1 cri.appln-847-10.doc mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.847 OF 2010 IN CRIMINAL APPEAL NO.459 OF 2010 Kushal Chandrakant Chavan ..Applicant Versus State of Maharashtra ..Respondent Shri Shirish Gupte, Senior Advocate i/b. Shri M.K.Kocharekar for the applicant. Mrs. M.M. Deshmukh, APP for State. CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. RESERVED ON: 28TH JANUARY, 2011 PRONOUNCED ON: 3RD FEBRUARY, 2011 P.C. Heard Mr. Shirish Gupte, the learned Senior Counsel along with Mr. Kocharekar for the applicant. In Sessions Case No.85 of 2 cri.appln-847-10.doc 2009 two accused came to be tried and convicted for the offences punishable under Section 364A, 384, 302 and 201 read with Section 34 of I.P.C., by the learned Additional Sessions Judge, Sewree and accused No.1 (present applicant) has filed Criminal Appeal No.459 of 2010 whereas accusd No.2 has filed Criminal Appeal No.654 of 2010 against the same order of conviction and sentence. They are presently undergoing sentence for life. Hence this application by accused No.1 for being released on bail during the pendency of his appeal. 2. As per the prosecution case the son of the complainant Shri Rajan P. Krishnarao, P.W.1 had left home at about 9.15 a.m. on 12th October, 2008 for going for a picnic to Vasai along with his friends and the son by name Ratanrao was carrying mobile phone with No.9819532335 and the instrument was of Sony Ericcson company. At about 2.00 p.m., on the same day the son called the father and informed that he would be back by 6.00 p.m., but he did not return. The complainant went on contacting the son, but the mobile was switched off and consequently post midnight i.e. at about 1.30 a.m. on 13th October, 2008 he lodged a missing complaint with the M.I.D.C., Police Station (Exhibit 28) which was recorded by 3 cri.appln-847-10.doc P.S.I.Babasaheb Gosavi, P.W.15. The complainant went to the Police Station at 9.00 a.m., on 13th October, 2008 and informed P.S.I. Gosavi that at about 10.11 a.m., he had received a phone call on his mobile telephone from the mobile of his son, but the voice was of an unknown person and demand of a ransom of Rs.10.00 lakhs was made on the ground that the son was in the custody of the caller and he would not release him unless the ransom was paid. The caller was also threatening that if he would contact the police his son would be killed. P.S.I. Gosavi recorded the said complaint and registered the F.I.R. (Exhibit 18). He again received telephone calls periodically till 2.30 p.m. On 14th October, 2008, on 19th October, 2008 the complainant received a telephone call from the A.C.P., Crime Branch, calling him to Tungareshwar forest and when he went there along with Shri Wani, A.C.P., the dead body of his son in decomposed condition was seen sarrounded by heap of stones. On the basis of the T-Shirt and sandal, the complainant identified the dead body of his son. The accused were arrested on 19th October, 2008. 3. The prosecution examined in all 21 witnesses and its case was entirely based on circumstantial evidence. The prosecution also 4 cri.appln-847-10.doc relied upon the pre-trap panchanama (Exhibit 23), seizure panchanama (Exhibit 24), seizure panchanama (Exhibit 34A), seizure panchanama (Exhibit 35A), seizure panchanama (Exhibit 61A), seizure panchanama (Exhibit 63A), seizure panchanama (Exhibit 63B) and the seizure panchanama of T-Shirt, sandal and underwear (Exhibits E, C, D and E). The evidence of Dr. Neeta Jagganath Ghuge, P.W.4 has been accepted by the trial Court in support its finding that Ratan died a homicidal death and the trial Court also held that the dead body was of Ratan only. 4. To connect the accused with the crime, the prosecution relied upon the following circumstances:- (a) Seizure of mobile phone of Sony Ericson company (Article A) from accused No.2 after he was arrested and recovery of handsfree mobile (Article B) recovered at the instance of the accused No.1. Recovery of scale (patti) (Article M) from the shop “Dukhharan General Stores” and it was used to kill Ratan. (b) Recovery of blood stained clothes of the accused from 5 cri.appln-847-10.doc their houses and the C.A., report at Exhibit 100 which indicated that these clothes like T-Shirt, underwear, full pant, full shirt, sholder back, right foot chappel were all stained with human blood and the accused failed to offer any explanation in that behalf. (c) Location and identification of the place where the dead body of Ratan was shown by the accused and proved by the evidence of P.W.,21-Nigudkar, P.W.-3-Hitrendra Katkar. The spot panchnama at Exhibit 21 indicated that the place where the dead body was found was at a distance of half kilometer on a hill in a dense forest going towards Tungareshwar Devsthan and towards right side of Tunareshwar road after crossing two rivers and near a dry nala. (d) Extra judicial confesions made by the accused to three witnesses i.e. P.W.7-Dr. Pratap Daya Anand, P.W.9-Mahesh Mandavkarand and P.W.10-Pradip Rane. (e) The telephone calls made by the accused No.1 to the decesed on 11th October, 2008 as well as on 12th October, 2008 6 cri.appln-847-10.doc at about 10.30 a.m. from the Andheri area. (f) The number of the cell with the deceased was 9819532335 whereas the father had cell No.9819731605. (g) The telephone call received by the complainant on his cell No.9819731605 from Vasai on 12th October, 2008 at 1.43 p.m., telephone call made from Chitale Path, Near Portugese Church, Dadar West on 13th October, 2008 at 11.54 a.m and 11.57 hours, telephone call at 8.03 p.m. made to the complainant from Jawahar Nagar, Khar (E) and the telephone calls made on 14th October, 2008 at about 10.27 a.m., from Persian Society, V.P. Road, Andheri West, Telephone calls made from Sakinaka, Andheri East at 11.10 a.m., from Behram Pada, Bandra West at 2.09 p.m., at 2.53 p.m. and 2.54 p.m. from Opp. Turner Road, Bandra (W), at 3.15 p.m. from Kala Nagar, Bandra East, at 9.13 p.m. from Seepz, Andheri, at 9.46 p.m. from behind Government Polytechnic, Khar, at 12.53 p.m., and so on and so forth till 14th October, 2008 and some of these calls were from the cell phone number of accused No.2 i.e. Cell No.9820929597. The Nodal Officer Shri Changdev 7 cri.appln-847-10.doc Godse P.W.18, from Vodafone Company was examined before the trial Court. (h) The identification of both the accused by Mohan Prabhu, P.W.11, the Manager of S.S. Wines and Shri Presh Rathod, P.W.20, an autoriksha driver. 5. Having given our anxious considerations to the arguments advanced by Mr. Gupte and the medical report, of accused No.1, as relied upon by Mr. Gupte and further the arguments of Mrs. Deshmukh, the learned A.P.P., we are satisfied that no case has been made out to suspend the order of sentence under Section 389 of Cr.P.C., and releae the applicant on bail. Hence the application is rejected. (U. D. SALVI, J.) (B. H. MARLAPALLE, J.)