Kunti wife of Rajiv Aggarwal and anr. vs State of Haryana

M.M. Punchhi, J. (Oral).

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. 104M of 1983. The present effort on behalf of them in that of regard is based on two factors 0) that hitherto fore this 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 not be kept separate from them.

A little elaboration would be needed to weigh the contentions. These two petitioners were initially granted anticipator bail by the learned Sessions Judge, Fridabad. A petition for cancellation of bail was made vide Cr. M. No. 624M of 982 and the same was allowed by C. S. Tiwana, J. on 16.11.1982 being of the view that there 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 treatment the police recorded her dying declaration wherein the names of the petitioners were found to be ommitted, 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. 104M of 1983. I had observed while declining there prayer that it would be difficult to accede 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 18.11983 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 open thereafter for the petitioners to apply afresh for bail before the trial Court

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 AllIndia 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 rot a dying declaration and is of no valve. 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 to review of the two earlier orders of this Court.

I have examined the matter in detail. No expression need be made with regard to the value of the socalled third dying declaration. The fact remains that it is existing or, the record. Dr. A. S. Rao when put up by the prosecution as a witness or even called for by the defence is expected to own it to he in his hand. What value attaches to it Is a different matter. The said declaration was neither brought to the notice Of C. S. 7 inter alia. J. nor to me on the earlier two occasions. The omission of the names of the petitioners therein despite being accountable for a variety of re sons at the trial stage, certainly for the present, entitles the petitioners 14, bill more so when special regard has been made in favour of \\\\omen in these matters and also for fact that the petitioners are mother taking along with them children in jail. Even this fact that children were incarcerated with their mothers was not brought to the notice of this Court earlier. Thus, for the both proprietal Ind compassionate reasons, the petitioners hail pending trial. Bail to the satisfaction of the trial Judge, Faridabad.