Criminal Application No.1425 of 2009,Criminal Appeal No.772 of 2009

23rd March, 2010

Petitioner Counsel: H. E. MOOMAN
Respondent Counsel: Mrs. U. V. KEJRIWAL

JUDGMENT

Smt. MRIDULA BHATKAR, J.:- 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.

4. Mrs. U. V. Kejriwal learned A.P.P. has vehemently opposed the bail application. She has submitted that a skeleton was found at the instance of the applicant/accused from a dry well. She argued that while giving description of Raj his father and uncle have mentioned that Raj was using braces and braces were found on the teeth of the skeleton. She has further pointed out that the prosecution has examined school teacher of Raj and who has identified the school uniform having school mark as "D.Y.P.A." school. The learned A.P.P. submitted that though his parents have not identified clothes or the skeleton of Raj and these two factors have proved the identification that the said skeleton was of Raj. She has submitted that Dr. Negi has deposed in detail about the D.N.A test conducted by STR and YSTR methods and though the result in STR method was negative; an advanced method of YSTR rendered positive results that the sample of the skeleton matched the paternal genealogy that of P.W.1 the father. She has further argued that there is sufficient evidence against this accused. The learned Judge has rightly convicted the accused and the accused should not be released on bail.

5. The Division Bench presided over by Justice J. N. Patel by their order dated 19th December, 2009 has granted bail to the accused Nos.1 to 5 and 7. The charges levelled against all of them are same. So also the evidence against all these accused is same except the evidence of discovery of the body pursuant to the statement made by the applicant/accused under section 27 of the Evidence Act. The division bench in their order held prima facie the identification of the body is doubtful. P.W.1 father and P.W.2 the mother respectively did not identify the said skeleton with braces and clothes which was found on the said skeleton. It is true, that it is not possible for the parents of Raj to identify the skeleton as that of Raj. However, both of them did not identify the clothes found on the skeleton. It is to be noted that the learned A.P.P. has pointed out that there was label of the school disclosing the logo as "D.Y.P.A." Albeit, such label the parents of Raj refused to identify those clothes as clothes of Raj. We also consider the submissions of Mr. Mooman learned defence Counsel that the evidence of Dr. Negi P.W.30 and Dr. Pathak P.W.22 on the point of DNA test prima facie appears shaky and the digital super imposition examination on the skull also does not appear accurate. Moreover, this application needs consideration on the basis of parity with other co-accused who have been released on bail by the division Bench vide order dated 19th December, 2009. Hence, we are inclined to grant bail to the present applicant/accused No.4 We allow this bail application on the following conditions :

(a) Under the circumstances, application for bail is allowed. The applicant/accused No.4 be released on bail by suspending their substantive sentence on his furnishing PR bond in a sum of Rs.25,000/- with one solvent surety in the like amount.

(b) The applicant/accused No.4 shall attend R.A. Kidwai Marg Police Station, Mumbai on every alternate Monday between 10 a.m. and 12 noon for a period of one year and thereafter on the 1st Monday of every month. He shall maintain a pocket diary in respect of his attendance.

(c) During the pendency of the Appeal, he shall not commit any offence. Application is disposed of.

Application allowed.