Allowed

Hanif S/O Ibrahim Pathan and Anr. v. the State of Maharashtra

Bombay HC19 Oct 2016APPLN/5362/2016

Case brief

AI extract

What is this about?

High Court at Aurangabad allowed two criminal applications. It held that accused applicants, facing charges of murder and unlawful assembly, should be released on bail after filing of charge-sheet due to inconsistent prosecution evidence, parity with co-accused already granted bail, and the doubtful nature of unlawful assembly in a free-fight scenario.

What did the court decide?

Applicants released on bail by executing P.R. Bond of Rs. 25,000 each with sureties and undertaking specified conditions.

Hanif S/O Ibrahim Pathan and Anr. Vs the State… — Murder and Culpable Homicide | Bombay HC (2016)

¶1

Cri. Appln. Nos. 5362 & 5790 of 2016

¶2

(1)

¶3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD.

¶4

Criminal Application No. 5362 of 2016

¶5

District : Aurangabad

¶6

1.Hanif s/o. Ibrahim Pathan,
Age : 29 years,
Occupation : Business,
R/o. Gade-Jalgaon,
Taluka & District Aurangabad.
2.Mohsin s/o. Ibrahim Pathan,
Age : 25 years,
Occupation : Business,
R/o. As above. .. Applicants.
versus
The State of Maharashtra. .. Respondent.

¶7

............ Mr. S.G. Ladda, Advocate, holding for Mr. S.S. Ladda & Mr. S.J. Rahate, Advocates, for applicants. Mr. S.B. Yawalkar, Addl. Public Prosecutor, for the respondent. Mr. A.A. Mukhedkar, Advocate, for the original Informant. ............

¶8

With

¶9

Criminal Application No. 5790 of 2016

¶10

District : Aurangabad

¶11

1.Atik Abdul Razzak Pathan,
Age : 26 years,
Occupation : Agriculture.

¶12

(2)Cri. Appln. Nos. 5362 & 5790 of 2016

¶13

2.Mohd. Ibrahim Pathan,
Age : 60 years,
Occupation : Agriculture.

¶14

Both R/o. Gade-Jalgaon,
Taluka & Dist. : Aurangabad. .. Applicants

¶15

versus

¶16

The State of Maharashtra,
Through Karmad Police Station,
Dist. Aurangabad. .. Respondent.

¶17

............

¶18

Mr. S.H. Jagiasi, Advocate, for applicants.

¶19

Mr. S.B. Yawalkar, Addl. Public Prosecutor, for the respondent.

¶20

Ms. Almas Abdul Qader, Advocate, with Mr. Bora, Advocate, for the original Informant.

¶21

............

¶22

CORAM : A.M. BADAR, J.

¶23

DATE : 19TH OCTOBER 2016

¶24

ORAL ORDER:

¶25

Applicants Hanif s/o. Ibrahim Pathan and
Mohsin s/o. Ibrahim Pathan in Criminal Application
No. 5362 of 2016 and applicants Atik Abdul Razzak
Pathan and Mohd. Ibrahim Pathan in Criminal
Application No. 5790 of 2016, are accused in Crime
No. 82/2016 registered with Karmad Police Station,
District Aurangabad, for offences punishable under
Sections 302, 307, 143, 147, 148, 149, 323, 324, 504,

¶26

(3)Cri. Appln. Nos. 5362 & 5790 of 2016

¶27

506 and 120B of the Indian Penal Code. By these
applications, they are seeking their release on bail
after filing of the charge-sheet.

¶28

2.Heard the learned Counsel appearing for
applicants / accused. By taking me through the
entire charge-sheet, learned Counsel argued that
entire evidence of the prosecution is inconsistent.
According to them, co-accused with similar role in
the alleged unlawful assembly with common object have
already been granted bail by this Court. It was
further argued that accused nos.8 to 23 are granted
anticipatory bail, as seen from the charge-sheet.
Learned Counsel further argued that role attributed
to present applicants does not entail deprivation of
their liberty during pendency of the trial as the
incident in question was a result of free fight
between two groups leading to registration of cross
FIR at the instance of applicant Atik Abdul Razzak
Pathan. Therefore considering the role attributed to
present applicants in the crime in question, offence
punishable under Section 302 of the IPC is not made
out against them.

¶29

3.I have also heard the learned Addl. Public
Prosecutor appearing for the State. By drawing my
attention to the FIR as well as supplementary
statement of informant Aayanul Haq Abdul Haq Patel,
the learned Addl. Public Prosecutor argued that all

¶30

(4)Cri. Appln. Nos. 5362 & 5790 of 2016

¶31

applicants before this Court have played active role
in unlawful assembly with common object of murdering
Abdul Haq Kamal Patel and in attempt to commit murder
of members of prosecuting party. The learned Addl.
Public Prosecutor drew my attention to statement of
Saberabi Abdul Haq Patel pointing out role of
applicants so also to statements of child witnesses
and that of Ismail Abdul Haq Patel and Shaikh Rustum
Abdul Haq Patel.

¶32

4.I have also heard the learned Counsel
appearing for the informant, for assisting the
prosecution opposing Criminal Application No. 5362 of
2016 preferred by applicant Hanif s/o. Ibrahim Pathan
and another co-accused. He argued that mischief is
played by applicants in Criminal Application No. 5790
of 2016 by showing name of applicant no.2 as Mohd.
Ibrahim Pathan, whereas his actual name is Ibrahim
Abdul Salam Pathan. This, according to the learned
Counsel for the informant, was done in order to show
that the charge-sheet does not contain any overt act
on behalf of applicant Mohd. Ibrahim Pathan. The
learned Counsel for the informant further argued that
witnesses namely, Ismail Abdul Haq Patel and Shaikh
Rustum Abdul Haq Patel are specifically stating that
applicant Hanif s/o. Ibrahim Pathan had given blow of
axe on head of deceased Abdul Haq Kamal Patel causing
his death. The learned Counsel reiterated that all
applicants have taken role in murdering deceased

¶33

(5)Cri. Appln. Nos. 5362 & 5790 of 2016

¶34

Abdul Haq Kamal Patel and injuring seven prosecution
witnesses who are relatives of deceased Abdul Haq
Patel. The learned Counsel further argued that co-
accused, who have been released on bail by this
Court, have not taken any part in the incident and no
overt act was attributed to them in the crime in
question.

¶35

5.I have also heard the learned Counsel
appearing for the informant, for assisting the
prosecution opposing Criminal Application No. 5790 of
2016 preferred by applicant Atik Abdul Razzak Pathan
and another co-accused. She argued that several
accused persons in this crime are already absconding.
In all there are 34 accused persons. They may tamper
the prosecution evidence in future. The learned
Counsel drew my attention to report of Non-cognizable
Case bearing No. 500/2016 registered at the instance
of Karim Kamal Patel against Abdul Rahim Abdul Salam
Pathan (Absconding accused no.24). In that report,
it is averred by the complainant that absconding
accused Abdul Rahim Pathan threatened to kill said
Karim Kamal Patel. The learned Counsel further
argued that FIR of Aayanul Haq Patel is first in
point of time and assault was at the house of the
informant.

¶36

6.I have carefully considered the rival
submissions. I have also gone through annexures to

¶37

(6)Cri. Appln. Nos. 5362 & 5790 of 2016

¶38

applications as well as the charge-sheet in the crime
in question.

¶39

7.The submission that the crime in question
took place at the house of the informant appears to
be devoid of substance because FIR lodged by Aayanul
Haq Patel goes to show that the incident took place
when they had gone to the site of their cattle shed
where the desilted material was to be stacked. Be
that as it may, perusal of the post mortem report
shows that in the incident in question, Abdul Haq
Shaikh Kamal Patel died homicidal death. Post mortem
report shows that he had suffered split lacerated
wound over right parietal region close to medline
which was cause of his death. Apart from this
injury, the deceased has suffered minor injuries in
the nature of contused abrasions Tram like contusion.

¶40

8.It is not in dispute that incident which
took place in village Gadhe-Jalgaon on 16.05.2016 has
resulted in registration of two crimes. In
applications at hand, we are dealing with the crime
registered on the basis of report lodged by Aayanul
Haq Patel on 16.05.2016 which has resulted in
registration of Crime No. 82/2016 against in all 34
accused persons including present applicants. The
incident which took place on 16.05.2016 has also
resulted in lodgment of the FIR by applicant no.1
Atik Abdul Razzak Pathan in Criminal Application No.

¶41

(7)Cri. Appln. Nos. 5362 & 5790 of 2016

¶42

5790 of 2016, which resulted in registration of Crime
No. 84/2016 with the very same Police Station.
Suffice to state that the prosecuting party in these
applicants are accused in said Crime No. 84/2016
registered at the instance of applicant Atik Abdul
Razzak Pathan in Criminal Application No. 5790 of
2016.

¶43

9.The FIR lodged by informant Aayanul Haq
Patel, who is son of deceased Abdul Haq Patel shows
the prosecution case as under :-

¶44

At about 09.00 a.m. of 16.05.2016 work of
desilting the lake was going on at village Gadhe-
Jalgaon. Aaynul Haq Patel asked the concerned to
stack 5 - 6 tractor load of rubble / silt at the site
of his cattle shed. One Abdul Rahim Pathan took
exception to this request. Then there was wordy duel
between informant Aaynul Haq Patel and Rafiq Pathan
as well as Shafiq Abdul Razzak. Then at about 03.30
p.m. to 04.00 p.m., Abdul Rahim Pathan indulged in
wordy duel and scuffled with informant Aaynul Haq
Patel. Then his father Abdul Haq Patel (since
deceased) and two of his brothers came on the spot.
Father of the informant then threatened to kill Abdul
Rahim Pathan. After 15 to 20 minutes, Atik Abdul
Razzak Pathan (applicant herein) as well as six named
and 5 - 10 unnamed persons from the village came.
Informant Aaynul Haq and his family members then

¶45

(8)Cri. Appln. Nos. 5362 & 5790 of 2016

¶46

armed themselves with wooden logs and therefore the
persons who came left the spot. Father of Aaynul
Haq, his mother and brother then went to the Police
Station to lodge report but returned without lodging
the report. After some time, informant Aaynul Haq
Patel and his family members then went to the spot
where rubble / silt was to be deposited. At that
time, accused persons came there. As per averments
in the FIR, applicant Atik Abdul Razzak Pathan and
co-accused Mustafa Pathan assaulted informant Aaynul
Haq Patel with iron rod and handle of axe. His
brother Ismail was assaulted by applicant Mohsin
Pathan by wooden log. His father Abdul Haq Patel is
stated to have been assaulted by Abdul Rahim Salam
Pathan by iron pipe. It is further averred in the
FIR that when the informant and his family members
tried to save Abdul Haq Patel, co-accused Shafiq,
Mohsin (applicant) and Mustafa assaulted them. This
is the prosecution story as per the FIR.

¶47

10.On the next day i.e. 17.05.2016,
supplementary statement of informant Aaynul Haq Patel
came to be recorded. Careful perusal of that
supplementary statement of Aaynul Haq Patel goes to
show that he has given go by to his original version
and came up with a fresh version in which he has
implicated in all 29 accused persons attributing
specific role to them. So far as applicants are
concerned, in this supplementary statement, informant

¶48

(9)Cri. Appln. Nos. 5362 & 5790 of 2016

¶49

Aaynul Haq Patel has stated that applicant Hanif Ibrahim Pathan has assaulted his sister Bismillabi by means of axe on her thigh. Corresponding injury on Basmillabi found in injury certificate is blunt trauma on her thigh. Supplementary statement of informant Aaynul Haq Patel, so far as applicants are concerned, is stating that applicant Mohsin s/o. Ibrahim Pathan has assaulted Abdul Haq Patel (since deceased) by means of 'Tambi' on arm. No corresponding injury is seen on arm of dead body of Abdul Haq Patel (since deceased). In supplementary statement, informant Aaynul Haq Patel had not mentioned names of applicant Atik Abdul Razzak Pathan as well as that of applicant Mohd. Ibrahim Pathan. He had named one Ibrahim Abdul Salam Pathan as one of the assailants who used pipe in the assault. To whom he had assault, is not mentioned. The applicant before this Court is not Ibrahim Abdul Salam Pathan but Mohd. Ibrahim Pathan. In the charge-sheet, name of the accused is mentioned as Mohd. Ibrahim Pathan and therefore no substance is found in argument of the learned Counsel for the informant that some mischief is played by applicants by moving the application. The application is in tune with the names of accused persons mentioned in the chargesheet.

¶50

11.If we go by statements of witnesses, then it
is seen that evidence of prosecution in respect of

¶51

(10)Cri. Appln. Nos. 5362 & 5790 of 2016

¶52

the assault is not consistent. Though witnesses
Ismail Abdul Haq Patel and Shaikh Rustum Abdul Haq
Patel are attributing injury by axe on the deceased
to applicant Hanif s/o. Ibrahim Pathan in Criminal
Application No. 5362 of 2016, other injured witnesses
including Saberabi are stating that accused Shafiq
Abdul Razzak Pathan had given a blow of axe on head
of deceased Abdul Haq Patel. Post mortem report
shows that this head injury had caused death of Abdul
Haq.

¶53

12.The prosecution is invoking Section 149 of
the IPC in this case to contend that accused persons
have formed an unlawful assembly with a common object
of murdering members of the prosecuting party
including deceased Abdul Haq Patel. It is well
settled that once membership of an unlawful assembly
is established, it is not incumbent to establish
whether any specific overt act has been done by any
accused. Mere membership of unlawful assembly is
sufficient and every member of unlawful assembly is
vicariously liable for acts done by others either in
prosecution of common object of the unlawful assembly
or such which the members of unlawful assembly knew
were likely to be committed. Thus, offence must be
connected immediately with the common object of the
unlawful assembly. In the case in hand, 34 accused
persons are stated to have formed an unlawful
assembly with common object, as stated above.

¶54

(11)Cri. Appln. Nos. 5362 & 5790 of 2016

¶55

13.On this backdrop, claim of parity is made by
present applicants with three co-accused who are
granted regular bail by this Court. They are, Sayeed
Khan s/o. Dilawar Khan Pathan, Shoeb s/o. Dilawar
Pathan and Jabbar s/o. Anwar Khan (Pathan) i.e.
accused nos.5 to 7. These accused persons have filed
applications for releasing them on bail vide Criminal
Application No. 3566 of 2016 and Criminal Application
No. 3639 of 2016 and on 2nd August 2016, said
applications were allowed by this Court [Coram : N.W.
Sambre, J.]. Perusal of that order placed on record
at page 73 of Criminal Application No. 5362 of 2016
shows that while passing the said order, the Court
was very much alive to the fact that according to the
prosecution case, accused persons had formed an
unlawful assembly and have murdered the father of the
informant. These recitals are found in para 2 of the
said order dated 2nd August 2016. By observing this,
while granting those applications, this Court made
following observations in paras 7 to 10 of that order
which needs re-production and reads thus :-

¶56

“7. In my opinion, having regard to the nature of allegations against the applicants, particularly as regards their participation in the crime in question, at the most the offence that could be constituted against them, could onsidered to be one punishable under Section 326 of the Indian Penal code. It is

¶57

(12)Cri. Appln. Nos. 5362 & 5790 of 2016

¶58

then noted that the other two accused are claimed to have used stones in commission of the c in question. The cause of death is head injury.

¶59

There is use of sword in the commission of crime by the other accused.

¶60

In my opinion, as the applicants' custodial interrogation is already over and there are no criminal antecedents, no fruitful purpose will be served in detaining them more.

¶61

In view thereof, in my opinion, it will be apriate to order release of the applicants on bail. I, therefore, pass following order :-

¶62

The applicants be released on bail, in connection with C.R. No. 82 of 2016, registered with Police Station, Karmad, Taluka & District Aurangabad, for offences punishable under Seons 302, 307, 143, 147, 148, 149, 323, 504, 506 and 120B of the Indian Penal Code, on each of them furnishing P.R. Bond of Rs. 25,000/- with one surety in the like amount.

¶63

The applicants shall remain outside the jurisdiction of the concerned Police Station till filing of the charge-sheet.

¶64

The applicants shall not tamper with prosecution evidence or influence the witnesses.

¶65

(13)Cri. Appln. Nos. 5362 & 5790 of 2016

¶66

Criminal Applications stand allowed in above terms. “

¶67

14.Thus, this Court has observed that
considering the nature of offence, at the most,
offence which could be made out against accused
persons is one punishable under Section 326 of the
IPC. Further observation is in respect of use of
sword in commission of crime in question by other
accused persons. Applicants before this Court are
not accused who were holding sword, as observed in
the order dated 2nd August 2016. Applicants therein
were also members of this unlawful assembly.
Considering the position of law on this aspect, as
stated above, there seems to be no reason to refuse
similar treatment to applicants before this Court and
as such on ground of parity, applicants before this
Court are also entitled for their release on bail on
completion of investigation and on filing of the
charge-sheet.

¶68

15.Apart from this, even if statements of
prosecution witnesses are considered, then also it is
seen that role attributed to applicant Atik Abdul
Razzak Pathan is assault by iron rod and handle of
axe. Applicant Mohsin s/o. Ibrahim Pathan is
attributed with role of assault by rod. Applicant
Hanif s/o. Ibrahim Pathan is stated to have assaulted

¶69

(14)Cri. Appln. Nos. 5362 & 5790 of 2016

¶70

Bismillabi by means of axe, causing blunt trauma.
Applicant Mohsin s/o. Ibrahim Pathan is stated to
have assaulted Aaynul Haq Patel by means of rod.
This applicant is also stated to have assaulted
Ismail Abdul Haq Patel. Applicant Atik Abdul Razzak
Pathan is stated to have assaulted Najmu but no
weapon is specified. Hasinabi Khalil Ahmadkha Patel
is stating that Shafiq Abdul Razzak Pathan had
assaulted deceased Abdul Haq Patel by means of an
axe. Similar is the statement of Saberbi Abdul Haq
Patel attributing role to co-accused Shafiq Abdul
Razzak Pathan in causing injury on head of the
deceased by means of an axe. This evidence will have
to be kept in mind while assessing veracity of
statements of Ismail Abdul Haq Patel and Shaikh
Rustum Abdul Haq Patel who are attributing this role
to applicant Hanif s/o. Ibrahim Pathan. It is
worthwhile to note that there is only one head injury
of the deceased causing his death.

¶71

16.Then there is cross FIR by applicant Atik
Abdul Razzak Pathan lodged on 17.05.2016 which has
resulted in registration of Crime No. 84/2016 against
members of the prosecuting party including informant
herein namely, Aaynul Haq Patel. Story of applicant
Atik Abdul Razzak Pathan in his FIR is to the effect
that members of prosecuting party, including
informant Aaynul Haq Patel in the present crime, had
assaulted him as well as applicant Hanif s/o. Ibrahim

¶72

(15)Cri. Appln. Nos. 5362 & 5790 of 2016

¶73

Pathan and applicant Mohsin s/o. Ibrahim Pathan.
Injury certificates of applicant Hanif s/o. Ibrahim
Pathan and applicant Mohsin s/o. Ibrahim Pathan
placed on record shows that in the very same
incident, they had suffered several injuries
resulting in their treatment at M.G.M. Medical
College & Hospital at Aurangabad. Applicant Atik
Abdul Razzak Pathan is stated to have suffered
fracture injury in this incident. If both FIRs are
read together, then prima facie it appears that there
was melee or free fight between two groups and in
this context, application of Section 149 of the IPC
will have to be considered. At this stage, same
appears to be highly doubtful in view of free fight
between two parties. There is possibility of
applicants attempting to save themselves in the
incident.

¶74

17.In view of foregoing reasons, considering
the nature of evidence against applicants and the
fact that co-accused, who are similarly situated, are
already released on bail by this Court vide order
dated 2nd August 2016 in Criminal Application No.
3566 of 2016 and Criminal Application No. 3639 of
2016 and that other accused are granted anticipatory
bail by the Courts, as reflected from the charge-
sheet, further pre-trial detention of applicants
before this Court is not warranted.

¶75

(16)Cri. Appln. Nos. 5362 & 5790 of 2016

¶76

18.So far as contention of the learned Counsel
for the informant, that there is threat to life of
the informant and other members of the prosecuting
party are concerned, it will have to be noted that
all applicants are behind bar since long and charge-
sheet is also filed against them on 12th August 2016.
Report of Non-Cognizable Case shows that an
absconding accused has allegedly given threat to
Karim Kamal Patel. By imposing necessary condition
on these applicants, they can be restrained from
tampering the prosecution evidence, as apprehended by
the learned Counsel for the informant.

¶77

19.Hence, I pass the following order :-

¶78

(a)Both Applications are allowed.

¶79

(b)Applicants in both applications are directed to
be released on bail, in connection with the above
crime, on their executing P.R. Bond in the sum of Rs.
25,000/- each and on furnishing one or more solvent
sureties of the like amount by each of them.

¶80

(c)As conditions of this order, all applicants in
these applications shall abide by the following
directives :-

¶81

(i) Applicants shall not, directly or
indirectly, make any inducement, threat or

¶82

(17)Cri. Appln. Nos. 5362 & 5790 of 2016

¶83

promise to any persons acquainted with the
facts of the case so as to dissuade them
from disclosing such facts either to the
Court or to any police officer.

¶84

(ii) Applicants shall not tamper with the
prosecution evidence in any manner.

¶85

(iii) Applicants shall not contact in any
manner, either the informant or prosecution
witnesses during pendency of trial against
them.

¶86

(iv) Applicants shall cooperate the trial
Court in expeditious disposal of the trial
against them.

¶87

(v) Applicants shall not repeat commission
of similar type of offences in future.

¶88

(d)Applications stand disposed of in the above
terms.

¶89

( A.M. BADAR )
 JUDGE

¶90

 puranik / CRIAPPLN5362.16etc

Hanif S/O Ibrahim Pathan and Anr. v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Hanif S/O Ibrahim Pathan and Anr. v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Dnyaneshwar S/O Shivaji Nilewad Vs the State of Maharashtra

Sheetal W/O Anil Nilewad Vs the State of Maharashtra

Dr Anita W/O Pravinkumar Gavhane and Anr. Vs the State of Maharashtra and Others

Manoj S/O Mukinda Kirtane Vs the State of Maharashtra

Shaikh Akbar S/O Shaikh Akhtar Vs the State of Maharashtra

Aayanul Haq S/O Abdul Haq Patel Vs Hanif S/O Ibrahim Pathan and Others