By way of present successive application, filed under Section 439 of the Code of Criminal Procedure, 1973, the applicant has prayed to release him on regular bail in connection with offence being C.R. No.I-35 of 2011 registered with Dehgam Police Station for the offence under Sections 302, 201, 394 and 34 of the Indian Penal Code.
Heard Mr.E.E. Saiyed, learned counsel for the applicant and Mr.H.L. Jani, learned Additional Public Prosecutor for the respondent-State.
Mr.Saiyed, learned counsel for the applicant, states that the applicant is innocent and has not committed any offence. He has contended that as per the FIR, son of the present applicant and other co-accused have committed the said offence. Just because Aslam, i.e. son of the present applicant, is absconding, present applicant was arrested. He has further contended that other co-accused viz. Salim, Ayaz and Gopal were arrested by the police under Section 41D of the Code of Criminal Procedure and some articles were seized and recovered from their possession. He has further contended that from the statement of Ayaz, co-accused, it is established that Aslam has killed the driver and change the engine and chasis number and thereafter sold the said vehicle. He has further contended that nothing is recovered from the present applicant. He has further contended that prima-facie no case is made out against the present applicant. He has also contended that the learned Judge has committed grave error in observing that the applicant was present at the place of offence with hardware articles like pana, pakkad, etc. The applicant was never present at the place of offence. He has also contended that merely on the statement of co-accused present applicant came to be arrested. He has further contended that the present applicant is old aged person and only due to non-availability of his son, i.e. Aslam, applicant was arrested. He, therefore, contended that looking to the overall facts and circumstances of the case, present applicant may kindly be enlarged on bail.
As against this, Mr.Jani, learned Additional Public Prosecutor, has vehemently opposed the present application. He has contended that the applicant was residing with his son, who is absconder, and just to avoid his arrest, interrogation or investigation, as an afterthought, he has published the advertisement stating that he has no relation with his son. Mr.Jani has further contended that prima-facie it is established that engine and chasis number is changed. He has read the statement of Ayaz - co-accused, who is co-conspirator, and contended that as per the statement of Ayaz, the applicant was present at the place of offence with pana, pakkad, etc. Thus, the present applicant is co-conspirator with other accused persons. He has further contended that looking to the statement of Ayaz - co-conspirator, prima-facie, ingredients of Section 10 of the Evidence Act is established against the present applicant. He has further contended that presence and involvement of the applicant is established. Thus, ingredients of Section 120-B of the Indian Penal Code is established against the present applicant. He, therefore, contended that present application may kindly be rejected.
Heard learned counsel for the respective parties and also perused papers produced before me. I have also perused panchnama of discovery. It is true that nothing is recovered or discovered from the possession of the present applicant. But so far as conspiracy is concerned, ingredients of provision of Section 120-B of the Indian Penal Code is established against the present applicant. The statement of co-accused (co-conspirator) is very clear. In his statement Ayaz (co-conspirator) has stated that present applicant was present at the place of offence with pana, pakkad, etc. Thus, presence and involvement of the applicant is clearly established beyond reasonable doubt. I am of the opinion that statement of co-accused can be considered as clue while investigating the offence and interrogating other accused persons. Irrespective of the fact that statement of co-accused to police is not admissible in evidence before the Court, but police can certainly consider that statement as a clue while interrogating him further or other persons arrested or interrogated during the course of investigation. In the present case, prima-facie, it is established that applicant is co-conspirator, who has committed the offence in question with other co-conspirators. It appears from the papers and evidence on record that the applicant has committed serious offence. It also appears that the applicant is a habitual offender.
In view of above, though this is a successive bail application, present applicant cannot be released on bail. The applicant is involved in serious conspiracy and therefore, the present application deserves to be rejected and is hereby rejected. Rule is discharged.
(Z.
K. Saiyed, J) Anup Top