JUDGMENT :

B.P. dharmadhikari, J.

The Additional Sessions Judge, Greater Mumbai has by judgment and order dated 23/05/2018 convicted accused no. 1 Imtiyaz and accused no. 2 Azad for the offence punishable under sections 302, 363, 364-A, 201 read with 34 IPC and sentenced accused no.1 to death and accused no.2 Azad to life imprisonment and fine of Rs.25,000/-, in default of fine he has to suffer RI for one year. For the offence punishable under section 364A, both the accused persons are sentenced to suffer life imprisonment for rest of their life and fine of Rs.25000/- each in default of fine, they have to undergo RI for one year.

2. Sessions Court has not sentenced both the accused persons for other minor offences i.e. under section 363 and 201 IPC. Original accused no. 3 is found to be child in conflict with law and hence, the case against him is forwarded to Juvenile Justice Board. Accused no. 4 and 5 i.e. Israr and Arsil are acquitted of the offences punishable under sections 302, 363, 364-A, 201 read with 120B IPC.

3. Both accused no.1 Imtiyaz & accused no.2 Azad have filed separate appeals challenging their conviction. Accused no. 1 Imtiyaz has filed two more applications vide Criminal Application No. 1 of 2019 and Criminal Application No. 2 of 2019 for shifting him to other jail or for medical treatment. Similarly accused no. 2 Azad has moved Criminal Application No. 1585 of 2018 for bail.

4. We have heard APP Mr. Yagnik for the State and Adv. Ravi Dwivedi for accused – appellant Imtiyaz and Mr. Fakhrudin Khan for appellant accused Azad.

5. Respective counsel for the accused state that the conviction is based upon the circumstantial evidence. They point out that the trial court has based its judgment on the circumstances like : --

(i) Previous acquaintance of PW-1 Rajesh (father of deceased child ) with accused nos. 1 and 2 as they were/are employees.

(ii) Deceased was last seen alive with the accused persons on 27/05/2012.

(iii) Call demanding ransom were received by PW-1 Rajesh Bhadange (father of deceased child victim) on his mobile from the unknown numbers.

(iv) Employee of PW 1 by name Yogesh Patange identified the voice of caller as that of Imtiyaz.

(v) After arrest of accused no. 1, mobile handsets with IMEI number from which calls were made to PW 1 Rajesh were seized from him. Similarly un-used SIM cards were also seized from him.

(vi) Call Data Records ie CDRs support the calls made by accused no.1 to PW Rajesh demanding ransom.

(vii) The demands made by accused no. 1 were recorded in the memory card in Nokia mobile handset given by PW-20 IO Shri Desurkar and voice in the said conversation matches with the sample voice of accused no. 1 as per CFSL report.

(viii) Accused nos. 1 and 2 led the panch witnesses and police to the site where the body of deceased child was concealed, leading to discovery under section 27 of the Evidence Act.

6. Effort of respective learned counsel before us is to demonstrate that these circumstances are either proved or are not proved.

7. Advocate Dwivedi and Advocate Khan submit that the employment of accused no. 1 Imtiyaz with PW 1 has not been proved by any clinching evidence. Similarly the acquaintance or relationship between accused no. 1 and 2 inter-se, has also not been brought on record.

8. It is argued that PW 2 Gulabchand Yadav examined to show that he saw the deceased boy with accused nos. 1 and 2 fifteen days before the police contacted him is untrustworthy. He claims to be the person selling ice balls and so many children and people visit him daily. He could not have therefore, identified the deceased from the photograph and claimed that the deceased had come to his shop. He could not have also identified the accused nos. 1 and 2 in TIP. His statement under section 161 Cr.P.C. is recorded on 09/06/2012 and his claim that he is doing the business appears to be doubtful. In any case, he is a person surviving at the mercy of the police.

9. Evidence of PW 3 Mohd Shaikh is also assailed on the sa