1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 538 OF 2009 IN CRIMINAL APPEAL NO. 435 OF 2009 Mohammed Dilawar Hussein Sayyed ) ...Applicant. @ Abdul Kadar Abdul Rehman Sayyed ) (Orig. Accused) Versus The State of Maharashtra … Respondent Mr. Prakash Naik for the Applicant. Ms. P.H. Kantharia, APP for the State. CORAM: J.N. PATEL and A.A. SAYED, JJ. DATED: 8 TH DECEMBER, 2009 P.C.: 1. The above Application for suspension of sentence/bail has been preferred by the Applicant who is convicted and sentenced to life imprisonment. The applicant was charged for the offences punishable under Section 302 and 324 of the IPC and under Section 135 of the Bombay Police Act in Sessions Case No. 2 395 of 2007 by the Learned Additional Session Judge, Greater Mumbai, by his judgment and order dated 30th March, 2009. 2. The case of the prosecution is that on 1st February 2007, there was election of Mumbai Municipal Corporation. At about 4.00 p.m. after voting, the Complainant Haroon Tinwala, who is a taxi driver, had gone to the footpath of Hotel Guzar-E-Mohammed, Dongri, Mumbai and was chitchatting with the accused Abdul Sayyed and deceased Jamir Ali. While chitchatting there was hot exchange of words between accused Abdul Sayyed and deceased Jamir Ali and therefore the accused Abdul Sayyed removed knife from his left side pocket of his pant and gave various blows of knife on the person of deceased Jamir Ali. When the complainant tried to intervene, even he was given a blow of knife on the right side of his chest. Therefore, the complainant cried for help. By the time the police, who were on bandobast duty came, the deceased sat in a taxi and the accused again gave blows of knife on the person of the deceased Jamir Ali. The accused was caught red handed with knife and was arrested. The deceased Jamir Ali succumbed to multiple injuries in the hospital. 3. From the evidence on record, we find that PW1, who is the complainant- Haroon, has not supported the case of the prosecution and turned hostile. He has deposed that he did not see the face of the assailant and his statement was given at the instance of the police. PW3, a shop keeper, who was alleged to be the eye witness, has also not supported the case of the prosecution and turned hostile. 3 He has deposed that because of the crowd, he could not see the quarrel or the assault on deceased Jamir Ali. We find that though it is alleged that deceased Jamir Ali was attacked by accused with a knife even in the taxi, and the accused and deceased were taken to the hospital in the taxi, the taxi has not been seized nor is the registration number of the taxi been noted. There were admittedly blood stains on the clothes of one of the police officers, however, the clothes were not seized and sent for examination by CA. The conviction by the Learned Additional Session Judge is mainly based on the evidence of the police officers who were alleged to be on bandobast duty on that day and they have allegedly apprehended the accused Abdul Sayyed red handed. 4. We find that the above circumstances are reason enough not to deny bail to the accused. Hence the following order: -: O R D E R :- (1) The applicant be released on bail by suspending his substantive sentence on his furnishing PR Bond in a sum of Rs. 20,000/- with one surety in the like amount. (2) The applicant shall attend Dongri police station on Mondays between 10 a.m. and 12 noon, every fortnight, for a period of 1 year and thereafter every month on the first Monday. 4 (3) During the pendency of the Appeal, he shall not commit any offence. 5. The Application to stand disposed of accordingly. Sd/- (J.N. Patel, J) Sd/- (A.A. Sayed, J)