The Bombay High Court today acquitted Imtiyaz Shaikh, who was sentenced to death by the sessions court and Azad, who was sentenced to life imprisonment for kidnapping and killing a 12-year-old boy in 2012, due to lack of evidence.
Division bench of Justice BP Dharmadhikari and Justice Swapna Joshi held that the prosecution had failed to prove the guilt of the accused. Court also concluded that call data records relied upon by the prosecution was on the basis of IMEI numbers of the handsets but numbers from which calls for ransom were made have not been proved to be used by Imtiyaz at the relevant time.
Both Imtiyaz and Azad worked for the deceased boy's father Rajesh at his factory in Dharavi. Rajesh had removed Imtiyaz from the job eight months prior to the said incident. According to the prosecution, the accused had killed Rajesh's son on the same day they kidnapped him, that is, May 25, 2012.
According to the prosecution, deceased victim's father Rajesh Bhadange filed a complaint with the police on June 1, 2012 regarding the kidnapping of his son and a demand of Rs.25 lakhs. Police accordingly registered an FIR under Sections 363 and 364 of IPC. Rajesh was given a Nokia make mobile with recording facility. When he and police were searching for accused persons, he got a call at 11 am on June 1, 2012 and this continued for three subsequent days. All the calls were made from different numbers until June 4, when he got calls at 4.30 pm, 8 pm and 10:30 pm from the same number demanding Rs. 25 lakhs. Person calling was asking for the said amount to be delivered at a place as he would direct, if Rajesh desired to have his son back.
Rajesh in his supplementary statement, stated that he was requesting that person to reduce the amount and to show his son. All these conversations were tape-recorded and police listened to them. Police found out that calls were being made from Bhiwandi area. Therefore, Rajesh accompanied the police to Bhiwandi in search of the accused and his son on June 4, 2012. While he was in Bhiwandi with the police, they learnt about the location of accused. At 3 am on June 5, 2012 police took three persons in custody and one of them was his ex-employee Imtiyaz.
However, his son was not present there. Police left with Imtiyaz for 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 June 5, 2012 when Rajesh was at Kurla Crime Branch Unit, he was informed that his son's body was found in a manhole at Bhiwandi. He was asked to come at Shahu Nagar Police Station on June 6, 2012 to identify the body. Accordingly, on next day he identified the body of his son. After autopsy, he took the body and performed funeral.
APP JP Yagnik appeared for the State, Advocate Ravi Dwivedi argued on behalf of the accused number 1 Imtiyaz and Advocate Saima Ansari appeared for accused number 2 Azad.
Dwivedi relied upon various judgements of the Supreme Court, including Jairnal Singh and Ors. Vs. State of Punjab on appreciation of evidence of chance witnesses. Anjan Kumar Sarma and Ors. Vs. State of Assam on appreciation of circumstantial evidence, State of UP Vs. Wasif Haider to point out effect of the defects in the Test Identification Parade (TIP). Narendra Singh and another Vs. State of MP on circumstantial evidence, PV Anwar Vs. Basheer and Ors on certificate under section 65B of the Evidence Act.
To urge that in such matters life imprisonment is the rule and death penalty can be inflicted only in the rarest of rare cases, Dwivedi took support from apex court's judgement in Bachan Singh Vs. State of Punjab,
At the outset bench noted-
"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 needs to be perused."
The bench examined all the evidence on record and referred to the Call Data Records (CDRs) submitted by the prosecution as the most crucial piece of evidence-
"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 circumstances 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 were placed. The authorities have not investigated into the other calls made 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."
Court pointed out that there was delay in preparing the arrest panchanama of the accused-
"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. They have not been produced before the Court of JMFC within 24 hours. This becomes important when the seizure effected from them at the time of arrest is looked into."
Thereafter, Court referred to the fact that deceased boy was last seen with accused-
"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."
Finally, Court allowed the appeals filed by both the accused acquitting them of all charges and said-
"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."
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