STATE OF MAHARASHTRA Vs. KAUSHAR YASIN QURESHI

JUDGEMENT

(1.) THIS application has been preferred under section 439 (2) Cr. P. C. by the State of Maharashtra against the order dated 24-1-1992 passed by the Additional Chief Metropolitan Magistrate, 9th Court, Bandra, Bombay in C. R. No. 980 of 1991, Case No. 100/n/92 granting bail to the respondents in a case under section 302 r/w 114 I. P. C. The prayer is that bail of the respondents be cancelled.

(2.) THE prosecution case in brief is that the deceased Mohd. Jaffar was having a grocery shop in Bandra, Bombay. On 21-12-1991, at about 1 p. m. , the two respondents went to his shop as respondent No. 1 wanted to purchase some mince-meat. It appears that since it was a Friday the deceased told respondent No. 1 that as he had to go for prayers, it was not possible for him to give him mince-meat. This is alleged to have infuriated the respondent No. 1 (Kaushar Yasin Qureshi) who, thereupon picked up a iron bar which was lying in the shop of the deceased and to have assaulted the deceased with the same on his head. At that time, respondent No. 2 (Chuttan Amir Ahmed) was standing there and was abusing the deceased. As a consequence of the assault made by respondent No. 1, Mohd. Jaffar is said to have sustained four injuries. He was immediately rushed to a hospital. On the basis of the F. I. R. lodged by eye witness Mohd Hanif, a case under section 323/326/114 I. P. C. was registered against the respondents. Mohd Jaffar is said to have succumbed to his injuries on 31-12-1991 and thereafter the case was converted to one under section 302 read with 114 I. P. C.

(3.) THE respondents moved an application for bail and the learned Additional Chief Metropolitan Magistrate vide the impugned order was pleased to grant bail to them. The main ground which weighed with him was that the incident happened on the spur of the moment when the deceased refused to give mince-meat to respondent Kausar Yasin Qureshi. It also weighed with him that the two respondents had not gone armed with any weapon; that initially an offence under section 323/326 read with 114 I. P. C. was registered; and the deceased succumbed to his injuries, ten days after the incident. He has also observed in his order that the only role attributed to the respondent No. 2 in the incident was of giving abuses.