NADEEM SHAIKH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The applicant-accused along with seven others is convicted by the 3rd Ad Hoc Additional Sessions Judge by his judgment and order dated 5th June, 2009 for offences punishable under sections 302, 364-A, 344, 386, 201 read with section 120-B or in the alternate under section 120-B, 363, 364-A, 365, 344, 386, 302, 201 read with section 34 of Indian Penal Code and was sentenced respectively under the said sections.

(2.) The applicant/original accused No. 4 who is undergoing sentence of life imprisonment has filed this bail application. The applicant/accused along with other accused had kidnapped a minor boy namely Raj on 18th November, 2003 when he was going to school. They demanded a ransom amount of Rs. 5,00,000/- from his parents who are P.Ws. 1 and 2. A missing complaint was lodged by the parents of Raj on the same day and offence of kidnapping was registered at C.R. No. 20 of 2003 under sections 363 and 385 of the Indian Penal Code at R.A.K. Marg Police Station. However, Raj was not traced by the police. The police arrested the accused on 4th March 2004 and 5th March 2004. On 7th March 2004 body of Raj was discovered from a dry well in pursuance of the disclosure made by the applicant/accused. The dead body of Raj was buried in a dry well and the decomposed dead body which remained in the form of a skeleton was sent for post-mortem examination. Clothes were also found worn on the dead body. The police investigated the offence and filed a charge-sheet against the applicant/accused and other accused. The learned Judge of the Sessions Court tried the accused and the trial was concluded in conviction.

(3.) Mr. Mooman, learned Counsel appearing for the applicant/accused submitted that the learned Judge of the trial and Sessions court has erred in appreciating the evidence and has not considered the lacunae in the evidence of the prosecution. He has submitted that the accused is having very good case on merits and has good chances of acquittal at the final disposal of appeal and he should be released on bail. He submitted that the applicant/accused does not have any criminal antecedents. He has further submitted that neither the skeleton of the deceased nor the clothes on the skeleton were identified by Kunjbihari Agarwal the father P.W. 1 and Aarti Agarwal the mother P.W. 2 of Raj. He has submitted that the report of D.N.A. test is not in favour of the prosecution and Dr. Negi who was prosecution witness and who was examined as an expert for DNA test has given admissions in his evidence that bone samples of the skeleton does not match with the blood samples of mother. He has further submitted that there is positive evidence of Dr. Devinder Singh Negi P.W. 30 that the body/ skeleton which was found was not the biological offspring of Aarti Agarwal. He submitted that Dr. Negi was not declared hostile so though his evidence is accepted as it is, it does not establish nexus between the body found and identity of missing Raj. He has further pointed out that in view of the admissions given by Dr. Harish Pathak P.W. 22 the evidence of digital super imposition of skull is also not reliable. He argued that both the parents P.W. 1 and P.W. 2 of Raj refused to identify the clothes of the accused and police could not make progress in investigation for long time and only after filing of a writ petition in the High Court by father of Raj police started investigating and they framed the accused. He has further pointed out that co-accused Nos. 1 to 5 and 7 were released on bail on 19th December, 2009 by the Division Bench presided over by Justice J.N. Patel.