1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3113 OF 2010 1. Saya S/o Pida Wasave 2. Ugtavneya S/o Pida Wasave 3. Jegla S/o Pida Wasave 4. Gulba S/o Gumbalya Wasave All R/o Trishul-Mojracha Shemla-Panipada Tq. Dhadgaon, Dist. Nandurbar. ..APPLICANTS -VERSUS- The State of Maharashtra ..RESPONDENT ......... Mr. C.R. Deshpande, advocate for applicants. Mr. V.G. Shelke, A.P.P. for respondent. ........ (CORAM : V.R.KINGAONKAR,J.) DATE : 3rd September, 2010. PER COURT : 1. This is an application for bail. The applicants are arrested in connection with Crime No.37/2010 registered at Dhadgaon Police Station for the offence under Section 302 r/w 34 of the Indian Penal Code. 2. Heard learned counsel for the applicants and the learned A.P.P. 2 3. The charge sheet has been filed against the applicants. Their bail applications have been rejected by the learned Sessions Judge. 4. Perusal of the investigation papers show that there was earlier incident which had occurred in the morning of 2nd May, 2010. Applicant no.1 Saya had cut down tick wood tree, and therefore, deceased Anajya had scolded him infront of many persons. Allegedly, while deceased Anajya was in slumber, during wee hours, he was assaulted by means of axe. He received grievous head injuries and immediately fall down on the person of his son, who was also sleeping by his side in the courtyard. Allegedly, they noticed that applicant no.1-Saya was running with an axe in his hand and others also were running away from the place. 5. The counsel for the applicants would point out that the deceased was admitted in the Government Hospital in the next morning but no written Dying Declaration was recorded. He would submit that the statement in the F.I.R. is prima facie uncredit worthy and complicity of the applicants can not be inferred from such vague statement. 3 6. Perusal of the investigation papers purports to show that another son of deceased Anajya, by name, Tarya narrated to the police that applicant no.1-Saya had assaulted him by means of an axe. Thus, there is oral Dying Declaration pertaining to the assault mounted by applicant no.1-Saya on the head of the deceased Anajya by means of an axe. The investigation papers, however, do not show prima facie any overt act committed by other applicants. Whether to accept such oral Dying Declaration narrated by witness Tarya and the statement in the F.I.R. and other papers which can be examined by the trial Court after recording of the evidence. At the stage of deciding the bail application, it is not expected that the evidence should be scaned and the veracity should also be opined about. In keeping with the well settled principles governing Section 439 of the Criminal Procedure Code, applicant no.1-Saya is not entitled to seek liberty in view of the prima facie evidence appearing against him regarding the culpability. Other applicants, however, are entitled to seek bail on certain conditions. 7. In the result, the application filed by applicant no.1- Saya is rejected. The application is partly allowed only to the extent of applicant nos.2 to 4. The said applicants are directed to be 4 released on bail on furnishing bail bond of Rs.20,000/- each with one Solvent surety each. The bail bonds to be furnished before the Sessions Court at Shahada. The applicant nos.2 to 4 shall not enter the limits of village Trishul-Mojracha Shemla-Panipada during the period of trial and shall not contact the prosecution witnesses and shall not tamper with the prosecution witnesses. (V.R.KINGAONKAR) JUDGE gas/cri3113.10