APPA. 1016-11 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION No. 1016 OF 2011 IN CRIMINAL APPEAL No. 117 OF 2011 Moize Shabbir Burhanpurwala ... Applicant Vs. The State of Maharashtra ... Respondent *** Mrs. Faridam Nazmi i/b Murtaza M. Najmi, for the Applicant. Mr. P. S. Hingorani, APP for the Respondent. *** CORAM : V. M. KANADE, & M. L. TAHALIYANI, JJ. DATE : NOVEMBER 17, 2011 PC: 1. Heard the learned counsel appearing on behalf of the applicant and the learned APP appearing on behalf of the respondent State. This is an application for bail. The applicant has been convicted by the trial Court for the offence punishable under Sections 302, 394, 452 of the I. P. Code and sentenced to suffer rigorous imprisonment for life. 2. Prosecution case in brief is that the dead body of deceased Mariyam was found in a flat by the neighbours who had entered the flat to find out why smoke was coming from the kitchen. APPA. 1016-11 - 2 - The FIR was registered by the police and after three days the applicant who is the neighbour of the deceased was arrested. The recovery of ornament was made at the instance of the applicant; blood stained clothes also were recovered. There were no eye witnesses to the said incident and on the basis of circumstantial evidence of recovery of ornaments and clothes the trial court convicted the applicant. It is submitted that in view of the evidence given by PW 6, who has stated that applicant had asked him for a loan of Rs.15,000/- and he had called his ornaments which were similar to the ornaments which were worn by the deceased, the trial court ought not to have relied on said recovery. 3. In our view, arguable points are made out by the applicant and the applicant has a good case on merits and he is likely to succeed in the appeal. In an application for bail, the Court is not expected to appreciate the evidence on record and give a prima-facie finding or record the finding on the basis of the evidence which is adduced by the prosecution in the trial court and even if any observation is made by the appellate court while granting bail, the said observations are of a prima-facie nature which are made only to ascertain whether there are arguable points raised by the appellant’s counsel. In the present the applicant is a neighbour of the deceased who was found murdered in a flat. The accused was arrested after three day. Though recovery of gold ornaments have been made at the instance of the applicant, he has given a plausible explanation that similar ornaments were pawned by PW 6 who has acknowledged this fact in his evidence and has also stated that two days before the murder, the accused had given him a APPA. 1016-11 - 3 - loan of Rs.15,000/-. Admittedly, there are no eye witnesses to the said incident and a plausible explanation has been given by the accused regarding recovery of the ornaments. Apart from that, there is no likelihood of the appeal being finally heard immediately in the near future. The applicant is not likely to abscond since he has a flat in his name and is also married and has a child. Taking an overall view of the matter, we are of the view that this is a fit case for grant of bail. 4. The applicant is directed to be released on bail, on execution of P.R. bond in the sum of Rs.10,000/- with one or two sureties in the like amount. The applicant shall report to the concerned police station once in a month. [M. L. TAHALIYANI, J.] [ V. M. KANADE, J.]