239appa96.09.odt 1 . IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Appeal No.786 of 2008 (Bharati Kailash Baheliya and Ors. vs. State) Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Coram: D.D.Sinha and P.B.Varale, JJ. Date : 23/09/2009. Heard Mr. R. M. Daga, Adv. for appellant/applicant and Mr.S.J.Jichkar, Additional Public Prosecutor for respondent/State. Mr. R. M. Daga, Adv. for the appellant/applicant has submitted that, in the instant case, prosecution has examined three eye witnesses namely Indrapal Singh Thakre (PW 1), Rahman (PW 2) (brother of deceased) and Mohd. Sarfaraz (PW- 3). It is contended that prosecution has initially prosecuted seven accused; however, the trial Court acquitted four accused and convicted three accused, out of which one accused was already granted bail by this Court and present appellant/applicant is original accused no.3. It is contended that, so far as the present applicant is concerned, none of the 239appa96.09.odt 2 . eye witnesses has stated that he participated in the assault and except his presence on the spot at the time of incident, there is no evidence to show that the present applicant committed any overt act. It is submitted that though Mohd. Sarfaraz (PW 3) has stated before the Court that the present applicant instigated accused nos. 1 and 2 to kill the deceased; however, this fact was not stated by Mohd. Sarfaraz (PW 3) in his police statement and therefore, this was the material omission. Mr.Daga, Adv. has submitted that the trial Court in paragraph 22 has observed thus : “ I am of the opinion that though there is no evidence to show that accused no.3 assaulted the deceased, but since he was along with accused nos. 1 and 2, therefore, his complicity has to be held in crime. “ Mr. Daga, Adv. for applicant has, therefore, contended that the applicant has made out a prima facie case for grant of bail. 239appa96.09.odt 3 . Mr. S. J. Jichkar, Additional Public Prosecutor has submitted that the applicant was prosecuted along with other co-accused for the offence punishable u/s. 302 of the Indian Penal Code with the aid of Section 34 of the Indian Penal Code. It is contended that the vicarious liability u/s. 34 can be fastened on the accused without participation provided each one of them have shared common intention to commit the crime. It is contended that, since the appellant was present at the scene of offence and was instigating the other co-accused, the trial Court was justified in holding that the prosecution has established complicity of the appellant in the crime in question. We have considered the rival contentions and perused the judgment of the trial Court. Perusal of the judgment of the trial Court as well as the evidence of Mohd. Sarfaraz (PW 3) shows that except presence of the applicant there is no evidence to show that the applicant has committed any overt act. In the instant case, the other co-accused were already acquitted by the trial Court and the observations made by the trial Court in para 22 clearly shows that the applicant was merely present on the spot but he did not do anything. It is 239appa96.09.odt 4 . not in dispute that there is an omission in the police statement of Mohd. Sarfaraz (PW 3) about the instigation given by the appellant/applicant to the other co-accused to kill the deceased. In such circumstances, we are of the view that a case is made out for grant of bail. Hence, we direct the respondent to release the appellant/applicant on bail on furnishing a P.R. bond of Rs.10,000/- with one surety in the like amount. Criminal Application No.96 of 2009 is disposed of accordingly. JUDGE JUDGE jais