ABDUL MOHAMMAD SHAIKH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is an application for suspension of sentence and enlarging the applicant Abdul Mohammad Shaikh (Original Accused No. 2) on bail till the disposal of the appeal. The applicant has been convicted, along with his brother Amir Mohammad Shaikh (accused no.1) for the offence punishable under section 302 read with 34 of Indian Penal Code,1860 and sentenced to suffer rigorous imprisonment for life and pay fine of Rs. 25,000/- (Rs. Twenty Five Thousand Only) with default stipulation, for having committed murder of Mohammad Ijaj Sayyed (the deceased) who was residing in their neighbourhood at Devaripada Village, Shrilanka, Kausa, Mumbra, by the learned Additional Sessions Judge, Thane by judgment and order dated 11 th January. 2018.

(2.) In the application the applicant avers that no overt act has been attributed to the applicant. Even the co-accused to whom the overt act of assaulting the deceased by means of knife has been attributed acted in exercise of right of self defence as deceased had come armed with a knife, when he was questioned for outraging the modesty of wife of co-accused. The applicant has been in custody for more than 6 years. There is no credible evidence to implicate the applicant. Hence, the applicant be enlarged on bail during the pendency of the appeal.

(3.) We have heard Ms. Payoshi, the learned counsel for the applicant, and Ms. Shinde, the learned APP for the State at length. Inviting the attention of the Court to the deposition of Heena (PW-1) wife of the deceased, who had lodged the F.I.R. and Mr. Sadik Bagban (P.W. 4) the investigating officer, it was urged on behalf of the applicant that the very prosecution case reveals that the deceased was armed with a knife and, in fact, an aggressor. The prosecution deliberately withheld independent eye witness to the occurrence. In any event, the only accusation against the applicant is that of instigating the co- accused Amir to draw out the weapon and stab the deceased.