JUDGMENT Heard learned counsel for the parties. 2. By this application under section 397 of the Code of Criminal Procedure, applicant, one of the accused charge-sheeted by Police Station, Sitabuldi, Nagpur for commission of offences, under sections 147, 148, 149, 324 and 307 of the Indian Penal Code, on 15.12.1998, for attempting to commit murder of first informant-Anubhav Shiveshwar Narayan Vinod, so also Sumukh and Pramod, who had intervened in the assault was effected upon the first informant, has prayed for examining legality, correctness and propriety of the order dated 30.11.2005 passed by learned Ad hoc Addl. Sessions Judge, Nagpur in Session Trial No. 165/2005 rejecting the application Exh.-4 preferred by him for discharge. 3. Mr. Daga, learned counsel for the applicant, submitted that even accepting the entire material in the charge-sheet as it is, the same does not transcend beyond showing that the applicant was only present at the spot of incident. It is urged that even in said respect, except Sumukh during his statement recorded under section 164 of Cr.P.C., having referred to the presence of the applicant nearby the spot of incident there exists no other material against the applicant. It is his submission that no other witness including the first informant had attributed any role played by the applicant. The learned counsel further contended that though the story, as given in the FIR, whispers the presence of about 3 persons initially during the incident and about 4-5 persons later on the investigating agency had not collected any material in the shape of statement of any witness who was knowing the applicant and claimed that he was present at the spot and had taken any active part in assaulting the first informant or his friend Sumukh and Pramod. The learned counsel further submitted that the chargesheet does not contain any material about any identification parade for the applicant, if any conducted, much-a-less of identification of applicant in any such parade by any of the witness. 4. The learned counsel, thereafter, submitted that the apex Court in various decisions has ruled that true test for framing of charge is that in the event of material in the charge-sheet remaining unrebutted, the same would warrant the conviction. 4. The learned counsel, thereafter, submitted that the apex Court in various decisions has ruled that true test for framing of charge is that in the event of material in the charge-sheet remaining unrebutted, the same would warrant the conviction. It is submitted that in the aforesaid apologetic condition of the prosecution material against the applicant, the trial court manifestly erred in rejecting the application for discharge preferred by passing order in question. It is thus contended that order passed being not based on any material in the charge-sheet against the applicant, the same cannot be legally sustained and deserves to be quashed and set aside and the applicant be discharged by allowing the application preferred. 5. Mr. V.A. Thakre, learned A.P.P. was candid enough to submit that the position regarding material in the charge-sheet as submitted by learned counsel for the applicant is fairly correct. 6. After giving anxious consideration to the submissions advanced by both the sides and taking into consideration the material as against the applicant in the chargesheet, there appears substance in the submission canvassed by the learned counsel for the applicant. Furthermore, even careful perusal of the order impugned in the revision also does not reveal existence of any other material in the charge-sheet other than statement recorded under section 164 of the Cr.P.C. of witness Sumukh making a passing reference about the presence of the applicant on the spot. 7. Now, considering the significance of said material, there appears force in the submission of learned counsel for the applicant, that the statement of Sumukh was recorded during the course of investigation on 15.12.1998 while statement under section 164 of Cr.P.C. was recorded on 21.12.1998, the material therein is inconsequential. The perusal of the said statements justifies the submission of learned counsel that no reference regarding presence of the applicant at the spot at all was made by said witness during his first statement recorded by the police. 8. Now, reference to a decision in the case of Maslati and ors. The perusal of the said statements justifies the submission of learned counsel that no reference regarding presence of the applicant at the spot at all was made by said witness during his first statement recorded by the police. 8. Now, reference to a decision in the case of Maslati and ors. vs. The State of Uttar Pradesh; AIR 1965 Supreme Court 202 : [2008 ALL SCR (O.C.C.) 52], reveals that in a case involving offence committed by an unlawful assembly is that though the view expressed by the apex Court in the earlier decision in the case of Baladin vs. State of Uttar Pradesh; AIR 1956 SC 181 was not approved that mere presence in the assembly does not make a person liable unless and until it is shown that he has done something or omitted to do something in prosecution of common object of unlawful assembly and in order to term concerned accused person as a member of unlawful assembly, overt act is not necessary on his part, still the moot question involved in the present case would be, whether there exists any material, even for prima facie for coming to the conclusion that the applicant was a member of the unlawful assembly. It is well settled that a person can be said to be a member of an unlawful assembly if he shares or was party to common object as stipulated in five clauses of section 141 of the Indian Penal Code, which defines an unlawful assembly. 9. The discussion made hereinabove not only shows that there is absence of any such material, even existence of any such material has not been depicted in the impugned order passed by the learned Ad hoc Addl. Sessions Judge, Nagpur. In view of the same, the order being not based upon any tangible material contained in the charge-sheet against the applicant, the same cannot be legally sustained. 10. Resultantly, the impugned order is, hereby quashed and set aside. Application Exh.-4 is hereby allowed. The applicant-accused stands discharged. Interim order passed by this Court stands vacated. Since the case is of the year 2005 regarding an incident which has taken place in the year 1998, the registry is directed to forthwith return the record to the Court of Session. Revision allowed.