1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 2797/2009 in Criminal Appeal No.350/2009 Shakti s/o Suresh Khandare and others vs. . State of Maharashtra. Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. CORAM : A.P. LAVANDE & PRASANNA B.VARALE, JJ. Date of reserving the Order : 12.11.2009 Date of pronouncing the order : 18/11/2009. Heard Mr. S.V. Sirpurkar, learned counsel for the applicants and Mr. T.A. Mirza, learned APP for the respondent. By this application, the applicants, who have been convicted for offences punishable under Sections 363, 302, 201 Indian Penal Code read with Section 34 of the Indian Penal Code seek suspension of sentence and bail. The applicants were tried and convicted by Adhoc Additional Sessions Judge, Wardha in Sessions Trial No. 170/2007 by judgment and order dated 4th May 2009 for having committed offences punishable under Sections 363, 302, 201 of the Indian Penal Code read with Section 34 of the Indian Penal Code and sentenced to undergo imprisonment for life for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and also sentenced for other offences. By the said 2 judgment and order, the applicants have been held guilty for kidnapping deceased Sardar Beg alias Sagga on 15.8.2007 between 7.00 p.m. to 8.00 p.m. at Wardha and causing his death in furtherance of common intention. The applicants have also been convicted for causing disappearance of evidence with intention to save other from punishment. Mr. Sirpurkar, learned counsel appearing for the applicants submitted that PW 6 Jawed Kha, who according to Rukhsana Begum, the mother of the deceased had informed her about kidnapping of her son Sardar alias Sagga by the accused did not support the prosecution and turned hostile and as such there is absolutely no evidence of kidnapping of deceased Sagga by the applicants. He further submitted that insofar as recovery of dead body of the deceased Sagga at the instance of applicant no.1 is concerned, according to the prosecution, the dead body was recovered at the instance of applicant no.1 at about 9.00 a.m. whereas according to the evidence of PW 4 Rukhsana Beg she returned at about 3.00 a.m. to 4.00 a.m. and dead body of her son was lying in Khadan behind M.S.E. B. office and thereafter they all went to the said place at about 5.00 a.m. where several persons including police officers were present. Learned counsel, therefore, submitted that since the dead body was already known to the police, there can be no discovery of the dead body at the 3 instance of applicant no.1 on 16.8.2007. He further submitted that seized blood clothes of the applicants are concerned, it is the case of the prosecution that all the applicants were arrested on 16.8.2007 and the seizure was on 17.8.2007 and, therefore, the seizure does not inspire any confidence. Learned counsel further submitted that motive on the part of the applicants to commit crime has not been established. He further submitted that alleged recovery of knife at the instance of accused no.2 on 18.8.2007 also does not inspire confidence. Learned counsel further submitted that this case is based on circumstantial evidence and having regard to the law laid down by the Apex Court in the case resting on circumstantial evidence in celebrated case of Sharad Birdhichand Sarda Vs State of Maharashtra : 1984 SC 1622 the prosecution has not been able to establish the circumstances to connect the accused with the crime since the link against the accused is snapped. He, therefore, submitted that this is a fit case in which substantive sentences imposed on the applicants deserve to be suspended and the applicants released on bail pending hearing and disposal of the appeal. Learned counsel relied upon the judgment in the case of Vijender Vs. State of Delhi : (1997) 6 SCC 171. Per contra, Mr. Mirza, learned APP submitted that Javed Kha in his cross-examination has admitted the fact of deceased being kidnapped by the applicants and 4 further the fact that F.I.R. was lodged by Rukhsana on 15.8.007 lends corroboration to the prosecution story that the applicants had kidnapped the deceased on 15.8.2007. He further submitted that there is evidence of recovery of dead body of deceased at the instance of accused no.1 and recovery of knife at the instance of applicant no.2. Moreover, the presence of blood on the knife discovered at the instance of applicant no.2 and the presence of blood on the mating of the scooter on which the deceased was kidnapped clearly proves complicity of the applicants in the commission of the crime. We have carefully considered the submissions made by learned counsel for the applicants and learned APP for the respondent and perused the record and the judgments relied upon. In the present case F.I.R. was lodged by Rukhsana, the mother of the deceased on 15.8.2007 on receipt of the information on telephone call by Javed Kha at 9.00 p.m. that all four applicants threatened and kidnapped her son Sagga. No doubt, Javed Kha in his examination- -in-chief did not support the prosecution and was declared hostile but in cross-examination he admitted that he had made a phone call to mother of Sagga and had gone to police station where the mother of Sagga had come to lodge report. He further admitted that on the next date he learnt that Sagga was murdered and his 5 body was thrown in the water near Power House. No doubt, he denied that the accused had committed murder of Sagga by kidnapping him on scooter. Admission given by Javed Kha that he had given phone call and thereafter he had gone to police station where mother of Sagga was present clearly supports the prosecution version and lends assurance to the prosecution story that Rukhsana had lodged report against all the applicants alleging kidnapping of her son, on the basis of telephone call given by Javed Kha. This is clinching circumstance against the applicants. Mere fact that Javed Kha has turned hostile, by itself, is not sufficient to discredit his entire evidence and that of Rukhsana, who promptly lodged the report against the applicants on the basis of telephone call given by Javed Kha. Therefore, we are unable to accept the submissions of Mr. Sirpurkar that the evidence of Rukhsana is of hearsay in nature and no credence could be given to her evidence. The prosecution has proved that dead body of deceased Sagga was found in Khadan behind MSEB Power House. The discovery of dead body on 16.8.2007 at the instance of accused no.1 cannot be accepted since the police had knowledge about dead body. However, the fact remains that the dead body of deceased was found near MSEB Power House and the evidence of PW 8 Dr. Nishad Sheikh who conducted post mortem clearly proves that death of deceased was homicidal. In view of the judgment of the Apex court in the case of Sucha Singh Vs. State of 6 Punjab : 2001 Cr. L. J. 1734 the applicants are liable not only for the offence punishable under Section 363 of the Indian Penal Code but also for offence punishable under Section 302 of the Indian Penal Code. In the said case, the Apex Court has held that depending on factual situation, the Court can draw presumption that all abducted persons are responsible for murder. In the present case F.I.R. was lodged by Rukhsana Beg on the basis of telephone call given by Javed Kha which is corroborated by the evidence of Javed Kha. The prosecution has established that on 15.8.2007 all the applicants kidnapped the deceased. Therefore, in the absence of any explanation from the applicants, the applicants are liable for the murder of deceased Sagga. Moreover, there is evidence of recovery of knife at the instance of accused no.2 and presence of blood on the mating of the scooter on which deceased was kidnapped. In view of the above discussion, it is evident that there is sufficient evidence on record to connect the applicants with the offences for which they have been convicted. The Apex Court Court has held that it is only in exceptional circumstances that substantive sentence imposed on the accused convicted of the offence punishable under Section 302 of the Indian Penal Code is liable to be suspended and the accused released on bail. (See Kishori Lal Vs. Rupa : AIR 2005 SC 1481). 7 Having regard to the ratio laid down by the Apex Court and considering the fact that there is sufficient evidence against the applicants on record, we are of the considered opinion that this is not a fit case in which substantive sentences on the applicants deserve to be suspended and the applicants released on bail. In view of the above, we find no merit in the application. Hence, the application is dismissed. JUDGE JUDGE Ambulkar.