Anita Deepak Salve vs State Of Maharashtra
2022 Latest Caselaw 12135 Bom

                                                                                              35-APEAL-516-2022.doc




                                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                  CRIMINAL APPELLATE JURISDICTION
                                           CRIMINAL INTERIM APPLICATION NO. 1541 OF 2022
                                                              WITH
                                           CRIMINAL INTERIM APPLICATION NO. 1542 OF 2022
                                                                IN
                                                 CRIMINAL APPEAL NO. 516 OF 2022

                             Anita Deepak Salve                                      ...Applicant/Appellant
                                   Versus
                             State Of Maharashtra                                    ...Respondent
                                                                           ....
                             Mr.           C.J.   Joveson   i/by   Ms.     Akshada    Pasi,   Advocate       for      the
                             Applicant/Appellant.
                             Mr. Ajay Patil, APP for the Respondent - State.
                             Mr. Prakash Sawant, API, Dahisar (C) Police Station, Mumbai.
                                                              CORAM           : A.S. GADKARI AND
                                                                                PRAKASH D. NAIK, JJ.

                                                              DATE            : 25th NOVEMBER, 2022.
                             PER COURT:

1. These are applications for suspension of sentence and

enlargement of applicant on bail during pendency of Criminal

Appeal No.516 of 2022.

2. The Applicant is convicted for the offence under Section

364-A r/w 120-B of Indian Penal Code (for short "IPC") alongwith

the other accused and sentenced to suffer imprisonment for life.

She is further convicted for offence under Section 386 r/w 120-B of

Digitally signed by SUNNY IPC, 452 r/w 120-B of IPC and 342 r/w 120-B of IPC and sentenced SUNNY ANKUSHRAO ANKUSHRAO THOTE THOTE Date: to suffer rigorous imprisonment for seven years, five years and 6 2022.11.29 17:09:10 +0530

months respectively for each offence.

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3. The case of the prosecution is that the victim child aged

around three years was kidnapped by the accused on 17 th January,

2014. There was demand of ransom and after parting with the

ransom amount the child was dropped near a hotel. The mother

took the custody of the child. During the course of investigation,

the accused were arrested. On completing investigation charge-

sheet was filed.

4. PW-1 Rahul Waradkar and PW-18 Mrunal Waradkar are

the parents of victim child. Child was kidnapped from the custody

of PW-11. She was working as maid servant in the house of PW-1

and PW-18. Some persons entered into the house of first informant

and kidnapped the child. Thereafter, there was demand of ransom

and after parting the amount child was released. The prosecution

is relying on the confession of accused No.2 who had stated that

there was meeting of accused No. 3, 4, 5 and 6 in Qualis vehicle.

In the said meeting it was decided to kidnap the son of first

informant. There was conspiracy between them to kidnap the

child. Thus, undisputedly the applicant was not present in the said

meeting and not a conspirator to kidnap the child. The accused

No. 1, 4 and 5 entered into the house of informant and kidnapped

the child. As per confession of accused No.2, he was looking after

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the child in day time and accused No.4 and 5 were looking after

the child during the child and his absence. Accused No.4 and 5

accepted ransom. The accused no.2, 3 and 7 went to hotel City

Star, Dindoshi and accused No.7 (Applicant) dropped the child at

hotel City Star while accused No.2 informed child's mother about

rescuing child.

5. The accused No.3 Ajit Atmaram Apraj @Saheb @Ajit Bhai

had preferred an application for suspension of sentence and grant

of bail before this Court which has been allowed vide order dated

24th August, 2022. While granting bail to the said accused, this

Court dealt with confession of accused No.2 and evidence of PW-6

and PW-7. The case of prosecution against accused No.3 is that he

was sitting in Qualis vehicle, which was used to drop the kidnapped

child at City Star Hotel. PW-7 has identified the said accused as a

person sitting in Qualis vehicle. The said vehicle was recovered

from him. The prosecution case against the present applicant is

that she got down from the aforesaid vehicle and dropped the child

for being rescued by child's mother. The prosecution is relying

upon confession of accused No.2 and evidence of PW-6 and PW-7.

This Court had observed that there is discrepancy in the confession

of accused No.2. There is non-compliance of provisions of Section

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164 of Cr.P.C. The confession was retracted. PW-1 Rahul Waradkar,

father of child lodged FIR on 17 th January, 2014. child was

dropped by accused at City Star Hotel on receiving ransom of

Rs.81,00,000/- (Eighty One lakhs). Till 25th January, 2014 PW-1

did not inform police about his son having being found or handed

over by accused to them. The witness did not show from where the

amount of Rs.81,00,000/-(Eighty One Lakhs) was collected by him

for paying ransom amount. PW-18 Mrunal Waradkar, mother of

child stated that they had not intimated the police on phone that

her son was found on 23rd January, 2014. She did not visit police

station with her son on same day, nor informed police about the

same. PW-6 Tekbahadur Shah and PW-7 Bhushan Karolekar appear

to be chance witnesses. According to them they saw a Qualis

vehicle on the said date in which three persons came and one lady

got down from the said vehicle alongwith the child and took the

child to City Star Hotel and returned back without the child. The

said witnesses had identified accused No.3 for the first time after

one and half year of the incident in test identification parade. The

evidence of these witnesses will have to be considered having

regard to the admission that have come in the cross-examination of

PW-1 and PW-18 that they had not informed the Police, that the

accused were to drop their son at hotel City Star on 23 rd January,

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2014 and that informed about it to police only on 25 th January,

2014. The prosecution is relying upon evidence of PW-6 and PW-7

against the Applicant.

6. Learned Advocate for the applicant submitted that the

applicant was on bail during the trial. She has been taken into

custody on the date of pronouncement of the Judgment by the trial

Court. She has not misused the facility of bail. Applicant is

entitled for bail on the ground of parity as accused No.3 has been

granted bail by this Court.

7. There is no evidence to show that applicant had

participated in meetings where alleged conspiracy was hatched.

The applicant was not involved int kidnapping the child from the

house of PW-1 and PW-18. The prosecution is relying on

confession recorded under 164 of Cr.P.C. and evidence of PW-6 and

PW-7. This Court had noted discrepancies in confession of accused

no.2 and evidence of PW-1, PW-18, PW-6 and PW-7 while granting

bail to accused No.3. The applicant is entitled to be released on

bail on similar grounds. The applicant was on bail during trial. It

is not reported that she has misused the facility of bail. Considering

the evidence on record and factual aspects as above, we are

inclined to suspend the sentence of imprisonment and grant bail to

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the applicant pending appeal against conviction.

ORDER

i. The sentence of imprisonment imposed vide Judgment

and order dated 12th April, 2022 passed by learned Additional

Sessions Judge, City Civil and Sessions Court Mumbai, while

convicting the applicant in Sessions Case No. 671 of 2015 is

suspended and the applicant is directed to be released on bail

on furnishing P.R. Bond in the sum of Rs.25,000/- with one or

two local sureties in the like amount;

ii. The applicant shall report to the trial Court, once in

three months on the day/date specified by the trial Court, till

her appeal is finally disposed off;

iii. The applicant shall not contact the complainant,

witnesses or any person concerned with the case;

iv. The applicant shall report to the Senior Police

Inspector, Unit-12, on the first Saturday of every month

between 10:00 a.m. and 12:00 noon, until further orders;

v. The applicant shall keep the trial Court informed of

her current address and mobile contact number and/or

change of residence or mobile details, if any, from time to

time;

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         vi.       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.

vii. The applications are allowed in the aforesaid terms

and are accordingly disposed off.

viii. All concerned to act on the authenticated copy of this

order.

              [PRAKASH D. NAIK, J.]               [A.S. GADKARI, J.]




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