesaid witnesses, it appears that
the Applicant was present along with the other accused persons when Azgar
was dragged out of the house and was assaulted causing fatal injuries to
him.
8. Mr. Shetty, the learned Counsel for the Applicant submits that as
alleged, the Applicant was present at the time and place of incident and he
had a baseball bat. It was alleged that, the applicant assaulted Azgar over
head with the baseball bat. However, the medical evidence of P.W.11 -
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H. C. SHIV 8.IA2578.2024.DOC
Dr.Ganesh Dhumal clearly states that there was no head injury to Azgar,
and the other injuries on the body of Azgar were not inflicted by baseball
bat. This suggests that the Applicant did not intend to cause death of Azgar.
He further submits that in the said incident, the Applicant also suffered
grievous injury which fact was admitted by the Investigating Officer.
However, the said injury was not explained by the prosecution. He submits
that the Applicant has been in custody since the date of his arrest and till
date, the Applicant has undergone imprisonment of more than 10 years.
The Applicant has no criminal antecedents. Therefore, the Applicant
deserves to be released on bail.
9. Mr.Kulkarni, the learned A.P.P., on the other hand, submitted that
there is sufficient evidence that, the Applicant knew that the co-accused
were carrying weapons. However, the Applicant did not separate himself
from them nor he prevented the co-accused from assaulting Azgar. As such,
this is a clear case of sharing common intention for committing the murder
of Azgar by the Applicant along with co-accused persons. He submitted that
Azgar had suffered serious injuries on account of the assault by the accused
persons. Therefore, the Application be rejected.
10. We have considered these submissions in the light of material on
record.
11. Upon careful scrutiny of the evidence, we find that as stated by the
witnesses, the Applicant assaulted Azgar over his head with the baseball bat.
However, the medical evidence of Dr. Ganesh Dhumal indicates that there
was no head injury. The other injuries were not attributed to the baseball
bat. The prosecution did not dispute that the applicant had sustained some
injury in the said incident. As such, we find merit in the submissions of the
learned Counsel for the Applicant.
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12. The learned A.P.P. did not dispute that the Applicant has been in jail
since the date of his arrest. The learned Counsel for the Applicant stated
that the Applicant is ready to abide by any condition that is imposed on him
for the grant of bail.
13. In view of the above, we are inclined to allow the Application and
grant bail during pendency of his Appeal.
14. It is made clear that our observations made above are solely for the
purpose of deciding this bail application. All these aspects will have to be
considered finally at the stage of hearing. At this stage, the Applicant has
made out a case for grant of bail pending his Appeal.
15. Hence, the following Order :-
(i) During pendency and final disposal of the Criminal Appeal
No.246 of 2020, the Applicant is directed to be released on
bail on his furnishing P.R. bond in the sum of Rs.50,000/-
(Rupees Fifty Thousand only), with one or two sureties in
the like amount.
(ii) During the bail period, the Applicant shall be of good
behaviour and shall not commit any offence.
(iii) The Applicant shall attend Meghwadi Police Station
between 12 noon to 4.00 pm on the first Monday of every
calendar month until further orders.
16. Interim Application stands disposed of accordingly.
SHYAM C. CHANDAK, J.) (SUMAN SHYAM, J.)
31st July, 2025
