1 APPA490.11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.490 OF 2011 IN CRIMINAL APPEAL NO.295 OF 2011 KJ Shekhar Pandurang Keer )..Applicant Vs. The State of Maharashtra )..Respondents ---- Ms.Ameeta Kuttikrishnan for the applicant. Mr.P .S.Hingorani APP for the State. ---- CORAM : NARESH H. PATIL & MRS.MRIDULA BHATKAR,JJ DATE : 13/6/2011. PC 1 Heard learned Counsel for the applicant and learned APP for the State. 2 The applicant was convicted and sentenced for the offences punishable under Sections 363, 364, 302 & 201 of IPC in Sessions Case No.589 of 2007 by the Additional Sessions Judge (Borivali 2 APPA490.11.sxw Division) Dindoshi, Goregaon, Mumbai. 2 Briefly stated, the prosecution case is that the applicant kidnapped three year old daughter of PW-1 Laxman Lingaya Antathi on 6.4.2007 and committed her murder and threw the dead body in a gutter at Nala-sopara, Dist. Thane. The father of the girl viz. PW-1 Laxman Lingaya Antathi filed a complaint to the police. Dead body of the child was recovered from the drainage and was sent to J.J hospital for post mortem. Nala sopara police station registered offence on 8.4.2007 and thereafter FIR was transferred to Goregaon police station on 9.4.2007. Crime No.258 of 2007 was came to be registered. Investigating officer thereafter started investigation. Panchanama of scene of offence was drawn. Photograph of dead body of the girl was taken. The applicant/accused came to be arrested on 21.4.2007. It is the case of the prosecution that at the behest of the accused, place of offence was pointed out. Police went to the house of the applicant at Nala-sopara from where the clothes on the person of the child were recovered at the instance of the accused and panchanama 3 APPA490.11.sxw was prepared and after collecting the necessary evidence, the police filed a charge-sheet in the court of Additional Chief Metropolitan Magistrate, Mumbai for offences punishable under Sections 363, 364, 302 & 201 of IPC. 3 The respondent/State places heavy reliance on the evidences of PW-1 father Laxman Lingaya Antathi, PW-6 Walmiki Govind who claims to have seen the applicant carrying the child on his shoulder on 7.4.2007 while he was sitting on ota in front of his house as there was no electric supply in the vicinity. He noticed one dark complex person passing from the side of his house while carrying one minor girl on his shoulder. The prosecution further places reliance on the evidence of PW-8 Medical Officer Dr. Mahadeo Eknath Bansode who conducted post mortem and PW-10 Anand Manohar Nerurkar, Investigating officer, along with other witnesses. 4 Learned Counsel for the applicant submits that the entire case is based on circumstantial evidence. The prosecution has 4 APPA490.11.sxw failed to establish motive. The case is based on mere suspicion. There is no positive evidence against the applicant to involve in the crime. The applicant examined himself on oath. Learned Counsel further submitted that identification parade carried out by the police is not worth reliable. There are serious deficiencies in conducting the parade as the photograph of the applicant was already shown to the witness before the parade was conducted. 5 Learned APP submitted that there is a strong evidence of the applicant last seen together with the deceased. There is a evidence of recovery of clothes. There are antecedents against the applicant and he is a habitual offender and considering the evidence brought on record by the State, the application deserves to be rejected. 6 We have perused the copies of depositions, relevant observations made by the learned Judge while deciding the case. The evidences of PW-1 Laxman Lingaya Antathi, PW-8 Dr.Mahadeo Eknath Bansode and PW-10 Anand Manohar Nerurkar, are very material for considering the bail application. We have perused the 5 APPA490.11.sxw evidence of PW-6 Walmiki Govind More who claims to have last seen the applicant along with the child. In his cross-examination, the witness deposed in the following manner :- “ I do not possess license for carrying the above stated hawking business but Tata Yuva Survey had issued document thereto. It is not true that there was complete dark hence one was not in a position to witness object or person present in proximity. The minor girl who was with the above stated person has wore pink colour frock. It is not true that the accd. along with the minor girl never had been at my house; did not demand glass of water ; no water was served to him; he was not in sweating still then I deposed false thereto. On the date of my statement recorded by the I.O photo of the accd was shown to me after supplying his description. Its true that as the photo of the accd was shown to me on 11.4.07 in the P. Stn., I identified him in TI parade held at Thane jail.” 7 The Medical Officer opined that after receiving final report from the Chemical Analyser, final cause of death is “smothering with non-accidental Endosulphan poisoning”. According to the Doctor, the death was un-natural. The injuries on the dead body were mainly abrassions. 8 PW-10 Anand Manohar Nerurkar is the Investigating officer. 9 Prima facie, we find that the case is based on circumstantial 6 APPA490.11.sxw evidence. The prosecution has failed to establish motive for commission of the crime. Much reliance is placed on the evidence of PW-6 Walmiki Govind More in respect of applicant last seen with the child. Considering the quality of evidence, in its entirety, we find that the applicant has made out a case for bail. It was stated that the applicant was on bail during the trial. There is no adverse material brought on record in respect of his jumping the bail conditions. His presence was secured at the time of trial. Therefore, considering all these facts and circumstances, by putting some stringent conditions, we are inclined to release the applicant on bail. Hence following order. ORDER 1 Application is allowed. The applicant Shekhar Pandurang Keer be released on bail in the sum of Rs.20,000/- with one surety in the like amount ; 2 The applicant shall attend the Goregaon police station once in a month and maintain the record of his attendance ; 7 APPA490.11.sxw 3 The applicant is directed not to contact any of the prosecution witnesses. In case, the prosecution finds that the applicant has flouted the conditions imposed by this Court, then the prosecution is entitled to file application for cancellation of bail; 4 The applicant shall furnish his address, telephone number, if any, to the concerned police station. 5 Application stands disposed of accordingly. (MRS.MRIDULA BHATKAR,J) (NARESH H.PATIL,J)