Imtiyaz Ahmad Mohd. Sadik Ali Shaikh vs The State Of Maharashtra

The State of Maharashtra ] (at the instance of Shahu Nagar Police Station ] and through Public Prosecutor's Office, ] Bombay High Court, ]... Appellant

Versus

Imtiyaz Ahmad s/o Mohd. Sadik Ali Shaikh Age about 25 Occ: Service ] Resident of Village Kokhraj ] Post Kokhraj, Dist. Kosambi, ] Uttar Pradesh 212217 ] Presently lodged at Nasik Central Prison ] as Prisoner No.C-11837, Pin 422 101 ]...Respondent

AND CRIMINAL APPEAL NO.747 OF 2018 WITH CRIMINAL APPLICATION NO.1585 OF 2018

Azad Mehmuddula Ansari ] Age 28 years, residing at 192/3, Mahim Phatak, ] 60 feet road, near Bombay Hotel, Mahim (E), ] Mumbai 400 017, Presently lodged at ] Arthur Road jail as an convicted prisoner ]... Appellant

Versus

The State of Maharashtra ] at the instance of Shahu Nagar Police Station, ] C.R. No.94/2012 ]...Respondent

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AND CRIMINAL APPEAL NO.859 OF 2019 WITH CRIMINAL APPLICATION NO. 1072 OF 2019 IN CRIMINAL APPEAL NO. 859 OF 2019

Imtiyaz Ahmad s/o Mohd. Sadik Ali Shaikh Age about 25 Occ: Service ] Resident of Village Kokhraj ] Post Kokhraj, Dist. Kosambi, ] Uttar Pradesh 212217 ] Presently lodged at Nasik Central Prison ] as Prisoner No.C-11837, Pin 422 101 ] ...Appellant

Versus

The State of Maharashtra ] (at the instance of Shahu Nagar Police Station) ] ..Respondent

---- Mr. J. P. Yagnik, APP for the State in Confirmation Case No. 3/2018.

Mr. Ravi Dwivedi, private advocate for the appellant/accused No.1 in Appeal No.859/2019.

Ms. Saima Ansari i/by Mr.Fakruddin Khan for the appellant/accused No.2 in Appeal No.747/2018. ---

CORAM : B.P. DHARMADHIKARI & MRS.SWAPNA JOSHI, JJ. RESERVED ON : 15/07/2019 PRONOUNCED ON : 14/08/2019

ORAL JUDGMENT (Per B.P. Dharmadhikari,J.):

The Additional Sessions Judge, Greater Mumbai has by

judgment and order dated 23/05/2018 convicted accused no. 1

Imtiyaz and accused no. 2 Azad for the offence punishable under

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sections 302, 363, 364-A, 201 read with 34 IPC and sentenced

accused no.1 to death and accused no.2 Azad to life

imprisonment and fine of Rs.25,000/-, in default of fine he has to

suffer RI for one year. For the offence punishable under section

364A, both the accused persons are sentenced to suffer life

imprisonment for rest of their life and fine of Rs.25000/- each in

default of fine, they have to undergo RI for one year.

2. Sessions Court has not sentenced both the accused persons

for other minor offences i.e. under section 363 and 201 IPC.

Original accused no. 3 is found to be child in conflict with law and

hence, the case against him is forwarded to Juvenile Justice

Board. Accused no. 4 and 5 i.e. Israr and Arsil are acquitted of

the offences punishable under sections 302, 363, 364-A, 201

read with 120B IPC.

3. Both accused no.1 Imtiyaz & accused no.2 Azad have filed

separate appeals challenging their conviction. Accused no. 1

Imtiyaz has filed two more applications vide Criminal Application

No. 1 of 2019 and Criminal Application No. 2 of 2019 for shifting

him to other jail or for medical treatment. Similarly accused no. 2

Azad has moved Criminal Application No. 1585 of 2018 for bail.

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4. We have heard APP Mr. Yagnik for the State and Adv. Ravi

Dwivedi for accused - appellant Imtiyaz and Mr. Fakhrudin Khan

for appellant accused Azad.

5. Respective counsel for the accused state that the conviction

is based upon the circumstantial evidence. They point out that

the trial court has based its judgment on the circumstances like

: --

(i) Previous acquaintance of PW 1 Rajesh (father of deceased

child ) with accused nos. 1 and 2 as they were/are employees.

(ii) Deceased was last seen alive with the accused persons on

27/05/2012.

(iii) Call demanding ransom were received by PW 1 Rajesh

Bhadange (father of deceased child victim) on his mobile from

the unknown numbers.

(iv) Employee of PW 1 by name Yogesh Patange identified the

voice of caller as that of Imtiyaz.

(v) After arrest of accused no. 1, mobile handsets with IMEI

number from which calls were made to PW 1 Rajesh were seized

from him. Similarly un-used SIM cards were also seized from

him.

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(vi) Call Data Records ie CDRs support the calls made by

accused no.1 to PW Rajesh demanding ransom.

(vii) The demands made by accused no. 1 were recorded in the

memory card in Nokia mobile handset given by PW-20 IO Shri

Desurkar and voice in the said conversation matches with the

sample voice of accused no. 1 as per CFSL report.

(viii) Accused nos. 1 and 2 led the panch witnesses and police to

the site where the body of deceased child was concealed,

leading to discovery under section 27 of the Evidence Act.

6. Effort of respective learned counsel before us is to

demonstrate that these circumstances are either proved or are

not proved.

7. Advocate Dwivedi and Advocate Khan submit that the

employment of accused no. 1 Imtiyaz with PW 1 has not been

proved by any clinching evidence. Similarly the acquaintance or

relationship between accused no. 1 and 2 inter-se, has also not

been brought on record.

8. It is argued that PW 2 Gulabchand Yadav examined to

show that he saw the deceased boy with accused nos. 1 and 2

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fifteen days before the police contacted him is untrustworthy. He

claims to be the person selling ice balls and so many children

and people visit him daily. He could not have therefore, identified

the deceased from the photograph and claimed that the

deceased had come to his shop. He could not have also identified

the accused nos. 1 and 2 in TIP. His statement under section 161

Cr.P.C. is recorded on 09/06/2012 and his claim that he is doing

the business appears to be doubtful. In any case, he is a person

surviving at the mercy of the police.

9. Evidence of PW 3 Mohd Shaikh is also assailed on the same

grounds. He happens to be a waiter serving in the restaurant and

deposes that 15 days before, the deceased boy came there with

two persons. He could also point out the food ordered by them.

His section 161 Cr.P.C. statement has been recorded on

13/06/2012 and in TIP conducted on 14/08/2012 he identified

accused no. 1 Imtiyaz and accused no. 3. The respective counsel

submit that his police statement has been recorded twice.

10. Evidence of PW 7 Ananda Sutar is challenged by pointing

out that his presence in the family house on the day of alleged

disappearance of the boy has not been pointed out to police at

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the earliest possible opportunity. Claim that he saw deceased

victim with accused nos. 1 and 2 in the evening of 27/05/2012

is a fabricated story. Phone call allegedly made by him on

08/06/2012 to PW 1 Rajesh is not proved at all. Moreover, he has

sight problem and even in court, he was required to go near the

place where the accused persons were sitting to identify them.

He did not tell the name of accused no. 1 to police and there are

several omissions brought on record in his cross examination. He

was also shown the photograph of accused nos. 1 and 2 at the

time of recording of his statement.

11. It is contended that thus the statements of 'last seen'

witnesses have been recorded after arresting the accused

persons and the circumstance does not inspire confidence.

12. TIP is also challenged on the ground that it is held more

than two months after the accused were taken in custody. In the

meanwhile, TIP witnesses like PW 2 and PW 3 were called in the

police station and had occasion to see the accused persons. The

photograph of the deceased boy was shown to these witnesses

only as a farce and these witnesses were under the police

pressure and have obliged the prosecution. PW 4 Nayab

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Tahsildar who has conducted TIP did not follow the guidelines of

avoiding the police participation in it.

13. A serious doubt has been raised about the date on

which the accused persons are shown to be arrested. It is

submitted that the prosecution has taken them in custody

actually long before 05/06/2012 and the farce of creating

documents has been made on said date. The arrest memoes

therefore, do not mention any date or time and the relevant

columns are left blank. Support is also being taken from the

information received under Right to Information Act to

demonstrate that the accused persons were in custody of Crime

Branch which was conducting parallel investigation till

05/06/2012.

14. The alleged recovery of 3 handsets and 9 SIM cards from

Imtiyaz is also assailed by pointing out that the witnesses thereto

are stock witnesses and are under the pressure of police

machinery. The basic facts whether these mobiles were in

working condition, had any SIM in it and whether the accused

no.1 Imtiyaz was owner thereof, had not been verified. The SIM

cards were un-used and there was nothing to connect any

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accused person with those SIM cards. The deposition of PW 15

Mr. Sirajuddin Shaikh to show that accused persons purchased

SIM cards from his shop is unacceptable. The IO has not brought

on record the permanent or temporary address of any accused

persons and mobiles not belonging to them have been foisted

on their person. Advocate Khan has advanced similar arguments

in an attempt to demolish the recovery of handset from accused

no. 2 Azad.

15. While dealing with the tape-recorded conversation

pertaining to demands, respective advocates submit that the

employee Yogesh who is claimed to have identified the voice of

Imtiyaz after hearing that conversation, has not been examined.

Not only this, the said employee Yogesh could have thrown light

on the status of Imtiyaz as to whether he was employee or was

never employee of PW 1 and therefore, he has been deliberately

withheld.

16. The conversation has been recorded in the memory card

which was in the Nokia mobile handset provided by IO PW 20 to

PW 1 Rajesh. This fact of handing over of mobile to PW 1 Rajesh

has not been brought on record by any convincing evidence or in

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the shape of any panchanama. The alleged recorded

conversation therein is also not free from doubt. PW 1 Rajesh

himself admits that the demands were made by more than one

person and this fact is not explained by the investigation.

17. Total 10 conversations are recorded in the memory card and

the initial conversations are of date when that memory card or

mobile with recording facility was with PW 20 only. Handing over

of that mobile by PW 1 to PW 20 is also not satisfactorily proved

and there is no panchanama regarding it or of any recorded

conversation at that time. The evidence of PW 12 Mr. Zuber

Qureshi is attacked on this ground.

18. It is pointed out that the recovery of Nokia mobile from PW

1 by PW 20 and its sealing looses its sanctity since PW 11 Jayraj

Jaiswal does not support it. The memory card or Nokia mobile

through which the transfer of recorded conversation has been

done by this witness, is not shown to be the same which was

taken back from PW 1 in the presence of PW 20. The respective

counsel for the accused persons submit that the alleged

recorded conversation in the said memory card in Nokia mobile

of PW 20, therefore becomes redundant.

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19. Respective counsel also state that the submission of these

recorded conversations for the voice analysis to Central Bureau

of Forensic Science Laboratory and the report obtained on it are

therefore not relevant. PW 14 Mr. Neharkar who has recorded

the specimen voice sample of Imtiyaz is therefore, irrelevant in

the present matter. It is submitted that the effort to show that

the voice recorded in the sample i.e. sample voice of Imtiyaz and

the voice recorded on memory card matches, is therefore of no

use in the present matter. The report dated 07/08/2014 of

Auditory Analysis is therefore, not decisive.

20. Advocate Dwivedi also invites our attention to the fact that

the statement of PW 1 on oath that the demands were recorded

and the demands were made by more than one person prove

that the recorded conversation is also in the voice of more than

one person. The report of auditory analysis at Exh.140

mentioning that the recorded questioned voice and the specimen

voice reveal that the questioned voice is similar to the

specimen voice, is itself incorrect. When the conversations are in

the voice of more than one person and hence Exh. 140 could

have pointed out which part of conversation matched with the

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sample/specimen voice. It is submitted that the spectrographical

exercise therefore, needs to be discarded.

21. Counsel for accused no. 1 Imtiyaz invites attention to the

deposition of PW 1 to show how his conduct is un-natural and

therefore, doubtful. On one hand he claims to be searching for

child while on the other hand he take casually the ransom call

first received. It is contended that when this call was received by

PW 1 (as alleged), police officers were also with him and still he

made no efforts to bring that call to the notice of the police

authorities or to trace it. The other part of his deposition is also

relied upon to show how he has himself stated that the phone

calls and demands were made by more than one person. It is

argued that PW-11-Jairaj also states the same.

22. The CDR records at Exh. 129 and at Exh. 121 onwards are

also pressed into service to demonstrate how the demands

supposed to be taped in the memory card in mobile handset

provided by PW 20 are found recorded in some other mobile.

Advocate Dwivedi submits that the CDR records therefore, do not

assist the prosecution at all.

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23. Prosecution has failed to correlate any mobile set with the

accused persons and therefore, have failed to link the recorded

conversations with accused no. 1. Hence, the CDR record and

evidence of Nodal Officers like PW 13 Gaikwad and PW 17

Kodwadkar cannot be relied upon in the present matter. It is

submitted that the apparent inconsistency in the CDR record

has been attempted to be explained by PW 13 by stating that

the last digit in the IMEI of caller is automatically reflected as

zero in their system. He argues that this method of working is

not mentioned in section 65-B certificate and hence, oral

explanation given by PW 13 must be rejected.

24. It is pointed out that there is no effort made by the

prosecution to point out the place of residence of any of the

accused persons or then their friendship or relations with each

other. No communication made by accused nos.1 to 2 and vice

versa has been brought on record. PW 7 Sutar has been

introduced only to implicate accused no.1 and 2 falsely. When

the missing report was lodged by employee Ravindra on behalf

of PW 1 Rajesh, accused no. 2 Azad was very much present and

had gone to police station to lodge it. The Police Officer taking

down the report had also made enquiry with Ravindra and Azad

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at that time. Even thereafter, Azad was on his duty with PW 1

Rajesh.

25. It is submitted that PW 7 Sutar had stayed with PW 1 Rajesh

on 26th though PW 1 left for Ajmer. He would have definitely

realized the omission of the fact that he saw victim with

accused nos. 1 and 2 and thereafter disclosed it to PW 1 on

telephone. He does not depose accordingly and the mobile call

allegedly made by him on 8.6.2012 is also not reflected in CDR. It

is submitted that thus the prosecution story is not convicting and

full of suspicious circumstances since beginning.

26. So called recovery of body of victim at the instance of

accused persons is attacked by pointing out that the disclosure

statement has not been established in accordance with law. The

witness therefor, namely PW 5 Jagtap is again a stock witness

and his deposition does not show the statement made by any

specific accused persons leading panch witnesses and police

party to the spot.

27. Evidence of PW 6 Sambre, Fire employee in the work of

taking out the body of victim is relied upon to demonstrate that

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when the body was taken out, none of the accused persons were

there. Support is also taken from the evidence of PW 18 Jaywant

Shinde, API then employed at Shantinagar Police Station,

Bhiwandi in whose jurisdiction the dead body was lying and taken

out. It is pointed out that as per this police officer, the gutter

from which the body was taken out, was shown by accused no.

3- juvenile.

28. Advocate Khan on behalf of accused no. 2 states that most

of the material brought on record by the prosecution is against

accused no. 1 Imtiyaz. There is no cogent and convincing

material to show any meeting of mind between accused nos. 1

and 2. No phone call has been exchanged between them.

Prosecution itself claims that lastly when deceased was seen

alive by PW-3-Mr. Shaikh and thereafter by PW-8 Kausalkumar

Yadav, accused no. 2 Azad was not with him. He adds that the

reasons which prompted the trial court to acquit accused nos. 4

and 5 hold good even qua accused no. 2 Azad.

29. Both the learned counsel therefore, request for quashing

and setting aside the judgment of conviction and to acquit the

accused persons.

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30. Advocate Dwivedi invites our attention to Criminal

Application No. 1072 of 2019 filed by accused no. 1 seeking

opportunity to cross-examine & to lead evidence. The grievance

is about denial of opportunity to lead evidence in defence and for

cross examining the prosecution witnesses. It is submitted that

accused no. 1 did not get effective legal assistance and could not

cross examine some of the important witnesses.

31. It is further pointed out that before the trial court,

application at Exh. 204 was made on 19/04/2018 itself for calling

and examining the defence witnesses i.e. doctor who medically

examined Imtiyaz at Bhabha Hospital, Kurla and Officer of DCB

CID Unit No. 5 who arrested Imtiyaz detaining him in custody and

sent for medical examination to Bhabha Hospital. It is submitted

that as the trial court did not grant that opportunity, this Court

must grant that opportunity as it has got important bearing on

his body search panchanama.

32. Both learned counsel submit that the Presiding Officer of

the trial court was expecting his transfer and therefore, has acted

with undue haste. He did not permit the defence witnesses to be

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examined and also did not hear the accused persons through

their advocates on death penalty as per section 354(3) IPC. The

judgment convicting them, and thereafter the order sentencing

them has been delivered on the same day.

33. Mr.Yagnik, learned APP has at the beginning, pointed out

that it is a case of brutal murder and the death has taken place

atleast one week before the arrest of respective accused. After

killing boy, accused persons attempted to extort money and for

that purpose, used different mobile handsets and SIM cards.

None of these phones were in their own name. Innocent Victim

who was son of their employer knew accused persons and taking

advantage of that acquaintance, they misled him. Perhaps the

child never realized that he was kidnapped or then, there was

any plan to demand ransom from his father PW-1 Rajesh.

34. He submits that the report that the boy went missing was

lodged initially by one employee Ravindra in the employment of

PW-1 as PW-1 at the relevant time had gone to Ajmer for

pilgrimage. He left Mumbai on 26/5/2012 for Ajmer. His wife,

victim son and daughter were at home. On 27/5/2012, PW-1

received phone call from his nephew Ravindra that son had gone

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to factory in the evening at about 4.00 p.m. on the previous date

but did not return and was not found after search. PW-1 then

asked Ravindra to report the matter to police and Ravindra then

filed report at Shahu Nagar Police Station where he went along

with accused No.2. PW-1 Rajesh returned on 28/5/2012 and

started search by contacting friends and persons in

acquaintance. Victim was taking education at 'Gurukul Sanstha',

Lonavala where also he went in search. On 31/5/2012, PW-1 had

gone along with police to village Kivale, Taluka Haveli, District

Pune where friend of victim resided. While returning he received

a phone call at about 10.15 p.m. demanding ransom of Rs.25

lakhs. This call was reported on 1/6/2012 when police registered

offence under section 363, 364 of IPC and investigation then

started.

35. Calls received by informant were recorded and for that

purpose Investigating Officer PW-20 provided a Nokia mobile with

recording facility to PW-1. Conversations between informant (PW-

1) and person making demand were recorded.

36. Police found that the calls were coming from Bhiwandi area.

One employee with PW-1 Yogesh while listening to this recorded

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conversation, recognized the voice of person making demand as

that of accused No.1. Police were keeping watch in Bhiwandi area

and on servants of PW-1 informant. As a result on 5/6/2012

accused Nos.1, 3 and 4 were apprehended from Bhiwandi,

accused No.2 from Dharavi and accused No.5 from Mandla village

at Mankhurd.

37. Our attention is invited to deposition of PW-7-Mr. Sutar to

show that on 26/5/2012 he saw victim son in company of

accused Nos.1 and 2 in the evening. Evidence of PW-2-

Gulabchand is also relied upon for this purpose. Deposition of

PW-3-Mr. Shaikh waiter in hotel is also relied upon to show that

he saw deceased with accused Nos.1 and 2 in his hotel. PW-8

who happens to be friend of accused persons also stated that he

saw deceased, accused Nos.1 and 3 together.

38. Test Identification Parade conducted on 14/8/2012 is also

relied upon to show that evidence of PW-4 Tehsildar is duly

proved. PW-2 and PW-3 who had seen photograph of child only

can identify accused persons in that identification parade and

this brings their involvement in the crime on record.

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39. The recorded conversation are also relied upon to show

involvement of accused persons in the crime. CDR of mobile of

PW-1 proved by PW-13-Mr.Gaikwad, Nodal Officer and PW-14-Mr.

Neharkar are heavily relied upon for this purpose.

40. Learned APP submits that three handsets and 9 SIM cards

were found with accused No.1 at the time of his arrest. IEMI

Number of these mobiles are reflected in CDR of PW-1 thereby

showing that calls demanding ransom were made from these

mobiles. This also shows their involvement in the crime. Evidence

of Mr. Sirajuddin Shaikh, examined as PW-15 shows that he sold

SIM cards to accused persons but they did not furnish necessary

identity proof. Not continuing with same mobile number,

procuring them clandestinely & changing SIM cards exposes

criminal intention.

41. Apart from CDR, taking back mobile from PW-1 on 7/6/2012

and sealing it in the presence of PW-12 is also pointed out. It is

submitted that the memory card in which demands were

recorded, was in this mobile. This memory card was taken out in

presence of PW-11-Jairaj and PW-10-Savane and conversation

therein were noted down. Transcript Ex.109 was prepared for

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the purpose of record.

42. PW-14-Mr. Suresh obtained voice sample of accused No.1. It

was then forwarded to CFSL. Experts there conducted audio

analysis and found that the voice making demand and sample

voice were of the same person.

43. Evidence of PW-5, PW-6 and PW-18 is relied upon to show

that accused No.1 while in custody, made disclosure statement

and agreed to show the place where body of victim was

concealed. While proceeding to the spot accused persons also

led panch witnesses and police team to the room in which they

stayed. PW-8-Mr. Yadav was also one of the occupants of that

room and he had seen Juvenile accused No.3, accused No.1 and

one boy coming to the room.

44. Learned APP states that at the instance of accused persons

body was taken out from drainage. Our attention is invited to

post mortem report to submits that boy was dead and demand

calls were made after killing him.

45. Learned counsel states that thus investigation made by PW-

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20 Shri Desurkar shows that circumstances forming a complete

chain showing involvement of accused persons only has been

brought on record and proved by prosecution.

46. He also prepared 2 charts and handed it over to respective

learned counsel for appellants and to the Court to facilitate

consideration of CDR data.

47. Both sides have relied upon precedents of Hon. Apex Court

& this Court to buttress their respective contentions. We will refer

to those judgments as and when occasion therefor arises in the

course of this judgment.

48. It is settled law that in a case based upon circumstantial

evidence, prosecution has to bring on record events which form a

chain together and lead to irresistible conclusion of involvement

of accused only in the crime. Each event/circumstance must be

proved by cogent and convincing evidence. Similarly, no

circumstance which shows possibility of involvement of third

person should be left un-investigated. This chain has to be so

complete that it rules out involvement of any other person as

accused. Keeping this basic principle in mind, material on record

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needs to be perused.

49. The employment of accused nos. 1 and 2 with PW 1 Rajesh

who happens to be father of deceased victim is deposed to by

PW 1 himself. He states that one of his employee by name

Yogesh Patange was called by police for enquiry and he was

asked to hear the recorded mobile conversation. Yogesh

identified the voice as that of another employee Imtiyaz. His

cross examination reveals that in the year 2012, he had 7 to 8

workers and he had removed Imtiyaz from employment 6 to 7

months prior to the incident. He, among other things, also

disclosed to police that Yogesh Patange identified the voice in the

mobile as that of Imtiyaz. He has stated that Imtiyaz worked for

about two years. He also could not explain as to why the name of

Imtiyaz did not appear in the FIR. He also could not explain why

the termination of employment of Imtiyiaz or then the

identification of his voice by Yogesh did not appear in his FIR or

supplementary statement.

50. The other witness who speaks about this employment is PW

7 Ananda Sutar. He claims that he knows PW 1 and his family as

they resided in the same chawl. He also explains why he came

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to PW 1 on 26/5/2012. He also states that on the said day, he

stayed there. On the next day, i.e. on 27/5/2012, PW 1 Rajesh

went to Ajmer at 5.00 am early in the morning. Victim then went

to the factory of PW 1 to bring CDs. Thereafter PW 7 Ananda also

went to the factory. He claims that he knows Azad and Imtiyaz

and they were working in the said factory. Imtiyaz had left the

factory two years back. On 27/5/2012 he saw deceased victim,

Azad, Imtiyaz and other workers in the factory. He returned to

home of Rajesh at about 6.30 pm. While returning, he saw

victim, Azad and Imtiyaz going outside the factory. In the cross

examination, he accepted that he had not stated the name of

Imtiyaz to police when police recorded his statement under

section 161 Cr.P.C. on 09/06/2012. He further states that he

informed the police about Imtiyaz leaving the factory of PW 1 two

years prior to the incident but he could not explain why this

portion regarding leaving job two years prior to the incident did

not appear in his statement. He accepted that PW 1 had

informed him that Imtiyaz left the job two years before the

incident. He also accepted that while recording his statement on

09/06/2012, police had shown to him photograph of Imtiyaz and

Azad. He accepted that he learnt about the police finding Imtiyaz

and Azad involved in the matter from Rajesh.

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51. The employment of accused no. 2 Azad with PW 1 Rajesh is

not in dispute at all. In fact, he went with Ravindra , to police

station to lodge the report. This Ravindra is disclosed to be his

nephew by PW 1. The fact that Azad had come to police station

to lodge the complaint with Ravindra is brought on record even

by PW 19 Mr. Raut, API attached to Crime Bureau. Even in cross

examination, this witness admitted that he made enquiries with

Ravindra and Azad and then recorded the missing report. The

cross examination of this witness shows that the identification of

voice of Imtiyaz by Yogesh Patange was not narrated to him while

recording the FIR. He also stated that the fact of removal of

Imtiyaz from the employment 6 to 7 months prior to the incident

was also not disclosed. PW 20 Mr. Desurkar in paragraph 29 of

his cross examination accepted that accused no.2 Azad was

working in the factory of informant before and after the incident.

This discussion therefore, shows that the employment of

accused no. 2 with PW 1 has been satisfactorily proved by the

prosecution. However, the same cannot be observed in relation

to accused no. 1 Imtiyaz.

52. Prosecution has examined PW-7-Ananda as witness to

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demonstrate that he saw the victim boy with accused Nos.1 and

2 on 27/5/2012. His police statement has been recorded on

9/6/2012 i.e. 3-4 days after arrest of accused persons. In

examination-in-chief, he has disclosed his reason for coming to

Mumbai. Otherwise he is a carpenter working at village Nanibai in

Kolhapur District. He states that he has a room in Dharavi which

used to be let out and PW-1-Rajesh being his friend used to

collect rent on his behalf. He used to come to Mumbai once in 6

months to receive that amount. Accordingly on 26/5/2012 he

came to collect the rent and he was staying in the house of PW-1.

He got rent amount of Rs.19,800/- and stayed overnight. On

27/5/2012 at 5.00 a.m. PW-1 Rajesh left for Ajmer. Victim went to

factory of his father to bring CD of movies. He also thereafter

went to factory. He claims that he is knowing accused Nos.1-

Imtiyaz and 2-Azad, since they were working in the factory of PW-

1. He also states that accused No.1 left the factory about 2 years

prior to the incident. On that day he saw victim, Azad, Imtiyaz

and other workers in the factory. He returned to house of PW-1 by

6.30 p.m. While returning, he saw victim, Azad and Imtiyaz

leaving the factory. He came back to house of Rajesh, collected

his luggage and proceeded to S.T. stand to go to his village.

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53. His deposition shows that on 8/6/2012 he made a phone

call to PW-1, PW-1 informed him about the incident. Hence he

left village to come to Mumbai to meet Rajesh. After arrival at

Mumbai he and PW-1 went to police station, where he narrated

the incident to police. Their statement was recorded. He told

trial Court that he could identify Azad and Imtiyaz. He requested

the Court to allow him to see accused persons from close

distance as he was having sight problem. Thus after stepping

down from witness box, he went towards accused persons and

there identified Imtiyaz and Azad. He also identified photograph

of the victim. However accused have not put any questions to

him to show that he had that problem even on 27/5/2012.

54. His cross examination shows that he went to police station

only once and at that time PW-1 was not with him. He reached

Mumbai on 9/6/2012 and met PW-1. He stated that he has

purchased room (at Dharavi) in year 1982 and he had good

relations with neighbours in the chawl. He did not give any

document of title to police and never received rent through

cheques. The deposition to the extent of statements that he

knew Rajesh because they were residing in same chawl; that he

was knowing family of Rajesh, that Rajesh use to let out his(PW-

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7's) room and used to collect rent are not appearing in his police

statement.

55. Little later in his cross examination he accepted that PW-1

Rajesh did not share anything about his family problems and or

factory. He further stated that children of PW-1 were studying at

Lonawala and he did not disclose name of Imtiyaz to police while

recording his statement. In next line he has stated that he

informed police about Imtiyaz leaving factory of PW-1, 2 years

before the incident. He could not explain why this period of 2

years was not mentioned in his police statement. He also stated

that two days after Imtiyaz leaving job, PW-1 told him about

Imtiyaz leaving the employment. He accepted that Imtiyaz and

Azad are common names in Muslim community. He accepted that

police had shown photographs of Azad and Imtiyaz at the time of

recording his statement. He stated that as victim was acquainted

with Imtiyaz and Azad hence, he did not inform the fact of seeing

victim with them to mother of victim on 27/5/2012. He stated

that he did not make any reservation of bus for going to Kolhapur

and even while coming to Mumbai again on 9/6/2012. Police did

not demand his travel documents. While taking search of victim,

wife of Rajesh did not inquire from him. He accepted that during

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investigation police did not show him photograph of victim. He

learnt about involvement of Imtiyaz and Azad by police in the

crime from PW-1. He denied that because he was shown

photograph of Imtiyaz and Azad, he identified them in the Court.

56. Thus, evidence of this witness shows that he got knowledge

about the incident relating to victim on 8/6/2012 and he came to

Mumbai to meet Rajesh on the next day. There is inconsistency

about fact of PW-1 accompanying him to police station on

19/6/2012. On one hand he states that PW-1 did not disclose to

him his family matters or even business matters, in next breath,

he states that just after two days of Imtiyaz leaving his

employment, PW-1 told him about the same. The arrangement

between him and Rajesh about Dharavi room has not been

disclosed to police.

57. In this backdrop, perusal of relevant part of evidence of PW-

1 shows that Imtiyaz was removed by him from service about 5-

6 months prior to the incident and accused Azad was working

with him. In paragraph No.25 he also states that Imtiyaz was

working with him for about 2 years. He has not spoken about the

fact that PW-7 stayed with him on 26/5/2012 and 27/5/2012. He

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also does not point out that on 8/6/2012 PW-7-Mr. Sutar made

any phone call to him and gave information about involvement

of accused Nos.1 and 2. PW-7 has deposed that he was aware of

the mobile number of PW-1. However, CDR record produced by

prosecution does not disclose call made on 8/6/2012 by PW-7 to

PW-1. Thus, material on record along with inconsistencies about

the date on which Imtiyaz was terminated by PW-1 casts serious

doubt on the credibility of this witness.

58. Other witness examined by prosecution is PW-2

Gulabchand. He is working as ice ball vendor in the area of

Shahunagar police station. He states that on 9/6/2012 police

approached him with a photograph of boy. After seeing

photograph he remembered that 15 days before, in the evening

at about 6.30 p.m. two persons had brought that boy and

purchased ice balls from him. He gave ice ball to that boy and

one of the person accompanying him gave him Rs.2/-. He

identified photograph of boy given in Court. He then states that

on 14/8/2012 in Arthur Road jail, TIP was conducted and in it he

identified accused Imtiyaz. He also identified accused Imtiyaz in

Court. In latter part of identification parade, this witness

identified accused No.2 Azad. He also identified Azad in Court.

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59. His cross examination shows that he has no license to do

business. He accepted that sometimes he is required to pay

money to police department as gratification. He stated that

Shahu Nagar Police Station was at 10-15 minutes walk from the

place where he used to park his handcart for doing the business.

He accepted that he did not give description of boy, his clothes

or his age to police. He was not aware of name of police officer

who showed him photograph. His cross examination in relation to

test identification parade shows that complexion of dummies was

black and fair. Some were fat, slim or dwarf or with more height.

Accused No.1 had beard and other dummies also had beard at

that time. His attention was invited to a statement "B" in his

supplementary police-statement and he deposed that same was

wrongly mentioned in supplementary statement recorded on

14/8/2012 after test identification parade. Said portion shows

that he went to the TIP room with police employed in Jail. He has

stated therein that on 9/6/2012 he was called to police station,

where photograph of child was shown to him. He was asked

whether two persons had come with said boy in photograph for

purchasing ice balls. Portion marked "B" in his supplementary

statement shows that police constable in service of jail

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administration had come to call him for latter part of TIP in which

accused No.2 was identified.

60. Next witness examined by prosecution on last seen is PW-3-

Mohd. Dilawar Shaikh. He used to work as waiter in Shalimar

Hotel. On 13/6/2012 Shahu Nagar Police came to that hotel at

about 3.00 pm. He was shown photograph of a boy. He

remembered that 15-20 days before, that boy had come to hotel

along with two young persons between 20-22 years of age for

dinner. He also deposed that they had placed an order for two

chicken soups and 6 parathas. They came there at about 10.15

pm and left hotel at about 11.15 p.m. by making payment of

Rs.54 towards cost of meals. He then pointed out that on

14/8/2012 in test identification parade, he identified accused

No.1 and accused No.3 These two persons had come to hotel

along with the boy for taking dinner.

61. His cross examination shows that police recorded his

statement twice and he had gone to police station twice. He was

working in Shalimar hotel for about 15-16 years, 7 waiters used

to serve the food at mezzanine floor while only one waiter used

to serve food on ground floor. There were 16 tables on ground

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floor and 9 tables at mezzanine floor and PW-3 used to work on

mezzanine floor. He states that he had given description of

accused No.1 and boy to police. He could not explain why that

description was not appearing in his police statement. He could

not give description of other customers and table occupied by

them and food ordered by them 15-20 days before. He denied

that cost of one chicken soup is between Rs. 40-60. He could not

explain why the fact of visit by police to his hotel on 13/6/2012

and identification of photograph of victim though narrated by him

to police, did not appear in his police statement. He stated that

his statement was recorded on 13/6/2012 itself on laptop. He

also submitted that dummies in TIP were in between 20-22 years

of age and all were having small beard.

62. Thus, PW-2 and PW-3 who entertain several visitors per day,

have been examined to bring on record the fact that they have

seen deceased boy with accused persons. The deposition of PW-

2 shows that he saw victim with Imtiyaz and Azad while

deposition of PW-3 shows that he saw victim Imtiyaz and juvenile

accused. The date on which they saw accused or boy is not on

record. When number of customers frequent ice ball cart of PW-2

or then hotel in which PW-3 was waiter, there has to be some

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reason for these witnesses to claim that they could recollect visit

of one boy with accused persons. It is also difficult to accept that

15 days after such visit, they could also claim to remember the

identity of persons with whom boy came to their respective

establishments. Their deposition before Court does not show the

statement that they were remembering the description of

persons who accompanied that boy and were therefore in

position to identify them. The police also did not attempt to

obtain from them description of accused persons while recording

their statements.

63. It is to be noted that the police statements of last seen

witnesses are recorded on the day on which police made

inquiries in the police station. Accused persons were already

arrested and in police custody of Shahu Nagar Police Station on

that day.

64. The other witnesses examined by prosecution to throw

some light in this respect is PW-8-Mr. Kaushalkumar Yadav. He

claims that he was residing in Rehman compound at Pandole

Nagar Zopadpatti, Bhiwandi since 2012 along with juvenile

accused and other persons (not other accused). Other persons

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were also working with him at same place. One key of the room

used to be with this witness while other key was with juvenile

accused. Police came to him on 13/6/2012 and showed him

photograph of boy. He told police that said boy had come to their

room on 27/5/2012 along with juvenile accused. When this

witness inquired, juvenile accused told him that boy was of uncle

of Imtiyaz. Thereafter PW-8 went for work. While going to work he

saw accused No.1 coming towards their room. He knew Imtiyaz

as Imtiyaz was relative of juvenile accused and occasionally he

used to visit their room. In the Court he identified photograph of

boy as also juvenile accused and accused No.1. He accepted

during cross that on 1/1/2017 police approached him and showed

him his statement under section 161 Cr.P.C. and asked him to

depose accordingly. Police had also told him that photograph of

boy would be shown to him.

65. PW-8 also accepted that on 13/6/2012 police took him to

Shahu Nagar Police Station and showed him juvenile accused and

Imtiyaz there. They also told him that they had murdered a boy.

He told police that he was not aware about the murder. Police did

not inquire about his duty hours and did not ask him to show the

place where juvenile accused worked. He denied that on

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27/5/2012 he did not go to work at 9.00 p.m. or then he did not

meet juvenile accused. He denied that juvenile accused and he

himself never resided together. He denied that he deposed as

told by police. He accepted that he did not tell police that one

key of room was with him while other was with juvenile accused

and he was disclosing that fact for the first time in the Court. He

accepted that police did not seize key nor tried to open the lock

with the said key. He denied that he identified juvenile and

Imtiyaz on the say of police.

66. Thus, this witness states that on 27/5/2102 in the evening

juvenile accused and victim boy came to the room at Pandole

Nagar Zopadpatti, Bhiwandi at about 9.00 p.m. and thereafter he

saw accused No.1 coming to the room. Thus, this witness does

not take name of accused No.2 at all.

67. The appreciation of deposition of this witness is called

for again while looking into the circumstance of recovery of dead

body at the instance of accused Nos.1 and 2 under section 27 of

the Evidence Act.

68. Next circumstance to be considered is of seizure of

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mobile handsets and SIM cards from accused Nos.1 and 2. The

prosecution has attempted to demonstrate that PW-1-Rajesh

received demand calls from these handsets. The unused SIM

were seized from accused Nos.1 and 2 at the time of their arrest.

They have also relied upon CDR to substantiate their contention.

69. The circumstance, if established by clinching

evidence, may by itself be sufficient to convict accused Nos.1

and 2. However, accused Nos.1 and 2 have seriously disputed

seizure of mobile handsets or unused SIM cards from them. They

have pointed out that records have been fabricated and therefore

cannot be relied upon. Not only this they have also submitted

that demand calls of which transcript record have been made are

not connected with accused No.1. Use of memory card in mobile

handset provided by PW-20 to PW-1 and use of that mobile

handset with call recording facility for recording is itself not

substantiated. The identity or photograph of that mobile handset

with memory card allegedly taken back from PW-1-Rajesh on

7/6/2012 with the memory card from which transcript was

prepared, is not established. Yogesh, employee of PW-1-Rajesh

who has claimed to have identified voice of accused No.1 has not

been examined. PW-11-Mr. Jaiswal who heard voice clipping in

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memory card and in whose presence transcript was prepared has

in cross examination stated that conversation therein was

between two different persons. In cross examination he accepted

that there were many voices of different persons in voice

clippings. He accepted that police did not prepare transcript of

calls made by persons with different voices and he did not tell

police "to write" all voices. The transcript prepared by him is at

Exhibit 109 and in it, there are total 10 transcripts. At the

beginning of each transcript, phone number from which call was

received with date and time thereof has been recorded.

According to accused- persons, all calls are not made by one

person and demands are made by more than one person. Thus,

accused persons attempted to demonstrate that the opinion

given by expert after obtaining sample voice of accused No.1

alone, cannot be relied upon.

70. Material on record shows that though there are printed

arrest forms on record at Exhibit 163 (of accused No.1), Exhibit

164 (of accused No.2), same are without any date or time. These

columns are left blank. This observation apply even to printed

arrest forms at Exhibits 165, 166 and 167 of juvenile accused and

acquitted accused persons. These forms carry signature of one

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Ganesh and thumb impression of one Balu as witnesses. They are

also countersigned by superior police officer. Under the seal put

by superior police officer, date "6/6/2012" appears. This Balu

has not been examined as prosecution witnesses at all. Ganesh

has been examined as PW-10 but then these arrest forms were

then not produced & he was not required to depose about it.

These forms are produced by Investigating Officer PW-20 Mr.

Gajanan Desurkar on 31/1/2018 when the Trial Court was

recording his examination-in-chief. Accused therefore did not get

chance to put questions to PW-10 how his signatures appear on

documents containing blanks.

71. Exhibit 185 is the application moved by Shahu Nagar

Police for obtaining police custody remand of all accused

persons. This application is dated 6/6/2012 and in it date and

time of arrest is shown to be 6/6/2012 at 12.20. Exhibit 186 is

application for police custody remand submitted on 23/8/2012.

There the date of arrest is mentioned as 5/6/2012. Exhibit 187 is

similar application and in it date of arrest is shown as 5/6/2012.

In Exhibit 188 dated 26/7/2012 date of arrest is shown as

6/6/2012 and time of arrest is mentioned as 00.20 i.e. night

between 5th & 6th June, 2012. In Exhibit 189 which is application

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for remand submitted on 12/7/2012 date of arrest is 6/6/2012

while time of arrest is mentioned as 00.20 hours. In Exhibit 190

which is dated 29/6/2012 date mentioned is 6/6/2012 while time

mentioned is 12.20. In Exhibit 191 which is dated 15/6/2012

same date and time has been mentioned. Thus, in applications

seeking custody, the police have mentioned two different dates

and two different times.

72. In the light of this controversial position , the evidence

of PW-1 Rajesh needs scrutiny. His deposition in paragraph No.6

in examination-in-chief shows that police came to know that

mobile calls were being made from Bhiwandi Zone, District

Thane. Hence, on 4/6/2012 at about 12.30 a.m. PW-1 went to

Bhiwandi with Police in search of his son. At about 3.00 a.m.

police officer Shri Ahire and other staff brought accused Imtiyaz

and other two accused persons near his car. Witness identified

those accused persons in the Court as accused No.1-Imtiyaz,

accused No.3-juvenile and acquitted accused No.4-Israr Lallu

Shaikh. All three accused persons were then taken to Crime

Branch Kurla, Mumbai in police jeep. Thereafter, PW-1 returned to

his home. He deposed that on 4/6/2012 he went to Crime Branch

Kurla and at that time police disclosed to him about murder of his

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son.

73. In view of this controversy about the date of arrest on

record, learned APP has while advancing argument requested the

Court to read the date "4/6/2012" in paragraph No.6 of

deposition of PW-1 as "5/6/2012". He stated that no correction

was required in date "4/6/2012" appearing in paragraph No.7.

74. However, on next day ie on 15/7/2019 while

concluding his argument, after due instructions, learned APP

clarified that date "4/6/2012" appearing in paragraph No.6 as

correct but then time should be "12.30 p.m." instead of "12.30

a.m.". He further stated that date 4/6/2012 appearing in

paragraph No.7 should be corrected as 5/6/2012.

75. Perusal of evidence of PW-19-Mr. Shinde reveals that

he was then working as PSI attached to Shahu Nagar Police

Station. In paragraph No.3 in examination-in-chief he deposed

that two accused persons were arrested by police Inspector

Desurkar (PW-20). He (PW-19) took their personal search through

constable & arrested acquitted accused No.5 and accused No.2.

He states that Nokia handset along with SIM cards was found in

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possession of accused No.5. One China made mobile handset

along with SIM cards was found in possession of Azad.

Accordingly, he prepared panchanama which has been

exhibited as Exhibit 104.

76. His cross examination shows that he did not know

Ganesh Chintaman Chawane, panch witness who was called by

police constable at about 12.20 p.m. He stated that both panch

witnesses came before him together and he verified their

credentials and then prepared panchanama. He did not

remember the names of persons who were present at the time of

panchanama. He accepted that prior to arrival of panch

witnesses, accused were apprehended and he did not found it

necessary to draw separate panchanama. He denied that he did

not draw panchanama of search and seizure of accused.

77. Ganesh Chintamani Savane has been examined as

PW-10 and he has proved panchanama Exhibit 103, 104 as also

105. Exhibit 104 shows Ganesh and Balu as panch witnesses.

78. Perusal of evidence of PW-20 Investigating officer

Mr.Desurkar reveals that he got charge of investigation on

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2.6.2012. All accused persons were apprehended by Crime

Branch Unit-V. Three accused persons were apprehended at

Bhiwandi at about 3.00 a.m. in the night on 5/6/2012. Accused

person apprehended at Gowandi was taken in custody between

8.00 a.m. to 9.00 a.m. on 5/6/2012. Accused No. 2 was taken in

custody from Dharavi at about 10.00 a.m. on that day in the

morning at Dharavi and PW-20 states that he was then not

present. He however clarifies that he was present when 3

accused persons at Bhiwandi and one accused person at

Gowandi were apprehended. Accused No.1 Imtiyaz was

apprehended at Bhiwandi at 3.00 am. He further states that Azad

was taken to Crime Branch Unit V. PW-20 got custody of all

accused persons at about 12.30 p.m. on 5/6/2012 and they were

brought by police of Crime Branch Unit-V. PW-20 had not gone to

Crime Branch Unit-V to take the custody. He was not aware

whether Crime Branch Unit-V had drawn any panchanama or not.

He did not remember whether he had collected copies of station

diary of Crime Branch Unit-V regarding the investigation of crime.

He also did not remember whether he made any station diary

entries whenever he proceeded for investigation and no extract

of Station diary on record was filed by him. He claims that after

taking accused persons in custody he has drawn panchanama for

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arrest. He has not drawn one single panchanama for arrest of

three accused apprehended from Bhiwandi. He claims that three

accused persons at Bhiwandi were apprehended from Pandole

Nagar Bhiwandi from their respective residences. He had no

documentary proof to support their apprehension at 3.00 a.m.

from their respective residences.

79. Deposition of PW-20 in paragraph 15 further shows

that they started at about 12 in the afternoon on 4/6/2012 in

search of accused. As they went to Crime Branch Unit-V and then

to Bhiwandi, he could not tell the exact time thereof. PI Dinesh

Aahire and his staff from Crime Branch Unit-V came with his team

for investigation. One PSI Raut (PW-2) and two constables of

Shahu Nagar Police Station were with him. He stated that

accused No.3 was produced before Court for first remand on

6/6/2012. He could not give exact time thereof. He also did not

remember whether he had got them medically examined before

seeking remand. He had not personally gone for remand work

but he deposed that he had personally prepared remand

application. He further denied that station diaries were

suppressed deliberately. Then his attention was invited to various

remand applications, dates and other details mentioned therein.

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80. On 31/1/2018 before Trial Court, when he was in

witness box, he produced arrest panchanamas which were given

Exhibits 163 to 167 by trial Court subject to objection. In

paragraph 17, he has stated that he did not mention muddemal

found at the time of arrest in arrest forms. He also accepted that

date and time is not mentioned therein. He also accepted that in

Exhibit 164 pertaining to Azad only month June and year was

written, but date and time of arrest was left blank. He also

accepted that in any of these documents from Exhibit 163 to 166

he did not mention date below his signature. He deposed that

inadvertently he did not mention those details. He further stated

that he had drawn separate seizure panchanamas. He denied

that he arrested accused persons on 6/6/2012 at 12.20 noon He

denied that nothing was recovered from accused persons.

81. These documents at Exhibit 163 to 166 are signed by

Ganesh and one Balu as witness. PW-19-Mr. Raut has deposed

that two accused persons arrested by PW-20 were Accused No.5-

Arsil and accused No.2-Azad. Then he points out material

recovered from their possession and preparation of panchanama

of personal search. He proved search and seizure panchanama at

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Exhibit 104.

82. This search and seizure panchanama Exhibit 104 is

also brought on record through PW-10-Ganesh. This witness

supports PW-19 and Exhibit 104. He however also speaks of

presence of PW-20 at police station and request by PW-22 to him

to act as panch. He states that he was shown 5 accused persons

between 12 noon to 12.30 p.m. on 5/6/2012. Then he speaks of

personal search and seizure from juvenile at Exhibit 103. In

paragraph No.3 he deposes about personal search and seizure

from accused No.1-Imtiyaz and panchanama Exhibit 105. He also

speaks about material found with other accused persons.

83. Thus, documents at Exhibit 163 to 166 allegedly bear

signatures of this witness Ganesh & Balu. These signatures are

not put to them at all. It is important to note that PW-10 was

examined on 17/4/2019 and the documents at Exhibits 163 to

167 have seen the light of day on 31/1/2018. Apparent

inconsistencies noted supra about arrests & emerging from these

documents at Exhibit 163 to 167, show that version of

prosecution on arrests of accused cannot be accepted. Moreover,

the accused 1 & 2 did not get opportunity to cross-examine

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Ganesh in this respect. It also becomes doubtful whether PW-20

was at all present while arresting accused persons at Govandi

and Bhiwandi. Even if deposition of PW-20 is accepted to be

correct he got custody of accused persons only in the afternoon

i.e. after 12 noon. Thus, accused No.1 was in custody of Crime

Branch Unit-V for over 9 hours till then.

84. Deposition of PW-1 that on 4/6/2012 at 12.30 a.m. he

was searching along with police in Bhiwandi area and at that

time at about 3.00 a.m. police officer Aahire and his staff brought

Imtiyaz and two other accused persons near his car, therefore

creates a serious doubt in mind. He then states that those

accused persons were taken to Crime Branch Unit and he went

home. He then states that on 4/6/2012 he went to Crime Branch

Unit in the evening and at that time police officer disclosed him

about murder. He was shown body of his son in Bhiwandi on

6/6/2012. Even if we presume the date of his visit to Crime

Branch Unit to be 5th June, that does not improve the position for

prosecution.

85. Exhibit 185 is the first request for remand made by

Investigating Officer. It is dated 6/6/2012 and in it date of arrest

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is shown as 6/6/2012 with time 12.20. The documents proved by

PW-12 and by prosecution at Exhibits 103, 104 and 105 shows

outcome of body search of accused persons. Recording of these

documents begins at 12.20 in the afternoon and is over at 13.00

hours. However these documents are dated 5/6/2012.

86. PW-5-Mr. Jagtap has been examined to show discovery

of body of victim at the instance of accused persons. The

recording of disclosure begins at 13.10 hours and it is finished at

13.35 hours on 5/6/2012. The actual recovery vide Exhibit 84A is

shown to be between 13.10 hours and it continued upto 17.30

hours on 5/6/2012.

87. Thus, accused No.1 who was taken in custody at 3.00

a.m. on 5/6/2012 as per story of prosecution was not produced

before the Court till working hours of Court on 6/6/2012. This

observation holds good even in relation to accused No.2. We

have already noted supra that in same remand application date

of arrest is shown as 5/6/2012. If mentioning of date of arrest as

6/6/2012 in Exhibit 185 is presumed to be incorrect, still it does

not help prosecution since even in that case "not producing"

accused persons within 24 hours before the J.M.F.C. comes on

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record.

88. The fact that PW-20 does not accept that he

apprehended accused persons and they were delivered in his

possession by Crime Branch Unit-V militates with the version of

PW-19 that the arrests were made by PW-20. Not maintaining

station diary entries or in any case not producing it and evasive

answers about visiting Crime Branch Unit-V by PW-20 casts cloud

of suspicion on date of arrest. It appears that PW-1 had no reason

to lie. His version that on 4/6/2012 at 12.30 a.m. he proceeded

with police staff and at 3.00 a.m. on that day police officer Ahire

and other staff brought accused Imtiyaz and other two accused

persons therefore need not be lightly brushed aside. Trial Court

has in paragraph No.7 of his deposition recorded that on

4/6/2012 he went to office of Crime Branch, Kurla in the evening

and at that time police authorities disclosed to him fact of

murder of his son. Submission that Trial Court has recorded

wrong date or then PW-1 while deposing gave wrong date cannot

be accepted. This witness has further deposed that on 6/6/2012

he went to Shahu Nagar Police Station in the morning and from

there he was taken to Bhiwandi hospital where he saw dead

body of his child.

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89. Material on record therefore does not support the case

of prosecution that accused persons were arrested on 5/6/2012 in

the afternoon. In any case it appears that arrest panchanama of

accused No.1 has been drawn almost 9 hours after his alleged

arrest. Similarly, arrest panchanama of accused No.2 Azad is also

not drawn immediately after his arrest. This becomes important

when the seizure effected from them at the time of arrest is

looked into. In search panchanama at Exhibit 103 names of

juvenile and accused Israr appeared. One mobile handset with

two IMEI numbers, 2 SIM cards and memory card is shown to be

recovered. However, accused No.4 Israr is acquitted by the Trial

Court.

90. In panchanama Exhibit 104 recovery of mobile is

shown from acquitted accused No.5. One mobile china made with

two IMEI numbers and two SIM cards of Vodafone company are

recovered from accused No.2. Vide panchanama Exhibit 105,

seizure of one mobile phone from shirt pocket and two mobiles

from pant pocket is shown. One mobile is of Blackberry Company

with 2 SIM cards and 2 IMEI numbers, second is of Nokia make

with one IEMI and third mobile is of Samsung Company with two

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IMEI numbers. Separately 9 SIM unused cards are also shown to

be recovered from his person.

91. All these recoveries on 5/6/2012 are attempted to be

proved through PW-10. It appears that no arrest panchanama of

accused persons was prepared and only signatures of PW-10 and

One Balu were obtained on documents at Exhibit 163 to 166.

Exhibit 163 pertains to accused No.1-Imtiyaz and in it date and

time of arrest is left blank. Even against column No.8 where

articles found in body search are required to be mentioned,

nothing is recorded. Same can be said about Exhibit 164 which is

in relation to accused No.2. PW-10 or PW-19 do not speak of

Exhibit 163 and 164. If signatures of witnesses at Exhibit 103,

104 and 105 as also on these documents were simultaneously

obtained, it is surprising that these documents are left blank. It is

apparent that signatures of witnesses were obtained on blank

documents. Once we find some element of dishonesty in

deposition of PW-19 and PW-20 about arrest of accused persons,

the documents of body search at Exhibit 103, 105 and arrest

panchanama at Exhibits 163 and 164 also becomes doubtful.

92. Supplementary statement of PW-1-Rajesh has been

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recorded by police authorities on 7/6/2012. In that statement he

has mentioned that on 1/6/2012 he complained to police of

kidnapping of his son and demand of Rs.25 lakhs. Police

accordingly registered Crime No.94/2012 under sections 363 and

364 of IPC. He was given a Nokia make mobile with recording

facility. He inserted his SIM Card No.9892010138 in it. When he

and police were searching for accused persons, he got a call at

11.00 a.m. on 1/6/2012 from mobile No.7303245276. On

2/6/2012 at about 4.00 p.m. he received a call from mobile

No.7666937900 and at 1.00 p.m. in the night he received a call

from No.7666153880. On 3/6/2012 at 10.00 p.m. in the night he

got a call from No.8767237582. On 4/6/2012 at 12.45 in the noon

he got call from No.8080840471 and thereafter from mobile

No.7303467269 at 4.15 in the noon demanding Rs. 25 lak. From

same number on same day he got calls 4.30 in the noon and at

8.00 and 10.30 in the night. Person calling was asking for Rs.25

lakhs to be delivered at a place as he would direct, if Rajesh

desired to have his son back. Rajesh in his supplementary

statement, has stated that he was requesting that person to

reduce the amount and to show his son. All these conversation

has been tape-recorded and police listened to it. Police tried to

verify the address and name of person calling, but was not

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getting it. However, police found that calls were being made

from Bhiwandi area. Accordingly, he and police were constantly

visiting Bhiwandi in search of accused and son. On 4/6/2012

when he was in Bhiwandi with police, police learnt about the

location of accused. Accordingly, at 3.00 a.m. on 5/6/2012 police

took three persons in custody and one of them was his ex-

employee Imtiyaz. However, his son was not present there.

Police squad left with Imtiyaz. Thereafter he went to Crime

Branch Unit, Kurla. After some time, squad which had left with

Imtiyaz returned with two more persons and one out of them was

his employee by name Azad. Police then asked him to go. On

5/6/2012 when in the night he was at Kurla Crime Branch Unit, he

was informed about finding of his son's body. He was asked to

come at Shahu Nagar Police Station on 6/6/2012 to identify it.

Accordingly, on next day in the morning he identified the body of

his son. After autopsy, he took the body and performed funeral.

93. In the night on that day, he learnt that Azad and

Imtiyaz confessed to killing of his son after abducting him on the

pretext of moving around. He has mentioned that accordingly on

that day he has returned the mobile given by police in which

conversation was recorded with its SIM card.

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94. Before the Court, during cross examination he

deposed that he was not remembering the date on which he

gave mobile back to police. He also stated that he was knowing

only one out of the three culprits which were taken in custody by

police early in morning hours and police did not disclose to him

names of two unknown persons. He was not aware whether they

were taken in custody by police on 4/6/2012. In further cross he

has revealed that he received call twice on 1/6/2012 and he was

not remembering number of calls received before filing of FIR. He

also did not remember the date on which he disclosed name of

accused No.1 Imtiyaz to police. He also did not remember

whether he requested police to record his further statement

regarding identification of voice. However, during his

examination-in-chief, in paragraph 8, he has deposed that police

took mobile back from him on 6/6/2012.

95. PW-12-Mr.Juber Qureshi has been examined to prove

panchanama of taking Nokia mobile from PW-1-Rajesh. He states

that at about 5.00 p.m. he was called at Shahu Nagar Police

Station on 7/6/2012. Co-panch was already there. Complainant

Rajesh (PW-1) was also sitting there. Complainant placed one

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mobile before police and it was taken in custody by police. Mobile

was kept in brown colour packet, packet was sealed. He signed

on label along with co panch. Panchanama was prepared and it

was signed by him, co-panch and police officer. He identified that

panchanama with his signatures. That panchanama is at Exhibit

116. He stated that mobile handset was of Nokia company and

he identified that handset. This mobile has been given Article

No.2 (colly). Article 2-B is the label on it.

96. His cross examination shows that he is having chicken

shop and doing business without any license. When he went to

police station, only one police officer by name Mr. Nagare was

present there. Panchanama was not read over to him

97. Panchanama Exhibit 116 is drawn as deposed by him.

Panchanama also mentions the fact of use of mobile for recording

conversation and its purpose. Witness however has not

supported this part.

98. PW-11-Jairaj Jaiswal is the witness who on 12/6/2012

claims to have heard the conversation in memory card in a silver

and black coloured Nokia mobile handset and drawing of its

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transcript. His deposition at Exhibit 108 begins when police

unpacked the mobile handset of silver and black colour with

model Number-N-81. Police then removed memory card from

mobile handset. This memory card was inserted in CPU of

computer in police station. According to him it contained a voice

clip.

99. The said memory card purportedly contains recorded

conversation between accused demanding ransom and the

informant Mr. Rajesh. We have already taken note of fact that this

Nokia mobile with call recording facility was given to respondent

(PW-1) by Investigating officer Shri Desurkar. This Nokia mobile

was taken back by said Investigating Officer from Rajesh. PW-12

has witnessed this taking back. His deposition does not show

reference to any memory card or its number. He only mentions

taking back of mobile handset of Nokia company and preparation

of panchanama. After said mobile was placed in brown colour

packet, it was sealed and labelled with his signatures and

signature of co-panch on the label. PW-11-Jayraj does not

depose of mobile was taken out form any sealed packet. He does

not point out that envelope contained any seal and signatures.

PW-12 or then co-panch at Exhibit 116 was not present at that

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time. Thus, identity of memory card or mobile witnessed by PW-

11 with identity of mobile handset sealed on 7/6/2012 in

presence of PW-12 has not been established.

100. Not only this number of memory card while handing

over the mobile with call recording facility to PW-1 or while taking

it back has not been noted anywhere. The deposition of PW-12

does not contain even a reference to memory card. Hence,

whether on 7/6/2012 or on any other day said memory card was

obtained back from PW-1 is a moot question. Identity of memory

card inserted in CPU on 12/6/2012 for preparing its transcript

with one which was allegedly handed over to PW-1 therefore

cannot be seen.

101. Panchanama Exhibit 109 does not refer to number of

memory card. It contains transcript of total 10 conversations.

First one is recorded at 11.00 on 1/6/2012 while last one is

recorded at 22.15 hrs on 4/6/2012.

102. The said witness PW-11 during cross examination has

stated that conversation was between two different persons. In

paragraph No.9 has admitted that there are many voices of

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different persons in voice clippings and all those voices were

played in his presence. He accepted that police had not taken

note of all these voices and he also did not request police to

write it down. He has stated that recording of panchanama

started at 11.00 a.m. and was completed between 4.30 to 5.00

p.m.

103. At this stage, it will be appropriate to note the

deposition of PW 14 Suresh Neharkar. He is working with Anti

Corruption Bureau, Mumbai as ASI Radio Mechanic. On

14/06/2012, he was sent to Shahunagar Police Station where he

recorded specimen voice of accused no. 1 Imtiyaz. Two panch

witnesses were also present. He took out his digital recorder and

inserted in it micro SD card which was given by IO. He prepared

three files of the voice samples. Two files are of two panchas and

third one is of accused. This memory card was marked article 22.

104. The result of analysis i.e. auditory analysis is at Exh.

140. It is signed by one Mukeshkumar as Scientific Officer who

has not entered in the witness box. This report mentions one

cellphone and one battery. At Exh. 1/3, there is memory card of

make 'Moserbaer 2GB' containing the speech recording. At Exh.

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2 is memory card of make 'Bail 4GB'. Exh. 2 is stated to be

specimen voice while Exh. 1/3 contains the questioned voice. The

auditory analysis and subsequent spectrographic analysis reveal

that the questioned voice is similar to specimen voice.

105. We have already noted supra that the details of make

or any distinct number of memory card contained in Nokia mobile

handed over by IO PW 20 to PW 1 Rajesh, taken back from Rajesh

or then used for transcription on 12/6/2012 in the presence of PW

11 Jayraj did not find mention anywhere on record. PW 11 does

not point out on oath that the memory card removed from the

mobile was in a sealed or labeled packet or container though he

specifically states that after the transcription, the said memory

card was inserted in the mobile handset and again packed,

sealed and labeled. This witness also deposes that in the

memory card from which transcription was obtained, there were

many voices and police have not taken cognizance of all those

voices. The prosecution has opened the specimen sample only

of Imtiyaz (accused no.1) and the document at Exh. 140 shows

its comparison with memory card in Nokia mobile. If there were

many voices, the other voices therein have not been identified

and are ignored. It appears that choice or some discretion has

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been exercised while selecting conversations for transcription.

106. Accused No.1 Imtiyaz comes into picture because the

employee by name Yogesh Patange of PW 1 after hearing the

recorded voice, identifies the same as that of accused no.1. The

prosecution has not examined this Yogesh Patange.

107. The body search panchanama at Exh.104 of accused

no. 2 Azad shows that one 'Q9' China make mobile phone of

'G5' company was seized from him. It had two IMEI numbers

with one SIM card. Moreover, two more SIM cards were recovered

from him. Azad had stated that the said mobile was of his friend

Nayab Ali and SIM card in it was purchased in the name of Yogesh

Patange.

108. The prosecution has brought on record call data record

of PW-1. It is proved by witness PW-17 Mr. Kolwadkar of Bharati

Airtel. He has given certificate under section 65-B of the

Evidence Act and in it he has mentioned that the details are for

the period from 1/5/2012 till 10/6/2012 and they are of mobile

N.9892010138 i.e. of PW-1. These details are at Exhibit 152. This

CDR discloses IMEI number of caller handsets which according to

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prosecution is with accused No.1. Three handsets are claimed to

be seized from him. These aspects are being considered little

later in this judgment. However, Exhibit 105 body search

panchanama of accused No.1-Imtiyaz shows that handset with

IMEI No.404929205725244 does not figure therein as of any of

the three mobile handsets. In the result, Exhibit 152 does not

have material impact on present controversy.

109. The other CDR is proved through PW-13 Mr. Gaikwad

who happens to be Nodal Officer of Reliance Communication.

According to prosecution IMEI numbers of three mobiles are

figuring therein. As per Exhibit 105 Article 16 is white colour

blackberry mobile handset with IMEI No.359860011009390. The

other IMEI No. to it is 359860011009408. Article 18 is black

colour Nokia Mobile handset with IMEI No.3593902490331/1. Last

mobile handset Article 15 is of Samsung Company and it as IMEI

Number 356650035065145 and 366650035065152.

110. The call data record produced by PW-13 is at Exhibit

120. Section 65-B certificate issued by him shows that CDR

contains details of incoming and outgoing calls from Mobile

Numbers 7666165302, 8767175875, 7303245276, 7666937900,

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7666153880, 8767237582, 8080840472, 73034667269 and

7666995452. As per Exhibit 128 mobile No.7666995452 is of one

Jahid Khan who is not an accused before this Court.

111. PW-13 Mr. Gaikwad has during examination-in-chief

stated that as per their system, last digit of IMEI number

becomes & is termed as "0" though the handset factually shows

its last digit to be any number from "1 to 9".

112. It is in this backdrop, that his evidence and CDR at

Exhibit 120 needs to be appreciated. As per Advocate Dwivedi

out of 10 conversations contained in the transcript Exh. 109, the

transcript dated 1/6/2012 pertaining to call made at 11.00 am

and the transcript pertaining to call made on 4/6/2012 at 18.29

hrs did not appear in the CDR brought on record through PW 13

Gaikwad. Panchanama at Exh. 109 shows first recording to be

from the caller Mobile No. 7303245276. Learned APP has also

supplied to us relevant extract of CDR. We need not refer to CDR

pertaining to date 31/5/2012 at this stage. Exh. 121 shows the

call made on 1/6/2012 at about 16.00 hrs. There is therefore, no

call as mentioned in Exh. 109 from mobile no.7303245276 at

11.00 am on that day.

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113. Similarly though there are more than one

transcriptions of calls made on 4/6/2012, there is no call from No.

7303467269 made at 18.29 hrs. The call recorded on that day

from the same mobile number to PW 1 is at 18.21 hrs. This

inconsistency is not explained by the State.

114. The second transcript in Exh.109 is from telephone

no.7666937900 on 2/6/2012 at 15.51 hrs. This call finds mention

in CDR proved by PW 17 and there IMEI number of call is shown

as 404929205725244. This is not IMEI number of any of the

mobile handsets allegedly found with the accused no. 1.

115. Third transcription is of call made from mobile

No.7666153880 on 2/6/2012 at 19.53 hrs. This is supported by

CDR proved by PW 17 at Exh. 152 and it is also reflected in Exh.

124. In Exh. 152, IMEI number of caller is recorded as

404929205725244 i.e. same as of call mentioned supra but with

different phone number. In Exh. 124 IMEI number of this caller is

recorded as "356650035065150". Any of the three handsets

allegedly found with accused no. 1 does not have this IMEI

number.

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116. On the same day at about 19.56 hrs the transcription

shows the call received from 7666153880. In Exh. 124, none of

the IMEI numbers found with the accused appear. On 3/6/2012 as

per transcript call is received by PW 1 from mobile number

8767237582 at 22.05 hrs. Our findings in relation to IMEI number

of accused no. 1 supra, hold good even in relation to this call.

117. The next transcript available in Exh. 109 is of the call

dated 4/6/2012 at 12.37 hrs. This call is made by mobile number

8080840472. The IMEI number there does not show that the call

emanated from any of the three handsets found with accused no.

1.

118. The call made at 16.12 hrs on 4/6/2012 by caller

having number "7303467269" is mentioned in the next transcript

at Exh. 109. In Exh.127 IMEI number of caller is mentioned is

"359339024903310". As per prosecution, this is IMEI number of

article 18 black colour mobile handset seized from accused no.

1. It is not in dispute that as mentioned in Exh. 105, the said

number is having following four digits at its end - Viz. "331/1".

Even if the deposition of PW 13 Mr. Gaikwad that the last digit

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turns into zero as per their system is accepted, this number

would become "331/0". This fact that the last digit becoming

"zero" in the system of PW 13 is deposed to by him in the court

for the first time and it is not certified in the certificate dated

19/6/2012 at Exh. 119 issued in terms of section 65-B of the

Evidence Act.

119. The call in transcript mentioned at 18.21 hrs is coming

from mobile number "7303467269" and IMEI number of caller is

same as mentioned supra. The observations made above,

therefore hold good even in relation to this call.

120. Exh. 109 then shows the transcript of call made at

19.49 hrs on 4/6/2012. This call has come from the very same

number though it is not recorded in this document. The IMEI

number is identical and hence the observations made in relation

to that number apply to his call also.

121. The last call which is transcribed in Exh. 109 and it

has been made from the same mobile number at 22.25 hrs. IMEI

number of calling handset is the same as mentioned supra and

hence, our observations on last digit becoming zero made supra

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fully apply here. On record, we get remand application Exh. 185

in which, the IO has mentioned that total six mobile phones and

9 SIM cards were recovered from 5 accused persons. We have

already noted supra that as per certificate Exh.119 and

document at Exh.128, mobile number 7666993452 is of one

Jahid Khan. Learned APP has demonstrated that in the CDR

produced on record this phone number is found with different

IMEI number. Our attention has been invited to calls made on

1/5/2012, 27/5/2012 and 28/5/2012 till 29/5/2012 to buttress

this submission. It is submitted that from 29 th May, 2012 again

IMEI number of Article 18 has been used till 05 th June, 2012. As

noted supra, article 18 is of black colour Nokia mobile handset

allegedly found with accused no. 1. We have already commented

upon the last 4 digits of the said IMEI number and the

submission of witness Mr. Gaikwad (PW 13) that the last digit is

shown as "zero" in their system. We find it difficult to accept this

bare statement. Moreover, as per Exh. 128 this phone number

(SIM card) is of one Jahid Khan. There is no explanation about him

on record.

122. Thus the identity of memory card handed over by PW

20 to PW 1 has not been established by cogent and convincing

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evidence. The distinct number of mobile memory card has not

been recorded anywhere and the CDR produced by the

prosecution itself shows that the subject memory card is not

always in Nokia mobile handset allegedly handed over by PW 20

to PW 1. It appears that PW 1 had also handset with recording

facility. It is important to note that in paragraph 10 of his cross

examination, PW 20 states that he had given mobile handset

with recording facility to complainant on 02/06/2012. It is

obviously due to fact that the complainant Rajesh did not have

mobile with recording facility.

123. The call detail record also shows that IMEI number of

PW-1 Rajesh undergoes changes on 2/6/2012 most probably

because of mobile handset offered by PW-20. The fact that

transcriptions are available at Exhibit 109 from 1/6/2012 shows

that even on 1st June, PW-1 might have had call recording facility.

Thus, submissions that he had recording facility from 2/6/2012

or on calls recorded in subject memory card do not appear to be

correct. The prosecution relies upon recorded conversation in

memory card in mobile handset handed over by PW-20. That

conversation therefore should have been after mobile was

handed over to PW-1 on 2/6/2012. Learned APP has submitted

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that calls in or voice in memory card could not have been edited.

However, we fail to notice any material in support thereof on

record. The very fact that the conversation alleged to be dated

1/6/2012 is reflected in Ex.109 shows an error in this

contention. Call recorded on 1st June could have been shifted to

subject memory card also.

124. Call detail record shows more than one call from same

IMEI number alleged to be that of accused No.1. PW-11-Jairaj

Jaiswal also states that police have not taken note of all voices.

Thus, entire exercise of transcription and spectrograph analysis

looses its relevance.

125. Prosecution is unable to show that mobile number

from which calls were made to PW-1 was used by any of the

accused persons. It relies upon seizure of mobile handsets from

accused persons at the time of their arrest and IMEI number

associated with these handsets to explain CDR and to connect

accused No.1 with it through conversations mentioned supra.

There we have noticed that one of the mobile numbers was

belonging to a third person by name one Jahid Khan.

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126. Prosecution got mobile number of caller and wanted to

co-relate it with accused No.1. They could have therefore tried to

investigate other calls either made by that caller or then received

by that caller to identify the other person who either called the

accused or received call from him. Evidence of such person could

have been helpful in showing that at the relevant time that

mobile number was being used by accused No.1. There is no

such investigation on record.

127. In the light of this discussion, prosecution has not by

satisfactory evidence established the circumstance that ransom

calls to PW-1 were made by accused persons. The contention

that IMEI Number of handsets from which ransom calls were

made also changed frequently is therefore not very decisive.

Prosecution has not shown that any of the admitted relatives or

friends of the accused 1 had the contact with accused no. 1 on

these handset/s.

128. The other circumstance relied upon by prosecution is

about recovery of body of victim boy. PW-5-Vishwas Jagtap has

been examined as witness in whose presence disclosure of spot

where body was concealed has been made and then panch

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witnesses and police party was led to that spot. Disclosure

panchanama is Exhibit 84 and consequential recovery

panchanama is Exhibit 84A. Exhibit 84 is recorded on 5/6/2012

between 13.10 to 13.35 hrs. while Exhibit 84A is recorded from

13.10 till 17.30 hours. It is to be noted that Exhibit 84 and 84A

are part of same process. This is within minutes of the body

search panchanamas at Exhibit 103, 105 witnessed by other set

of witnesses viz. Ganesh & Balu.

129. Exhibit 84 shows that PW-20 had called PW-5 and

other panch Hanumant in Shahu Nagar Police Station at 13.10

hours and stated that accused persons were already arrested and

they wish to give some statement. One person present there

disclosed his name to be Imtiyaz and he stated that body of boy

was thrown in a gutter in Bhiwandi. That place would be shown

by him and his colleagues.

130. Further process is recorded in Exhibit 84A. Both

panchas, police, accused No.1 Imtiyaz, accused No.3 (juvenile)

and accused No.4 Israr together proceeded to spot in private

vehicle. After reaching Bhiwandi, accused asked vehicle to be

taken towards right then to take a left turn and again to take a

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right turn where vehicle stopped. In Exhibit 84A accused No.1 is

shown as accused while other 2 accused are mentioned as

colleagues and it is recorded that directions were given by

accused. Learned counsel for accused persons argued that which

of the accused persons gave directions is therefore not expressly

recorded.

131. Exhibit 84A shows that one constable was sent to local

police station by PW-20 and help was called for. API Shinde and

staff of Shanti Nagar Police Station arrived there. Then accused

led them to open ground and then in a lane on right side. They

were taken to a room in a chawl infront of Ansaar Kirana Shop.

There accused No.1 took a key seized by police in body search of

juvenile accused and opened the lock of that room. They all

entered that room. In that room bedsheets as also clothes were

lying scattered. Room was ad-measuring 12 ft. x 10.6 ft. All of

them thereafter came out of room. Accused re-locked it and

handed over key to police. Panchanama records that in that room

accused No.1 Imtiyaz showed the place where he killed the boy.

After coming out of room they were taken to a gutter which was

having a lid. It is recorded that accused Imtiyaz, juvenile and

accused No.4-Israr stopped near gutter infront of Haji Malang

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Stores. There, with finger, gutter was indicated with a statement

that after opening gutter-lid, body tied in nylon bag was thrown

in it. When lid of gutter was removed, it was found to be about 7

ft. deep and water was flowing through it. With the help of local

police, Fire brigade was called for. Accordingly, the staff of Fire

Brigade arrived. They found a white colour nylon bag in said

gutter. It was taken out. At that time local photographer Amar

Jamkar was called for and he took photographs of the place i.e.

gutter and of nylon bag.

132. Police then opened the said bag. The bag contained a

body of a child wearing sky blue lining shirt and track pant of

blue colour with 3 white strips on it. Hands, legs as also the neck

were tied with white colour rope. A dirty cloth of handkerchief

size was also seen around throat. Photographs were again

obtained. After inquest, body was sent for post mortem.

133. The panchanama therefore, shows that the initial

disclosure by accused no.1 Imtiyaz mentioning that the gutter

would be shown by him and his colleagues. Thereafter all three

accused together are recorded to have taken panch witnesses

and police officials to the road where the juvenile accused

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resided and thereafter, to the said gutter. It nowhere mentions

that it is accused no. 1 Imtiyaz alone who led the team to the

spot. It is apparent that accused no. 2 Azad was not party to this

disclosure or recovery at all.

134. In deposition, PW 5 Vishwas deposed that all three

accused led them towards the gutter. His cross examination

shows that he was called on phone by police officer by name

More and police station is near his house. He has denied that he

has worked as panch witness whenever police requested him.

He has further volunteered that all three accused were sitting

near PW 20 and police did not tell him that they were taken out

from the custody. He accepted that other two accused persons

did not disclose anything. However, according to him at the

time of disclosure by accused no. 1 Imtiyaz, other two accused

persons were nodding their heads. But that fact of nodding

heads is not recorded in the panchanama. He also accepted that

the incident recording recovery of key from accused no. 3 is

mentioned as per information given by police. No separate

panchanama regarding handing over of or return of key was

made. He did not see whether the key was sealed or labelled. He

accepted that accused nos. 3 and 4 did not lead them to Haji

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Malang Store. He could not remember whether he has acted as

panch witness earlier. He could not tell on how many occasions

he has acted as panch after the panchanama in the present

matter. It appears that the effect was made to point out certain

documents and criminal case numbers to him in which

according to the accused, he had acted as panch. He could not

remember it. He denied that he was not doing any other work

except that of acting as panch witness. These evasive answers

given by him make the story of discovery under S. 27 of the

Evidence Act itself shaky.

136. PW 16 Ali Hussein is panch on inquest. He was called

to Shantinagar Police Station on 05/06/2012. One Fire Brigade

vehicle and police officers were present there. After some time,

police brought a boy who pointed out a cap on the manhole ie

gutter. A gunny bag was taken out from that gutter. He then

points out drawing of panchanama and signing it. Exh. 146 is

that panchanama. He also identified the boy who showed the

gutter/manhole as accused no.3 - a juvenile. He identified the

cloths put on by the deceased and gunny bag. Exhibit 146

panchanama also records that the gutter was shown by juvenile

mentioning that the body was thrown in it. This witness

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therefore, does not point out accused no.1 Imtiyaz as a person

who indicated that gutter.

137. PW 6 Harishchandra Sambre is the fire man who

attended the duty on 5/6/2012 and helped in taking out the

body. He and other fireman entered the gutter and brought out

one gunny bag with dead body. He had brought the register

maintained by fire brigade department which supported his

version. His cross examination shows that the gunny bag taken

out by him had no distinct mark. He does not point out that any

of the accused persons were present there at the time when he

entered the gutter and brought out the body.

138. PW 18 Jaywant Shinde was then working as API at

Shantinagar Police Station. He was present with Shahunagr

Police at the spot (gutter) from which body was taken out. He

prepared inquest panchanama. He also identified the accused

brought by Shahunagar Police Station. At that time, he pointed

out accused no. 3 juvenile as the concerned accused. Thus, he

does not see accused 1 Imtiyaz or then accused 4 Israr or then

witness the alleged visit to a room where juvenile (accused-3)

resided as recorded in Ex. 84A.

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139. The panchanama Exh. 84A mentions visit by panch

witnesses and police team to the room in which accused no.1

allegedly killed the boy. This exercise appears as part of

recovery process and is not mentioned in the disclosure

statement as per panchanama. It is surprising that the key

required to open that room, which was already seized from

accused no. 3 allegedly at the time of his arrest, was available

on this day with the police at spot. Had there been advance

disclosure and therefore the knowledge to police officers about

the need of such key, availability of key could have been

understood. However, there is no such advance disclosure and

still key is produced by police and handed over to accused no. 1

to open the lock of the said room.

140. The said key was also produced before the trial court.

If the key was already seized & sealed at the time of arrest of

juvenile accused, police could have taken it out of the police

station after making suitable entries in the station diary and

allowed its use after recording its de-sealing in panchanama Exh.

84A. Its re-sealing also accordingly ought to have been & could

have been recorded in the said panchanama. These steps are

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conspicuously absent in it & have remained unexplained.

141. The facts noted supra, therefore cast serious doubt on

the presence of accused no. 1 at gutter on 5/6/2012. It therefore,

also throws a cloud of suspicion on the truth of story of

disclosure by him recorded as Exh. 84 on 5/6/2012. The answers

given by PW 5 Vishwas Jagtap show that he may be a stock

witness who has deposed to oblige the police machinery.

142. We have recorded the above findings keeping aside

the controversy about the date or time of arrest of the accused

no. 1 or the other accused persons.

143. It can be seen that if the demands of ransom made

by the accused persons are established conclusively through

CDR, it may constitute one of the important circumstance by

itself. However, the mobile numbers through which calls have

come are not shown to be in possession of or in the use of

accused no. 1 at the relevant time. The effort is only to

demonstrate possession of handsets in which SIM cards

supporting particular mobile number/caller number were placed.

The authorities have not investigated into the other calls made

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with the help of these three handsets or through those IMEI

numbers and did not point out that any relative or friend of

accused persons has received phone call from the handset

having that IMEI number. Police could not trace out the mobile

numbers but then police also did not get any data to

demonstrate that the user of those mobile numbers had called

the particular person who happens to be the friend or relative of

the accused. Police have not produced any statement of such

person who got call from accused persons using that mobile

number or using IMEI number of that handset.

144. The spectrographic analysis or audio-metric analysis

lost its relevance because the voice sample only of accused no. 1

Imtiyaz was obtained. Voice sample of other accused persons

were not obtained. Even the other voices which appear in the

memory card as per PW 11 Jairaj have not been accounted for.

We have also noted that the voice calls made prior to 2/6/2012

could not have been part of the memory card supplied by PW 20

Mr. Desulkar to PW 1 Rajesh. This discussion therefore,

demolishes the CDR as one of the connecting circumstance.

145. The circumstance of discovery of dead body of the

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victim boy is also not satisfactorily established by the

prosecution.

146. The 'last seen' by itself cannot constitute the valid

ground here. Even if we assume the prosecution story to be

correct, the deceased boy was last seen by PW 8 Kaushalkumar

with juvenile accused and accused no. 1. Thus at that time,

accused no. 2 Azad was not with them.

147. However, the witnesses in support of 'last seen' have

not been found promptly and explained properly. PW 2

Gulabchand is an ice candy seller and he was called to police

station after 10 to 15 days and shown the photograph of the boy.

He identified that photograph and then remembered the accused

persons accompanying that boy. No description of accused no.1

or accused no. 2 was then obtained from him.

148. PW 3 Mohd Dilawar Shaikh is a waiter whose position

again is not different than that of PW 2. Identification by these

persons in TIP is therefore, not a clinching evidence at all.

149. PW 7 Ananda Sutar was staying with the family of PW

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1 on the evening when the boy was abducted. Police did not

make any enquiry with him and his presence with the family is

not disclosed by PW 1 Rajesh to police immediately. He surfaces

as an witness after 8/6/2012. He claims that he called PW 1

Rajesh on 8/6/2012 and learnt about the unfortunate abduction.

He therefore, came to Mumbai and gave his statement to police

on 9/6/2012. The prosecution has not shown any CDR proving

the call made on 8/6/2012 by PW 7 to PW 1. Not only this, there

is no independent material on record to show that on 27/5/2012

this witness was in Mumbai or then in the evening he left for his

village in Kolhapur district. There is nothing to show that after

8/6/2012, he came from Kolhapur to Mumbai. The details about

the employment of Imtiyaz given by him run counter to the facts

deposed by PW 1 Rajesh.

150. Most important facet of the matter is about the date

of arrest of accused persons. We have already looked into it at

some length supra. Even if we presume that accused persons

were arrested on 5/6/2012, the arrest panchanama of accused

no.1 Imtiyaz is after about 9 hours of his arrest. Even the arrest

panchanama of accused no. 2 is not drawn immediately. They

have not been produced before the Court of JMFC within 24

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hours of their arrest. The finding of mobile sets or unused SIM

cards with accused no.1 is therefore, not substantiated by a

clinching evidence. The prosecution has examined Mr.

Sirajuddin Shaikh as PW 15. He claims that the accused no.1

and accused no.3 juvenile were residing in his area. In the year

2012, he was taken to Shahunagar Police Station wherein

accused nos. 1 and accused no. 3 were shown to him. Police

enquired from him whether he sold the SIM cards to them. He

then deposed that both the accused persons had come to him

jointly and requested for SIM cards. He had demanded the

documents to prove identity. They assured to give the documents

in the evening but did not return back. As they were residing in

the neighbourhood of his shop, he gave them SIM cards without

obtaining said documents. They had purchased 3 SIM cards each

of reliance company. He identified both the accused in the court

correctly. However he enters as prosecution witness because he

identifies them first in police station. He also stated that the

accused persons had come to his shop either on 20 th or 21st or

22nd May, 2012.

151. His cross examination shows that he was not having

any authorization from Reliance company to sell the SIM cards.

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He did not maintain any record of sale of such cards. He further

sated that if such register is maintained, he could have given

the particulars of the person purchasing the SIM card. He has

also stated that if within one week of activation of SIM card, the

documents are not sent to company, the card gets deactivated.

He, however, added that some cards get deactivated while some

remain active.

151. This evidence therefore, militates with the story of

prosecution itself. The prosecution could have attempted to

contact the relatives or friends of the accused persons and

gathered from them the mobile numbers used by the accused

during the said period or then the IMEI numbers of those mobile

handsets.

152. With the result, we find that none of the circumstances

mentioned supra have been proved beyond reasonable doubt. In

a case based upon the circumstantial evidence, it is settled law

that each circumstance constituting the chain must be

established by convincing evidence. All such circumstances

must link together & form the chain which indicates the accused

as the only culprit. Such circumstances must exclude the

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involvement of any other person in the crime. The prosecution

has to show that all possible links/angles incompatible with the

presumption of innocence of the accused have been investigated

into and such investigation leads only to accused persons.

These requirements are not satisfied in the present matter. In

the light of this finding, separate consideration of prayers made

by accused 1 Imtiyaz to allow him to cross examine the expert &

prosecution witnesses or to lead evidence in defence or to grant

him opportunity to point out impropriety of death penalty, is not

necessary. Criminal Application No. 1072 of 2019 is thus disposed

of.

154. The accused persons have relied upon Jairnal Singh

and Ors. Vs. State of Punjab:AIR 2010 SCC 3699 on appreciation

of evidence of chance witnesses. Anjan Kumar Sarma and Ors.

Vs. State of Assam:AIR 2017 SC 2617 on appreciation of

circumstantial evidence, judgment dated 10/12/2018 in State of

UP Vs. Wasif Haider etc. : Criminal Appeal No.1702 and 1706 of

2014 to point out effect of the defects in the TIP. Narendra

Singh and another Vs. State of MP : AIR 2004 (10) SC 699 on

circumstantial evidence, P.V. Anwar Vs. Basheer and Ors. : AIR

2014 (SCW) 5965 on certificate under section 65B of the

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Evidence Act, Ashish Batham Vs. State of MP : AIR 2002 SC 3206

on section 27 of the Evidence Act and TIP.

155. To urge that in such matters life imprisonment is the

rule and death penalty can be inflicted only in the rarest of rare

cases, support is taken from Bachan Singh Vs. State of Punjab

AIR 1980 SC 898, Machhi Singh and Ors. Vs. State of Punjab : AIR

1983 SC 957 and Madhu @ Madhuranatha @ another Vs. State

of Karnataka : AIR 2014 SC 394. It is submitted that accused

th no.1 Imtiyaz has during his imprisonment cleared 12 standards

examination. The Division Bench judgment of this court in the

State of Maharashtra Vs. Vitthal Tukaram Atugade:

MANU/MH/0342/2016 is also relied upon for this purpose.

156. Learned APP has invited our attention to Vinod Vs.

State of Haryana : AIR 2008 SC 1142 on the scope of section

364A IPC. Rajinder Kumar and anr Vs. State of Punjab : AIR 1966

SC 1322 is also relied upon to show how the circumstances

proved by the prosecution in the present matter call for

appreciation. State of Rajasthan Vs. Kashi Ram : AIR 2007 SC 144

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of Evidence Act expected the accused persons to discharge the

burden as the minor abducted victim has died while in their

custody. Mahesh Janardhan Gonnade Vs. State of Maharashtra :

(2008) 13 SCC 271 is relied upon to urge that the panch who

has deposed properly cannot be disbelieved only on the ground

that he is a stock panch. Dhanraj Singh @ Shera and Others Vs.

State of Punjab : AIR 2004 SC 1920=(2004) 3 SCC 654 is relied

upon to submit that the benefit of defects in the investigation

cannot be given to accused persons. Suresh and anr. Vs. State of

Haryana : (2015) 2 SCC 227 is relied upon to explain the scope

of section 106 of Evidence Act. Vinod Kumar Vs. State of Haryana

: (2015) 3 SCC 138 is relied upon to point out circumstances and

its use. Himanshu Mohan Rai Vs. State of UP & anr : AIR 2017 SC

1425 is cited to urge that there is no delay in recording section

161 statements of PW -2,3 & 7 in the present matters and it

cannot be seen as fatal here.

157. Dhanraj Singh @ Shera and Others Vs. State of Punjab ,

(supra) shows the law explained by the Hon. Apex Court on the

impact of defective investigation. On facts presented to it, Hon.

Apex Court observes in paragraph 8 that the stand of the

appellants before it related essentially to acceptability of

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evidence. Even if the investigation was defective, in view of the

legal principles explained, that paled into insignificance since the

ocular testimony in the case was found credible and cogent by

the Hon. Apex Court. Effect of non-examination of weapons of

assault or the pellets, etc. in the background of defective

AIR investigation has been considered by it in Amar Singh case--

2003 SC 1164.

. In the case before Hon. Apex Court, no crack in

the evidence of the vital witnesses was noticed. In the wake of

these findings, Hon. Court in para 5 observed that in the case of

a defective investigation the court has to be circumspect in

evaluating the evidence. But it would not be right in acquitting an

accused person solely on account of the defect; to do so would

tantamount to playing into the hands of the investigating officer

if the investigation is designedly defective. In case before us i.e.

in present matter, there are no eye witnesses. The discussion

supra shows absence of legal evidence to reach a finding of guilt.

Thus law expounded by Hon. Apex Court is not attracted here.

158. Shivaji @ Daya Shankar Aliaf Vs. State of Maharashtra :

AIR 2009 SC 56 is relied upon to submit that the death can be

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inflicted even in the matters where guilt is established through

circumstantial evidence. Machhi Singh & Ors. Vs. State of

Panjab : (1983) 3 SCC 470, Bablu @ Mubrak Hussain Vs. State of

Rajasthan : AIR 2007 SC 697 and Bachan Singh Vs. State of

Panjab : AIR 1980 SC 898 are also pressed into service.

159. In the light of the findings of facts noted by us supra,

in this matter, we do not find it necessary to dwell on all these

precedents. We find that the prosecution has failed to bring

home the guilt of the accused no.1 Imtiyaz and accused no.2

Azad.

160. We accordingly pass the following order :

(a) Criminal Appeal No. 859 of 2019 filed by accused no.1

Imtiyaz is allowed and he is acquitted of the charges under

sections 302, 363, 364-A, 201 read with 34 of IPC.

(b) With the result, the punishment of death and other

sentences imposed upon accused no. 1 by the Additional

Sessions Judge, Greater Mumbai vide judgment and order dated

23/5/2018 in Sessions Case No.648 of 2012 are quashed and set

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aside.

(c) The conviction and sentence imposed upon accused no.2

Azad by the said judgment in Sessions Case No. 648 of 2012 for

the offence punishable under sections 302, 364-A, 363 and 201

IPC is also quashed and set aside.

(d) Criminal Appeal No. 747 of 2018 filed by the accused no. 2

Azad is accordingly allowed.

(e) Criminal Confirmation Case No.3 of 2018 stands answered

in negative accordingly by acquitting the accused no.1 and 2.

(f) Accused no. 1 Imtiyaz and accused no.2 Azad be set free if

their custody is not required by the State Government in any

other matter.

(g) Criminal Application No.1072 of 2019 is disposed of as no

orders are required upon it.

(h) As accused nos. 1 and 2 are acquitted, Criminal Application

No. 1 of 2019, Criminal Application No. 2 of 2019 as also Criminal

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Application No. 1585 of 2018 moved by them do not survive and

are disposed of.

(i) Muddemal property be dealt with as directed by the trial

court after the appeal period is over.

(MRS.SWAPNA JOSHI, J.) (B.P. DHARMADHIKARI, J.)

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