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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

CRIMINAL BAIL APPLICATION NO.1958 of 2018
IN
CRIMINAL APPEAL NO.708 of 2018

Salima Khalil Shaikh … Applicant
v/s.
The State of Maharashtra … Respondents

Mr.Nitin Sejpal for the applicant.

Mrs.J.S.Lohakare, APP for the State.

CORAM : DAMA SESHADRI NAIDU, J.

6 th June 2019.

P.C.

A married woman died in unnatural circumstances, within seven

years of her marriage–in fact within two months after the marriage. In the

crime registered on that count, the trial led to the conviction of her husband

(A-1), father-in-law(A-2), mother-in-law(A-3), and a relative (A-4).

2. Now the mother-in-law filed this application under Section

389 of Criminal Procedure Code to have the sentence suspended and to get

herself enlarged on bail. Earlier, it seems, all the accused filed a joint

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application for bail, but at the time of hearing, the counsel withdrew the

plea of all others except the 4th accused. Then, the 4th accused alone got

the bail. Now, the applicant, the mother-in-law, has come up with this

technically “first application” for bail.

3. To provide the factual backdrop, I may note that the applicant

is one of the four accused in S.C.No.757/2011. Along with other accused,

the applicant was charged with the offences under Sections 304(B) and

Section498A IPC. All the four accused were tried and convicted by the Court of

Asst. Sessions Judge, Pune, through its judgment, dated 17th May 2018.

The trial Court sentenced them as follows:

“1] The accused Nos. [1] Javed Khalil Shaikh, [2] Khalil
Ahmad Shaikh, [3] Salima Khalil Shaikh and [4] Jahir Abdul
Shakur Khan are hereby convicted under Section 235(2) of
The Code of Criminal Procedure, for the offence punishable
under Section 304-B read with Section 34 of the Indian
Penal Code and they are sentenced to suffer rigorous
imprisonment for ten years and to pay fine of Rs.2,000/-
each, in default to suffer simple imprisonment for two
months.

2] The accused Nos. [1] Javed Khalil Shaikh, [2] Khalil
Ahmad Shaikh, [3] Salima Khalil Shaikh and [4] Jahir Abdul
Shakur Khan are convicted for the offence punishable under
Section 498-A read with Section 34 of the Indian Penal
Code and they are sentenced to suffer rigorous
imprisonment for one year and to pay fine of Rs.1,000/-each,
in default to suffer simple imprisonment for one month.
3] The substantive sentences of imprisonment shall run
concurrently.

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4] The pre-conviction detention undergone by the accused
No.1 Javed Khalil Shaikh since the date of his arrest (11-07-
2011 ) till the date of his release on bail ( 05-01-2012 ), pre-
conviction detention undergone by the accused No.2 Khalil
Ahmad Shaikh since the date of his arrest (11-07-2011) till
the date of his release on bail (10-09-2011), pre-conviction
detention undergone by accused No.3 Salima Khalil Shaikh
since the date of her arrest (11-07-2011) till the date of her
release on bail (08-10-2011) and pre-conviction detention
undergone by accused No.4 Jahir Abdul Shakur Khan, since
the date of his arrest ( 11-07-2011) till the date of his release
on bail ( 08-10-2011 ) be set off against the substantive
sentence of imprisonment, under Section 428 of the The
Code of Criminal Procedure.”

4. All the accused filed Criminal Appeal No.708/2018. In that

appeal, the applicant filed Criminal Application No.1958/2018 for

suspension of sentence and bail.

5. Shri Nitin Sejpal, the applicant’s Counsel, has taken me

through the deposition of PW1 and a few portions of the judgment, to

hammer home his contention that the prosecution could make only broad,

omnibus accusations against all the applicants. There are no specific overt

acts, he stresses, attributed to the applicant. He has also submitted that

PW1, the victim’s sister, has in fact deposed that it is the mother-in-law,

who informed the victim’s relatives about the victim’s illness. According to

him, at no point of time did the victim tell PW1, her own sister, or any

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other relative about the alleged harassment the applicant had meted out to

her.

6. In the end, Shri Nitin Sejpal has urged this Court to take note

that the applicant was on bail during the trial, that the applicant has been in

jail for more than a year by now, and that the applicant, a woman in her mid

50s, needs sympathetic consideration. To underline the justifiability of the

bail application, the learned Counsel has also stressed that because of the

docket pressure, this Court may not be in a position to hear the criminal

appeal finally, soon. Thus, he urges this Court to suspend the sentence and

enlarge the applicant on bail, pending the adjudication of the criminal

appeal.

7. On the other hand, the learned Additional Government

Pleader has vehemently opposed any bail to the applicant. According to

her, the victim died well within two months after the marriage. From the

stage of FIR through the trial, the prosecution has made specific allegations

and sustained them against the applicant. It is she who has demanded

dowry and, the learned App further stresses, continued to harass the victim

to comply with the family’s illegal, unreasonable demands for dowry.

8. The learned APP has nevertheless submitted that if the

petitioner is desirous of having an early hearing, the State is ready and that

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it will seek no adjournment. Thus, the learned APP has urged this Court to

dismiss the Criminal Application and to take up the Appeal itself for

disposal at the earliest, of course, subject to the feasibility and the Court’s

convenience.

9. Heard Shri Nitin Sejpal, the learned Counsel for the applicant,

and the learned Additional Public Prosecutor for the State.

10. It is a case of dowry death. A young bride found hanging in her

matrimonial home in two months after her wedding. After a thorough trial,

the trial Court convicted all the accused, among other things. for their

failure to rebut the statutory presumption under Section 113 B of the Indian

Evidence Act.

11. On the applicant’s part, are there any ameliorating circumstances

for the Court to entertain her plea for suspension of sentence and bal? I

shall see. Indeed, the power of an appellate court to grant bail stands well-

crystalised through a series of judicial pronouncements. The issues that

weigh with the court while its considering an application for bail are these:

the chances of accusation being proved or not; the repeatability of the

crime; the antecedents, age, health, occupation of the accused; the chances

of the accused jumping or abusing the bail; the possibility of the evidence

being tampered with; and the likely impact of bail on the security of the

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public; the nature and seriousness of the offence. At any rate, it should not

be refused for a punitive purpose.

12. That said, I should also note that in a criminal appeal wether

against the judgement of conviction or acquittal, it is for the prosecution to

establish that the judgement of the trial court was right or wrong as the case

may be. The presumption of innocence of the accused is not strengthened

by the acquittal nor weekend by a conviction in the trial court.

13. On facts, Prima facie, the applicant does face a solitary accusation

attributed exclusively to her. PW 1 deposed that the applicant returned the

gold ring the bride’s family presented presumably to the groom during the

wedding. While returning, the applicant allegedly said that they were not

beggars. The rest of the allegations encompass all the accused commonly.

14. Indeed, the applicant remained on bail during the trial; I

nevertheless hasten to add, that cannot be a decisive factor for this Court to

consider this application under Section 389 of Cr.P.C. But the applicant

faced no adverse allegations about her conduct when she was out on bail.

Nor has she any criminal antecedents.

15. First, the applicant, too, is a woman in her mid-50s; and, second,

after her conviction, the applicant has been in jail for more than one year by

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now. Finally, as the appeal pertains to 2018, given the docket pressure, it is

unlikely for this Court to take up the appeal immediately–in near future.

16. So balancing the competing interests, I reckon it is appropriate

that the Court suspend the sentence and enlarge the applicant on bail.

ORDER
(i) Application is allowed.

(ii) Substantive sentence imposed on the applicant/3 rd accused is

suspended and is directed to be released on bail on her executing P.R.
Bond in the sum of Rs.30,000/- and on furnishing two sureties in the
like amount by each.

(iii) Pending the appeal, the applicant/accused No.3 should not
contact the first informant, or any other witness, or any member of
the deceased victim’s family in any manner.

(iv) The applicant’s failure to abide by these conditions shall entail
the prosecution to apply for cancellation of bail now granted to the
applicant/3rd accused.

(v) Application is according disposed of.

(DAMA SESHADRI NAIDU, J.)
L.S.Panjwani, P.S.

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