ORDER : 1. This application for bail has been filed by the applicants under section 439 of the Code of Criminal Procedure, 1973 in connection with FIR No.323/2023, registered at Police Station Sojat City, District Pali, for the offences under sections 147, 148, 149, 341 & 302 & 120-B of the Indian Penal Code, 1860. 2. Mr. Suresh Kumbhat, learned counsel for the applicants invited Court’s attention towards the written complaint, which was lodged by the brother of the deceased (Mahendra Kumar) and pointed out that the complainant had stated that when he along with his sister-in-law Shobha (wife of the deceased) were going on the motorcycle, they saw various persons brutally beating his brother - the deceased (Mahendra Kumar). He also pointed out that in the said written complaint he had named Shaitan Ram; Deva Ram; Ram Lal, R/o Dola Nada, Sojat City; Kalu Ram; Ganga Ram, R/o Ramsanibala; Joga Ram; Pema Ram; Guman Ram; Budha Ram, R/o Dhandhedi who had beaten the deceased with lathis, iron rods and sticks with an intention to murder the deceased (Mahendra Kumar). 3. Thereafter, Mr. Kumbhat took the Court through the statement of wife of the deceased Smt. Shobha, recorded under section 161 of the Code of Criminal Procedure, 1973 and highlighted that the wife claims to have seen various persons beating the deceased in which names of the present applicants had not been mentioned. 4. Learned counsel further took the Court through the statement of Madan Lal (the complainant) and submitted that while giving the statement under section 161 of the Code of Criminal Procedure, 1973, the complainant slightly changed his version and stated that the deceased had informed him about the persons who had beaten him and even in such statement, the names of present applicants were not mentioned. 5. Learned counsel further took the Court through the statement of Ram Lal (father of the deceased) and submitted that in such statement given on 18.09.2023, names of various persons have been mentioned excluding the names of the present applicants. 6. Learned counsel submitted that the applicants have been named firstly by one Om Nath in his statement recorded under section 161 of the Code of Criminal Procedure, 1973, on 05.09.2023, but he also did not claim himself to have seen the incident of murder but attributed his knowledge to the version of the deceased (Mahendra Kumar). 7. 6. Learned counsel submitted that the applicants have been named firstly by one Om Nath in his statement recorded under section 161 of the Code of Criminal Procedure, 1973, on 05.09.2023, but he also did not claim himself to have seen the incident of murder but attributed his knowledge to the version of the deceased (Mahendra Kumar). 7. Having invited Court’s attention towards these statements, learned counsel submitted that the only basis on which the prosecution has enroped the applicant No.1 is, the purported call details and call location analysis and the recovery of the alleged weapon of offence from both the applicants. 8. Mr. Kumbhat argued that surprisingly enough, the prosecution has not filed charge-sheet against the named accused persons and has dropped many of them, while present applicants have been wrongly implicated, though no eye witness or other evidence is available against them. 9. Learned counsel submitted that the recovery of the Lathi made by the Investigating Officer in the police custody unless, supported by any other incriminating evidence such as blood stains of the deceased etc., cannot be sufficient evidence to bring home the charge levelled against the applicants. 10. Learned Public Prosecutor vehemently opposed the bail application while contending that the call details analysis and call location of the applicant No.1 Sharwan clearly shows his presence in the village Sardarpura (during 13.35 pm to 14.06 pm). He added that the fact that the recovery of a Lathi has been made from the present applicant and argued that it cannot be said that the applicants were not involved in the offence of murder of the deceased. 11. Mr. Nishant Bora, learned counsel for the complainant also vehemently opposed the bail application. 12. Mr. Bora took the Court through the call details analysis (at page 169) and submitted that the presence of the applicant No.1 at the place of incident is well established and, therefore, no indulgence be granted to the applicants. 13. Heard learned counsel for the parties and carefully gone through the material available on record, including the statements as flagged by learned counsel for the parties. 14. 13. Heard learned counsel for the parties and carefully gone through the material available on record, including the statements as flagged by learned counsel for the parties. 14. Without making observations about the manner in which the prosecution has proceeded and the charge-sheet has been filed, suffice it to highlight that neither in the FIR nor in the statement of wife of the deceased nor in the statement of the complainant and even in the statement of father of the deceased, names of the present applicants have been given, though names of other 8-10 persons have been given. 15. It is also to be noted that said Mahendra Kumar was injured around 2:30 pm on 31.08.2023 and he breathed his last on 03.09.2023 at 6:30 pm. In spite of the fact that the Investigating Officer had 72 hours time available with him, he has not tried to record statement of the deceased. It is rather surprising that if the deceased was able to apprise three persons about the incident and give the names of the persons who have inflicted injuries, why the Investigating Officer did not bother to record his statement. 16. Names of the present applicants have been referred by one Om Nath, who is not an eye witness to the incident. And curiously enough, he takes the names of the present applicants on the basis of the so called information given by the deceased (Mahendra Kumar). 17. This Court finds it difficult to believe that when the deceased Mahendra Kumar did not disclose the names of the applicants to his wife, brother and father, why would he name present applicants while narrating the incident to a third person. 18. The only evidence, which the prosecution has brought on record is the call location of the applicant No.1 Sharwan. It is pertinent to note that the incident occurred between 2:00 pm to 2:30 pm in village Sardarpura, whereas, as per the location analysis, the location of the applicant was in the village Sardarpura between 13:35 pm to 14:06 pm, whereafter his location is found in village Khariyaneev at 14:31 pm. 19. As informed by learned Public Prosecutor, village Kharyaneev is about 20 km away from the village Sardarpua. Hence, presence of applicant Sharwan in village Sardarpura at the time of commission of offence is highly improbable. 20. Then comes the recovery of Lathi from the present applicant. 19. As informed by learned Public Prosecutor, village Kharyaneev is about 20 km away from the village Sardarpua. Hence, presence of applicant Sharwan in village Sardarpura at the time of commission of offence is highly improbable. 20. Then comes the recovery of Lathi from the present applicant. Needless to observe that the recovery of purported weapon of offence has been made while the applicants were in police custody. Solely on the basis of such recovery, in prima-facie opinion of this Court, the applicants cannot be kept behind the bars till indefinite period, when there is no other incriminating evidence. 21. So far as applicant No.2 Virendra @ Vakil is concerned, even his call location and call details record does not show his presence in the village Sardarpura. He has been indicted only on the basis of recovery of Lathi. 22. In the totality of the facts and circumstances of the case noted above, this Court is inclined to accept the bail application of both the applicants, who are behind bars since 09.09.2023/11.09.2023. 23. Consequently, the bail application filed under section 439 Cr.P.C. is allowed. The applicants (1) Sharwan S/o Shri Arjun Ram and (2) Virendra @ Vakil S/o Shri Kaluram, arrested in connection with FIR No.323/2023, registered at Police Station Sojat City, District Pali, shall be released on bail on their furnishing a personal bond in the sum of Rs.50,000/- each and two sureties of Rs.25,000/- each to the satisfaction of the trial Court. 24. Applicants shall be required to appear before that Court on all dates of hearing and as and when called upon to do so. 25. Needless to mention that the above observations made by this Court are on the basis of material so far produced before the Court. These are only prima-facie observations and the same shall however, not come in the way of the trial Court to take independent view of the matter, based on ocular and oral evidence, while finally deciding the case.