1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CRIMINAL APPLICATION (APPA) NO.832/2010 IN CRIMINAL APPEAL NO.255/2010 Prakash s/o Malku Yedme and others ...Versus... The State of Maharashtra, Through Police Station Officer, Police Station Gadchandur, District Chandrapur Applicant : Sou. Manubai w/o Malku Yedme Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. [Mr. S.V. Sirpurkar, Adv. for applicant] [Mrs. S.S. Wandile, APP for respondent] CORAM : A.H. JOSHI AND A.B. CHAUDHARI, JJ. DATE : 02.02.2011. 1. Out of four accused persons, who were convicted in Session Trial No.16/2009 and have filed Criminal Appeal No.255/2010, the present application for bail is filed by appellant No.3  Manubai. 2. Admittedly, six persons were charged for 'being members of an unlawful assembly', out of which two have been acquitted and four appellants are convicted. 2 3. The grounds on which bail application is pressed can be summarized as follows : (a) The very presence of present applicant Manubai on the scene of offence is in dispute- rather not proved satisfactorily. (b) The weapon allegedly used by applicant Manubai is stick. (c) The stick which is relied upon by the prosecution is not proved to have blood stains. (d) The 'saree' which Manubai was wearing was seized and though traces of human blood are noticed that is not connected to the blood of the victim. Moreover, possibility of said being traces of her own menstrual discharge was suggested. (e) Since six persons were tried for forming an unlawful assembly, by the very fact that two are acquitted, the charge for offence under Section 149 of Indian Penal Code gets automatically dislodged and she could not be convicted for the act of other accused, who may have committed the graver offence by use of axe, particularly when even use of stick by her is not duly proved. 3 (f) Though number of witnesses were named, four eye witnesses were omitted from the examination, while those who were examined, were related to the deceased by blood and had inimical terms. 4. In support of the submissions, learned Advocate Mr. S.V. Sirpurkar for the applicant took us through the judgment and depositions of the witnesses. 5. As we find the witnesses have in no ambiguous terms proved the presence of applicant Manubai and use of stick by her, bare suggestion that as accused Manubai's daughter had undergone maternity at her home, Manubai was possibly not present, is seen to be in the nature of suggestion, and not a fact proved. 6. In so far as the aspect of absence of blood stains on the stick and nexus of traces of blood found on the clothes seized which applicant Manubai was wearing etc. are the matters which may have to be considered while deciding the appeal on merits. 7. In so far as the aspect of Manubai being vicariously responsible for the acts of other accused under Section 149 of Indian Penal Code is concerned, we have perused the charge and the evidence. 8. It is seen that present is not the case where the prosecution proceeded with the story that only six accused persons who were charged constituted unlawful assembly. What is alleged is that six accused persons 4 were 'members of unlawful assembly' and it has come in evidence of witnesses that there were two other unidentified accused persons. 9. In the result, by virtue of acquittal of two accused persons, unlawful assembly continues to be unlawful as those who are convicted and two who are not identified constituted unlawful assembly. Therefore each member of unlawful assembly is found to be responsible by the acts of other. 10. Admittedly, when limbs of the victim have been amputated by use of axe and there are other injuries on the body, the use of stick as weapon of assault by the applicant cannot be ruled out. 11. Moreover, the learned Sessions Judge has in positive terms recorded a finding in paragraph Nos.54 to 61 about members of unlawful assembly and assault by members thereof. Once it is reasonably demonstrated before us from the judgment and evidence that the unlawful assembly had common object and the offence for which other accused are punished was committed by members of unlawful assembly, prima facie the applicant does not have case for bail. 12. We, therefore, dismiss the application for suspension of sentence. Judge Judge ssw