1 cri-appln-4585-10 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4585 OF 2010 The State of Maharashtra (At the instance of Vinoba Bhave Nagar Police Station vide C.R. No. 94 of 2009) .. Applicant Vs. 1. Fahad @ Faij Ahamad Shaikh 2. Salim Abdul Sattar Malbarawala .. Respondents (Org.Accd.Nos.1 and 2) Mrs. A. S. Pai, APP for applicant-State. CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. JANJUARY 12, 2011 P.C. 1. Heard Mrs. Pai, the learned APP for the applicant – State. 2. This application has been taken out by the State of Maharashtra for seeking leave to appeal under Section 378 (3) of Cr. P. C. 2 cri-appln-4585-10 against the order of acquittal dated 12/5/2010 passed by the learned 6th Ad- Hoc Additional Sessions Judge for Greater Bombay in Sessions Case No. 549 of 2009. The respondents came to be tried in the said case for the offences punishable under Sections 363, 302 read with Section 120B, 302 and 201 read with Section 34 of IPC and they came to be acquitted of all the charges. 3. The prosecution had examined in all 26 witnesses. We have perused the depositions from the R & P received from the trial court. The prosecution case was based only on circumstantial evidence. Amandeep, the minor son of Sahebsingh Banwer (PW 16) was studying in the 9th standard and accused nos.1 and 2 were his friends along with another juvenile accused by name Farhan. They were residing in Bailbazar, Kurla (West), Mumbai. Amandeep left his house to attend his tuition class at 9 a.m. on 18/5/2009 and as per the normal routine, after the tuition, he used to go to his grandmother’s house for lunch. At about 1.30 p.m. when his father PW 16 phoned up his mother, he was told that Amandeep did not come there. He went to the house of his mother in the evening, as well and he was informed that Amandeep did not visit the same place. He started searching for Amandeep and went to the V.B. Nagar Police Station and 3 cri-appln-4585-10 lodged a missing report Exh. 65 and also handed over the photographs. On 19/5/2009, Dr. Gurudatt Amin (PW 1) who was Chief Medical Officer of Madhav Bag Ayurvedic Rehabilitation Center, Kalote, Khalapur, came across a dead body of a male lying on an under construction approach road to the Mumbai – Pune highway between the Rinki and Rishabh hotel and he immediately informed the Khalapur Police Station accordingly. The police came at the spot and recorded his complaint at Exh. 12, which was treated as FIR. PW 16 got a news from V.B. Nagar Police Station that a dead body of a boy was found at the national highway no.4 and, therefore, he rushed to the same place. He identified the dead body to be of Amandeep and, therefore, an offence came to be registered under Sections 363, 120B read with Section 302, 302 and 201 read with Section 34 of IPC with the V.B. Nagar Police Station and on the basis of the information received, the juvenile accused – Farhan as well as the present respondents came to be arrested from Kurla. 4. During the investigation, it was revealed that accused no.1 – Fahad had demanded some amount from Prashant Sasar (PW 10) and on that account Prashant had stolen an amount of Rs.1,00,000/- from the cupboard of his grandmother – Dr. Sulochana Murthy (PW 13) and handed 4 cri-appln-4585-10 over the said amount to accused no.1. Accused no.1, in turn, had paid an amount of Rs.10,000/- to deceased Amandeep, Rs. 21,000/- to juvenile accused – Farhan and kept Rs.74,000/- with himself. When Prashant demanded the repayment of the amount from accused no.1, he informed Prashant that the currency notes given by him originally were fake, but at this stage Amandeep had purportedly stated that the said notes were not fake. Accused no.1, therefore, had a grudge against the deceased and that is claimed to be the motive in his kidnapping and killing Amandeep with the help of his friend accused no.2 and Farhan, juvenile accused. The second motive alleged is an illicit relationship between Amandeep and the sister of accused no.1. 5. Dr. Rajendra Itkare ( PW 9 ) had conducted post mortem examination on the dead body of Amandeep on 21/5/2009 and prepared and signed post mortem report at Exh. 31. Taking into consideration the medical evidence, the trial court rightly recorded the finding that Amandeep died a homicidal death. Therefore, the only question that we are required to consider, whether the trial court was justified in holding that the prosecution failed to prove that the charge against the accused in causing the homicidal death of Amandeep was not proved beyond 5 cri-appln-4585-10 reasonable doubt. 6. The prosecution, to prove its case against the accused, relied upon the testimony of PW 8 – Rahul Singh and PW 5 – Rambhau Deshmukh to press on the last seen theory. As per Rahul Singh (PW 8) he had seen the deceased at 4 p.m. with the juvenile accused and at that time both, Amandeep and the juvenile accused were sitting on the platform of the flag hosting pole. Farhan received a telephone call from somebody and he made a gesture to Amandeep and both of them went away. Thus, PW 8 had not seen the deceased in the company of accused nos.1 and 2. As per PW 5 – R – Ravindra Deshmukh, on 18/5/2009 accused no.1 had come to his shop of vadapav at about 7.30 p.m. He did not state that accused no.1 had visited his shop on motorcycle and the deceased Amandeep along with other two accused, had accompanied him. Thus, the last seen theory relied upon by the prosecution was rightly discarded by the trial court. The prosecution had, thereafter relied upon the evidence of PW 22 - Vinayak Parab. As per the said witness on 18/5/2009 at about 3 p.m. he had given the motorbike bearing No.MH-02-AT-1700 belonging to his friend Vaibhav Patil to accused no1. and it was found damaged on 6 cri-appln-4585-10 Panvel highway. However, this witness specifically denied that accused no.1 had made extra judicial confession before him to the effect that on the pretext of going to picnic, he had taken Amandeep at Khapalur and accused nos.1 and 2 killed him. The trial court found this witness to be unreliable as his evidence suffered from material contradictions. In his evidence, he had stated that he and accused no.1 had taken the bike to showroom and got it repaired, but in the case diary statement which came to be marked as portion Exh.A, it was stated that Farhan (juvenile accused) took the bike and got it repaired on the same day and on the same day returned to Vaibhav Patil. He further stated that accused no.1 came back by his own bike and the witness brought the bike of Vaibhav Patil which was given to accused no.1. However, in the case diary statement, he had stated that juvenile accused brought the bike and the witness had brought the bike of Vaibhav Patil. The witness also had denied that on 29/5/2009 he had gone to the police station and his statement was recorded by the police. He had also denied that his additional statement was recorded on 5/6/2009. We do not find any error on the part of the trial court to discard the testimony of PW 22 as unreliable. 7. From the evidence of API Kamble (PW 25), the trial court 7 cri-appln-4585-10 held that the recovery of clothes of accused in the presence of panch witness Ramesh Gaikwad (PW 21) was proved. However, no blood stains were noticed on these clothes. As per the C.A. report at Exh. 76, the clothes of accused no.1 appeared to be washed and clothes of accused no.2 were found to be without any blood stains. PW 25 – API Kamble had admitted that no blood stains were found on the clothes of the accused persons and this was consistent with the memorandum statement at Exh.57, memorandum statement at Exh.72 and seizure panchanama at Exh.57-A as well as Exh.72-A. Even the panch witnesses PW 21 – Ramesh Gaikwad and PW 23 – Sayyed Abumiya did not state that the clothes of the accused were having blood stains. The blood group of accused no.1 was found to be “A”, whereas that of accused no.2 was found to be “B” and at the same time, the blood grouping of the blood noticed on the clothes of the deceased remained inconclusive. 8. Shri Changdev Godse (PW 26) was the Nodal Officer of Vodafone Company and as per him Mobile No.9930436681 was subscribed in the name of accused no.1 and Mobile No. 9819277556 was subscribed by Vinayak Parab (PW 22). At Exh. 99 the call details report in respect of Mobile No. 9930436681 was placed. However, there was no seizure of 8 cri-appln-4585-10 mobile from accused no.1 and as per the memorandum statement at Exh.62 and seizure panchanama at Exh.62-A the police had seized mobile phone of juvenile accused and at the instance of accused no.1. However, in addition to the call details, there was nothing further brought on record by the prosecution to show that Cell No. 9930436681 was used in connection with the crime or there was anything further to establish the complicity of accused no.1. 9. The next circumstance considered by the trial court is the seizure of cash amount. An amount of Rs.40,000/- was seized from Siddhart Mohite (PW 7) and it was in the form of four bundles of Rs. 10,000/- each. The said recovery was at the instance of accused no.1. However, Siddhart Mohite (PW 7) stated in his evidence that the said amount was returned to him by Imran and he did not state that accused no.1 had given him the said amount. The said four bundles were having bank seal dated 24/11/2008 and thus they were intact from the said date. It was also not the same currency notes which were allegedly stolen by witness – Prashan Sasar (PW 10). The trial court noted that the age of Amandeep was 13 years and the alleged motive regarding his illicit relation with the sister of accused no.1 was discarded. The prosecution case that the accused had 9 cri-appln-4585-10 pointed out the place of conspiracy has also been discarded in the absence of other corroborative evidence. There was no material to point out that the accused had ever threatened Amandeep on any count. Accused No.2 had sustained injury due to a fall from motorbike while the accused were taking the deceased on the said motorbike as was claimed by API Kamble (PW 25). However, if Fahad was driving the motorbike along with Salim and the deceased, it was not the case of the prosecution that Fahad had also sustained injury. To add to this, API Sawant (PW 24) did not state that accused no.2 or Farhan (juvenile accused) had sustained any injury while they were brought before him on 25/5/2009 at 11.00 p.m. by PSI Shelke of Khalapur Police Station. It was for these reasons, the evidence of API Kamble (PW 25) stating that he had sent Salim for medical examination on 29/5/2009 to Bhabha Hospital was discarded. 10. In our considered opinion, the trial court has meticulously analyzed the evidence of the prosecution and held that the story of the prosecution suffered from material infirmities and the prosecution came out with a suspicious and doubtful case. This reasoning, in our view, does not call for any reconsiderations at our hands. 10 cri-appln-4585-10 11. Hence, leave to appeal is refused and the application is rejected. (U. D. SALVI,J.) (B. H. MARLAPALLE, J.)