1 116411 vgm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1164 OF 2011 IN CRIMINAL APPEAL NO. 1164 OF 2005 Mohamad Arif Jafar Khan ....Applicant Versus The State of Maharashtra ....Respondent Mr. S.V. Marwadi with Ms. Sunita Sharma-Tiwari and Mr. Vinayak Katli for the Applicant Mr. V.B. Konde-Deshmukh, A.P.P., for the State CORAM: A.M. KHANWILKAR AND P.D. KODE, JJ DATE: SEPTEMBER 30, 2011. P.C.:- Heard the counsel for the applicant – accused No. 1 and the learned A.P.P. 2. This is 7th application for bail filed by accused No. 1 during the pendency of the appeal, which is admitted as back as in 2005. The learned A.P.P., in all fairness, accepts that, in none of the 2 116411 orders disposing of the former bail applications, the matter has been considered on merits qua the present applicant. In the circumstances, the applicant may be justified in requesting the Court to consider his case on merits at least on this occasion. 3. We have perused the relevant evidence brought to our notice by the learned A.P.P. indicating the complicity of the applicant in the commission of the offence in question. Only two pieces of evidence are pressed into service by the prosecution to indicate the complicity of the applicant in the commission of the offence. The first is the evidence of Nahid Mohamad Nanjiali (P.W. 14), who claims to have seen the applicant – accused No. 1 moving in suspicious manner outside the gate of Akanksha Building at Versova at around 1.30 p.m. Even if this evidence is to be taken as it is, the question is: How the prosecution has established the involvement of the applicant in the incident, which took place almost 1 k.m. away from the said place, where Akanksha Building is situated, that, too, after lapse of time? It is not the prosecution’s case that the applicant was last seen together in the company of the accused. The incident in question has happened at Four Bungalow, Andheri, which is almost 1 k.m. away from where the Prosecution Witness No. 14 had noticed the applicant moving in 3 116411 suspicious manner. The deceased was assaulted by accused No. 4 after chasing him on motor-cycle with the use of fire arm. The applicant has been roped in only on the charge of criminal conspiracy. No evidence has been brought to our notice which can indicate the involvement of the applicant in hatching of the criminal conspiracy to kill the deceased. 4. The only other piece of evidence relied by the prosecution against the applicant – accused No. 1 is that the applicant pointed out the Telephone Booth, from where the phone call was made. Prima facie, that stand-alone evidence cannot be the basis to hold that the prosecution has established the case beyond any reasonable doubt as against the applicant. 5. In the circumstances, we are inclined to grant bail to the applicant, but on imposing strict conditions, and more particularly, keeping in mind the application made by the prosecution for cancellation of bail of co-accused on the ground that, after he was released on bail, he indulged in another offence. 4 116411 6. Accordingly, this application is allowed on the following terms:- (1) The applicant – accused No. 1 is granted bail in connection with Sessions Case No. 223 of 2003 tried by the Sessions Court at Mumbai for offences punishable under Sections 120-B, 302 read with 120-B, 427, 109 and 201 of I.P.C. And under Sections 27, 35 and 29 of the Arms Act on furnishing bail bond in the sum of Rs. 1,00,000/- (Rupees One Lakh) with one or two sureties in the like amount. We are inclined to impose this condition for reason already mentioned earlier, coupled with the fact that in the past the applicant was involved in commission of other offences in which he was, however, acquitted. (2) The applicant shall not enter the limits of Mumbai, Thane and Raigad Districts without prior permission of this Court during the pendency of the appeal. 5 116411 (3) The applicant shall furnish his place of residence where he would reside after being released on bail, which will be pre-condition for his release. The applicant shall report to the nearest police station of his residence where he would be residing after being released on bail on first and third Mondays of every English Calendar month between 10.00 a.m. to 12.00 noon. (4) In case of change of residence, the applicant shall give prior intimation to the In-charge Officer of Versova Police Station as well as the nearest police station where he would be reporting. (5) The applicant shall surrender his passport, if available, to the Registrar of this Court as pre-condition for release on bail. In case, he does not have passport, shall file declaration in that behalf. 6 116411 (6) The applicant shall also file undertaking in this Court that he shall attend to the pending appeal as and when required by the Court and called upon to do so. 7. This application is disposed of on the above terms. P.D. KODE, J. A.M. KHANWILKAR, J.