1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE CRIMINAL APPLICATION NO. 6009 OF 2005 CRIMINAL APPLICATION NO. 6009 OF 2005 CRIMINAL APPLICATION NO. 6009 OF 2005 MOHD. SHAFI NAJMUDDIN SHAIKH .. APPELLANT Versus THE STATE OF MAHARASHTRA .. RESPONDENS Mr. Shahid Azmi for appellant Ms. P. H. Kantharia, APP CORAM:-SMT. RANJANA DESAI & A. V. MOHTA, JJ. DATED:-6/10/2005 P.C.: . The applicant is accused 3 in M.C.O.C. Special Case No. 5/2004. Accused therein were charged for having committed offence punishable under Section 3(1)(ii) of The Maharashtra Control of Organised Crime Act, 1999 ("MCOCA" for short) read with Section 342 of the I.P.C. and also Sections 364(A), 387, 365, 368, 120-B of the I.P.C. and also under Section 326, 324 read with Section 34 of the I.P.C. or in the alternative under Section 120-B of the IPC and Sections 3(2) and 3(4) of the M.C.O.C.Act and also under Section 25(1-B)(a) of the Arms Act read with Section 3 of the Arms Act. 2 2. In short the case of the prosecution is that PW 4 Alok Ramchandra Bihani was abducted by the accused. A demand of ransom of Rs.1 Crore was made from his employer Prem Singh. The applicant along with other accused have been found guilty of the offences with which they are charged and they have been sentenced to suffer R.I. for life. Appeal preferred by the appellant has been admitted. The present application is for bail. 3. We have heard at considerable length learned counsel appearing for the appellant. He strenuously contended that the alleged incident of abduction took place on 13/3/04. PW 4 Alok Ramchandra Bihani, the abducted person was released on 2/4/04. His first statement was recorded on 6/4/04. His second statement was recorded on 24/4/2004. However, PW 4 did not make reference to the present applicant/appellant accused 3. The learned counsel then urged that according to the prosecution a Tata Sumo was hired by accused 3. In that behalf the prosecution has examined PW 11 Jafar. The learned counsel contended that this Tata Sumo was never used for abduction. In fact according to the prosecution the abducted person was taken in a rickshaw. Accused 3 never travelled in this Tata Sumo. The learned counsel then pointed out that PW 10 Suresh Shankar the pancha 3 witness has stated that on 26/3/04 accused 1 made a statement that he will lead the police to the house of accused 2. However instead of taking the police to accused 2’s house, according to the prosecution, accused 1 led the police to the house of accused 3. According to the police at the house of accused 3 two mobile phones were found. The police noted the numbers of the mobile phone. 4. Thereafter on 10/3/04 accused 3 was arrested. Test identification parade was held in which PW 4 identified accused 3 only as a person who had conversed with the abductors prior to the abduction. The learned counsel, therefore, contended that this evidence is not sufficient to form an opinion that accused 3 is guilty of the offence with which he was charged and, therefore, the trial court erred in convicting him. He submitted that accused should be released on bail. We are unable agree with the learned counsel. 5. We have heard at some length Ms. Kantharia, learned APP. She has taken us to the material portion of the evidence of PW 4 Alok Ramchandra Bihani, PW 11 Jaffar Iqbal Sheikh and PW 10 Suresh Shankar, panch. There can be no doubt that incident in question is most gruesome. PW 4 has stated that throughout the accused administered him 4 intoxicating drugs. On 26/3/04 accused 1 made a statement that he will take the police to the house of accused 2. However, he led them to the house of accused 3. The police found two mobile phones there. The mobile phones were not seized. However, the numbers were noted and the print outs were taken charge of by the police. 6. The learned APP has pointed out that the print outs indicate that accused 3 was in conversation with accused 2. It may be noted at this stage that accused 2 and 3 are related. Accused 2 happens to be the nephew of accused 3. PW 4 has identified accused 3 in the identification parade as the person who was seen talking to the kidnappers while he was confined in a room after the kidnapping. 7. It is also pertinent to note that PW 4 after his abduction was for sometime kept in the house of accused 3. It is also stated by PW 11 Jaffar that accused 3 hired a vehicle from him. Though PW 4 was abducted in a rickshaw it prima facie appears that from the house of accused 3 PW 4 seems to have been taken to another place in that vehicle. Accused 3 has played significant role in the offence. At this stage the court is not expected to analyse the evidence as if it is hearing the appeal finally. The above material, in our 5 opinion, prima facie indicates involvement of accused 3. In the circumstances he cannot be released on bail. Prayer for bail is rejected. 8. In the circumstances of the case, the appeal is expedited. 9. Application disposed of. (SMT. RANJANA DESAI,J.) (A. V. MOHTA J.)