Uday S. Jagtap 534-19-APPA.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 534 OF 2019
IN
CRIMINAL APPEAL NO. 537 OF 2019
Gulshad Naushad Qureshi .. Applicant
v/s.
The State of Maharashtra .. Respondent
Mr. Abdul Wahab Khan for the applicant
Mr. A.A. Palkar, APP for the respondent – State
CORAM : PRITHVIRAJ K. CHAVAN, J.
RESERVED ON : 20th JANUARY, 2020
PRONOUNCED ON : 5th FEBRUARY, 2020
P.C.
1. This is an application for suspension of execution of the
substantive sentence passed by the Additional Sessions Judge,
Mumbai wherein the applicant has been convicted and sentenced of
the offences punishable under Sections 498A and 306 of the Indian
Penal Code. He has been sentenced to undergo Rigorous
Imprisonment for one year and fine of Rs.2,000/- of an offence
punishable under Section 498A of the IPC and Rigorous
Imprisonment for 5 years with fine of Rs.2,000/- in default of
payment of fine to undergo Rigorous Imprisonment for 6 months of
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an offence punishable under Section 306 of the Indian Penal Code.
The substantive sentences were directed to run concurrently. A set
off of about 5 months has also been granted to the applicant under
Section 428 of the Criminal Procedure Code.
2. I heard Mr. Khan Wahab, learned Counsel for the applicant. In
short, it is his contention that the applicant is a young man who has
been falsely implicated in the offences with which he has been
charged and convicted. The evidence on record is insufficient as
well as quite weak to prove the offences, in the sense that most of the
evidence of the prosecution witnesses is nothing but material
omissions which renders the prosecution’s case unbelievable. He
submits that during the course of trial, the applicant was on bail and
there are no complaints of committing any breach in the terms and
conditions of the bail. According to the learned Counsel, the
applicant and the deceased wife were in love and, therefore, on 1 st
January, 2012 the deceased eloped with the applicant and got
married with him. The applicant was working in a garment factory
of his father-in-law. However, there was a complaint against the
applicant that he used to eve tease other lady co-workers in the
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factory and, therefore, he was removed from the job by his father-in-
law. It is the case of the prosecution that since then the applicant
started ill-treating and quarreling with the deceased on petty
grounds. He was not doing any work. The deceased was being
helped by her in-laws who used to pay some amount for the
household expenses. There are allegations of physical and mental
torture against the applicant.
3. The deceased hanged herself to the ceiling fan on the fateful
day of 15th May, 2014.
4. My attention is drawn to paragraphs 2, 3, 4, 6, 8, 12 and 13 of
PW-1 Javed Ghanchi – father of the deceased. No doubt, a bare look
at the evidence of PW-1-Javed Ghanchi would reveal that his
evidence is full of material omissions and, therefore, it can be said
that there are chances of succeeding in the appeal. The learned
Counsel has drawn my attention to the fact that PW-3 Vicky Srivastav,
who was residing in the neighbourhood admitted during cross that
he had cordial relations with the informant and that he had deposed
as per the say of the informant.
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5. The PW-3 – Vicky Srivastav, testified that deceased was not
getting proper food as the applicant was not providing food grains or
other essential house hold articles. She always used to sit outside
the house and used to cry. This witness used to provide food and
other articles intermittently. The deceased used to tell this witness
about the quarrel between the applicant and herself and also about
the physical and mental torture. These are also proved to be
omissions.
6. Thus, the material witnesses namely; PW-1, PW-3 and PW-6
appears to have improved their versions and, therefore, there would
be no point in incarcerating the applicant behind the bars as the
chances of hearing the appeal finally are remote as it is an appeal of
the year 2019. Though the learned APP opposed the release of the
applicant pending the appeal, he could not say anything as regards
material omissions brought to my notice by the learned Counsel for
the applicant.
7. Having considered the over all circumstances, I am inclined to
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release the applicant on bail pending the appeal. Now, to the order.
ORDER
1. The application is allowed.
2. Pending the hearing and disposal of the appeal, the execution
of the substantive sentence stands suspended on the applicant
furnishing a P.R. bond in the sum of Rs. 25,000/- with one or two
sureties in the like amount to the satisfaction of the Additional
Sessions Judge, Mumbai.
3. The applicant shall not leave the jurisdiction of the Additional
Sessions Judge, Mumbai without seeking prior permission.
4. The applicant shall attend this Court as and when directed.
5. Needless to state that in case of breach of any of the aforesaid
conditions, the prosecution will be at liberty to pray for cancellation
of his bail.
6. The application stands disposed of in the aforesaid terms.
(PRITHVIRAJ K. CHAVAN, J.)
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