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Cri.Bail Application No.80/2024
MHCC020005362024
IN THE COURT OF SESSIONS FOR GREATER BOMBAY
AT MUMBAI
CRIMINAL BAIL APPLICATION NO.80 OF 2024
IN
C.R.NO.778 OF 2023
1. Mr. Zubair Mohammad Yonus Khan
Aged 65 Years, Occupation: Self employed,
2. Mrs. Tabarkunnisa Zubair Ahmed Khan
Aged 55 Years, Occupation: Housewife,
Indian Inhabitant of Bhandup,
Both are residing at Room No.4,
Street No.2, Bismillah Chawl,
Jhakeria Compound, Sonapur,
Bhandup (West), Mumbai 400 078.
Versus
The State of Maharashtra
Through Bhandup Police Station
in C.R.No.778/2023.

..Applicant/
Accused No.1
..Applicant/
Accused No.2
..Respondent
Appearances :Ld. Advocate Mr. Devendra Patil, for the Applicants/Accused.
Ld. Addl. P.P. Mrs. Meera Choudhari-Bhosale, for
State/Respondent.
Ld. Advocate Milind D. Dande, for the Intervener.
CORAM : HHJ DR.GAURI KAWDIKAR
ADDITIONAL SESSIONS JUDGE,
(COURT ROOM NO. 41).
DATED : 06TH MARCH, 2024
the
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ORDER
01.

The application is filed by the accused Nos.1 and 2 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.
02.

Notice was issued to the respondent. The Investigating
Officer has filed Say at Exh.3. It is adopted by the Ld. Addl.P.P. Ld.
Advocate for the Intervener has filed intervention application at
Exh.4.
03.

Heard both the Ld. Counsels. It is the contention of the
advocate of the accused that accused No.1 is the father in law of the
complainant and accused No.2 is the mother 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. sister in
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. Ehsan Khan another brother in law 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.

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04.

It is the contention of the advocate of the accused that
the accused No.1 was not at home at the time of incident. Accused
No.2 was sleeping in her room. He further submitted that there is no
common intention on part of accused Nos.1 and 2 for the
commission of offence. The accused No.1 was arrested on 28/12/2023
and accused No.2 was arrested on 31/12/2023. Since then they are
languishing in jail. Both the accused are senior citizens. There are no
criminal antecedents attributed to the accused. They are permanent
residents of Mumbai. They are ready to abide by all terms and
conditions imposed by the Court. He has prayed for grant of bail to
the accused.
05.

Ld. Addl.P.P. and Advocate for the Intervener
submitted that the offence is serious in nature. The investigation is at
a preliminary stage. Two accused are absconding. As the witnesses
and the accused reside in the same locality, there is possibility of the
witnesses being pressurized or threatened, if the accused are granted
bail. They further submitted that the accused are not permanent
resident of Mumbai. If bail is granted to them, there is possibility
that they will abscond. Investigating Officer submitted that
investigation about the Panchayat has to be done. Statement of
some of the neighbours are yet to be recorded. If the accused are
granted bail, there is possibility that they will hinder investigation
and tamper with evidence. There is possibility that they will threaten
the witnesses. There is possibility of the accused absconding and not
remaining present for trial. They have prayed for rejection of the
application.

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06.

Advocate for the applicants has relied on the case of
Jasdeep Singh Alias Jassu V. State of Punjab reported in AIR Online
2022 SC 13, wherein it was observed that common intention qua its
existence is a question of fact and also requires act “in furtherance of
said intention”. In the present case, whether the accused Nos. 1 and
2 had common intention for commission of the offence is a question
of fact and thus, can be decided only after leading evidence. Thus, at
this stage, it cannot be inferred whether the accused Nos.1 and 2 did
not have any common intention to commit murder of the
complainant. As a facts of the two cases are different, the above ratio
is not applicable.
07.

Advocate of intervener has relied on the case of Kundula
Bala Subrahmanyam and Another Vs. State of Andhra Pradesh
reported in (1993) 2 Supreme Court Cases 684, wherein it was
observed that conduct of accused immediately after the occurrence
of not trying to extinguish the fire and not rendering any first aid to
her as also their subsequent conduct of not accompanying the
deceased to the hospital consistent with the hypothesis of guilt of the
accused and inconsistent with their innocence. Further conduct of
accuseds’ abscondence also significant
in the chain of the
circumstances. In the present case, whether the accused Nos.1 and 2
did not try to extinguish the fire and did not take the complainant to
the hospital is a question of evidence and cannot be decided at this
point. As a facts of the two cases are different, the above ratio is not
applicable.

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08.

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 Ehsan 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.
09.

The FIR does not mention name of present accused
Nos.1 and 2. 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 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.

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10.

The statement of the neighbours 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.
The husband, Barkat brother in law and Ehsan another brother in
law are all in judicial custody. When the incident occurred, whether
the accused No.1 was not in the house and accused No.2 was
sleeping is a question of evidence. At this stage, based upon the
statement of the witnesses, the role of accused Nos.1 and 2 subjecting
the complainant to cruelty is prima-facie established.
11.

It is the contention of the advocate of the intervener that
six months before the incident, Panchayat had taken place in which
the villagers had given understanding to the in-laws of the
complainant and other family members about not harassing the
complainant. Investigating Officer submitted that investigation in
respect of said Panchayat is yet to be carried out. Taking into
consideration prima-facie complicity of the in-laws including the
accused Nos. 1 and 2 in subjecting the complainant to cruelty, 2
absconding accused i.e. Anjum Khan and Sabiya who are daughters
of the accused Nos.1 and 2, seriousness of the offence, punishment of
death or life imprisonment, 94% burn injuries sustained by the
complainant, stage of investigation i.e. investigation is not yet
complete, charge-sheet is not yet filed; it is not found fit to grant bail
to the accused at this stage. Similarly, there is strong possibility of
pressurizing the neighbours who are witnesses, as the accused reside
in the same locality. For the aforesaid reasoning in supra paras, at
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this stage, it is not found fit to grant bail to the accused Nos.1 and 2.
Hence, the orderORDER
1. The Criminal Bail Application No.80/2024 is rejected.

Date: 06/03/2024
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
06/03/2024
05:30 P.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
06/03/2024
ORDER signed by P.O. on
06/03/2024
ORDER uploaded on
06/03/2024