Crl. Misc. No. M-33906 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-33906 of 2009 (O&M) Date of decision: January 6, 2010 Neelam Mahant and others ...Petitioners Versus State of Punjab ...Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. Ashwani Verma, Advocate, for the petitioners. Mr. Shilesh Gupta, DAG, Punjab. GURDEV SINGH, J. This petition under Section 438 of the Criminal Procedure Code has been filed by the petitioners, Neelam Mahant, Puna Ram and Raju Ram, for grant of anticipatory bail in FIR No. 65 dated 18.4.2008 registered under Sections 326/506/34 IPC in Police Station Mansa, in which offence was later converted into one under Section 302/34 IPC. The facts are that the said FIR was registered on the statement of Gursewak Singh-complainant, wherein he narrated that he had adopted the profession of singing and dancing and had been staying out of his house with eunuchs for days together, who had been paying for his work. On 3.4.2008 at about 6 p.m. he was taken by these petitioners/accused in a jeep and he took liquor with them. When he told them he was not going to the member of their dancing group, they stopped the jeep, undressed him and then cut his sexual organ. He was kept at different places and was released Crl. Misc. No. M-33906 of 2009 2 only on one day before the registration of the FIR. An inquiry was conducted by DSP, who found the petitioners innocent and accordingly, they were not challaned. However, on the basis of the evidence produced by the prosecution, during trial, the petitioners were summoned as additional accused by learned Sessions Judge, vide order dated 28.8.2009 (Annexure P/4). The present petition has been pressed on the ground that once the petitioners have been found to be innocent during the inquiry conducted by the investigating agency, they could not have been summoned as additional accused and on the the basis of the inquiry report they are entitled to the benefit of anticipatory bail. There is no force in the said contention. It was on the basis of the evidence, produced during the trial, that it appeared to the learned Sessions Judge that these petitioners have committed offence under Section 302/34 IPC. It was on the basis of that finding that they have been summoned as additional accused. The FIR was lodged by the deceased himself. His death was on account of cutting of his sexual organ itself, as is clear from the post-mortem report. After the death of the complainant, his statement, on the basis of which FIR was registered, is to be treated as dying declaration. Keeping in view the gravity of the offence and the circumstances in which the same was committed, no ground is made out for extending the benefit of anticipatory bail to the petitioners. The petition is dismissed accordingly. January 6, 2010 (GURDEV SINGH ) prem JUDGE Crl. Misc. No. M-33906 of 2009 3