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Madhya Pradesh High Court · body

2012 DIGILAW 257 (MP)

Bablu @ Babla @ Shoaib v. State of M. P.

2012-03-01

M.C.GARG

body2012
ORDER 1. This is second application for grant of bail under section 439 CrPC in connection with Crime No. 219/2011, registered at Police Station Road Ratlam for offence under section 302 of IPC. The first bail application of the applicant was dismissed as not pressed vide order dated 11.11.2011 in M.Cr.C.No. 7925/2011. 2. Petitioner is involved in a case under section 302 of IPC which was registered on account of burn which were found on the person of the deceased Rehana and on succumbed to injuries is stated to have given dying declartion involving the present petitioner namely Bablu @ Babla, having caused burn injury on the person of Rehana. The dying declaration relied upon by the prosecution is not a dying declaration which has been made before any doctor, but it is signed by one Zarina and Rubina, sisters of the deceased and one S.I. Chudawat who is also the investigating officer of this case. As far as Zarina, Rubina and Aman, s/o the deceased who is also cited as witness to the incident have not supported the case of the prosecution. Thus, the only witenss remained to be examined is the Investigation Officer who wrote the dying declaration. It is not clear as to why the doctor was not associated with the dying declaration. Besides the statement of these witnesses, there is no evidence to implicate the petitioner in this case. 3. According to the learned counsel for the petitioner, the dying declaration in this case is not free from doubt. He has cited one judgment delivered by the Hon’ble Supreme Court reported in 1976 JLJ 599= AIR 1976 SC 2199 ,(Munna Raja and another v. State of Madhya Pradesh) wherein while dealing with the dying declartion made by the Investigation Officer, the Hon’ble Supreme Court has been pleased to make the following observations :- “11. We might, however, mention before we close that the High Court ought not to have placed any reliance on the third dying declaration. Ex. P-2, which is said to have been made by the deceased in the hospital. The investigating officer who recorded that statement had undoubtedly taken the precaution of keeping a doctor present and it also appears that some of the friends and relations of the deceased were also present at the time when the statement was recorded. Ex. P-2, which is said to have been made by the deceased in the hospital. The investigating officer who recorded that statement had undoubtedly taken the precaution of keeping a doctor present and it also appears that some of the friends and relations of the deceased were also present at the time when the statement was recorded. But, if the investigating officer thought that Bahadur Singh was in a precarious condition, he ought to have requisitioned the services of Magistrate for recording the dying declaration. Investigating officers are naturally interested in the success of investigation and the practice of the investigating officer himself recording a dying declaration during the course of investigation ought not to be encouraged. We have therefore excluded from our consideration the dying declaration, Ex. P-2, recorded in the hospital.” 4. Learned Dy. Government Advocate for the respondent/State says that in this case, the deceased was badly injured and was at a stage when she was lying to succumb injuries and therefore, in this case, there was no opportunity to associate any doctor with the dying declaration. It is submitted that in these circumstances, the petitioner should not be released on bail till the investigating officer is examined. 5. In the light of the judgment as cited above and the language of the dying declaration which reads as under :- jkuw mQZ fjgkuk ifr tkosn eql- 26 o”kZ] fu- jsgeruxj] tkojk QkVd] jryke esjh ‘kknh djhc 15 lky igys tkosn ls gqbZ gSA esjs rhu cPps gSaA esjk cks,t QzsUM ccyq esjs ?kj ij jkr dks vk;k Fkk esgeku ds dkj.k esjk ccyq dk fookn gqvk eSaus ?kklysV Mkyk ccyq us ia[kk can djds ekphl ds nks dkM+h tykbZ esjs ‘kjhj esa vkx yx x;h ccyw us cpk;k rks og Hkh ty x;k gSA ikl okys vk;s vkx cq>k;h vLirky yk;sA eq>s ccyq us tyk;k gSA** 6. It is apparent that the said dying declaration cannot be accepted as it is even if it is accepted, then also, the petitioner would be entitled to be released on bail, in as much as, all the witnesses to the dying declaration, except the investigating officer have not supported the dying declaration in the form in which it is written. 7. As such, the application is allowed. It is directed that the petitioner shall be released on bail on his furnishing bail bond in the sum of Rs. 7. As such, the application is allowed. It is directed that the petitioner shall be released on bail on his furnishing bail bond in the sum of Rs. 25,000/- with one surety in the like amount to the satisfaction of the trial Court.