1 12.appa1148-10 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1148 OF 2010 IN CRIMINAL APPEAL NO.672 OF 2010 1. Inamulrab Mohammed Kayum Kahih, & 2. Smt.Ayasha Guddu Jamalu Ansari. ..Applicants. Vs. The State of Maharashtra ..Respondent. .... Mr.S.P. Kadam, Advocate for the Applicants. Mrs.A.S. Pai, A.P.P. for the State. .... CORAM : D.D.SINHA & A.R.JOSHI, JJ. DATED : 23rd SEPTEMBER, 2010 P.C. 1. Heard learned Counsel for the applicants and learned Additional Public Prosecutor for the State. 2. Learned Counsel for the applicants has submitted that though the application for bail is filed by two applicants/accused, however, the bail application of applicant no.1 has not been pressed at this stage. 3. Learned Counsel for the applicants has submitted that case of the prosecution primarily based on the testimonies of PW-1 Shahadab Shaikh and PW-4 Radha Vishwakarma. Both these witnesses are examined by the prosecution as an eye witnesses to the PPD 2 12.appa1148-10 incident. It is contended that even if it is presumed for the sake of argument that the testimony of these witnesses proves the complicity of the applicant even then the offence would not be punishable under Section 302 of Indian Penal Code. Though it is otherwise contended that the evidence of the prosecution is not trustworthy and reliable. It is submitted that applicant No.2 is a lady and was also on bail during the course of the trial. It is contended that it is alleged by the prosecution that she participated in the assault and alleged to have been assaulted the deceased by kick and fist blows. It is further submitted that there is no weapon used in the assault and cause of death is asphyxia due to throttling. It is in these circumstances prayed that applicant No.2 may be released on bail. 4. Learned Additional Public Prosecutor for the State, on the other hand, has submitted that all the accused persons including applicant No.2 participated in the assault and the trial Court held that the evidence adduced by the prosecution is sufficient to prove the charge of murder beyond all reasonable doubt against the accused persons and, therefore, convicted them for the offence of murder with the aid of Section 34 of Indian Penal Code. 5. We have considered the contentions canvassed by the respective parties. In the instant case, so far as applicant No.2 Smt.Ayasha Guddu Jamalu Ansari is concerned, it is not in dispute 3 12.appa1148-10 that during the course of the trial she was on bail. So far as prosecution evidence of PW-1 & PW-4 (eye witnesses) is concerned the allegations against applicant No.2 are that she has assaulted the deceased with fist and kick blows. Be that as it may, applicant No.2 being a lady and was on bail during the course of the trial, we are of the view that she deserves to be released on bail. 6. In the circumstances, since the learned Counsel for the applicants has not pressed the application for bail of applicant No.1, same is disposed of as not pressed. 7. So far as bail application of applicant No.2 is concerned, the same is allowed. Applicant No.2 - Smt.Ayasha Guddu Jamalu Ansari be released on bail subject to furnishing a P.R. bond of Rs.5000/- (Rs.Five Thousand Only) and one surety in the like manner. Criminal Application is disposed of accordingly. (D.D.SINHA,J.) (A.R.JOSHI,J.)