ORDER : This petition is filed by the petitioner/accused No.5 under Section 439 of Cr.P.C., seeking regular bail in Crime No.123/2016 of Gandhi Gunj Police Station, Bidar, registered for the offences punishable under Sections 324, 364, 109, 302 r/w 149 of IPC. 2. Brief facts leading to filing of the complaint are that, on 30.08.2016 at about 11:30 a.m. when the complainant was in his shop, he received a phone call from Sharanu stating that near the main gate of Gumpa Gangadhar Hosalli, Mahesh Pasarge, Nagesh Sindhol, Vishwanath Hosalli, Vinodha Pasarge and some others by constituting unlawful assembly because of previous enmity between them assaulting to Narasimhareddy. Immediately he went to the said place and there he saw that the said persons were assaulting the said Narasimhareddy. Immediately himself along with Sharanu and Shivashankar intervened and tried to pacify the quarrel, the accused persons also assaulted the complainant and Shivashankar. It is further contended that accused persons took the said injured Narasimhareddy in a Honda Verna Car towards the house of Gangadhar Hosalli. It is further contended that complainant also chased to the said Car on a motorcycle and there he saw Gangadhar and other persons by stopping the Car near the gate, dragged the injured form the car and assaulted with knife on the head, neck, stomach, eyebrow and other persons have assaulted with stick. It is further contended that at that time Sharanu, Shivashankar, Balareddy came there and by seeing the revolver in the hand of Gangadhar, they stopped there only. It is further alleged that the said act was done at the instigation and abatement of Shashidhar. Then injured become unconscious, they took him to hospital in an ambulance, subsequently he succumbed to the injuries and a case has been registered against accused persons. 3. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for respondent-State. 4. The main grounds urged by the learned counsel for the petitioner are that the accused-petitioner has not committed any offence as alleged against him. He was not present at the place of incident as he was a witness in S.C.No.48/2014 and he was present in the Prl. Sessions Judge, Bidar and his statement has been recorded by the Court as PW.34 on the same day. He was not present at the place of incident as he was a witness in S.C.No.48/2014 and he was present in the Prl. Sessions Judge, Bidar and his statement has been recorded by the Court as PW.34 on the same day. He has further contended that by producing the deposition that there is no chance of accused No.5 being present at the place of incident. He has further contended that only with a previous enmity the accused-petitioner has been inculcated in the case. He has further contended that only allegation made against accused-petitioner is that he only instigated the other accused persons to commit the alleged crime. He has further contended that the dying declaration said to have been that of the deceased, is not containing the certificate of the doctor, what was the mental status of the deceased at the time of recording the said statement and said statement has not been recorded by the Officer of the rank of CPI and above. He has further contended that complaint or dying declaration which is said to have been recorded by the A.S.I. indicates that, the same has been concocted by taking the signature of the deceased on a blank paper. He has further contended that the accused – petitioner is a respectable member in the society and he is working as councilor in City Municipality, Bidar there is no chance of he being absconding and tampering with the prosecution evidence. He has further contended that he is ready to abide by the conditions to be imposed by this Court and he is ready to offer sureties. On these grounds, he prays for allowing the petition. 5. On the contrary, learned High Court Government Pleader appearing for the respondent-State vehemently contended that accused-petitioner was present at the time of alleged incident as per dying declaration of the deceased himself. He has further contended that the alleged incident has taken at two places and accused-petitioner was present and he has actively participated in the alleged crime. As such, there is no question of considering his bail application on the ground of plea of alibi. He has further contended that there are eyewitnesses to the alleged incident and accused – petitioner is highly influenceable person if accused-petitioner is enlarged on bail he may tamper with the prosecution witnesses. As such, there is no question of considering his bail application on the ground of plea of alibi. He has further contended that there are eyewitnesses to the alleged incident and accused – petitioner is highly influenceable person if accused-petitioner is enlarged on bail he may tamper with the prosecution witnesses. He has further contended that the complainant and other persons have also requested the police for protection and two complaints have been filed in this behalf. He has further contended that at this juncture, if the petitioner is released on bail, there is likelihood of he being absconded and he may not be available for trial and he may tamper with the prosecution evidence. On these grounds, he prays for dismissal of the petition. 6. I have gone through the copy of the FIR, complaint and other material produced along with the petition. Even though learned High Court Government Pleader has produced the CD and photographs since they are not part and parcel of the charge sheet this Court declined to see the said material as it is not going to help in any manner to decide the present bail application. The basic principle enumerated by the Apex Court in the case of State of U. P. vs. Amarmani Tripathi, (2005) 8 SCC 21 wherein it has been observed that as the detailed examination of the evidence is to be avoided while considering the question of bail; to ensure that there is no prejudging and no prejudice is caused to the accused or the prosecution. Only a brief examination is to be done to satisfy about the facts and circumstances or otherwise to ascertain the prima facie case of the accused as well as the prosecution. It is also observed by the Hon’ble Apex Court in the case of Dipak Shubhashchandra Mehta vs. Central Bureau of Investigation reported in (2012) 4 Supreme Court Cases 134 while considering the application for bail are “(18) The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted, particularly, where the accused is charged of having committed a serious offence. Though at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted, particularly, where the accused is charged of having committed a serious offence. The Court granting bail has to consider, among other circumstances, the factors such as a) the nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence; b) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant and; c) prima facie satisfaction of the court in support of the charge. In addition to the same, the Court while considering a petition for grant of bail in a nonbailable offence apart from the seriousness of the offence, likelihood of the accused fleeing from justice and tampering with the prosecution witnesses, have to be noted.” 7. Keeping in view the above said broad principles of law let me consider whether the accused petitioner is entitled to be released on bail or not. It is contended by the learned counsel for the petitioner by producing the deposition of the petitioner said to have been recorded on 30.08.2016 in S.C.No.48/2016 as PW-34 and the said deposition indicates that the accused-petitioner was present in the Court and his statement has been recorded by it on 30.08.2016. The learned counsel has brought to my notice the order sheet wherein the said records also discloses that accused-petitioner has been shown as CW.2 and his evidence has been recorded as PW.34. The other aspects and the issues so which have been raised by the learned counsel for the petitioner are that the only allegation made against the petitioner is that he has instigated and abated the other accused persons. Various contentions raised are question of fact, they are to be adjudicated only at the time of trial. Because of the reason that what is distance between the place of incident and the housing of the Court, it also matters for the purpose of considering the said contention. Various contentions raised are question of fact, they are to be adjudicated only at the time of trial. Because of the reason that what is distance between the place of incident and the housing of the Court, it also matters for the purpose of considering the said contention. When admittedly the alleged incident has taken place in day light, eyewitnesses are also there at two places and it is also a fact that the first incident has taken place in front of the office of the petitioner-accused No.5 and subsequent incident has taken place near the gate of Gumpa the Court in which statement of accused No.5 is recorded is also in the same town. The documents which have been produced does not disclose the fact that at what time accused-petitioner was present in the Court and his statement has been recorded by the Court, at what time the order sheet has been written and his presence has been noted, it is a matter of appreciation at the time of trial that too if it is proved by the accused-petitioner. When that being the case, then, the contention taken up by the learned counsel for the petitioner cannot be acceptable. 8. Apart from this by going through the material and the contentions whether the deceased was having fit mental stations or not is a matter, which has to be adjudicated at the time of trial. As per principles of law laid down by the Apex Court even without certification of the doctor or any officer if the prosecution establishes the fact that the statement of the deceased has been recorded properly as contemplated under the law and at that time he was capable of giving such statement then it can be acceptable. Under such circumstances, it has to be appreciated from the facts and circumstances of the case. In that light also the contention taken up by the accused-petitioner cannot be acceptable. By going through the dying declaration, statement of the witnesses and other material it indicates that there is prima facie case made out by the prosecution against all the accused including the accused-petitioner. The principles laid down by the Apex Court are aptly applicable to the present case on hand. By going through the dying declaration, statement of the witnesses and other material it indicates that there is prima facie case made out by the prosecution against all the accused including the accused-petitioner. The principles laid down by the Apex Court are aptly applicable to the present case on hand. When accused-petitioner has been involved in a serious offence like murder, which is punishable with capital punishment, under such circumstances, I feel it is not just and proper to grant bail to the accused-petitioner. Hence, the petition is rejected.