KUNTI Vs. STATE OF HARYANA

JUDGEMENT

(1.) The petitioner approaching this Court for bail are two women named Smt. Kunti and Smt. Vijay, who at an earlier occasion were declined bail by me on 14-1-1983 in Cr. M No 104-M of 1983. The present effort on behalf of them in that of regard is based on two factors (1) that hithertofore the Court, was apprised of two instead of three dying declarations forming part of the prosecution case and (2) that the petitioners were mothers and minor children were also suffering incarceration, for they could riot be kept separate from them.

(2.) A little elaboration would be needed to weigh the contentions. These two petitioners were initially granted anticipatory bail by the learned Sessions Judge, Faridabad. A petition for cancellation of bail was made vide Cr. M. No. 624. of 1982 and the same was allowed by C.S. Tiwana, J. on 16-11-1982 being of the view that here was a dying declaration recorded earliest at the point of time by Dr. Dewan of B. K. Hospital, Faridabad wherein both the petitioners had been denounced as the culprits. Later, when the victim was taken to Delhi for better medical trealment, the police recorded her dying declaration wherein the names of the petitioners were found to be omitted. It is in these circumstances that C. S. Tiwana, J. took the view that when the dying declaration had already been recorded, the police should have then insisted that a Magistrate should record the fresh dying declaration. In pursuance of that order the petitioners were arrested and they approached this Court, as said before, in Cr. M. No. 104 of 1683. I had observed while declining their prayer that it would be difficult to accede to their prayer in view of the observations of C. S. Tiwana, J. Additionally, it was then stated at the bar that the trial was fixed for 18-1-1983 on which date the charge was likely to be framed. In that event, I had directed the trial Judge to fix the date shortly thereafter for examining Dr. V. D. Dewan of B.K. Hospital, Faridabad as the first prosecution witness. I had left it open thereafter for the petitioners to apply afresh for bail before the trial Court.

(3.) Now it has been brought to my notice that when I had disposed of the matter earlier the case had not even been committed to the Court of Session. The fact that there is a third dying declaration recorded by Dr. A.S. Rao of the All India Medical Institute of Science, New Delhi is not in dispute and in that dying declaration names of the present petitioners do not figure. However, it is disputed by the learned counsel for the State that the said declaration recorded by Dr. Rao is legally not a dying declaration and is of no value. The fact that the petitioners are mothers and their children are incarcerated with them has not been seriously disputed. The prayer for bail is opposed solely on the ground that it would tantamount review of the two earlier orders of this Court.