1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1254 OF 2009 IN CRIMINAL APPEAL NO. 743 OF 2009 Govind Ramchandran Shinde ...... Applicant (Orig. accused No.7) Vs. The State of Maharashtra ...... Respondent Mr.Majid Memon i/b Majid Memon and Associate for the Applicant/Appellant Ms. A.S. Pai APP for the Respondent-State AND CRIMINAL APPLICATION NO. 928 OF 2009 IN CRIMINAL APPEAL NO. 789 OF 2009 Sayed Aslam Sayed Jafar & 2 Ors ...... Applicants/Appellants (Orig. accused Nos.1,2 and 5) 2 Vs. The State of Maharashtra ...... Respondent Mr. Khan Abdul Wahab for the Applicants Ms. A.S. Pai, APP for the Respondent-State CORAM : J.N. PATEL, Acg.C.J., & A.A. SAYED, JJ. DATE : 19TH DECEMBER, 2009. PC: 1. The above Applications have been filed by the Applicants for bail/suspension of sentence. The Applicants were arrested by DCB CID Unit IV, Mumbai, alongwith other accused persons and were prosecuted for offences punishable under section 120-B, 363, 364-A, 365, 344, 386, 302 r/w section 34 of the Indian Penal Code and were convicted for life by Judgment and order dated 5th June 2009 passed by the 3rd Ad-hoc Additional Session Judge, Sewree, Mumbai. 2. The case of the prosecution in brief was that the complainant Kunjbihari Bhajanlal Agarwal, a hotelier and financer, was residing with his family consisting of his wife Aarti and only son Raj at Dimple Apartment, Parel, Mumbai. Raj was about 14 years of age and was studying in Standard IX in 3 Dadar Parsee Youth Assembly High School. On 18-11-2003, Raj left for school at about 7 a.m. but did not return home after attending school. At about 2 p.m. some unknown persons called on the residential line and informed her that her son Raj was in their custody and demanded ransom. A missing complaint came to be lodged with R.A.K Marg Police Station, which was treated as FIR and crime was registered vide C.R. No. 232/2003 on 18-11-2003 for offences under section 367 and 385 of IPC. Investigation of the case was thereafter made over to DCB CID on 20-12-2003 and another Crime No. 101/2003 was registered under section 363, 364-A, 302, 342, 201 r/w section 120-B of IPC. 3. We have heard the Ld. Counsel for the Applicants and the Ld. APP for the Respondent-State and scanned the evidence led before the Trial Court. 4. We note that the Applicants were arrested after a period of about 3 ½ months from the date Raj was found missing, after the ACP Kadam of DCB CID Unit IV, has allegedly received some secret information. According to the prosecution, the skeleton which was recovered by the police after more than 3 ½ months at Dhaund, Pune, at the instance of Accused No. 4 Nadeem Shaikh, was that of Raj. However on perusal of the evidence, we find that PW 30 Devindar Singh Negi, who was examined by the prosecution as an expert witness in the field of DNA tests, has not supported the case of the prosecution. In his deposition, this witness has stated that DNA examination is mainly conducted to establish paternity and maternity of any person, living or dead and that it is a scientifically conclusive test. He has stated that a letter dated 16-03-2004 was received from DCB CID Unit No. IV, Mumbai addressed to CDFD (Centre for DNA Fingerprinting and Diagnotics) Laboratory, where 4 he is working, to conduct DNA test on blood samples of Kunjbihari Agarwal and Aarti Agarwal, and the bone of the deceased and to give an opinion about the paternity and maternity of the dead body. In his deposition he has further stated as follows: “The result of my examination is that DNA of Exh. B bones does not match with the DNA profiles of the sources Exh. A Smt. Arati Agarwal and Exh. C Sri Kunjbihari Agarwal. The DNA test conclude that the Exh B bones is not from Bilogical offspring of the sources of Exh. A Smt. Arati Agarwal and Exh. C Shri Kunjbihari Agarwal”. 5. It must be stated that here that later on i.e. after about 2 ½ months, vide letter dated 28-05-04, DCB CID, Unit IV, Mumbai, made another request to the aforesaid Laboratory to conduct test and establish the likelihood of ‘paternal pattern’ of the deceased to Shri Kunjbihari Agarwal. The result of examination concludes that source of Exh. B bones is biologically related to the source of Exh. C Shri Kunjbihari Agarwal. This witness has however in his cross examination stated that in the 2nd DNA report, it is mentioned in the conclusion that bone is not from biological offspring of Exh. A Smt. Aarti Agarwaal and Eh. C Shri Kunjbihari Agarwal. He has further stated in his cross that Smt. Aarti Agarwal is not the mother of bone samples which were sent for analysis and that similarly Mr. Kunjbihari is not the biological father of the bone samples. This witness has further stated in his cross examination that for deciding the paternity and maternity of the dead person, 1st DNA report Exh. 134 was complete. 6. If primafacie the identity of the dead body/skeleton is in doubt, can the Applicants be said to be the authors of the crime? In other words, if the 5 prosecution has not been able to establish that the dead body/skeleton which was recovered was that of Raj, can the Applicants be said to be responsible for the death of Raj? Considering the facts and circumstances of the case, in our prima facie view the prosecution has failed to prove the identity of the dead body/skeleton. 7. The Ld APP has pointed out that besides the DNA test, a “Digital Superimposition Photo Examination” was conducted by PW-22 Dr. Harish Pathak, which establishes the identity of the deceased. We have gone through the evidence of this witness. We prima facie find that it was only when the DNA test were found to be negative in establishing that the dead body/skeleton was the offspring of the Kunjbihari and Aarti Agarwal, that the police authorities have sought the opinion of PW-22 to get over the DNA findings. We are further of the prima facie view that PW-22 cannot be said to be an authority or an expert in the field as on his own admission, he has taken training only in the form of a Seminar attended by him for 5 days. The authenticity of the tests conducted by him cannot be said to be reliable. In any event in the teeth of a DNA test which gives conclusive results, the result of a “Digital Superimposition Photo Examination” which compares the photograph of the actual skull and a photograph of the subject using scanning faciltities and computer software, can hardly lend support to the case of the prosecution. Infact this witness in his deposition has himself stated that this technology has very high degree of “probability”. 8. Pertinently, Kunjbihari Agarwal, the father of the missing boy Raj, had himself filed a writ petition in the Court being Criminal Writ Petition No. 394 of 2004, 6 wherein he claimed that the skeleton which was seized by the police was not of Raj and prayed that the investigations be transferred to CBI. We are informed that even as of date, the parents have not claimed the dead body/skeleton alleged by the prosecution to be that of Raj. 9. In the circumstances aforestated, we are inclined to grant bail and suspend the sentence of the Applicants in the above Applications. We therefore pass the following order: ORDER (1)The applicants be released on bail by suspending their substantive sentence on their furnishing PR Bond in a sum of Rs. 25,000/- with one solvent surety in the like amount. (2)The applicant in Criminal Application No. 1254 of 2009 shall attend Daund Police Station (Rural), Pune and the applicants in Criminal Application No. 928 of 2009 shall attend R. A. Kidwai Marg Police Station, Mumbai, on every alternate Monday between 10 am and 12 noon, for a period of one year and thereafter on the 1st Monday of every month. They shall maintain a pocket diary in respect of their attendance. (3)During the pendency of the Appeal, they shall not commit any offence. 7 10. Both the Applications to stand disposed of. Sd/- (J.N. Patel, J) Sd/- (A.A. Sayed, J)