1 APPA.592-2011 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 592 OF 2011 IN CRIMINAL APEAL NO. 846 OF 2010 Nasir Abdul Farid Khan @ Nasie Kanya ...Applicant Vs. Senior Inspector of Police & Ors. ...Respondents. ----- Mr. Shirish Gupte. Sr. Adv. i/b Mrs. R.R. Dhruv, for the Applicant. Mr. Y.S. Shinde, APP for the State. ---- CORAM: B. H. MARLAPALLE & U.D. SALVI, JJ. JUNE 20, 2011. P.C.: 1. We have heard Mr. Gupte, the Senior Counsel with Mrs. Dhru, for the Applicant (Accused No.2), and Mr. Shinde, the learned APP for the State. 2. In Sessions Case No.603 of 2007, in all the three accused came to be tried for the offence punishable under Sections 302 read with Section 34 of the IPC and Section 4 read with Section 25 (1-B)(b) of the 2 APPA.592-2011 Arms Act as well as Section 37 of the Bombay Police Act. The present Applicant was accused no.2 in the said case. The prosecution examined in all 14 witnesses and finally by an order dated 17.8.2010. the learned Additional Sessions Judge acquitted accused no.3 and convicted accused nos.1 and 2 for the offence punishable under Section 302 read with Section 34 of the IPC. 3. The accused were arrested on 12.4.2007 and they have been in jail for the last about four years. The first incident had taken place on 10.4.2007 at about 12.30 p.m. when there was an altercation between accused no.1 Riyajuddin @ Pammu and PW-1 Alamgir. The deceased Raju had intervened when accused no.1 tried to assault PW-1 Alamgir. The elder brother of accused no.1 had tendered an apology. However, on the next day i.e. on 11.4.2007 at about 2.00 p.m., as per the prosecution, both accused nos.1 and 2 went to the house of the PW-1 Alamgir where PW- 2 Jahangir and deceased Raju were present outside. He asked PW-2 Jahangir to accompany him to go to his brother-Inkaraf so as to tender an apology for the incident of 10.4.2007 and at that stage it is alleged that accused no.1 flashed a chopper and was about to assault PW-2 Jahangir who rescued himself. Thereupon accused no.1 caught hold of Raju and assaulted him. 3 APPA.592-2011 Accused No.2 and the present applicant is also alleged to have assaulted Raju who collapsed at the spot. As per the prosecution, the applicant was holding a chopper and when he assaulted with the same to the Raju it broke into two pieces and Raju died. 4. PW-8 Dr. Sunil Kadam conducted the postmortem and noticed nine external injuries. The internal injuries included the injuries under the scalp and fracture, linear superficial cut of the outer table of vault corresponding to the external injury no.1. There were injuries on the thorax as well, and as per the doctor injury nos.1,7 and 8 were on the vital parts of the body and they were sufficient to cause death in the ordinary course of nature. The prosecution relied upon the evidence of PW-1 Alamgir, PW-2 Jahangir, PW-4 and PW-9 as the eye-witnesses. PW-3 Maitab had supplied the weapon used in the crime. PW-4 Kumari Rupali Shrivastava was the neighbourer and PW-9 Parvez Ahmad Ajij Ahmed Malik was working with the PW-2 in his garments business. 5. It was submitted by Shri Gupte, the learned Senior Counsel for the applicant that the applicant has been in jail for the last about four years, there was no enmity between the accused and the deceased, the deceased 4 APPA.592-2011 happened to be at the spot when there was some altercation between the accused on one hand and PW-1 Alamgir and PW-2 Jahangir on the other and in any case the applicant did not have any criminal record. It was also pointed out that he has to support his mother. Shri Gupte also submitted that the statement of PW-4 Miss. Rupali Shrivastava was recorded on 13.4.2007, whereas the statement of PW-9 Parvez Malik was recorded with an inordinate delay i.e. on 26.4.2007 and both of them were doubtful witnesses. 6. We have given our anxious considerations to the arguments advanced by Shri Gupte as well as by Shri Shinde who opposed the bail application, and we are satisfied that no case has been made out to suspend the order of sentence and release the applicant on bail at this point of time. 7. Hence, the Criminal Application is rejected. (U.D. SALVI, J.) (B. H. MARLAPALLE, J.)