RAJINDER PRASHAD Vs. MAHESH

JUDGEMENT

(1.) This petition under Section 439(2) read with Section 482 of the Code of Criminal Procedure, by one Rajinder Prashad, we seeking cancellation of bail granted by the Additional Sessions Judge, by his order of October II, 1983 to Mahesh and his two brothers, Ashok and Ramesh in case FIR No. 299/83 under Sections 302/34 of the Indian Penal Code, arising out of the death, following burns caused by acid, of Saria Devi, wife of the petitioner, on the night between September 6-7, 1983 does not call for any innovative approach to the well settled rule regarding grant of bail and wellknown principles for its cancellation, but the investigation branch of the local police comes out completely battered as, in an otherwise hotly contested proceeding in this court, between the two families who have fairly longstanding hostility, there was her agreement that the investigation was partial to one or the other of the parties, and if the investigation has since not concluded, it should be entrusted to the Central Bureau of Investigation.

(2.) There has been longstanding hostility between Rajinder, petitioner, and his two brothers, Laxmi Narain and Shiv Narain, on the one hand, and Pyare Lal and his three sons, Mahesh, Ashok and Rarnesh, who are respondents I to 3 in the petition, on the other. The hostility is, inter alia, reflected in a number of criminal cases filed or pending. Both the families, even otherwise, are not strangers to the criminal court or the police system and these are amply reflected by serious allegations on both sides of pendency of number of cases against members of both the families. It, however does appear at a cursory look at the lists of these cases that the family of Pyare Lal, to which the three respondents-accused belong, are involved in cases which are, by and large, at the instance of the families of the petitioner, while the petitioner and his brothers were also involved and are still in- volved in cases which may perhaps have nothing to do with the other family.

(3.) Be that as it may, it is alleged that on the night between 6th/7th of September, 1983, while the petitioner and his wife Saria Devi, were asleep on the terrace of their house, the three respondents came over to the terrace by scaling the wall and set the petitioner and his wife "on fire while they were asleep". The petitioner and his wife allegedly received burns, he got up and claim to have seen the three respondents running away from the terrace. They raised alarm but the respondents allegedly "made good their escape". While the petitioner immediately ran to the local police station and made a report on which he was taken to hospital, the victim, Saria Devi, was taken to the hospital from the house by Munni Devi, wife of the petitioner's elder brother. While in his report to the police, the petitioner merely recounted the incident but did not implicate any of the respondents, on the other hand, when Saria Devi arrived at the hospital, alongwith Munni Devi, a report was recorded by the Police constable, on duty in the hospital, to the effect that according to Munni Devi, the victim was burnt by the three respondents but the statement of Munni Devi, according to the report, was challenged by the victim who alleged "that acid burns were caused by her husband." After an hour or so of this, she was declared fit to make a statement and made a statement in the presence of a doctor which was recorded by a police officer at 1.50 a.m. on the morning of September 7, 1983. This statement, which is described as a dying declaration, is drawn in high flown Urdu and in this, she clearly implicated all the three respondents. She allegedly had hundred per cent burns on the body. Petitioner also had burns on his body. Soon after the statement of Saria Devi was recorded, she died. The dying declaration could not be recorded by a Magis- trate, nor was any police officer, other than one who recorded it, was present.