IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL ORIGINAL JURISDICTION Dated: Nainital the 01st August, 2008 Bail Application No.359 of 2008 Order on the bail application of accused. CRIMINAL SIDE Shyam Singh S/o Ganesh Singh R/o village Kuneth Patti Choprakot District Pauri Garhwal Uttarakhand ...Applicant Versus State of Uttarakhand ...Opposite party Arising out of case crime No.03 of 2007 S.T. No.11 of 2008 P.S. Choprakot-I, Patti Choprakot-I District Pauri Garhwal Hon’ble J.C.S. Rawat, J. Heard Mr. U. P. S. Negi, learned counsel for the applicant and Mr. Nandan Arya, learned A.G.A. for the state. Perused the record. Learned counsel for the applicant contended that the prosecution witness Kundan Singh was not an eye- witness of the incident, though he colaimed to be the eye- witness of the incident in his statement recorded under section 161 Cr.P.C. The weapon recovered at the behest of the applicant-accused did not correspond to the prosecution evidence. There is no motive of the crime. It was further contended that the statement of the deceased recorded under section 161 Cr.P.C. cannot be termed as “oral dying declaration” because the deceased was not in a position to state about the incident in such a manner as alleged by the prosecution. Learned A.G.A. fir the State refuted the contention and contended that the incident was seen by the brothers of deceased i.e. Kundan Singh and Govind Singh and there are also independent witnesses of the incident i.e. Jaman and Bhagat Singh before whom the deceased narrated the incident. Considering the facts and circumstances of the case, I am of the view that it is not a fit case for bail. Therefore, the bail application of the applicant is hereby rejected. (J.C.S. Rawat, J.) Dated 01.08.2008 LSR