1 5.APPA.1435-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1435 OF 2010 IN CRIMINAL APPEAL NO.393 OF 2009 Majhar Nashir Shaikh. ..Applicant. Vs. The State of Maharashtra. ..Respondent. .... Mr.Khan Abdul Wahab, Advocate for the Applicant. Mr.J.P. Yagnik, A.P.P. for the State. .... CORAM : A.M. KHANWILKAR AND A.R. JOSHI, JJ. DATED : 07TH JANUARY, 2011. P.C. 1. Heard learned Counsel for the Applicant and the learned A.P.P. for the State. 2. Applicant is the original accused No.4. He has been convicted for the offences punishable under Sections 120-B, 364-A r/w.120-B, 365 r/w. 120B, 368 r/w. 120B, 395 r/w. 397, 387 r/w. 120-B of Indian Penal Code (IPC) and Section 3 r/w. 25 r/w. 35 of the Arms Act and Sections 2(1)(d), 3(1)(ii), 3(2) and 3(4) of the M.C.O.C. Act. 3. Insofar as the offences, other than Section 364-A of IPC, are concerned, the Applicant has been sentenced to undergo rigorous imprisonment for a period of seven years. Insofar as the punishment for offence under Section 364-A of IPC is concerned, he has been ordered PPD 2 5.APPA.1435-10 to undergo rigorous imprisonment for life. Admittedly, the Applicant is in jail since 28th December, 2004. In this backdrop, the first argument of the Counsel for the Applicant, is that the finding of guilt against the Applicant for the offence punishable under Section 364-A of IPC cannot be sustained either on facts or in law and if that finding was to be reversed or is considered as doubtful for the purpose of considering prayer for bail, for the other offences the Applicant has been sentenced to undergo rigorous imprisonment for a period of seven years only and out of which he has substantially undergone the said period since 28th December, 2004. 4. Insofar as the finding with reference to Section 364-A is concerned, the same is assailed on the argument that the trial Court has discarded the audio-cassettes as well as the confessional statement of the accused. Besides, the evidence regarding laying of trap and lodging report is also not forthcoming as has been observed by the trial Court. He further submits that interception of the telephone has also not been proved as is noted by the trial Court. According to him, the trial Court has not properly analyzed the evidence which has come on record, but has jumped to the conclusion that the Applicant/accused No.4 was guilty of offence of kidnapping for ransom-which can be seen from the reasoning given in para-55 of the impugned judgment. He submits that even that finding is of no consequence for considering the offence 3 5.APPA.1435-10 under Section 364-A of IPC. 5. The above argument though seems to be attractive, is devoid of any merit. In the first place, we would like to keep on record that accused No.1 has also filed Appeal against conviction before this Court being Criminal Appeal No.438 of 2009. Accused No.1, who is charged for the same offences and has been held guilty along with the Applicant (accused No.4), had also preferred application for bail being Criminal Application No.511 of 2009. The same has been rejected by a speaking order dated 10th July, 2009 by the Division Bench (Coram: Smt.Ranjana Desai & Shri. R.G.Ketkar,JJ.). Indeed the argument which is canvassed before us was not pressed into service by accused No.1. As aforesaid, the argument though seems to be attractive, is devoid of any merit. Even if the confession as well as the evidence regarding audio cassettes has been discarded by the trial Court or for that matter no evidence about laying trap and lodging report is forthcoming, similarly the evidence regarding interception of telephone is deficient in some respect, that does not take the matter any further. 6. We find from the evidence of PW-2 which has been accepted by the trial Court and is unquestionable. It is amply clear that he has spoken about the fact that he was kept in illegal detention by the four accused under threat of pistol and dangerous weapons. Besides, he was made to record his statement on audio cassette and was also 4 5.APPA.1435-10 forced to talk with his father and convey that whatever amount is demanded by the accused persons be paid else they would kill him. The said PW-2 has identified accused No.4 amongst other accused and has also spoken about the overt act committed by the Applicant before us. The evidence of PW-2 being substantive evidence cannot be overlooked or discarded on the peripheral argument canvassed before us in respect of deficiencies alluded to earlier. 7. In our opinion, this is not a case for grant of bail, more so, when the offence is of serious nature for which the Applicant has been found guilty. Accordingly, this application should fail and the same is rejected. 8. At this stage, learned Counsel for the Applicant submits that since the Applicant has already undergone around six years of imprisonment, at least hearing of Appeal be expedited. We have no difficulty in acceding to this request. It will be open to the Applicant to file private paper book if he so desires and if the appeal is ready in all respect, the same shall proceed for hearing under caption : "Convicts in Jail" as per its turn which is already an expedited category of cases as per the present assignment. (A. R. JOSHI, J.) (A. M. KHANWILKAR, J.)