AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.839 OF 2010 IN CRIMINAL APPEAL NO.269 OF 2009 Ganesh Jayling Gunjawane. ... Applicant Vs. The State of Maharashtra ... Respondents Mr. Shirish Gupte i/b Ujwal Aagandsurve for the applicant. Mr. H.J. Dedhia, A.P.P. for the State. CORAM: MRS. RANJANA DESAI & MRS. V.K. TAHILRAMANI, JJ. DATED : 27TH JULY, 2010. P.C.:- 1. The applicant – accused 1 was tried along with one other i.e. original accused 2 for the offences punishable under Sections 365, 364-A, 368 and 384 read with Section 120-B of the Indian Penal Code (for short, “the IPC”) by AJN 2 learned Sessions Judge-1, Pandharpur in Sessions Case No.4 of 2007. Original accused 3 being a juvenile, his case was sent to juvenile court. By judgment and order dated 31/1/2006, the applicant was inter alia convicted for the offence punishable under Sections 364-A read with Section 120-B of the IPC and sentenced to life imprisonment and to pay a fine of Rs.10,000/-, in default, to suffer further imprisonment for a period of six months. 2. The appeal filed by the applicant has been admitted. This is his application for bail. 3. The case of the prosecution appears to be that the complainant who is a Government contractor lives in Pandharpur along with his family. Admittedly, the applicant is related to him. According to the prosecution, on 26/8/2006, the complainant, who had gone to Tulzapur along with his wife, son Akshay and, Vinod – son of his brother-in-law reached Pandharpur at about 6.00 p.m. The complainant, his wife and Vinod were sitting in the AJN 3 house and his son Akshay had gone to play with his friends outside the house. After 15 minutes, the children who were playing outside came and told the complainant that his son Akshay had been taken away on the motorcycle by pressing his mouth. One girl by name Rohini told him that two boys had kidnapped Akshay on motorcycle. The complainant, then lodged complaint with the police. In the night, the complainant received a phone call asking for ransom amount of Rs.10 lakhs. The complainant was told that if he pays the amount of Rs.10 lakhs in the morning at Kolhapur, his son would be released. The phone call was received from Sangli - Kolhapur area. The complainant, then collected an amount of Rs.10 lakhs and went to the police station. The police laid trap at the place indicated by the callers. Two persons came on motorcycle along with a small child i.e. Akshay. Complainant gave them amount of Rs.10 lakhs and those two persons gave custody of child Akshay to him. At that time, police arrested those two persons. They were accused 2 and 3. On the complaint dated AJN 4 26/8/2006 filed by the complainant, investigation started and on completion of the investigation, the applicant came to be tried and convicted as aforesaid. 4. We have heard Mr. Gupte, learned senior counsel for the applicant at some length. We have also heard learned A.P.P. for the State. 5. It is pointed out to us by Mr. Gupte that witnesses 1, 2, 4, 5, 14, 21 and 23 have turned hostile and none of the eye witnesses have implicated the applicant. The evidence of PW-8 Rohini Mirajkar is crucial. She is the person who claims that she had seen Akshay being kidnapped by the accused on motorcycle. In the court, she identified accused 2 and 3 as the persons who had kidnapped Akshay. The next important witness is PW-9 Irfan Mahmud Mujawar who is a pancha to the scene of offence panchanama (Ex-55). He was present when accused 2 and 3 were arrested. He identified them in the court. According to PW-9 Irfan Mujawar, after accused 2 AJN 5 and 3 were arrested, a telephone call came on mobile of accused 2. After that call, there was some discussion between the police officers and thereafter, PSI Shinde told him and other pancha to come with them. Then, all of them came to a lake known as Jaysingrao Talav at Kagal. The applicant was found there. The police seized mobile from him because the telephone call was received by accused 2 from the said mobile. According to PW-9 Irfan Mujawar, the police enquired as to why he was standing there, to which, the applicant replied that his two colleagues were to come there after receiving the amount after accomplishment of the work. The police seized mobile phone from the applicant. Presence of accused 1 near about the place where accused 2 and 3 were arrested and the fact that on mobile phone of accused 2, call of the present applicant was received, are the circumstances which are taken against the applicant by learned Sessions Judge. Learned Sessions Judge has observed that though the applicant never figured at any of the occasions during the entire episode, still he was AJN 6 present near about the place of incident. Learned Judge has relied on the statements made by accused 2 and 3 that kidnapping was done as directed by the applicant. However, admittedly the applicant was not party to the actual kidnapping of Akshay. Prima facie, at this stage, we feel that this evidence may not be sufficient to indicate complicity of the applicant in the incident in question. His case definitely stands on a different footing that of the case of accused 2 and 3 who have been identified by PW-8 Rohini. It is pertinent to note that the applicant was on bail during the trial, hence, in our opinion, he should be released on bail. Hence, the following order : O R D E R 6. The applicant – Ganesh Jayling Gunjawane is ordered to be released on bail in the sum of Rs.30,000/- (Rupees Thirty Thousand only) with one or two sureties to make up the said amount. The applicant shall report to AJN 7 Pandharpur Police Station once in a month till disposal of the appeal. 7. The application is disposed of. [MRS. RANJANA DESAI, J.] [MRS. V.K. TAHILRAMANI, J.]