1 25-28-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY srj CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.28 OF 2011 WITH CRIMINAL APPLICATION NO.45 OF 2011 Mohd. Taher Abdul Jabbar Shaikh .. Appellant/ Applicant Vs. The State of Maharashtra & Another .. Respondents. Mr.Samir A.Vaidya i/b.R.B.Mokashi & Khalid Azmi, for the Appellant/Applicant. Mr. S.A.Shaikh, APP for the Respondent­State. CORAM : N.D.DESHPANDE,J. DATE : 8th FEBRUARY, 2011. P.C.: 1 Heard both the sides. 2 Applicant/Appellant is in custody from the day of his arrest. He was committed to the Court of Sessions and while he was in custody through out, till Trial resulted in conviction. By the judgment and order dated 4th December, 2010 passed by Addl. 2 25-28-11.sxw Sessions Judge, it was observed that the accused was convicted for the offences punishable under section 307 of Indian Penal Code and sentenced to suffer R.I. for five years and fined of Rs.1,000/­, in default to suffer S.I. for three months. The accused was given benefit of set off and also shown leniency by the trial court, considering his old age. The relevant discussion is found in para 15 of the judgment and order which reads as under:­ “Para 15­ The trifle incident and wrath that was expressed by the accused is beyond comparison. However, the incident happened in a spur of moment without any premeditation. The accused did not go to the house of complainant with prior determination. The weapon, which was lying there, was used by him in commission of the offence. Looking to his mental state of mind and looking to the age of the accused, I feel that the leniency needs to be shown to the accused. The accused was arrested on 27/5/2010 on the date of incident itself and he is in jail.” 3 The learned counsel for the Applicant/Appellant also pointed out that it is the case of single injury and victim was discharged from the hospital within in a week time . There was some hot exchange of words between the victim and the Applicant/Appellant, then scuffle started. They were visiting terms for giving coins in exchange of rupee notes required for day to day business. 3 25-28-11.sxw 4 As per prosecution case, the Applicant/Appellant is a hawker, selling kabab on road. 5 Heard submission of both the sides. According to the defence counsel, it is not a case for “attempt to murder”, because, by such injury, a person could not die and it ought to have been taken into consideration for giving benefit to the Applicant/Appellant for his release on bail, even assuming that the accused was responsible for calling such injury. In short, it is not a case punishable under section 307 of the Indian Penal Code. 6 In my opinion, submission of the learned counsel for the Applicant/Appellant deserves to be considered for the bail. Applicant/Appellant has made out case for bail. Hence, following order is passed:­ 7 Hence, following order is passed:­ (i) Appeal admit. (ii) Applicant/Appellant shall be released on bail in the sum of Rs.10,000/­ with one or two surety in the like amount to the satisfaction of the trial court. (iii) Cash bail of Rs.10,000/­ allowed for four weeks till regular surety is arranged. 4 25-28-11.sxw (iv) Applicant/ Appellant shall place on record his present address and also the change of address, if any, in future. (v) He shall be available as and when required in the case. (vi) Needless to mention that he will not misuse the liberty on bail and any complaint would disqualified him to discontinue the bail. 8 Bail application is allowed and disposed on the above conditions. (N.D.DESHPANDE, J.)