Irfan Shamimulla Shaikh vs State of Maharashtra

Desai Ranjana (Smt.) and Bhatkar Mridula (Smt.), JJ.—The applicant/accused is convicted for the offence of murder punishable u/s 302, of the Indian Penal Code and sentenced to life imprisonment and to pay fine of Rs. 5,000/- i/d to suffer R.I. for one year and also convicted for the offence punishable under sections 392, 397, 202 of the Indian Penal Code and sentenced to suffer R.I. for seven years each and to pay fine of Rs. 5,000/- each i/d to suffer S.I. for one year each by judgment and order dated 30/ 8/2007 passed by the Ad Hoc Additional Session Judge, Sewree, Mumbai. The accused was arrested in Crime No. 283/200 registered under sections 454, 457, 380 of the Indian Penal Code at Deonar Police Station. During the interrogation was transpired that the applicant/accused had committed murder of his friend one Kamal who has come to Mumbai with money. After such disclosure the applicant/ accused took police and the ponchos near his hut and as per the information given by the applicant/ accused the police did the constructed Koba of the platform and four bones, footwear and rope. The said skeleton of the deceased was exhumed from the pit and the present offence was registered. After investigation the applicant/ accused were tried alongwith the other accused and was convicted for offence of murder as well as other offences.

Learned Counsel Mr. Mooman for the applicant/ accused has submitted that the applicant/accused is in jail since 6/10/2005, however, learned Judge has taken erroneous approach while appreciating the evidence and he has given chances of getting acquittal in the appeal. Learned Counsel has further submitted that though the skeleton was found in the pit, the prosecution failed to prove that it was of Kamal. It is further submitted that the alleged statement u/s 27 of the Evidence Act disclosing the information about the burial of the body is not admissible as it travels beyond the scope of the section. He has further submitted that in the said room alongwith accused Irian other 2-3 persons were residing and there is no evidence to show when the body was buried. He has farther submitted that the superimposition work which was done by P.W. 10 is not authentic to arrive at conclusion that the body was of Kamal. He has further submitted that the prosecution either brought any motive on record nor did examine wife of Kamal showing that he was missing. Learned Counsel hence prayed that the bail application may be allowed.

Learned A.P.P. while opposing the bail application argued that the body was found at the instance of the applicant/accused under the constructed Koba itself is a clinching circumstance. He has further submitted that the prosecution has examined P.W. 8 and 9, the neighbour of the applicant/ accused who have stated that one Kamal was residing there along with the accused during May and June, 2005. P.W. 5, Abdul Hamid has deposed that he constructed Koba. Learned A.P.P. has further submitted that the medical evidence is against the accused and support the case of the prosecution and considering the nature and the evidence the applicant/accused is not entitled to bail. The prosecution has tendered the evidence on the point of digging of pit, finding of skeleton and also the person who constructed the platform in May/June, 2005. The skeleton was found at the instance of the applicant/accused. However, it appears from the record the disclosure of the fact by the applicant/accused was not properly recorded in the form of section 27 of the Indian Evidence Act. Moreover, the submissions of learned defence Counsel. Mr. Mooman appeal to us that the prosecution did not lead any evidence on motive. On the point of missing the Kamal evidence of the wife of Kamal or any relative from the native place was required to complete the chain. No evidence was adduced.

Considering these factors and nature of the evidence adduced by the prosecution we are inclined to grant the bail.

Under such circumstances Application for bail is allowed.

The applicant/accused be released on bail of Rs. 35,000/- (Rupees thirty five thousand) with one or two sureties to make up the sum.

The applicant/accused is directed to attend Deonar Police Station once in a month.