( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3251 OF 2010 Vikaram Maruti Walke, R/o Ukkhalgaon, Tq. Shrigonda, Dist. Ahmednagar APPLICANT VERSUS The State of Maharashtra through P.I. Shrigonda Police Station, at and Tq. Shrigonda, District Ahmednagar. RESPONDENT .... Mr. A.B. Gatne, advocate for the applicant. Smt. B.R. Khekale, APP for the respondent/State. .... [CORAM : V.R. KINGAONKAR, J.] [DATE : 8th September, 2010] PER COURT : 1. The application is for bail under section 439 of the Criminal Procedure Code. 2. Heard learned advocate for the applicant and learned A.P.P. ( 2 ) 3. Perusal of the investigation papers indicate that the prosecution was unable to get dying declaration recorded through the Executive Magistrate or Special Judicial Magistrate. It appears that mother of deceased Seema lodged the FIR on strength of alleged oral information given by the deceased to her during her visit to the hospital of Dr. Sonar at Ahmednagar on 19th June, 2010. She narrated to her that due to her failure to fetch Rs. 50,000/- from the maternal home and because she was unable to do the agricultural work, the applicants and others fell her down. She alleged that her both the legs were held by the mother-in-law and the sister-in-law whereas the father-in-law and the husband forcibly administered poisonous insecticide to her. 4. The marriage was performed before about four (4) years of the alleged incident. The medical history recorded in the hospital of Dr. Sonar does not corroborate the averment about the forcible administering of the poisonous drug/insecticide to deceased Seema. It prima facie appears that since inception, after her admission in the hospital, attempt was made to get her dying declaration recorded, but it could not be so recorded as she was unable to make statement. ( 3 ) It is pertinent to know that informant Shakuntala resides at village Parner which is atleast about 40 kms. from Ahmednagar and naturally, therefore, she could have reached the hospital after the midday. It appears that Seema died at 14.30 Hrs. due to the poisoning. In view of short spell of time available, during the period of her hospitalization, the oral dying declaration narrated to her mother and the sister does appear to be rather prima facie improbable. May be that the trial Court can rely upon it after considering the attending circumstances and on examination of the question of credibility of Shakuntala and the sister of deceased Seema, after the full-fledged trial. At the first blush, however, without there being any eye witness account or reliable account about the dying declaration, further detention of the applicant may not be proper and needed for the purpose of fair trial. 5. In view of the foregoing discussion, the application is allowed. The applicant is directed to be released on bail on furnishing of bail bonds in sum of Rs. 25,000/ (rupees twenty five thousand) with one (1) solvent surety, to the satisfaction of the Court of Sessions at Ahmednagar. He shall not contact any of the prosecution witnesses and shall make no attempt to tamper with the prosecution evidence. He shall ( 4 ) attend the concerned Police Station on each Sunday between 11 AM to 2 PM and shall cooperate with the Investigating Officer until the chargesheet is filed. [V.R. KINGAONKAR] JUDGE NPJ/criapln3251-10