1 criappln1353.11.sxw IN THE HIGH COURT OF JDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1353 OF 2010 IN CRIMINAL APPEAL NO. 997 OF 2009 Mohammed Irfan Istiyakh Shaikh Aged 23 years, Occupation-Student, Resident of Western Railway Colony, Bandra (West), Mumbai (Presently lodged at Nashik District Prison) ..Applicant-Appellant (Orig. Accused No.3) Vs. The State of Maharashtra .. Respondent. Mr. Amin Solkar for the Applicant Smt. Bhosale, APP for the Respondent CORAM : J.P. DEVADHAR AND A.A. SAYED, JJ. RESERVED ON : 19TH JULY, 2011 PRONOUNCED ON: 22ND JULY, 2011 ORDER (PER A.A. SAYED, J.) 1. Heard the learned Counsel for the Applicant. The learned Counsel submits that the prosecution witnesses PW 1, PW2 and PW3 had made improvements in their evidence inasmuch as they had deposed that the deceased himself after the incident took place, had pointed out the present Applicant (and other co-accused) as one of the persons responsible for the assault on him, however, in their statement 2 criappln1353.11.sxw before police they had not mentioned this fact. He further points out even in the Emergency Police Report (EPR), the name of the Applicant (and other co-accused) did not figure, which EPR would indicate the details of the incident at the first point of time. He submits that there were several other under-trial prisoners in the Barrack at the time of the incident. The learned Counsel submits that these aspects have not been considered by the Trial Court in the judgment and order impugned in the Appeal. The learned Counsel therefore urged that the Applicant be released on bail on such conditions as may be deemed appropriate by this Court. 2. Having heard the learned Counsel and on perusal of the material on record we find ourselves unable to accede to the prayer of the Applicant to grant bail and suspend the sentence pending the Appeal. The Applicant was an under-trial prisoner and the murder of the deceased who was also an under-trial prisoner, has been committed with weapons like stainless steel knife, iron knife, screwdriver and 6" stick with blade (which articles were found stained with blood) in the confines of the jail. There is a dying declaration by the deceased which was treated as an FIR naming the Applicant (and other co-accused). The deceased had received multiple injuries including stab wounds in the assault by the Applicant and other co-accused, and in his dying declaration he has assigned the role of the Applicant of having stabbed his back. The dying declaration which was made in presence of the Doctor, has been found to be trust-worthy and reliable by the Trial Court. The CA Report indicates that the blood stains found on the seized clothes of the Applicant was of 3 criappln1353.11.sxw the same group as that of the deceased. We also note that another co-accused who had played a similar role in the incident as that of the Applicant, had filed a Criminal Application for suspension of sentence and bail (Cri. Application No. 954 of 2009 in Cri Appeal No. 863 of 2009). The said Application, after hearing the matter at length, was allowed to be withdrawn by this Court on 13-11-2009. 3. For the aforementioned reasons, the Criminal Application is dismissed. 4. Before parting, we are constrained to state that it disturbing that within the confines of jail, a murder has been committed of a prisoner by other prisoners, who are supposedly in the custody of police. Weapons like stainless steel knife, iron knife, screwdriver and 6” stick with blade were used to commit the heinous crime, which weapons were seized by the police. Upon a query by us as to how such weapons found their way in the prison, the learned APP is not in a position to throw any light. We, therefore, deem it fit to direct the Inspector General of Prisons, State of Maharashtra, to submit a Report as to what action has been taken in respect of discovery of the aforementioned weapons in the prison premises viz: Arthur Road Jail, Mumbai on 29-01-2007 and to state what steps are being taken to ensure that any weapons of assault are not being smuggled in various prisons across the State. Let such Report be filed in this Court within a period of 8 weeks from today. ( A.A. SAYED, J. ) (J.P. DEVADHAR, J.)