1 APPA.109-2011 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 109 OF 2011 IN CRIMINAL APEAL NO. 312 OF 2007 Mohamed Imtiyaz Mohd. Rafik ...Applicant. Vs. The State of Maharashtra . ...Respondent. ---- Mr. S.V. Marwadi, for the Applicant. Mr. H.J. Dedhia, APP for the State. --- CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. MARCH 16, 2011. P.C.:- Heard Mr. Marwadi, the learned counsel for the Applicant. 2 The applicant (Orig. accused no.1)-Mohamed Imtiyaz Mohd. Rafik prays for being released on bail during the pendency of Criminal Appeal No. 312 of 2007 arising from Sessions Case No. 275 of 2003. In Sessions Case No. 275 of 2003 all the three accused have been convicted and sentenced to suffer R.I. for life for the offence punishable under section 2 APPA.109-2011 302 read with Section 114 of IPC and accused nos.2 and 3 have been further convicted for the offence punishable under Section 302 read with Section 34 of IPC. 3 Accused No.3- Smt. Shahin @ Narshiha Mohd. Imtiyaz Shaikh came to be released on bail by this court on 25.01.2010 by allowing Criminal Application No.889 of 2009, whereas Criminal Application No. 770 of 2008 filed by accused no.2-Mohamed Aiyaaz Mohd. Rafik came to be rejected by this court on 12.08.2010. So far as the present applicant is concerned, he had not applied for bail earlier. 4 As per the prosecution case Hanifa wife of Shri Alam Shaikh was alone in her house on 11.11.2002 and at about 7.30 p.m. accused no.3 entered into the house of Hanifa and started quarreling with Hanifa on the allegations that accused no.1, the husband of accused no.3, had a an illicit relationship with Hanifa. After some time, accused nos.1 and 2 also entered the house of Hanifa and accused no.2 picked up a kerosene stove and poured kerosene on the person of Hanifa. Accused no.3 caught both the hands of Hanifa and accused no.2 lighted a match-stick and threw it on the person of Hanifa and set her on fire. Hanifa died of burn injuries (75%), on 3 APPA.109-2011 15.11.2002. 5 It was submitted by Mr. Marwadi, that the prosecution case, so far accused no.1 is concerned at best, is that accused no.1 was present at the spot and he instigated accused nos.2 and 3. He also submitted that accused no.1 was on bail during the trial, and there was nothing adverse report about his behavior or nuisance/mischief so as to cause trouble to the witnesses. 6 Mr. Dedhia, the learned APP for the State opposed the bail application. He placed before us the report dated 16.03.2011 received by his office from the Shahunagar Police Station at Mumbai. As per the said report Criminal Case No.735 of 1996 and Criminal Case No.1614 of 1996 are both pending against the applicant with the 9th Court of Additional Chief Metropolitan Court at Bandra for the offences punishable under Sections 323, 324, 452, 506 of IPC. It was further submitted that the applicant is a known criminal and if he is released on bail, he would either influence or scare the witnesses in the pending cases. However, we are not impressed by this reasoning of the learned APP. Admittedly, the applicant was on bail during the trial from 1.6.2004 till the order of conviction was 4 APPA.109-2011 passed on 23.02.2007 and nothing adverse appears to be on record during that period. 7 The prosecution had examined in all eight witnesses. It has also relied upon the dying declaration (Exh.13) and oral depositions of PW. 1- Mrs. Halimabee Shaikh Mohd. Hanif, and PW-3 Husseinbi Shaikh Mqbool Ahmed as well as PW-5- Mohd. Alam Tofiq Ahmed Shaikh. We have gone through the evidence as considered by the trial court. On prima facie considerations of the prosecution evidence, we are satisfied that the applicant-accused no.1 deserves to be released on bai. More so, by now he has undergone more than five years of actual sentence including the period of detention while he was an under trial. At the same time, we will have to impose strict conditions on the applicant so that he is available when the Criminal Appeal is taken up for final hearing and he does not cause nuisance either to the neighbours or to the society around. 8 Hence, this application succeeds and same is allowed. The applicant is directed to be released on bail, unless required in any other case, on furnishing a PR bond in the sum of Rs.25,000/- with one or two solvent sureties in the like amount. He shall report to the Shahunagar 5 APPA.109-2011 Police Station every alternate day between 3.00 to 6.00 p.m. during the pendency of Criminal Appeal No.312 of 2007. If he is required to leave the limits of M.M.R.D.A., he shall inform the concerned Police Station in writing. (U. D. SALVI,J.) (B. H. MARLAPALLE,J.)