Civil Writ Petition No. 11642 of 2009 1 In the High Court of Punjab and Haryana, at Chandigarh. Civil Writ Petition No. 11642 of 2009 Date of Decision: 16.11.2009 Ramesh Kumar …Petitioner Versus State of Haryana and Others …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Namit Gautam, Advocate for the petitioner. Mr. Sunil Nehra, Assistant Advocate General, Haryana, for respondents No.3 and 4. Kanwaljit Singh Ahluwalia, J. (Oral) Sarita, wife of the petitioner, died due to burn injuries on the night intervening 8/9.6.2009. FIR No. 218 dated 9.6.2009 (Annexure P3) was lodged by the petitioner. In the FIR, petitioner claimed that deceased had made an oral dying declaration that Surinder Singh and Jagir Kaur were the persons who had poured the kerosene oil and ignited the fire. Besides this, counsel for the petitioner submits that there are two pieces of evidence, (a) Himanshu son of the deceased, aged 12 years, was the eye witness of the occurrence and (b) the occurrence was also witnessed by brother of the deceased. Grievance of the petitioner is that police is acting at the behest Civil Writ Petition No. 11642 of 2009 2 of the accused and is not conducting fair investigation of the present case. He submits that investigation of the present case should be entrusted to some other Agency. In the written statement filed, State of Haryana stated that immediately when the deceased reached the hospital, services of the Judicial Magistrate First Class were requisitioned. He made two attempts to record dying declaration, but the concerned doctor had not declared the deceased to be fit to make statement, therefore, no dying declaration was recorded. Counsel submitted for the first time on 15.6.2009 that petitioner had submitted an application saying that police had not recorded the correct version. Occurrence had taken place on night intervening 8/9.6.2006. FIR was lodged on 9.6.2009. In the present petition, following four prayers have been made:- i) Life of the petitioner should be protected as he apprehend danger to his life at the hands of respondents No.5 to 8. ii) Persons named as accused in the FIR have not been arrested. iii) Person whose name was added later has not been also named as accused. iv) FIR continued for the offence under Section 307 IPC and Section 302 IPC has not been added. A perusal of written statement show that offence under Section 302 IPC has been added. The Investigating Agency has Civil Writ Petition No. 11642 of 2009 3 formulated a prima facie view that the accused named by the petitioner are not involved in the crime. However, to allay the apprehension of the petitioner, they are being put to lie detection test. Be as it may, in the present case, the best evidence of the complainant consist of oral dying declaration and eye witness account. The person, to depose regarding the oral dying declaration, is none else but petitioner himself. Eye witness account is to be provided by son of the deceased and her brother. These three witnesses cannot be approached and prevailed upon. There is no threat of inducement or suborning these witnesses. The occurrence had taken place inside the house of the petitioner. It is not the case where evidence is to be gathered by any Agency who is specialized to reconstruct the scene of crime. In these circumstances, present writ petition is disposed of with a direction to Investigating Agency to conclude the investigation within three months from today and submit the report to the Area Judicial Magistrate. Petitioner is at liberty to file a protest petition. The petitioner is at liberty to canvass before the Area Judicial Magistrate that his statement regarding oral dying declaration and statements of son and brother of the deceased being eye witnesses be recorded. Once the statements are recorded and the protest petition is filed, the Area Judicial Magistrate shall formulate a view whether the accused are to be summoned or prosecuted or whether cognizable offence is made out or not. Needless to say that all concerned will be at liberty to assail the order of Area Judicial Magistrate in accordance with the provisions Civil Writ Petition No. 11642 of 2009 4 of law. With the observations made above, the present petition is disposed of. (Kanwaljit Singh Ahluwalia) Judge November 16, 2009 “DK”