Bombay High Court
Kushal @ Akash Dattatray Prabhu vs The State Of Maharashtra on 10 January, 2022
Bench: S.S. Shinde, Surendra P. Tavade
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Digitally signed
by TRUSHA
TRUSHA TUSHAR
TUSHAR MOHITE
Date:
MOHITE 2022.01.11
11:36:13 +0530 INTERIM APPLICATION NO.108 OF 2020
IN
CRIMINAL APPEAL NO.1623 OF 2019
Kushal @ Akash Dattatray Prabhu ... Applicant
Vs
The State of Maharashtra ... Respondent
WITH
INTERIM APPLICATION NO.268 OF 2020
IN
CRIMINAL APPEAL NO.1623 OF 2019
Pralin Shamkant Baviskar ... Applicant
Vs
The State of Maharashtra ... Respondent
-----
Mr.Aniket Vagal for applicant in Interim Application
No.108/2020
Mr.N.R.Bubna for the applicant in Interim Application No.268
of 2020
Mr.V.B.Konde-Deshmukh, A.P.P. for the State
CORAM : S.S. SHINDE &
SURENDRA P. TAVADE, JJ.
RESERVED ON : NOVEMBER 22, 2021
PRONOUNCED ON : JANUARY 10, 2022
P.C.
. Heard.
2. Both the Interim Applications are arising out of the
judgment and order dated 23.10.2019 passed by Additional
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Sessions Judge, Nashik in Criminal Case No.197 of 2017. The
original accused preferred Interim Application No.108 of 2019.
Interim Application No.268 of 2020 is fled by the father of
victim to oppose the Bail Application submitted by the
original accused (Appellant).
3. The Applicant was prosecuted for the ofence punishable
under section 302 of the Indian Penal Code and he is
convicted under Section 235(2) of Cr.P.C. and he is sentenced
to sufer imprisonment for life, in addition to pay a fne of
Rs.2,000/- and in default of payment of fne, the Applicant is
directed to sufer simple imprisonment for seven days. The
Applicant is convicted for the ofence punishable u/sec.201 r/w
34 of I.P.C. vide 235(2) of Cr.P.C. and he is sentenced to sufer
rigorous imprisonment for a period of three year's with fne of
Rs.1,000/- and in default of payment of fne, the Applicant is
directed to sufer simple imprisonment for seven days. The
Applicant is convicted for the ofence punishable u/sec.364-A
r/w 34 of I.P.C. vide 235(2) of Cr.P.C. and he is sentenced to
sufer imprisonment for life with fne of Rs.2,000/- and in
default of payment of fne, the Applicant is directed to sufer
simple imprisonment for seven days. The Applicant is
convicted for the ofence punishable u/sec.384 r/w 34 of I.P.C.
vide 235(2) of Cr.P.C. and he is sentenced to sufer rigorous
imprisonment for a period of one year's with fne of Rs.1,000/-
and in default of payment of fne, the Applicant is directed to
sufer simple imprisonment for seven days.
4. The Applicant is in custody since date of arrest namely
15.10.2015. It is contended that there is no eye witness to
the incident. The entire case is based upon circumstantial
evidence. The prosecution has relied on the theory of last
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seen. The prosecution also relied on the CDR-SDR, CCTV
footage and recovery of incriminating articles and DNA report.
It is contended that the prosecution has failed to establish
theory of last seen. Similarly, the CDR-SDR does not support
the prosecution case. It is contended that the CCTV footage is
not useful to the prosecution to prove the presence of the
Applicant along with the deceased and juvenile in-confict
with law at diferent place. He also contended that the
prosecution has not laid any cogent and cognate evidence to
prove seizure of clothes and cell phone of the deceased at the
instance of the Applicant. It is contended that there is no
evidence to complete a chain as required by the law to prove
the circumstantial evidence. It is contended that the
Applicant is aged about 20 years. He is in custody since last
fve years. He was a student of Enngineering. There is no
possibility of hearing of Appeal within short period. Therefore,
sentence imposed on the Applicant be suspended and he be
released on bail.
5. On the other hand, the learned A.P.P. submits that the
prosecution has proved the theory of last seen together. The
CDR-SDR and CCTV footage also established association of the
Applicant with the deceased before death of deceased. It is
also established that the blood stain found on the pant of the
Applicant matches with the blood group of the deceased with
the help of DNA report. It is contended that young boy was
killed by the Applicant and co-accused. There is sufcient
evidence against the Applicant. Therefore, application be
rejected. Application of the Applicant was also opposed by the
father of the deceased. It is contended that there is sufcient
evidence against the Applicant to prove his involvement in the
crime. Therefore, it is prayed that the application be rejected.
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6. Heard.
7. Perused the evidence laid on record. Prosecution case
rest on the circumstance namely last seen theory. The
Applicant was last seen together with the deceased. The
Applicant was found with the deceased in CCTV footage. The
CDR establish the conversation between the Applicant,
deceased and co-accused prior to the death of the deceased
and even thereafter. The seizure of the blood stain clothes of
the Applicant are proved. The DNA profle of the deceased
matched with the blood group found on the pant of accused.
Prosecution has relied on the evidence of as many as 20
witnesses. It is not disputed that the death of the deceased
was homicidal. The prosecution has led evidence of Aditya
More, (P.W.No.2) and Nitesh Shinde, (P.W.No.4) to prove theory
of last seen together. From the evidence of Aditya More and
Nitesh Shinde, it is established that the Applicant was in the
company of the deceased, prior to the death of the deceased.
Similarly, the prosecution has also relied on the CCTV
footages of Ashok stambha, wherein it is revealed that the
Applicant was found with the deceased on motor cycle, which
is prior to death. The said CCTV footage was proved by the
Project Manager of Wipro Company. The prosecution has also
proved the CDR of cell phone of father of accused, cell of the
deceased. The said CDR-SDR are proved by the employee of
service provider. The Applicant had conversation with the
deceased and with the co-accused. Similarly, it has been
established that the Applicant was using cell phone of his
father, which was seized from his possession. It is established
from the call details of the father of the deceased that he
received last call of the deceased on 14.10.2015 at about
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22.56 p.m. The location of cell phone of the deceased was
room situated at Vidya Nagar, so it can be said that till late
night on 14.10.2015, the Applicant, the deceased and co-
accused were together. Prosecution has also relied on the
seizure of pant of the Applicant in pursuance of statement
made by him. Said panchnama is proved by the prosecution.
Pant of the Applicant was referred to forensic examination.
The DNA report is produced on record. It shows that blood
stains on the pant of the Applicant were of blood group of the
deceased. DNA report matches to that efect. The said
evidence is clinching to establish the involvement of the
Applicant with the crime.
8. On going through the evidence on record, it appears that
there is sufcient material evidence against the Applicant,
which requires re-appreciation of Appeal. So at this point of
time, it would not be just and reasonable to release the
Applicant on bail. Hence, I pass the following order:
ORDER
1. Both the Interim Applications are rejected.
2. The observations made hereinabove are prima facie in nature and confned to the adjudication of the present application. Hearing of the appeal stands expedited.
(SURENDRA P. TAVADE, J.) (S.S. SHINDE, J.) Mohite 5/5