Allowed

Mohsin Mobin Shaikh v. the State of Maharashtra

Bombay HC21 Mar 2022IA/3264/2021

Case brief

AI extract

What is this about?

In an interim bail application pending a criminal appeal against a murder conviction, the High Court found evidence weak due to omissions in witness statements. It granted bail pending the appeal's final hearing, directing the applicant to furnish a bond of Rs. 30,000.

What did the court decide?

The applicant is directed to be released on bail pending the final hearing of the appeal by furnishing a bond of Rs. 30,000 with one or two sureties in the like amount.

Mohsin Mobin Shaikh Vs the State of Maharashtra — Bail and Remand | Bombay HC (2022)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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INTERIM APPLICATION NO.3264 OF 2021

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IN

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CRIMINAL APPEAL NO.1025 OF 2021

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Mohsin Mobin Shaikh .... Applicant/Appellant/
Orig. Accused No.4
versus
The State of Maharashtra... Respondent

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Mr. Himanshu V. Kode a/w Ms.Janhavi S. Karnik i/b. Mr.Sherali S. Khan, Advocate for Applicant/Appellant.

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Mr. S. S. Hulke, APP for State/Respondent.

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CORAM: S. S. SHINDE &

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SARANG V. KOTWAL, JJ.
DATE: 21st MARCH, 2022.

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P.C. :

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1. This is an application for bail pending the Appeal. The

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Applicant was the original accused No.4 in Sessions Case No.815 of 2014 on the file of Additional Sessions Judge, City Civil & Sessions Court at Greater Bombay. By the impugned Judgment and Order dated 12/10/2021, the Applicant along with other Digitally signed by MANUSHREE MANUSHREE V NESARIKAR V NESARIKAR Date: 2022.03.23 accused was convicted for the offence punishable u/s 302 r/w 11:48:56 +0530

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34 and section 120-B r/w 34 of the Indian Penal Code. He was

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Nesarikar

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sentenced to suffer life imprisonment and to pay a fine of
Rs.2,000/-. In default to suffer rigorous imprisonment for one
year. For offence punishable under section 120-B r/w 34 of IPC,
he and others were sentenced to suffer rigorous imprisonment
for 5 years and to pay a fine of Rs.500/- and in default to suffer
rigorous imprisonment for one year. The Applicant was acquitted
for commission of offence punishable under section 4 r/w 25 of
the Indian Arms Act. The Applicant was given set off for the
period he was in jail during the trial. The Applicant is in custody
since 07/08/2020.

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2. Heard learned counsel Mr. Himanshu V. Kode, for the
Applicant and Mr. S. S. Hulke, learned APP for the State.

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3. The prosecution case is reflected in the evidence of
informant P.W.1 Mohd. Ibrahim Abu Bakar Shaikh. He has stated
that, on 31/07/2014, at about 07.15 p.m., his elder brother was
assaulted by one Kaliya and his friend. P.W.1 has deposed that
accused Mangesh Band and the Applicant had caught hold of the
deceased and Kaliya and Sonu had assaulted him with knife.

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After the assault, the accused ran away from the spot. He lodged
his FIR. The deceased died because of the murderous assault on
him.

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4. Learned counsel for the Applicant submitted that there
are no independent witnesses to the incident. All the witnesses
are interested. There are major omissions in their statements.
Therefore they are not reliable. The Applicant is in custody since
07/08/2014. The Applicant is not ascribed a particular role of
using a weapon on the deceased. In fact, he is acquitted for the
offence under Indian Arms Act. Considering the weak nature of
evidence against the Applicant, he deserves to be released on
bail.

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5. Learned APP submitted that P.W.13 is an independent

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witness and there are no infirmities in his statement. There are
three eyewitnesses to the incident. P.W.1 Mohd. Ibrahim Shaikh -
the first informant, P.W.13 Sanjay Subramanium Shetty and
P.W.18 Namdeo Shankar Kirdat.

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6. We have considered these submissions. We have also

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perused the evidence. As far as P.W.1 is concerned, omissions
from his FIR as well as from his supplementary statement, are
brought out in the cross-examination on behalf of present
Applicant. He has admitted that the Applicant’s name is not
mentioned in the FIR and even his role was not mentioned. He
could not explain this omission from his statement in the FIR.

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7. As far as P.W.18 is concerned he has also admitted in

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his cross-examination that there was omission from his police
statement regarding the Applicant and Mangesh having held the
deceased when Kaliya and Sonu were assaulting him. He has
also admitted that since he was scared, he could not recollect
name of the Applicant and therefore his name was not
mentioned before the police. He has not named the Applicant in
his statement, though he was knowing him. There is no
explanation regarding this.

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8. As far as P.W.13 is concerned, though there are no
discrepancies in the form of omission in his deposition and

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police statement, his statement itself was recorded belatedly on
02/08/2014. No further explanation is offered as to why it was
not recorded immediately though he was available. He was a
friend of the deceased. He had taken the deceased to Rajawadi
hospital. Thus he was very much available and yet his statement
was not recorded immediately.

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9. Thus, it appears that there are arguable issues and the
evidence against the Applicant appears to be weak. However,
these issues will have to be decided at the final hearing stage. At
this stage, the Applicant has made out the case for his release on
bail during the pendency of the present Appeal. The Applicant is
in custody since 07/08/2014. At the highest, the role assigned to
him is that of holding the deceased when the other accused had
assaulted him. Whether he had shared a common intention to
commit murder, is another issue which will have to be decided
at final hearing. Considering this, the Applicant deserves to be
released on bail, during pendency of Appeal and its final
hearing.

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10. Hence, the following order :

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O R D E R

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(i)During the pendency and final hearing of
Criminal Appeal No.1025 of 2021, the Applicant
is directed to be released on bail on his
furnishing PR bond in the sum of Rs.30,000/-
(Rupees Thirty Thousand Only) with one or two
sureties in the like amount.

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(ii)Application stands disposed of accordingly.

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 (SARANG V. KOTWAL, J.)(S. S. SHINDE, J.)

Mohsin Mobin Shaikh v. the State of Maharashtra

Case brief

What is this about?

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Mohsin Mobin Shaikh v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

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