AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.761 OF 2010 IN CRIMINAL APPEAL NO.272 OF 2009 Wasim Shakil Ahmed Mansoori & Anr. ... Applicants Vs. The State of Maharashtra ... Respondents Mr. Ashok Mundargi i/b Mr. Sanket Telang for the applicants. Mr. Rajesh More, A.P.P. for the State. CORAM: MRS. RANJANA DESAI & MRS. V.K. TAHILRAMANI, JJ. DATED : 5TH AUGUST, 2010. P.C.:- 1. The applicants - original accused 2 and 3 respectively, were tried along with one other – Hussain Kasim Shaikh, original accused 1 in Sessions Case No.573 of 2008 for offences punishable under Sections 342, 364-A, 385, 323, 504 and 506 read with Section 34 of the Indian Penal Code AJN 2 (for short, “the IPC”). By judgment and order dated 20/1/2009, learned Sessions Judge acquitted original accused 1 and convicted the applicants – original accused 2 and 3, inter alia, for the offence punishable under Section 364-A read with Section 34 of the IPC and sentenced them to suffer life imprisonment and fine of Rs.4,000/-, in default, to suffer rigorous imprisonment for one year. The applicants' appeal has been admitted. This is their bail application. For convenience, we shall refer to the applicants and the acquitted accused as per their description in the trial court. 2. At the outset, it must be stated that the applicants had earlier preferred a bail application which was withdrawn by them on 11/11/2009. In short, the case of the prosecution is that complainant Mohd. Jamil Shaikh had purchased one shaping machine in the year 2007. He came in contact with accused 1, who had two galas in Sarvodaya Mill Compound, Tardeo. Accused 1 had asked the complainant to keep his shaping machine in one gala. He told him that he would not AJN 3 charge any rent. Accordingly, the complainant kept his shaping machine in the gala of accused 1. Accused 2 and 3 were working with accused 1. 3. According to the prosecution on 27/12/2007 at 3.00 p.m., accused 1 demanded Rs.20,000/- from the complainant. When the complainant showed his inability to pay the said amount, accused 1 told him that he should forget his shaping machine. On 30/12/2007, in the absence of accused 1, the complainant had taken away the shaping machine from the gala of accused 1. On 31/12/2007 at about 3.30 p.m., the complainant had gone out for some work. When he returned home at about 8.00 p.m. his younger son Adil told him that at about 5.00 p.m., his elder son Atif was kidnapped by accused 2 and 3. The complainant tried to contact accused 1 but his phone was switched off. The complainant phoned accused 3 but accused 3 abused the complainant and told him that either he should pay Rs.20,000/- to him or forget the shaping machine. He also threatened that, otherwise, he would not AJN 4 spare his son Atif. The complainant then went to Nagpada Police Station and lodged his complaint. From the police station, along with PSI Aajgaonkar, he went to Survodaya Mill Compound. He found accused 2 and 3 standing in front of the door of the gala. The complainant identified both the accused. He went inside the gala. Atif, the son of the complainant was present there. After the statement of the complainant was recorded, the applicants and accused 1 were arrested. 4. We have heard Mr. Mundargi, learned senior counsel appearing for the applicants. He submitted that even if the prosecution case is accepted as true, at the highest, the accused can be said to be guilty of offence under Section 363 of the IPC and not under Section 364-A of the IPC. Counsel submitted that it is clear from the evidence of Atif, the son of the complainant that after the alleged kidnapping, the applicants took Atif to Tardeo Police Station and told him to give stolen property. If the applicants had the intention to kidnap Atif for ransom they would not have AJN 5 taken him to the police station. Counsel submitted that the fact that the applicants took Atif to the gala of the accused 1 where the complainant had kept his shaping machine and when the complainant along with the police went there, the door of the gala was open and Atif was found inside the gala, militate against any inference that Atif was kidnapped for ransom. Counsel submitted that no ransom was demanded. The demand of Rs.20,000/- was towards the rent of the premises in which the shaping machine was kept. The complainant had not paid rent to accused 1 and removed the shaping machine without informing the complainant. Counsel submitted that the applicants were on bail during trial and, in the circumstances, they may be released on bail. 5. Mr. More, learned A.P.P., on the other hand, strenuously opposed the grant of bail. 6. Admittedly, the complainant had kept his shaping machine in the gala of the accused 1 situated at Tardeo. AJN 6 Prima facie, it appears to us that an offence under Section 364-A is not made out. A suggestion is put to the complainant PW-1 Mohd. Jamil Shaikh in his evidence that he had removed aluminum scraps from the gala of accused 1 on 30/12/2007 and, therefore, Tardeo Police had called his son Atif. It is pertinent to note that PW-2 Atif has admitted that on 30/12/2007, he and his father i.e. the complainant had removed the shaping machine from the gala of accused 1. He has, however, denied the suggestion that they had removed aluminum scraps without consent of accused 1. PW-2 Atif has admitted that accused 2 and 3 had taken him to the Tardeo Police Station and asked him to give back stolen property. He has, however, denied that he was called to Tardeo Police Station in connection with a theft case. If accused 2 and 3 wanted to kidnap PW-2 Atif, they would never have taken him to the police station and asked Atif to give stolen property as admitted by him. Besides, accused 2 and 3 would have taken Atif to an unknown place and not to the gala where the shaping machine was kept and which place was known to the AJN 7 complainant. It is pertinent to note that PW-2 Atif has admitted that when the police came, the door of the gala was open. If accused 2 and 3 had kidnapped PW-2 Atif and assuming for that purpose, they had brought him to the gala, they would not have kept the door of the gala open. Prima facie, the case of the complainant that the shaping machine was allowed to be kept in the gala of accused 1 free of cost, does not appear to be true and the demand for Rs.20,000/- appears to be in respect of the rent which he was supposed to pay to accused 1 for the gala. A suggestion was put to the complainant that he had orally agreed to pay the rent and electricity charges of the gala to accused 1, which he denied. But, prima facie, we feel that the denial is made to get out of the defence story that the amount of Rs.20,000/- which was demanded from him was the outstanding rent amount. It is true that PW-2 Atif has stated in his evidence that he was beaten up by accused 2 and 3 but PW-8 Dr. Khairmode has stated that the injury suffered by the deceased on his right leg was simple and was possible by attack with a wooden stick or by hand. In AJN 8 the circumstances, in our prima facie opinion, offence under Section 364-A is not made out. The applicants, who were on bail during trial, ought to be released on bail on imposing conditions on them. Hence, the following order. 7. The applicants – Wasim Shakil Ahmed Mansuri and Mohd. Imran Abdul Masjid Ansari are ordered to be released on bail in the sum of Rs.30,000/- each with one or two sureties each to make up the said amount. While on bail, the applicants shall report to the Nagpada Police Station once in a month. 8. Criminal application is disposed of in the aforestated terms. [MRS. RANJANA DESAI, J.] [SMT. V.K. TAHILRAMANI, J.]