1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. CRIMINAL APPLICATION APPA NO.853 OF 2010 IN CRIMINAL APPEAL NO.205 OF 2009. MOBIN AHMAD @ BANDU S/O AMINODDIN & OTHERS VS STATE OF MAHARASHTRA ______________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. R. M. Daga Advocate for the applicant. Mr. T. A. Mirza, APP for respondent. CORAM : A.H. JOSHI AND A.B. CHAUDHARI, JJ. DATE : 17th JANUARY 2011. 1. This is an application for bail by the appellant no.1 who was accused no.1 in Sessions Trial No.127 of 2000. 2. The appellant's application for bail was disposed as not pressed on 31-7-2009. It appears that the appellant then filed the application for bail bearing No.354 of 2010 which was again dismissed on the ground that fresh application for bail may not be entertained within 11 months. This order was passed on 23-6-2010. The applicant herein approached the Hon'ble Supreme Court by filing the petition for Special Leave to appeal 2 No.6925 of 2010 challenging the order passed in Criminal Application No.354 of 2010. The Hon'ble Supreme Court has disposed of the S.L.P. Observing that if the application under Section 389 of Criminal Procedure Code is filed, the High Court may decide it on merits. Taking recourse to the liberty granted by the Hon'ble Supreme Court, present application for bail is filed. 3. Heard both sides. 4. Perused the notes of evidence filed by the petitioner and the impugned judgment. 5. Learned Advocate Mr. R. M. Daga has argued in support of the application raising following grounds :- (a) The applicant's case stands on altogether different footing as compared to other accused persons who were identified by the eye witnesses. (b) Except involvement of the name of the accused in the Dying Declaration recorded by the Police Inspector (PW-14), there is no evidence against the applicant. 3 (c) On the face of it, the Dying Declaration is not a strong piece of evidence as it has not been recorded ad-verbatim, nor the consciousness of the declarant is proved by the Police Inspector who had recorded the Dying Declaration, or by medical evidence. (d) He was on bail during trial. 6. Learned APP has opposed the bail relying upon the Dying Declaration. 7. There are different appeals by different accused persons. The present applicant who is the original appellant no.1 is urging for bail in the present application. 8. All accused persons were charged for the commission of offence under Section 147, 148 and section 302 read with Section 149 of the Indian Penal Code for committing murder of Mohd. Shahid Mohd. Shafi. 9. The prosecution has relied upon various witnesses. 4 10. PW-3, 4, 5 & 6 are cited as eye witnesses. PW-14 is the Police Sub Inspector who has recorded the Dying Declaration. 11. In the impugned judgment, it is observed relating to version of eye witnesses that PW-3 and PW-5 have named the accused nos.2,3,5,6,7,8,9 & 10 and explained about the weapons they had. 12. In the Dying Declaration recorded by PW- 14, he states that the declarant Mohd. Shahid named the accused no.1 along with other accused persons. 13. In paragraph no.13 of the judgment, the learned Sessions Judge has observed as follows: “33. Deceased Mohd. Shahid by way of dying declaration Exh.127 has blamed accused nos.1,2,3,4,6,8,9 and 10 for having caused him injuries at relevant time and place. The aforesaid version of deceased Mohd. Shahid is supported by P.W.3 Sk. Jamil and P.W.5 Mohd. Akil examined vide Exhs.83 and 88 respectively. According to P.W.3 Sk. Jamil (Exh.83) accused nos.2,3,8,9 and 10 had caused injuries to deceased Mohd. Shahid on relevant date, time and place. Similarly, according to P.W.5 Mohd. Akil (Exh.88), he saw accused nos 2,3,5,6,7,8,9 and 10 while causing injuries to Mohd. Shahid on relevant date, time and place. He has also stated that accused nos.3,5,8, 9 and 10 had used knife, stone, razor, sword and gupti respectively for beating Mohd. Shahid. He has made 5 improvement while stating incident of beating by aforesaid weapons before Court. However, during cross, aforesaid improvement is washed out. [Quoted from page 34 & 33 of appeal paper book] 14. Learned Advocate Mr. R. M. Daga has emphasized on the portion which we have underlined urging that though in the Dying Declaration name of the accused no.1 is taken, and the learned Sessions Judge observes that the testimony of PW-3 & PW-5 corroborates what is observed in the Dying Declaration, there is an anomaly namely witnesses PW-3 & PW-5 have not named the accused no.1. 15. We have perused the testimonies of prosecution witnesses no.3 & 5. It is not seen that the accused no.1 has been named as assailant, nor his name as person having any weapon. 16. Solitary mention of accused no.1 present applicant in Dying Declaration will not result in involving him in his act of causing assault. 17. It is well settled that in the matter of suspension even then section 149 applies and any accused member of unlawful assembly may be 6 constructively liable for act of other members of unlawful assembly, yet he would stand on different pedestal on the point of punishment. In the background that the appellant was on bail during trial and the accused no.1 has not been named by eye witnesses, he stands fair chance of latitute in appeal. The applicant is, therefore, entitled for bail. 18. Learned Advocate Mr. R. M. Daga on enquiry states that if the applicant is released on bail, he would stay at Taj Nagar and will report Panchpaoli Police Station as ordered by the Court. 19. In the result, we pass the following order. [a] Application of the applicant Mobin Ahmad @ Bandu S/o Aminoddin – (Original accused no.1) is allowed. The sentence is suspended to the extent of the applicant. [b] The applicant be released on bail on furnishing personal bond and solvent surety in a sum of Rs.10,000/- during the period of bail. [c] He shall not enter the jurisdiction of Yashodhara Police Station where PW-4 Jaibunnisa i.e. the wife of deceased resides and shall stay in Taj Nagar, and report Panchpaoli Police Station on 1st Monday of each month and his attendance be marked in Police Station and in the diary to be maintained by the applicant. 7 [d] He shall furnish his address and contact telephone number, if any, to the Panchpaoli Police Station and on the record of this Court within 10 days from the release of the applicant on bail and shall communicate the change in address, if any. Judge Judge |muley|