Bombay High Court
Hussain Anis Momin @ Mohd. Hussain Mohd. ... vs The State Of Maharashtra on 21 December, 2020
Author: Prakash D. Naik
Bench: Prakash D. Naik
Ganesh Lokhande 1 of 4 39-BA-2445-19.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 2445 OF 2019
Hussain Anis Momin @ Mohd. Hussain ...Applicant
Versus
The State of Maharashtra ...Respondent
.....
Mr. L. M. Shukla, Advocate for the Applicant.
Ms. Veera Shinde, APP for the Respondent - State.
Mr. Rameshwar Prabhakar Darade, API Bhoiwada Police Station,
Bhiwandi, Thane City.
.....
CORAM : PRAKASH D. NAIK, J.
DATE : 21st DECEMBER, 2020.
PC :
1. This is an application under Section 439 of Code of
Criminal Procedure, 1973 ("Cr.PC" for short) seeking bail in
connection with C.R. No. I-181 of 2018 registered with Bhoiwada
Police Station, Bhiwandi, Thane City for the offences punishable
under Sections 364(A), 363, 302, 201 r/w. 34 of Indian Penal Code,
1860 ("IPC" for short) were added. Applicant was arrested on 3 rd
November, 2018.
2. The first informant is the father of victim boy aged about
15 years. The First Information Report ("FIR" for short) dated 29 th
Digitally
signed by
RajeP.
October, 2018 was lodged against unknown persons. Victim's body
RajeP. Aher
Aher Date:
2020.12.22
16:10:07 was found on 2nd November, 2018. It is the case of the prosecution
+0530
that the accused had demanded the amount from the complainant.
Ganesh Lokhande 2 of 4 39-BA-2445-19.doc
The threatening calls were made even after the death of victim boy.
During the course of investigation accused were arrested. Charge-
sheet is filed.
3. Learned counsel for the applicant submitted that the
applicant has been falsely implicated in this case. There is no
evidence to show his involvement in the crime. The prosecution is
relying upon the extra-judicial-confessions of the co-accused. There is
no evidence to show that the applicant is involved in kidnapping the
victim boy or killing him. The prosecution is relying upon the CDR.
Although, the mobile phone bearing Number 8421489008 were
allegedly seized from the possession of the applicant, the sim card
was in the name of Samir Sayed. His statement has not been
recorded. There is no evidence to show that the applicant had made
call to the complainant. There is discrepancies in respect to IMEI last
digit number referred as '0'.
4. Learned APP submitted that there is strong
circumstantial evidence against the applicant. He was found in
possession of mobile phone, CDR shows that the call was made from
the said phone to the informant. On 30 th October, 2018 the CDR
location of the said phone at the time of call was shown to be in
Gujarat.
Ganesh Lokhande 3 of 4 39-BA-2445-19.doc
5. The FIR is lodged against the unknown person. There is
no eye witness to the incident. The case is based on circumstantial
evidence. The statement of some of the witnesses recorded under
Section 164 of Cr.PC refers to extra-judicial-confession of the co-
accused. There is no such confession by the applicant. There is no
other incriminating recovery at the instance of the applicant to show
his complicity in the crime. Sim card appears to be in name of
another person, whose statement has not been recorded. The
prosecution is harping upon the CDR report. In the absence of any
other strong evidence, bail cannot be denied to the applicant. He is
in custody from 3rd November, 2018. Although, it is the case of the
prosecution that the cell phone was sold by two persons. Witness
Mukesh Prakash Chhablani identified the applicant and another
person. However, there is no T.I. parade conducted by Investigating
Officer and the identification was in front of the police when the
accused were produced before him. There are no criminal
antecedents against the applicant. Considering these circumstances,
bail can be granted to the applicant.
6. Hence, I pass the following order.
Ganesh Lokhande 4 of 4 39-BA-2445-19.doc
ORDER
i) Bail Application No. 2445 of 2019, is allowed;
ii) The applicant is directed to be released on bail in connection with C.R. No. I-181 of 2018 registered with Bhoiwada Police Station, Bhiwandi on furnishing P.R. bond in the sum of Rs. 25,000/-(Twenty Five Thousand) with one or more sureties in the like amount;
iii) The applicant shall report concerned police station once in a month on every first Saturday between 11.00 am. to 1.00 pm. till further order.
iv) Applicant is permitted to furnish cash bail security in the sum of Rs.25,000/- for the period of eight weeks in lieu of surety;
v) Bail Application No. 2445 of 2019 stands disposed of accordingly.
vi) This order will be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.
(PRAKASH D. NAIK, J.)