IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 496 OF 2009 CRIMINAL APPLICATION NO. 496 OF 2009 CRIMINAL APPLICATION NO. 496 OF 2009 Sarvar Alam Hasan Razak Khan ...Applicant vs. The State of Maharashtra ...Respondent Mr.Amin Solkar for the Applicant. Mrs.M.H. Mhatre, APP for the State. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : MARCH 16, 2009 DATED : MARCH 16, 2009 DATED : MARCH 16, 2009 P.C. :- P.C. :- P.C. :- 1. Heard Counsel for the applicant and APP for the State. 2. The applicant has been arrested in connection with an offence punishable under Sections 302, 201, 395, 364, 120B of the IPC. 3. Prosecution case is that deceased Mohammed Asad Raees Ahmed Shaikh and Shadaab Ahmed Faiyaz Ahmed Khan were involved in the purchase of selling landed properties. The prosecution case is that on 22nd January, 2007, they left the house, however, they did not return home. Initially, a FIR was lodged on 25th - 2 - January, 2007 and there was suspension that they were kidnapped. One Nasir Ahmed Abbasali Shaikh @ Guddu was detained by the police on 3rd February, 2007. He was released on bail on 9th February, 2007. During the course of investigation, a deaf and dumb witness was examined through the help of teachers of TMC School for Deaf and Dumb and thereafter, on 13th March, 2007, one Chinka Prasad Soni was arrested and his statement was recorded under Section 27 of the Evidence Act and he showed the place where the bodies of the said two persons was buried. Accordingly, decamped bodies of the two persons were recovered. Again recovery of spade was made at the instance of the said Chinka Prasad Soni. Imran, brother-in-law of Nafees was arrested on 16th March, 2007 and thereafter, the present applicant was arrested. 4. Shri Solkar, learned Counsel for the applicant submits that there is no material on record to implicate the present applicant. He submitted that there was no eye witness to the said incident. He submitted that there was no evidence to show that the applicant was - 3 - part of the conspiracy to commit the murder of the deceased. It was submitted that the applicant was residing as a tenant in the house owned by the main accused Nasir alias Guddu and he had no connection with the offence which was committed by the main accused. It is submitted that the entire case is based on circumstantial evidence and no recovery has been made at the instance of the present applicant. It was submitted that the trial court had taken into consideration the statement of the co-accused which is not admissible under the Evidence Act. 5. The learned APP appearing on behalf of the State, on the other hand, invited my attention to the statement of one Mohammed Azharuddin Haroon Shaikh who in his statement has stated that he had seen the two deceased persons entering the room of one Shabana and that the present applicant alongwith other accused went into the said room of Shabana and after sometime, he heard the word "Ya Alla Bachao". He, therefore, peeped from his window and found that the said shouts was coming from the guest room and all the three doors of - 4 - the said room was closed. He knocked the door of the said room and the accused Guddu enquired as to who had knocked the door and therefore, this witness told him that he had knocked the door. Further, he has stated that at about 10.30 in the night, Nafeez had told him to take the tempo home and do the work as told by the main accused Guddu. Accordingly, he took the tempo to his house and wooden boxes belonging to the present applicant were kept at the place which was directed by the said accused Guddu. He saw there was deep hole dug by someone. He enquired with the said accused Guddu why the said hole was dug, he abused him and asked him to mind his own business. It was, therefore, submitted by the learned APP that from the statement of the said witness, it was apparent that the applicant was last seen together with the two deceased alongwith other accused in the room of Shabana and thereafter, the shouts of some person were heard from the guest room. It was submitted, therefore, it was obvious that the present applicant and others had taken the deceased in the said guest room and then dead bodies were taken in the wooden boxes by the persons. It was submitted that - 5 - the applicant has actively participated in the commission of the said offence and there was sufficient material to show that the applicant was involved in the criminal conspiracy to commit the murder of the two persons. 6. In my view, the submission made by the learned APP for the State has to be accepted and in my view, the said material is sufficient to indicate the role played by the present applicant for the commission of the double murder of the two persons. Though there was no eye witness to the said incident, the circumstantial evidence clearly points unerringly that the applicant was involved in the commission of the said offence. Hence, no case is made out for grant of bail. The application for bail is rejected. 7. The trial is expedited. The trial court shall not be influenced by any observation made by this Court while deciding this application for bail since the observations are of prima facie nature. The Sessions Court shall decide the case, as expeditiously as - 6 - possible. If the trial is not over within a period of one year, liberty is granted to apply for a fixed date of hearing. (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)