1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.967 OF 2008 IN CRIMINAL APPEAL NO.906 OF 2006 Sudesh Manikin Nair ..Applicant. Vs. The State of Maharashtra ..Respondent. .... Mr. Ganesh Gole for the Applicant. Smt. V.R. Bhonsale, APP for the State. .... CORAM: SMT. RANJANA DESAI and, DR. D.Y. CHANDRACHUD, JJ. 25th September, 2008. P.C. : 1. The Applicant is original accused No.2 in M.C.O.C. Special Case No. 3 of 2002. He was charged along with other accused for offences punishable under Sections 120B, 395, 397, 387, 364/A. 365. 342 read with Section 34 of the Indian Penal Code and under Sections 3(1)(ii), 3(2), 3(4) of the Maharashtra Control of Organized Crime Act, 1999. 2 2. The case of the prosecution is that complainant Yatin Shah – P.W.1 is a jeweller having his shop at Mumbai. In the night of 24th May, 2001 he was travelling with his mother Jayananda from his shop at Murbad to Kalyan in the car driven by his driver Babu Pathan – P.W. 5. When the car reached near bridge on Murbadi river, he was intercepted by two cars. Six to seven persons armed with sticks got down from the cars. They broke the glasses of the complainant' s car. All the three were forcibly taken out of the car at the point of revolver. They were made to sit in the other two cars and were blindfolded. They were then taken to a farm house. The complainant, P.W. 1 Yatin was assaulted and ransom of Rs. 1 Crore was demanded from him. Because of the threats given to him, he agreed to pay Rs.20 lacs. His mother and driver were released at his request. Thereafter the relatives of P.W. 1 contacted the police and a complaint was recorded. In the early hours of morning the abductors started journey with Yatin by car. They went to Pune express highway. At about 7.00 a.m. on their instructions from a phone booth, Sudhir, brother of the complainant was contacted on phone and he was asked to arrange 3 for Rs.20 lacs. It appears that P.W. 3 Deepak and P.W. 4 Naresh delivered the amount of Rs.20 lacs to the abductors on 25th May, 2001. Thereafter on 26th May, 2001 the complainant was released. He lodged First Information Report on 31st May, 2001. Investigation was set into motion on the basis of this complaint. 3. The Applicant i.e. accused No.2 was arrested on 2nd August, 2001. Identification parade was held on 29th November, 2001 in which the identifying witnesses identified the appellant. After completion of the investigation, the appellant along with other accused came to be charged with the aforesaid offences. Learned Trial Judge upon consideration of the evidence led by the prosecution and the defence of the accused convicted the Applicant inter alia for offences under Section 364 of the Indian Penal Code read with Section 34 of the Indian Penal Code and sentenced him to suffer life imprisonment and to pay a fine of Rs.1,000/- and in default to suffer imprisonment for three months. The Appeal filed by the Applicant challenging the said judgment and order is admitted by this Court. This is his bail application. 4 4. We have heard at some length Mr. Gole, learned counsel appearing for the Applicant. He submitted that as per the case of the prosecution on 26th May, 2001 complainant Yatin was released by the abductors. He got himself admitted in the hospital on the pretext that he met with an accident. He did not inform the doctors about the alleged kidnapping and that the accused had assaulted him. Learned counsel submitted that this creates doubt about the prosecution case of abduction and commission of other offences. He further submitted that though complainant Yatin was released on 26th May, 2001 belatedly on 31st May, 2001 the First Information Report was lodged. Delay in lodging the FIR indicates that the prosecution has concocted the case. Learned counsel further submitted that the test identification parade was held on 29th November, 2001. The prosecution has not explained why there is such inordinate delay in holding identification parade. He submitted that therefore the Trial Court has rejected the identification parade evidence. According to learned counsel the Trial Judge committed an error in relying on the identification of the 5 Applicant in the Court because the evidence on record indicates that the Applicant was shown to the identifying witnesses in the police station. Identification in the Court must, therefore, be rejected. Learned counsel further submitted that alleged recovery of Rs.25,000/- from the Applicant cannot be taken as an incriminating circumstance against him. The complainant had not given any particulars about the cash stolen from him. The numbers of the notes which were allegedly stolen by the accused were not given by him in the complaint and therefore the notes of Rs.25,000/- allegedly recovered from accused No.2 cannot be connected with the notes which were allegedly stolen from the complainant. He further submitted that this Court may not take into account the antecedents of the Applicant while considering his bail application. The bail application may be considered purely on the basis of evidence adduced by the prosecution. He submitted that the prosecution has failed to establish its case against the Applicant and hence he be released on bail. 5. Learned APP on the other hand strenuously opposed 6 the application for bail. 6. We are not impressed by any of the submissions made by Counsel appearing for the Applicant. It is true that in this case there is delay in holding the identification parade. Learned Trial Judge has, therefore, rightly discarded the evidence of identification parade. He has relied on the identification of the accused in the Court, on the basis of the judgment of the Supreme Court in Dana Yadav alias Dahu v. State of Bihar1. It was urged by Mr. Gole that evidence on record indicates that the Applicant was shown to the complainant at the police station. However, so far as P.W. 3 and 4 i.e. Deepak and Naresh respectively are concerned, there is nothing on record to show that the Applicant was shown to them at the police station. These are the witnesses who handed over the money to the accused. Prima facie we feel that they had sufficient opportunity to observe the accused. Therefore we are inclined to concur with Learned Trial Judge when he places reliance on their identification in the Court. His reliance on Dana Yadav' s case (supra) is apt. It is also pertinent to 1 (2002) 7 SCC 295. 7 note that the Applicant is working as a mechanic in a garage. Recovery of an amount of Rs.25,000/- from him within two days of his arrest i.e. on 4th August, 2001 prima facie appears us to be significant. Prima facie we feel that this amount could be a part of the huge cash of Rs.20 lacs which was stolen by the accused from the complainant. Undoubtedly there is some delay in lodging the FIR but that by itself does not lead to the conclusion that the prosecution story is concocted. It appears that Yatin was admitted in the hospital on 26th May, 2001. He had received injuries. Delay in FIR may be due to the fact Yatin was admitted in the hospital. We notice that against the present Applicant there are several other cases pending at different police stations. They are - “1) S.C. No.291/2002 and under sections 392-394, 397 I.P.C. in Sessions Court, Mumbai. 2) C.C. NO.477/2001 under sections 394-342 r.w. 34 I.P.C. before J.M. F.C. Panvel. 3) S.C. No.573/2002 under sections 365-397 r.w. 34. I.P.C. before Metropolitan Magistrate, Bandra. 4) C.C. No.25/2002 under sections 365-397 r.w. 34 I.P.C. before J.M.F.C. Vikhroli.” 8 Though antecedents of a person cannot be the sole ground for denying him bail, that can certainly be one of the many considerations which may weigh with the Court and persuade it to deny bail to him. Possibility of such person misusing the facility of bail cannot be ruled out. In the circumstances, the Bail application is rejected. (SMT. RANJANA DESAI, J.) (DR. D.Y. CHANDRACHUD, J.)