1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.366/2011 IN CRIMINAL APPEAL NO.740/2009 Kuldeep Santosh Upadhyay APPLICANT VS. STATE OF MAHARASHTRA RESPONDENT Mr.Nitin Pradhan i/b Ms.S.D.Khot and Ms.Ameeta Kuttikrishnan for applicant Mr.J.P.Yagnik,APP for State CORAM: NARESH H.PATIL & MRS.MRIDULA BHATKAR,JJ. DATE-9TH JUNE,2011. P.C. . Heard. 2 The applicant is the original accused no.2 in Sessions Case No.351/2006, wherein the applicant alongwith other two accused were convicted by the Additional Sessions Judge,Pune vide judgment and order dated 22.5.2009. The original accused no.4 is stated to be a juvenile. The proceedings in respect of the said accused was separated. 2 3 The prosecution alleges that the prosecution witness no.2 Puneet Sanghvi and accused no.1 Madan Singh were studying in 12th standard in Godawari Hindi Vidyalaya,Chinchwad. Puneet is the son of P.W.1 Dilip Singh who is working as Audit Section Manager in Force Motor Ltd.. Dilip Singh was residing alongwith his wife and two sons namely Puneet and Harshit. Both his sons were studying in the same school. On 29/9/2005 there was parents meeting in the above referred school. Dilip Singh attended the school in the morning. 4 It is alleged that Puneet (P.W.2) was about to leave the school. At that time one of his friends Madan Singh (accused no. 1) called him from the school gate and requested Puneet to come to his residence to teach him accountancy. Initially Puneet was not inclined to go alongwith him,but on persistent requests Puneet had been to the house of Madan Singh (accused no.1). After reaching his house Puneet noticed that accused Manojkumar and juvenile accused were already present there. Madan introduced Puneet to them. Puneet was there till 2 to 2.30 p.m.. Thereafter he expressed his desire to go home. At that 3 point of time accused Madan told Puneet that he will drop Puneet on his brother’s motorcycle and asked him to wait till the arrival of his brother. Puneet and Madan came out of the house and were waiting for the arrival of Madansingh’s brother. It is alleged that at that point of time all of sudden accused Madan pressed mouth of Puneet and dragged him. Puneet noticed that accused Mahendra and Manoj were holding revolver, cookri and knife respectively. They pointed weapons at Puneet and threatened him to kill in case he would attempt to shout and told him that they had kidnapped him as they wanted money from his father. The accused persons asked the mobile number of Puneet’s father. Puneet gave mobile number of his father. Then cello tape was applied to the entire face of Puneet. His hands were tied. 5 It is alleged that in the evening at 5.30 p.m. accused Kuldip came there.He also pointed out revolver at Puneet and told him that for sake of money they have abducted him and asked the telephone number of his father. It is alleged that Puneet was confined in that room up to 3/10/2005. During that period they contacted father of Puneet from time to time and 4 demanded Rs.20 lacs for releasing Puneet. It is alleged that P.W. 1 Dilip Singh informed the police on 29/9/2005 when he received the first call of abduction for Rs.20 lacs as ransom. A complaint was lodged with P.I. Deore (P.W.14). Crime was registered at C.R.No.377/2005 under sections 364-A r/w section 34 of the Indian Penal Code, 3 (25) of the Arms Act and 37(1) r/w section 135 of the Bombay Police Act. It is alleged that on 3/10/2005 early in the morning the brother of accused Madan rescued Puneet. Puneet came back to his house. Police started investigation, recorded statements of witnesses and after concluding the necessary investigation filed chargesheet against the accused. 6 By judgment and order dated 22/5/2009 in Sessions Case No.351/2006, learned Additional Sessions Judge,Pune convicted and sentenced the accused persons for the respective offences. 7 Learned counsel appearing for the applicant prayed for grant of bail pending the hearing and final disposal of the Criminal Appeal no.740/2009 which was admitted by this Court 5 on 28/7/2009. Learned counsel submitted that from the evidence on record offence under section 364-A is not made out. The applicant was not aware of the acts of other accused persons in bringing Puneet to the place of confinement. Evidence of P.W.2 Puneet demonstrates that the applicant did not cause any harm to him, neither put P.W.2 or his father under threats of death or hurt in case ransom amount as alleged by the prosecution was not paid. There was no common design wherein Kuldeep participated alongwith the other accused persons. Learned counsel further submitted that the conduct of the father of Puneet was not natural. There are deficiencies and lacunas in the prosecution case. The material witnesses like the brother of accused Madan who allegedly released Puneet was not examined. Learned counsel placed reliance on the statements of witnesses and objects of section 364-A of the Indian Penal Code and the law reported in that behalf. Learned counsel urged that in the light of (1977)3 Supreme Court Cases 287, the applicant being of very young age at the time of commission of offence, could be released on bail by this Court. 8 Learned A.P.P. submits that there is a strong prima 6 facie case against the applicant. His voice has been recorded while demanding money. Thrice phone calls were made to the father of Puneet demanding money. There is prompt information and complaint lodged to the police, no sooner father of Puneet received phone call. The cassette recording voice of Puneet was recovered and proved. The evidence of P.W.12 which is significant in the case considering the seriousness of the evidence, learned A.P.P. submitted that pending the hearing and final disposal of the appeal, the bail application deserves to be rejected. 9 The bail application filed by accused no.3 in Appeal no.741/2009 was rejected by this Court. 10 We have considered the submissions advanced by the respective counsel , documents placed before us and depositions of the witnesses. We find that the prosecution has made out strong prima facie case against the applicant. Voice of the applicant has been recorded by the police and cassette in that behalf was recovered and produced on record. Thrice phone calls were made to the father of Puneet for demanding money. 7 There is prima facie evidence in respect of the charges levelled against the applicant. The learned trial Judge has discussed the evidence in detail and arrived at finding against the applicant- Kuldeep. 11 The accused have filed three appeals respectively bearing nos.738/2009 (by accused no.1), 740/2009 (by accused no.2), and 741/2009 (by accused no.3). 12 The Registry informs that in Criminal Appeal No. 741/2009 three bail applications were filed,out of which Criminal Bail Application no.1089/2010 and 558/2010 were withdrawn and Criminal Bail Application no.1434/2010 filed by accused no.3 was rejected. 13 In the light of the aforesaid facts and reasons we are not inclined to grant bail to the applicant. The Application stands rejected. The Division Bench (Mr.Justice A.M.Khanwilkar and Justice Mr.Bhangale) dealing with Bail Application No. 8 1434/2010 has already observed in respect of final hearing of the matter. Registry to take note that all these appeals be heard jointly. (MRS.MRIDULA BHATKAR,J.) (NARESH H.PATIL,J.)