Dismissed

Sk. Maheboob Sk. Gafur and Anr. v. the State of Mah

Bombay HC3 Feb 2012APPLN/3560/2011

Case brief

AI extract

What is this about?

In Criminal Applications filed by three accused persons convicted of murder, the High Court considered bail pleas pending appeal. Examining evidence including dying declarations and the nature of violence, the Court rejected the bail applications citing the gravity of the offence and established pre-trial detention.

What did the court decide?

Both bail applications were rejected. Record sent back.

Sk. Maheboob Sk. Gafur and Anr. Vs the State of… — Murder and Culpable Homicide | Bombay HC (2012)

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 cra3560.11

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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BENCH AT AURANGABAD

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CRIMINAL APPLICATION NO.3560 OF 2011 IN CRIMINAL APPEAL NO.422 OF 2011

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1) Sk. Maheboob s/o Sk. Gafur,
 Age-40 years, Occu:Labour,
2) Sk. Saleem s/o Sk. Gafur,
 Age-50 years, Occu:Labour,
 Both R/o- Wangi Road, Parbhani,
 Tq. & Dist-Parbhani.
...APPLICANTS.
 VERSUS
The State of Maharashtra.
...RESPONDENT.
 ...
 Shri. Shashibhushan P. Deshmukh Advocate for
 Applicants.
 Shri.S.D. Kaldate, A.P.P. for Respondent/State.
 ...

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WITH

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CRIMINAL APPLICATION NO.4979 OF 2011 IN

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CRIMINAL APPEAL NO.665 OF 2011

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Sk. Lalu s/o Sk. Pasha,
Age-55 years, Occu:Labour,
R/o-Wangi Road, Parbhani,
Tq. & Dist-Parbhani.

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...APPLICANT.

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 VERSUS

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The State of Maharashtra.

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...RESPONDENT.

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...

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 Ms. Rashmi P. Gour Advocate for Applicant.
 Shri.S.D. Kaldate, A.P.P. for Respondent/State.

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...

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CORAM: NARESH H. PATIL AND
 T.V. NALAWADE, JJ.

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 DATE : 3RD FEBRUARY, 2012.

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PER COURT :

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1.Heard learned counsel appearing for the

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respective parties.

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2. The Applicants were convicted for an

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offence punishable under Section 302 read with
Section 34 of the Indian Penal Code and sentenced
to suffer imprisonment for life and pay fine of
Rs.500/- (Rupees Five Hundred only) each, in
Sessions Trial No.46 of 2011, by the Additional
Sessions Judge, Parbhani, by Judgment and order
dated 5th August, 2011.

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3.The Applicants preferred Appeals against
the said Judgment and order. The Appeals were
admitted by this Court. The Applicants have
preferred bail Applications for releasing them on
bail, pending hearing and final disposal of the
Appeals.

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4.The prosecution case is that deceased

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Gautam More was cutting trees in the land on 13th
December, 2010. On that day, in the evening at
about 6.00 p.m. deceased Gautam was assaulted by

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accused Sk. Maheboob Sk. Gafur, on stomach region,
back and hand. The other two accused, namely, Sk.

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Saleem Sk. Gafur and Sk. Lalu Sk. Pasha, were also
involved in assaulting the deceased Gautam. The
deceased Gautam was taken to General Hospital,
Parbhani. At about 2.20 a.m. on 14th December,
2010, dying declaration of deceased Gautam
(Exhibit 43) was recorded. The deceased Gautam
named all these three accused persons. Second
dying declaration (Exhibit-55) was recorded on
18th December, 2010, in the Government Hospital,
Nanded. In the second dying declaration, deceased
Gautam named these three accused persons. In the
evidence laid by prosecution, PW-1, wife of
deceased, Shantabai Gautam More, stated that
deceased had disclosed to her that accused
Maheboob, Saleem and Lalu assaulted him. The
prosecution further placed reliance on oral
declaration made by the deceased before PW-2
Motiram Dhumal and wife of deceased PW-1. Deceased
Gautam died on 22nd December, 2010. Post-mortem

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was conducted. The cause of death as opined by the
medical officer was "Septicemia due to Stab Injury
to Chest and Abdomen." After completion of
necessary investigation, charge-sheet was filed.

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5.During the trial, prosecution examined
eight witnesses, including two medical officers,
i.e. PW-4 Dr. Narendra Warma, who examined the
deceased in Civil Hospital, Parbhani and PW-6 Dr.
Sanjay Bhutkar, Medical Officer cum Assistant
Lecturer in Government Hospital, Nanded, who
conducted autopsy.

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6.Learned counsel appearing for the

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Applicants in Criminal Application No.3560 of
2011, submits that the relations between the
deceased Gautam and accused No.1 Maheboob were

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strained due to past incident, but the Applicants
had no intention to commit murder of the deceased
Gautam. Applicant No.2 Saleem did not participate

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in assaulting the deceased Gautam. There is

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variance in the dying declarations and the
statement made by the prosecution witnesses,
deposing in respect of the statement made by the
deceased in respect of the role attributed to
these Applicants. Considering the principles of
application of provisions of Section 34 of the
Indian Penal Code to the facts of the case, and in
view of the Judgment delivered by the Apex Court
in the case of Daya Shnkar vs. State of M.P., 2009

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A.I.R. S.C.W., 890, it was submitted that the
Applicants deserve to be released on bail.

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7.Learned counsel appearing for the

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Applicant in Criminal Application No.4979 of 2011,
submitted that considering the principles of
application of provisions of Section 34 of the

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Indian Penal Code to the facts of the case and in
the light of the observations made by the Division

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Bench of the Bombay High Court in the reported

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case of Shri. Abdul Mukim Umar Ansari vs. State of

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Maharashtra, 2008 ALL M.R. (Cri.), 57, the

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Applicant be released on bail. The counsel further
submitted that there is variance in the dying
declarations. The Applicant Lalu had no motive to
commit crime, much less, to commit murder of
deceased Gautam. The prosecution has failed to
adduce evidence in respect of meeting of minds
amongst the accused and their pre-meditation for
commission of the crime. There is no common
intention amongst the participants in commission

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of the crime. In the facts of the case, the
counsel, therefore, submits that the Applicant
Lalu be released on bail.

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8.The A.P.P. submitted that at this stage
it would not be necessary to scan the evidence of
the prosecution. Two dying declarations, one soon
after the incident, cannot be discarded without
scanning the evidence. There was no reason for the
deceased to falsely implicate the accused persons.
It was submitted that considering the nature of
the assault, relations between the deceased and

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the Applicants, and the dying declarations made by
the deceased, the bail Applications be rejected.

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9.Original Record and Proceedings is

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called. We have perused the same. We have perused
the evidence of material witnesses, including the
evidence of medical officers, Post-mortem report,
injury certificate. We find that there are two
dying declarations recorded, of the deceased
Gautam. The first dying declaration was recorded
without much loss of time, i.e. in the mid-night
of 14th December, 2010, wherein the deceased has
named all the accused persons. Though the overt-
act of assaulting the deceased with the dangerous
weapon like axe, is attributed to the Applicant
Maheboob, but the deceased had clearly narrated
that the other Applicants, namely, Saleem and Lalu
were also involved in assaulting the deceased. The
deceased was assaulted on vital parts of the body,
with dangerous weapons. Though deceased Gautam
survived for few days, but on account of the said

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fact, gravity of offence does not diminish.

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10.Considering all these aspects of the

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matter, and considering the fact that accused
persons were in jail during the trial, we are not
convinced to release the Applicants on bail. Both
the bail Applications are rejected.

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11.Record and Proceedings be sent back.

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[T.V. NALAWADE,J.] [NARESH H. PATIL,J.]
asb/FEB12

Sk. Maheboob Sk. Gafur and Anr. v. the State of Mah

Case brief

What is this about?

What did the court decide?

Sk. Maheboob Sk. Gafur and Anr. v. the State of Mah

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

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