mss IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPLICATION NO. 511 OF 2009 IN CRIMINAL APPEAL NO. 438 OF 2009 RAJESH DHANAJI DHONDI .. APPLICANT Vs. THE STATE OF MAHARASHTRA .. RESPONDENT Mr. R. P. Javanjal for the applicant Ms. P. H. Kantharia, APP CORAM: SMT. RANJANA DESAI & R. G. KETKAR, JJ. DATED: 10/7/2009 P.C. The applicant was tried along with three others in MCOC Special Case No. 15 of 2005 in by Special Court (under M.C.O.C. Act) for Greater Bombay at Mumbai, for offences punishable under Section 120(B), 364-A, r/w 120(B), 365 r/w 120(B), 368 r/w 120(B), 395, 395 r/w 397, 387 r/w 120(B) of the Indian Penal Code (I.P.C.) Section 3 r/W 25 r/w 35 of the Arms Act and Section 2(1) (d), 3(1)(ii), 3(2) and Section 3 (4) of the Maharashtra Control of Organized Crime Act (“M.C.O.C.” for short) 1999. By judgment and order dated 17/2/09 learned Special Judge convicted the appellant for offence punishable under Section 364-A of the Indian Penal Code (“I.P.C.” for short) and sentenced him to suffer life imprisonment and to pay fine of Rs.25,000/- and in default to suffer R.I. For three years. The applicant is original accused 1. 2. We have heard at considerable length learned counsel appearing for the applicant. He submitted that there are only two important witnesses in this case, they are PW 2 Pradeep and PW 3 Prashant, who are the victims. He submitted that their evidence does not establish the involvement of the present applicant in the crime alleged against him. He drew our attention to the evidence of PW 2 Pradeep. He pointed out that no doubt Pradeep has identified the applicant in the court as a person who received the victims at the airport but the identification was done only in the court; no identification parade was held and hence such identification cannot be relied upon. He pointed out that in the cross-examination this witnesses has stated that he was received at the airport by a person, therefore, his version in the cross-examination is not consistent with the version in the examination-in-chief. He further pointed out that this witness has stated that his statement recorded by the police was not read over to him. Learned counsel further pointed out that this witness has stated that the car was driven by Sartaj and by the side of Sartaj, Sanjay was sitting and on the back seat he, Raju, Prashant and Mazar were sitting. He does not state that the applicant was sitting in the car. In the circumstances, according to learned counsel, no reliance can be placed on the testimony of this witness. 3. Learned counsel then drew our attention to the evidence of PW 3 Prashant. He submitted that Prashant has not named the applicant as a person who had received the victims at the airport. He submitted that even this witness has identified the applicant only in the court. There was no identification parade. Such identification cannot be relied upon. Our attention was also drawn to the statement in the cross-examination that in the room in Khander where the victims were allegedly kept there was no proper light, there was only kerosene lamp. Learned counsel submitted that it is, therefore, inconceivable that this witness could have identified the applicant because he had no opportunity to observe his features in Khander. 4. We are not impressed by the submissions of learned counsel. PW 2 has clearly stated that the applicant was one of the four persons who had received the victims at the airport. PW 2 has given graphic description of how victims were made to sit in a car and taken to a forest area. He has clearly stated that they pointed gun and weapons at him and tied and carried him to a room in the forest area. Merely because in the cross-examination he has not specifically referred to the applicant as a person sitting in the car, his evidence cannot be discarded. It is pertinent to note that on this vital aspect this witness has not been cross-examined. In our prima facie opinion, evidence of this witness inspires confidence. 5. Similarly PW 3 Prashant has in his examination-in-chief clearly stated that the applicant tied his hands and legs. Thus a specific role is assigned to the applicant. Again in the case of this witness on the vital aspect there is no cross-examination. So far as availability of light is concerned PW 3 has stated that there was a kerosene lamp. There was also car light. If the applicant along with others abducted the victims, tied their hands and legs, took them to a room and kept them under surveillance, prima facie, we feel that their identification in the court also can be relied upon. They had ample opportunity to witness the features of the accused. Besides the victims were kept in confinement in the room of accused 2. All these circumstances, in our prima facie opinion point to the guilt of the applicant. It is pointed out to us that in the cross-examination, it is stated by PW 3 that he had seen the applicant for the first time in the court and, therefore, the prosecution case that the applicant participated in abducting the victims is false. This submission will have to be rejected. The above statement of PW 3 will have to be read in the context of the preceding sentence. The preceding sentence runs as follows: “I have not seen accused no. 1 any time after releasing us from police custody”. This means that the police had not shown the applicant after the victims were rescued and allowed to go from the police station. This in fact supports the prosecution case that the police have not falsely implicated the accused by showing them to the witnesses and asking the witnesses to identify them in the court. 6. In our opinion, no case is made out for bail. Criminal Application is disposed of. 7. Hearing of the appeal is expedited. (Smt. Ranjana Desai, J.) (R. G. Ketkar, J.)