Bombay High Court
MOHD. AKHTAR RAJA MOHD. ISRAIL ANSARIversusSTATE OF MAHARASHTRA
- Decided
- Disposal
- Disposed Off
Holding
The Court held that a prima facie case exists in favour of the appellants and therefore suspended the sentence and granted bail pending the appeal.
Summary
The appellants, Mohd. Akhtar Raja Mohd. Israil Ansari and Abdul Hamid Abdul Latif Qureshi, were convicted by a Sessions Judge for robbery under Section 394 read with Section 34 of the IPC and sentenced to ten years' rigorous imprisonment. They filed interim applications seeking suspension of the sentence and bail pending the appeal. The High Court examined whether the conviction was sustainable, noting that the accused had been acquitted of Sections 392 and 397 and that the identification of the accused relied solely on the informant who had been shown the accused before the identification parade, rendering the identification doubtful. The Court also found the discovery evidence linking the stolen cash to the accused to be weak. Concluding that the appellants had a prima facie case and that a fixed‑term sentence warranted suspension to avoid an illusory right of appeal, the Court allowed the interim applications, suspended the sentence, and ordered bail on condition of a bond and surety.
Issues considered
- Whether a conviction under Section 394 r/w Section 34 is tenable when the accused have been acquitted of Sections 392 and 397.
- Whether the identification of the accused by the informant is reliable given prior exposure at the police station.
- Whether the prosecution has sufficient material to link the accused to the stolen cash.
- Whether the appellate court should suspend a fixed‑term sentence pending the final disposal of the appeal.
Legislation cited
- Indian Penal Code, 1860 — s. 34, 392, 394, 397
Subjects
- robbery
- identification parade
- suspension of sentence
- bail
- IPC
- common intention
- appellate discretion
Judgment
APEAL 324-26.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 324 OF 2026
Mohd. Akhtar Raja Mohd.
Israil Ansari & anr. ..Appellants
Versus
The State of Maharashtra …Respondent
WITH
INTERIM APPLICATION NO. 1084 OF 2026
AND
INTERIM APPLICATION NO. 1085 OF 2026
WITH
INTERIM APPLICATION NO. 1086 OF 2026
WITH
INTERIM APPLICATION NO. 1087 OF 2026
Mr. Ashokvardhan Purohit, a/w Ms. Nikhita Waghela, for the
Appellants/Applicants.
Smt. R S Tendulkar, APP for Respondent – State.
SAINATH
SANJAY CORAM : N. J. JAMADAR, J.
BODKHE
Digitally signed
by SAINATH
SANJAY BODKHE
HEARD ON : 03rd September 2026
Date: 2026.09.10
19:40:40 +0530
PRONOUNCED ON : 10th September 2026
ORDER :-
IA/1084/2026, 1085/2026, 1086/2026, 1087/2026
1. Heard the learned Counsel for the parties.
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APEAL 324-26.DOC
2. These applications are preferred seeking suspension of the
sentence and to enlarge the applicants on bail during the
pendency of the appeal.
3. By a judgment and order dated 26th February, 2026,
passed by the learned Sessions Judge, Greater Mumbai, the
applicants Mohd. Akhtar Raja Mohd. Israil Ansari (A-1) and
Abdul Hamid Abdul Latif Qureshi (A-2) have been convicted for
an offence punishable under Section 394 r/w Section 34 of the
Indian Penal Code, 1860 (“IPC”) and sentenced to suffer rigorous
imprisonment for 10 years and pay fine of Rs.5,000/- each, with
default stipulation.
4. The gravamen of indictment against the applicants was
that, on 15th March, 2016, at about 08:45 p.m., while Nisar
Ahmed Qureshi – the first informant (PW-1), and his son Mohd.
Maqsood Qureshi (PW-2), were on their way home on a
motorcycle bearing Registration No. MH 01 AB 2694, near Postal
Colony, Eastern Express Highway, two motorcyclists waylaid
them.
5. Abdul Hamid Qureshi (A-2) was riding the motorcycle.
Mohd. Akhtar Ansari (A-1) was the pillion rider. Mohd. Akhtar
Ansari (A-1) allegedly assaulted Nisar Qureshi - informant (PW-
1) by means of a chopper and Abdul Hamid (A-2) gave a blow by
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APEAL 324-26.DOC
means of an iron rod on the head of Mohd. Maqsood Qureshi
(PW-2). As Mohd. Maqsood Qureshi (PW-2) fell down and Nisar
Qureshi (PW-1) sustained bleeding injuries, the accused
decamped with the bag containing cash of Rs.1,90,000/-
(Rupees One Lakh Ninety Thousand).
6. The applicants were sent for trial for having committed the
offences punishable under Sections 392, 394, 397 r/w Section
34 of IPC.
7. After appraisal of the evidence and the material on record,
the learned Sessions Judge was persuaded to acquit the
applicants for the offences punishable under Sections 392 and
397 of IPC, and convict them for an offence punishable under
Section 394 r/w Section 34 of IPC, and sentence them, as
indicated above.
8. Mr. Ashokvardhan Purohit, the learned Counsel for the
applicants, submitted that, the impugned order of conviction
suffers from legal infirmity as the applicants have been
acquitted of the offence of robbery punishable under Section
392 and, yet, convicted for an aggravated offence punishable
under Section 394 of IPC. Secondly, the informant – Nisar
Qureshi (PW-1) and Mohd. Maqsood Qureshi (PW-2) had
sustained simple injuries. Thirdly, there is no material to
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APEAL 324-26.DOC
connect the applicants with the alleged offences as the first
informant – Nisar Qureshi (PW-1) and Mohd. Maqsood Qureshi
(PW-2) had not known the assailants from before. Fourthly,
though the incident allegedly occurred on a busy expressway,
yet the prosecution could not examine any independent witness.
Thus, the conviction of the applicants is based on surmises and
conjectures rather than legal evidence. Therefore, the applicants
have a strong chance of success in the appeal and, hence, the
sentence be suspended and the applicants be enlarged on bail.
9. Smt. Tendulkar, the learned APP, resisted the submissions
on behalf of the applicants. It was urged that, the learned
Sessions Judge, after careful evaluation of the evidence, has
recorded sustainable findings of guilt. The accused have been
found guilty of grave offences. Therefore, at this stage, the
alleged infirmities in the findings recorded by the learned
Sessions Judge cannot be examined. Thus, the applications be
rejected.
10. It is true, while considering the aspect of suspension of
sentence, the Appellate Court is not expected to embark upon
an exercise of meticulous evaluation of the evidence with a view
to picking up the lacunae or loopholes in the prosecution case.
The Appellate Court is expected to examine whether the
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APEAL 324-26.DOC
applicants have a fair chance of success in the appeal. Upon
appraisal of the material on record, if the Appellate Court forms
a prima facie opinion that, there is a possibility of the case
resulting in acquittal, the Appellate Court may exercise the
discretion to suspend the sentence.
11. A slightly different approach is required to be adopted
where the sentence is of a fixed term. Ordinarily, if the convict
has been sentenced to suffer a fixed term sentence, the
Appellate Court may justifiably exercise the discretion to
suspend the sentence, unless there are exceptional
circumstances. Lest, the right of appeal may become illusory as
by the time the Appellate Court takes up the appeal for final
hearing, in a given case, the appellants might have undergone
the entire or a substantial part of the substantive sentence.
12. A useful reference, in this context, can be made to the
judgments of the Supreme Court in the cases of Bhagwan Rama
Shinde Gosai & ors. Vs. State of Gujarat 1 and Aasif @ Pasha Vs.
The State of U. P.2, wherein the aforesaid principle has been
enunciated.
13. On the aforesaid anvil, reverting to the facts of the case at
hand, this Court prima facie finds that, there are grounds
1 (1999) 4 SCC 421
2 CRI. APPEAL/3409/2025 dt. 06/08/2025
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APEAL 324-26.DOC
which may warrant serious consideration at the time of final
adjudication of the appeal, on the crucial aspect of the identity
of the applicants as the perpetrators of the alleged offences.
Firstly, the prosecution case as to the identity of the applicants
rests on the testimony of the informant – Nisar Qureshi (PW-1)
and Mohd. Maqsood Qureshi (PW-2). As regards the identity of
the applicants as the robbers, in the examination-in-chief itself,
the informant – Nisar Qureshi (PW-1) deposed that, the accused
were shown to him at Nehru Nagar Police Station and,
thereafter, he had identified one of the accused in the Test
Identification Parade. In the cross-examination also, Nisar
Qureshi (PW-1) candidly conceded that, the accused were shown
to him at the Police Station before T. I. Parade.
14. Vijay Madhav Rikame (PW-7), the Executive Magistrate,
who conducted the T. I. Parade, deposed that the informant –
Nisar Qureshi (PW-1) identified Mohd. Akhtar Raja Mohd. Israil
Ansari (A-1) and did not identify Abdul Hamid Abdul Latif
Qureshi (A-2). Since Nisar Qureshi (PW-1) was forthright in
asserting that, the accused were shown to him at the Police
Station before T. I. Parade, prima facie, the identification of even
Mohd. Akhtar Ansari (A-1) in the T. I. Parade, loses credibility.
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15. Though Mohd. Maqsood Qureshi (PW-2), professed to
identify Abdul Hamid Qureshi (A-2), yet, the identification was
in the dock only. Mohd. Maqsood Qureshi (PW-2) did not
participate in the T. I. Parade.
16. Secondly, the evidence of discovery which was sought to
be pressed into service to connect the accused with the
offences, also appears prima facie debatable. Two of the public
witnesses to the discovery purportedly made by Mohd. Akhtar
Ansari (A-1) and Abdul Hamid Qureshi (A-2) did not subscribe
to the prosecution version. Though, Israr Hussain @ Pappu
Abdul Rehman Qureshi (PW-8), another public witness, deposed
to the discovery, yet, his testimony prima facie does not refer to
the disclosure statement purportedly made by the Abdul Hamid
Qureshi (A-2). Prima facie, there is no link evidence to establish
the nexus between the cash of Rs.10,000/- purportedly
recovered at the instance of Mohd. Akhtar Ansari (A-1) and the
cash of Rs.1,90,000/- allegedly robbed of the informant – Nisar
Qureshi (PW-1).
17. Cumulatively, this Court finds that, the submission on
behalf of the applicants that, they have a fair chance of success
in the appeal, cannot be brushed aside lightly. The aforesaid
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APEAL 324-26.DOC
aspects may warrant serious consideration at the final
adjudication of the appeal.
18. As the applicants have succeeded in making out a prima
facie case and the applicants have been sentenced to suffer a
fixed term sentence, and having regard to the large pendency of
cases, it is unlikely that this appeal can be taken up for hearing
and final disposal in the near future, this Court is inclined to
exercise the discretion in favour of the applicants. It is also
necessary to note that, the applicants were on bail during the
trial, barring the initial 5 months period from their arrest, and
it was not the case of the prosecution that the applicants had
abused their liberty.
19. Hence, the following order :-
::ORDER::
(i) The Interim Applications stand allowed.
(ii) The substantive sentence imposed on the
Applicants - Mohd. Akhtar Raja Mohd. Israil Ansari and
Abdul Hamid Abdul Latif Qureshi, by the learned
Sessions Judge, Greater Mumbai, in Sessions Case No.
523/2016, arising out of CR No. 64/2016 registered with
Nehru Nagar Police Station, stands suspended till the
final disposal of the appeal.
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APEAL 324-26.DOC
(iii) The Applicants – Mohd. Akhtar Raja Mohd. Israil
Ansari and Abdul Hamid Abdul Latif Qureshi, be
enlarged on bail on furnishing a PR Bond in the sum of
Rs.25,000/- and a surety in the like amount each, to
the satisfaction of the learned Sessions Judge.
(iv) The Applicants shall mark their presence at Nehru
Nagar Police Station, on the first Monday of October
and April every year, till the disposal of the appeal.
(v) The applicants shall not contact or give threat
or inducement to the injured, first informant and any
other prosecution witness.
(vi) The applicants shall furnish their residential
address and phone numbers, to the Investigating
Officer and shall keep him informed in case of any
change therein.
(vii) The applicants shall not leave India without
prior permission of this Court.
(viii) The Applicants shall attend the proceedings in
this appeal, as and when directed.
[N. J. JAMADAR, J.]
SAINATH, PA 9/9
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