1
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
::: Uploaded on – 06/06/2019 07/06/2019 04:24:09 :::
2
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.
::: Uploaded on – 06/06/2019 07/06/2019 04:24:09 :::
3
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
::: Uploaded on – 06/06/2019 07/06/2019 04:24:09 :::
4
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
::: Uploaded on – 06/06/2019 07/06/2019 04:24:09 :::
5
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
::: Uploaded on – 06/06/2019 07/06/2019 04:24:09 :::
6
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
::: Uploaded on – 06/06/2019 07/06/2019 04:24:09 :::
7
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.
::: Uploaded on – 06/06/2019 07/06/2019 04:24:09 :::