MHCC020052882024
IN THE COURT OF SESSIONS FOR GREATER BOMBAY
AT MUMBAI
CRIMINAL BAIL APPLICATION NO.829 OF 2024
IN
C.R.NO.778 OF 2023
Mr. Ashfaqullah Zubair Ahmed Khan
Age 30 Years, Occupation: Service,
Residing at 4, Galli No.2,Bismillah Chawl,
Zhakariya Compound, Sonapur,
Bhandup West, Mumbai 400 078.
(Presently lodged at Thane Central Prison)
..Applicant/Accused
Versus
The State of Maharashtra
At the instance of Bhandup Police Station
vide their C.R.No.778/2023
..Respondent
Appearances :Ld.Advocate Mr. Devendra Patil, for the Applicant/Accused.
Ld.A.P.P. Mrs.Meera Choudhari-Bhosale, for the State/Respondent.
Ld. Advocate Mr.Milind Dhandge, for the Intervener.
CORAM : HHJ DR.GAURI KAWDIKAR
ADDITIONAL SESSIONS JUDGE
(COURT ROOM NO. 41)
DATED : 04TH MAY, 2024
ORDER
01.

The application is filed by the accused under Section 439
of Code of Criminal Procedure in connection with C.R. No.778/2023
registered with Bhandup Police Station for the offence punishable
under Sections 302, 307 and 498-A r/w 34 of Indian Penal Code,
1860.

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02.

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Notice was issued to the respondent. The Investigating
Officer has filed Say at Exh.2. It is adopted by the Ld. A.P.P. Ld.
Advocate for the Intervener has filed written submissions at Exh.5.
03.

Heard all the Ld. Counsels. It is the contention of the
advocate of the accused that accused is the brother-in-law of the
complainant. On 27/12/2023 at about 10:00 a.m., there was dispute
between Barkat brother-in-law and the complainant on some petty
issue. It is alleged that he abused Najma Khatoon i.e. sister of the
complainant. It is alleged that at that time, Anjum Khan i.e. sisterin-law of the complainant poured rockel on her and Barkat i.e.
brother-in-law of the complainant lit the matchstick and the clothes
of complainant caught fire. Ahsanullah Khan another brother-inlaw of the complainant took the complainant with the help of other
people to Fortis Hospital. FIR was lodged on 27/12/2023 for the
offence punishable under section 307 r/w section 34 of the Indian
Penal Code, 1860.

On 28/12/2023, the complainant expired and
additional sections 302 and 498-A were added.
04.

It is the contention of the advocate of the accused false
FIR is lodged against the accused as he is relative of the husband of
the deceased. He submitted that name of the accused is not
mentioned in the FIR or the Dying Declaration of the deceased. He
submitted that there is no common intention on part of accused for
the commission of offence. He further submitted that investigation is
complete and charge-sheet is filed. Continued incarceration of the
accused would not serve any purpose. There are no criminal
antecedents attributed to the accused. He is permanent resident of
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Mumbai. He is ready to abide by all terms and conditions imposed
by the Court. He has prayed for grant of bail to the accused.
05.

Ld. A.P.P. and Advocate for the Intervener submitted
that the offence is serious in nature. The punishment of the offense is
life imprisonment or death penalty. The investigation is complete
and charge-sheet is filed. Two accused are absconding. They further
submitted that the accused is not permanent resident of Mumbai. If
bail is granted to him, there is possibility that he will abscond. If the
accused is granted bail, there is possibility that he will tamper with
evidence and pressurize or threaten the witnesses.

There is
possibility of the accused absconding and not remaining present for
trial. They have prayed for rejection of the application.
06.

Perused record. FIR shows that on 27/12/2023 at about
10:00 a.m., there was dispute between brother-in-law Barkat on
some petty issue. He abused the sister of the complainant i.e. Najma
Khatoon. At that time, Anjum Khan i.e. sister-in-law of the
complainant poured rockel on her and her brother in law Barkat lit
the matchstick and the clothes of complainant caught fire. Another
brother-in-law Ahsanullah Khan with the help of other people took
the complainant to Fortis Hospital. FIR was lodged on 27/12/2023
for the offence punishable under section 307 r/w section 34 of the
Indian Penal Code, 1860. On 28/12/2023, the complainant expired
and additional sections 302 and 498-A were added.
07.

The FIR does not mention name of present accused.

Spot panchanama shows that the structure of the house of the
complainant is ground plus two floors. The incident has occurred on
the first floor. At the place of incident two burnt matchsticks, burnt
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kurta, 10 liters Can of rockel with 2 liters rockel still in the Can were
found. The matchbox, the clothes and rockel Can are seized and
seizure panchanama is drawn. The medical report of the
complainant shows 94% burn injuries. It prima-facie shows that the
incident as alleged in the FIR had occurred. As far as, the role of
Anjuman Khan and Barkat is concerned, the statement of the
complainant clearly shows their complicity in the commission of the
offence which is further corroborated by the spot panchanama and
seizure panchanama.
08.

Advocate for the applicant has relied upon Kahkashan
Kausar Alias Sonal and Ors. Vs. State of Bihar and Ors, AIR Online
2022 SC 95,
wherein it was held that general and omnibus
allegations cannot manifest in a situation where the relatives of the
complainant’s husband are forced to undergo trial. In the present
case, the allegations against the accused are general. As the facts of
the two cases are similar, the above ratio is applicable.
09.

Advocate of intervener has relied upon Kundula Bala
Subrahmanyam and Another Vs. State of Andhra Pradesh (1993) 2
Supreme Court Cases 684, wherein it was held that in case based on
circumstantial evidence, motive assumes great significance as its
existence is an enlightening factor in a process of presumptive
reasoning. The motive in this case is alleged to be the greed of dowry.
In the present case, section 304-B of the Indian Penal Code, 1860 is
not attracted as the deceased was married to Masiullah in the year
2012. Further, it is not the case of the prosecution of circumstantial
evidence. As a facts of the two cases are different, the above ratio is
not applicable.

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10.

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Advocate of the Intervener has relied upon Bhagwan Sawant
Vs. State of Maharasthra, AIR 1965 Supreme Court 682, wherein it
was held that there is no difference between the mode of proof of the
offence of conspiracy and that of any other offence, it can
be
established by the direct evidence by the circumstantial evidence. But
section 10 of the Indian Evidence Act, 1872, introduces the doctrine
of agency and if the condition laid down therein are satisfied, the act
done by one is admissible against the co-conspirator. In the present
case, the FIR does not contain section 120-B of the Indian Penal
Code, 1860. Further, the allegations against the accused are general.
As a facts of the two cases are different, the above ratio is not
applicable.
11.

The statement of the neighbours and relatives of the
deceased show that the complainant was subjected to cruelty by her
husband, her in-laws and their family. Thus, complainant being
subjected to cruelty by her in-laws is prima-facie established in the
statement of the neighbours. The accused Anjum Khan and Sabiya
are absconding.
12.

In the statement of the witnesses, no specific role is
attributed to the accused in respect of the allegation of murder. The
allegations are general in nature against all the in-laws about
harassment
for
dowry,
abusing,
assaulting.

At
this
stage,
investigation is complete and charge-sheet is filed. Most of the
witnesses are the relatives of the deceased. Thus, their turning hostile
is not probable. The accused is in custody since long. Continued
incarceration of the accused is not warranted or required.
Accordingly, it is found fit to grant bail to the accused by imposing
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certain terms and conditions. For the aforesaid reasoning in supra
paras, it is found fit to grant bail to the accused. Hence, the orderORDER
1. The Criminal Bail Application is allowed.
2. The accused Ashfaqullah Zubair Ahmed Khan in
connection with C.R.No.778/2023 registered with Bhandup
Police Station be released on P.B. of Rs.50,000/- (Rupees
Fifty Thousand) with one or more sureties in the like
amount, on following terms and conditions(i) The accused shall not tamper with prosecution
evidence and witnesses.
(ii) The accused shall co-operate in the investigation
by attending the Bhandup Police Station as and
when called by the I.O. on written notice, till
conclusion of the trial.
(iii) The accused shall not directly or indirectly
contact the complainant and witnesses by any means
till conclusion of the trial.
(iv) The accused shall not commit any offence.
(v) The accused shall not leave India without
permission of the Court.
(vi) The accused shall furnish his permanent and
temporary address, if any, and his contact details to
the concerned police station.
(vii) The accused shall not change his residential
address without prior intimation to the Investigation
Officer and to the concerned Court.

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(viii) If the accused disobeys any of the above
conditions, the prosecution is at liberty to
move the Court for cancellation of bail.

Date:04/05/2024
Place: Mumbai
(Dr. Gauri Kawdikar)
Addl.Sessions Judge,
City Civil & Sessions Court,
Gr. Mumbai
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED ORDER.”
Upload Date Upload Time
06/05/2024
11:18 A.M.

Name of the Judge
(With Court Room No.)

Name of Stenographer
Mrs. Mrunal S. Pendkhalkar
HHJ DR.GAURI KAWDIKAR
(Court Room No. 41)
Date of Pronouncement of
ORDER
04/05/2024
ORDER signed by P.O. on
04/05/2024
ORDER uploaded on
06/05/2024