Majahar Abdul Karim Khan Vs the State of Maharashtra

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL BAIL APPLICATION NO. 3630 OF 2019

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Majahar Abdul Karim Khan.... Applicant

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Versus

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The State of Maharashtra.... Respondent

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Ms. Anjali Patil, for the Applicant.
Mr. S. S. Pednekar, APP for State/Respondent.

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CORAM:SARANG V. KOTWAL, J.
DATE:16th OCTOBER, 2020

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P.C. :

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1.The Applicant is seeking his release on bail in
connection with C.R.No.390/2019 registered at Shivaji Nagar

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Police Station, Mumbai, under Section 302 read with 34 of the
Indian Penal Code.

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2.The F.I.R. is lodged on 10.8.2019 by one Jahid Faruqi

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in respect of murder of his brother Samiulla @ Saif. The
prosecution story, in brief, is that Samiulla was having an affair
with one Shabnur @ Mona. Accused Juber was earlier married to
Shabnur, but, they were divorced. Juber did not like Shabnur‘s

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Digitally signed by Pradeepkumar Pradeepkumar P. Deshmane Deshmane P. Deshmane Date: 2020.10.17 15:10:25 +0530

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affair with Samiulla. On 10.8.2019, at about 4:00 a.m., Juber
along with one Monu and the present Applicant went to the house
of Shabnur and assaulted Samiulla with knife. Due to which, he
succumbed to his injuries.

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3.The postmortem notes show that there were about 18
injuries. Most of them were stab injuries all over the body and the
cause of death was mentioned as “hemorrhage and shock due to
stab to chest and abdomen”. The viscera was preserved for further
investigation.

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4.The Applicant was arrested on 10.8.2019 and since
then he is in custody. The Applicant is brother of Juber. The
charge-sheet is already filed and the investigation is over.

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5.Heard Mrs. Anjali Patil, learned Counsel for the
Applicant and Mr. S.S. Pednekar, learned A.P.P. for the State.

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6.Learned Counsel for the Applicant submitted that the
evidence against the present Applicant is very weak. The
Applicant, in any case, is not attributed the main role of stabbing
the deceased with any weapon. In fact, no weapon is attributed to
the present Applicant. She submitted that the statements of eye

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witnesses do not take the prosecution case any further. There is no
incriminating recovery at the instance of the present Applicant.
There are no criminal antecedents of the Applicant and, therefore,
he deserves to be released on bail.

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7.She specifically relied on the statement of mother of
Shabnur, who has not named the present Applicant. She
submitted that she was a natural witness and was knowing the
present Applicant. She would not have failed to name the present
Applicant if he was present. She also submitted that Shabnur’s
statement was recorded belatedly where the Applicant was named.

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8.Shri Pednekar submitted that there are at least four eye
witnesses. The most important among them is Shabnur, who was
knowing everybody. He submitted that even other eye witnesses’
statements indicate the presence of other two assailants who had
accompanied Juber.

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9.Shri Pednekar submitted that one Riyaz Sayyed, who
was the Applicant’s cousin has mentioned in his statement that
Juber and the Applicant had confessed to him about commission of
murder. He, therefore, opposed grant of bail.

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10.I have considered all these submissions. The most

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important witness in this case is Shabnur @ Mona. Her statement
is recorded on 17.8.2019. The incident has occurred on 10.8.2019
and there is no explanation given as to why her statement was not
recorded earlier. She has given history of her marriage and
divorce with the main accused Juber. On the fateful night of
10.8.2019, the deceased had come to her house at about 3:15
a.m.. She heard somebody was kicking the door from outside.
The door was broken. The accused Juber and his friend Monu
entered the house. They caught Saif and started assaulting him.
Juber stabbed Saif on his chest and stomach. Monu assaulted him
with kicks and fists. Shabnur raised shouts. Her mother
Afsarjahan came there. Juber dragged Saif outside the house.
Shabnur further mentions that the present Applicant was standing
outside and then he also assaulted the deceased with kicks and fist
blows. Shabnur’s mother intervened and then the assailants left
the place. Saif was taken to hospital. Police were informed. But
Saif succumbed to his injuries.

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11.Her statement is required to be seen in the light of the

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statement of her mother Afsarjahan. Her statement is recorded on
20.8.2019. About the incident, she has stated that she reached the
spot after hearing shouts from Shabnur. She saw that Juber was
dragging the deceased towards Nala and his friend was assaulting
the deceased with kicks and fist blows. She intervened. Juber and
his two friends thereafter left the spot. This statement is
important. Afsarjahan was mother of Shabnur. Shabnur was
married to Juber. The Applicant was Juber’s brother. Therefore

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Afsarjahan was knowing the present Applicant, but, very
significantly she has not named the present Applicant in her
statement, instead she has stated that Juber was accompanied by
two friends. She has not even stated that Juber was accompanied
by his brother. Therefore, there is considerable force in the
submission of Mrs. Patil that the Applicant was not present at the
spot.

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12.The other eye witnesses Iqbal Khan, Fauzia Shaikh @
Nahid and Mohd. Kamal have not named the present Applicant.
Except Juber, they were not knowing others. However, no
identification parade is held to enable them to identify the suspects

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including the present Applicant. Therefore, the case revolves
around the statement of Shabnur and Afsarjahan.

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13.There is no recovery of any incriminating weapon. The
Applicant is not attributed any role of assault with weapon. If at
all the role attributed to other assailants is compared with the role
attributed to Juber, their role is comparatively minor. Even there
the Applicant’s connection is not properly established.

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14.Though there is a purported extra judicial confession
to the Applicant’s own cousin, that statement is not very clear. In
that statement, a general statement is made that Juber and the
present Applicant confessed to him that they had committed
murder. This only piece of evidence is not sufficient to keep the
Applicant behind bars till the entire duration of trial.

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15.Considering all these aspects, the Applicant can be
released on bail. The Applicant does not have criminal
antecedents. The Applicant himself did not have any motive or
intention to commit murder of the deceased. The Applicant had
not carried any weapon and he had not even held the deceased
when Juber inflicted the stab wounds.

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16.In this view of the matter, the following order is

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passed:

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ORDER

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(i)In connection with C.R. No.390/2019 registered
at Shivaji Nagar Police Station, Mumbai, the
applicant is directed to be released on bail on his
furnishing PR bond in the sum of Rs.50,000/-
(Rupees Fifty Thousand Only) with one or two
sureties in the like amount.

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(ii)Looking at the prevailing circumstances, it may
not be possible to the Applicant to furnish
sureties immediately. Therefore, initially the
Applicant is permitted to furnish cash bail for the
same amount. The Applicant will have to furnish
the sureties, as directed, within three months
from today.

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(iii)Application stands disposed of accordingly.

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(SARANG V. KOTWAL, J.)

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Deshmane (PS)

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Majahar Abdul Karim Khan v. the State of Maharashtra

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Majahar Abdul Karim Khan v. the State of Maharashtra

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