By way of present 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-43 of 2011 registered with Bhanvad Police Station, Jamnagar for the offence punishable under Sections 302, 143, 147, 148, 149 of the Indian Penal Code and under Section 135 of the Bombay Police Act.
Heard Mr.P.B. Khandheria, learned counsel for the applicant and Mr.R.C. Kodekar, learned Additional Public Prosecutor for the respondent-State.
Mr.Khandheria, learned counsel for the applicant, states that the applicant is innocent and has not committed any offence as alleged in the FIR. He has contended that the applicant is not the main accused, but is booked by an abettor of the crime. He has also contended that it is true that presence of the applicant is established, but mere presence is not sufficient to held the applicant guilty. He has further contended that applicant has not played any role in the offence in question. He has further contended that two co-accused have already been released on bail by the learned Sessions Judge. He, therefore, contended that looking to overall facts of the case and on parity ground also, the applicant may kindly be released on bail.
As against this, Mr.Kodekar, learned Additional Public Prosecutor for the respondent-State, states that presence of the applicant at the seen of offence is proved beyond reasonable doubt and when presence is proved, ingredient of Section 149, common object, of the Indian Penal Code can be said to be proved. He has contended that when presence is establish, then it is sufficient evidence to consider the applicant as a member of unlawful assembly. He, therefore, contended that present applicant may kindly be dismissed.
Heard learned counsel for respective side and also perused papers produced before me. It appears from the papers that presence of the applicant is proved beyond reasonable doubt. In the cross complaint as well as in the present complaint, name of applicant is cited from the very beginning. Thus, it cannot be said that the applicant is involved in the offence by an abettor of the crime. When presence of the applicant is proved beyond reasonable doubt, then it can be presumed that the applicant was a member of unlawful assembly and ingredient of Section 149 of the Indian Penal Code, i.e. common object, is proved beyond reasonable doubt. The applicant has failed to rebut the said finding. I have also perused the judgment in the case of Daya Kishan Vs State of Haryana reported at (2010) 5 Supreme Court Cases 81 wherein the Apex Court has observed that when presence is established beyond reasonable doubt, it is sufficient evidence to consider the accused as a member of unlawful assembly.
Hence, in view of above, I am of the opinion that the present application deserves to be dismissed and is hereby dismissed. Rule is discharged.
(Z.
K. Saiyed, J) Anup Top