Bombay High Court
Kalim Ishak Ansari vs The State Of Maharashtra on 12 October, 2021
Bench: Anuja Prabhudessai
P.H. Jayani 13 APEAL828.2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 2409 OF 2021
IN
CRIMINAL APPEAL NO. 828 OF 2021
WITH
CRIMINAL APPEAL NO. 828 OF 2021
Kalim Ishak Ansari .... Applicant
v/s.
The State of Maharashtra .... Respondent
Mr. Amresh Sharma a/w. Mr. Vishal Khetre for the Applicant.
Mr. S.V. Gavand, APP for the State.
CORAM: SMT. ANUJA PRABHUDESSAI, J.
DATED : 12th OCTOBER, 2021.
P. C. :-
ORDER IN CRIMINAL APPEAL NO. 828 OF 2021 :-
. Heard. Admit. Call for the record and proceedings. Learned
APP waives service on behalf of Respondent - State. Paper book to be
filed within a period of six months.
ORDER IN INTERIM APPLICATION NO. 2409 OF 2021 :-
2. This is an Application under section 389 of Cr.P.C. filed for
suspension of substantive sentence imposed by judgment dated
21/09/2021 in Sessions Case No.332/2018.
P.H. Jayani 13 APEAL828.2021.doc
3. By the impugned judgment, the Applicant has been held guilty of
offence under secton 387 of the Indian Penal Code and has been
sentenced to undergo rigorous imprisonment for seven years with fine
of Rs.10,000/- in default to undergo rigorous imprisonment for six
months.
4. Heard Mr. Amresh Sharma, learned counsel for the Applicant and
Mr. S.V. Gavand, learned APP for the State. I have perused the records
and considered the submissions advanced by the learned counsels for
the respective parties.
5. The Applicant herein and the co-accused - Narendra Jaiswal were
prosecuted for offences under Section 363, 364-A, 387 r/w. 34 of the
Indian Penal Code. It was the case of the prosecution that the
Applicant and the co-accused along with two children in conflict with
law in furtherance of common intention kidnapped the minor son of
the first informant for ransom and had kept him under detention under
the threat of causing his death. It is also alleged that the Applicant and
the co-accused had demanded money from the first informant by
threatening to cause the death of the victim. The learned Judge, after
considering the evidence adduced by the prosecution, acquitted the
P.H. Jayani 13 APEAL828.2021.doc
Applicant and the other co-accused of offences under sections 363 and
364-A r/w. 34 of the Indian Penal Code. The Applicant is convicted for
offence under section 387 of the Indian Penal Code mainly on the basis
of the FSL report at Exhibit - 78.
6. It may be mentioned that the evidence of the first informant
reveals that he had received a call on his mobile phone no.9987418428
from phone no.7045393552 demanding sum of Rs.1,00,000/- if he
wanted his son back. The first informant reported the matter to the
police station. He was advised to download voice recording App in his
mobile. Accordingly, the first informant - PW1 downloaded voice
recording App in his mobile phone. He recorded the calls received
from the Applicant & forwarded the same to Crime Branch on
Whatsapp. He also collected the data of all the calls and voice
recording in a pen drive and submitted the same to the police station.
The first informant suspected that the calls were made by the Applicant
herein. The Applicant was arrested and his voice sample was taken in
presence of pancha witnesses. Subsequently, the pen drive and the
voice sample was forwarded to CFSL for examination. The expert has
opined that the questioned voice of the speaker is similar to the
specimen voice. On the basis of this report at Exhibit - 78, the learned
P.H. Jayani 13 APEAL828.2021.doc
Judge has concluded that the calls were made by the Applicant herein.
7. It is pertinent to note that the phone no.7045393552 is in the
name of one Sunilkumar Jokhuram Saroj. Said Sunilkumar Saroj has
not been examined and there is no prima facie material to show as to
how the Applicant had come in possession of the phone which was in
the name of said Sunilkumar Saroj. Though the first informant has
stated that he had collected the data of the calls and voice recording in
pen drive and handed over to the Investigating Officer, there is no
prima facie material on record to indicate that the said pen drive was
seized in presence of panchas. Under the circumstances, prima facie, it
would not be safe to place implicit reliance on the CFSL report at
Exhibit - 78 which is the only incriminating material against the
Applicant.
8. Considering the nature of the accusations and the evidence in
support thereof, in my considered view, this is a fit case for suspension
of substantive sentence and release the Applicant on bail. Hence, the
Interim Application is allowed on following terms and conditions :-
(a) The substantive sentence imposed by judgment dated
21/09/2021 in Sessions Case No.332/2018 is suspended pending
P.H. Jayani 13 APEAL828.2021.doc
hearing of the Appeal ;
(b) The Applicant is ordered to be released on bail on
furnishing P.R. bond in the sum of Rs.20,000/- (Rupees Twenty
Thousand only) with one or two sureties in the like amount to
the satisfaction of the Trial Court ;
(c) The Applicant shall report to the trial Court once in six
months on the day/date specified by the trial Court, till the
Appeal is finally disposed of ;
(d) The Applicant shall keep the Trial Court informed of his
current address and mobile contact numbers and/or change of
residence or mobile details, if any, from time to time ;
(e) If there are two consecutive defaults in appearing before
the Trial Court, the learned Judge shall make a report to the High
Court and the prosecution would be at liberty to file an
application seeking cancellation of bail.
9. The Interim Application stands disposed of in above terms.
PREETI
H JAYANI (SMT. ANUJA PRABHUDESSAI, J.)
Digitally signed by
PREETI H JAYANI
Date: 2021.10.14
16:13:18 +0530
