ORDER
Fakhruddin, J.
1. With the consent of the parties, the revision is finally heard.
2. This revision petition is against the order dated 27-11-2000, passed by Fourth Additional Sessions Judge, Morena in Sessions Trial No. 256/2000, whereby the applicant/accused has been charged for the offence under Section 302 of IPC read with Sections 27 and 25(1)(b) of the Arms Act.
3. The fads leading to filing this case are as under : The incident had occurred on 18-4-2000 at 8/8.30 A.M. in the morning while complainant Subedar Singh s/o Albelsingh accompanied by his brother Tchsildarsingh and sister Usha was going to the field on the tractor and when he was at some distance of his house, what he saw is that accused Tikamsingh, Prahladsingh and Ramraj came front side; accused Ramraj was armed with gun. It is stated that accused Tikamsingh and Prahladsingh filthy abused him and also threatened to kill him. Thereafter, it is alleged that accused Ramraj, with intention to kill, fired from his gun at the complainant, Subcdarsingh, which hit on his abdomen, causing injuries and the blood came out. The incident was witnessed by his brother Tehsildar Singh and sister Usha. The accused persons thereafter run away from the spot. The report of the incident was lodged by the complainant himself alongwith his brother and sister at the police station, which was registered by Shri Vipin Pathak, Head Constable of Police Station, Porsa, who referred the injured to the Primary Health Center, Porsa. It is stated that during treatment, complainant died and therefore the offence which was initially registered under Section 307/34, IPC was converted intoSection 302 of IPC. The dying-declaration of complainant was also recorded. The FIR and dying-declaration recorded indicated that it was Raniraj s/o Bhagwansingh, Tikamsingh s/o Bhagwansingh and Prahladsingh s/o Bhagwan Singh, who caused the death of Subedarsingh. Accused Ramraj was said to have fired, which hit Subedarsingh resulting in death.
4. In this case, as stated above, the FIR was recorded by Shri Vipin Pathak and he also conducted some part of investigation. Shri S.R. Sankhediya, I.O. is the person, who took over the investigation later on and completed it. According to his investigation, it is Tehsildar, who is accused and he caused death of his brother. He stated that he recorded the statements of Tikamsingh and Prahladsingh on 16-6-2000. As the dying declaration and the FIR lodged show that it is accused Ramrajsingh, who is said to have fired, the I.O. present in Court, was question as to whether the statement of accused Ramraj was recorded. After seeing the record/case-diary, he stated that the statement of Ramraj was not recorded despite the fact that he was in the village with his brothers namely Tikamsingh and Prahladsingh. This fact is also mentioned in the statements of Tikamsingh and Prahladsingh said to have been recorded on. 16-6-2000 by the Investigating Officer.
5. On 1-5-2001, considering the seriousness of the matter, this Court had recorded a detailed order-sheet and also directed for issuance of notice to Shri Vipin Pathak, Head Constable of Police Station Porsa, who registered the FIR and conducted part of investigation and the Dr. D.C. Parashar, who recorded the dying declaration of Subedarsingh on 18-4-2000 and subsequently gave statement in writing on 18-6-2000, for their personal appearance before this Court on the next date of hearing, i.e., 3-5-2001. It was also left open to the discretion of the I.G. Chambal Division and the Supdt. of Police, Morena to address, if they so desired.
6. On 3-5-2001. Shri Surendra Singh, I.G. Chambal Division, and Shri Dr. Vijay Kumar, S.P., Morena both were present before this Court, and alsoaddressed.
7. Learned counsel for the applicant submitted that the FIR and dying declarations, which are on the record, pritna facie, unless they are found to be incorrect, to show that applicant Tehsildarsingh is not at all the author of the crime. The I.O. Shri S.R. Sankhediya questioned by this Court, who on the other hand, stated that he came to know that the brother of deceased himself was the assailant.
8. Learned counsel for the applicant stated the FIR was sent under Section 157, Cr.PC to a Magistrate and under Section 159, Cr.PC the accused was formally arrested on 18-6-2000, as he was already in custody in another case registered for the offence under Sections 399,400,402, IPC and Sections 25/21 of the Arms Act read with Sections 11/13 of the M.P. Daketi Adhiniyam.
9. As stated by the counsel for the parties and noted above, the FIR and the dying declaration recorded on 18-4-2000 clearly show that it was Ramraj, Tikamsingh and Prahladsingh, who participated in the incident and accused Ramraj fired at the complainant, which he sustained on the stomach, resulting in death. It is however noted that the later part of the investigationwhich was completed by another I.O. Shri Sankhediya, after taking it over, says different thing and turned the narration of facts recorded in the FIR and the dying declaration to different way which has resulted in making the brother of deceased, who is applicant Tehsildar as an accused and not only that in spite of dying declaration and the FIR naming others and the documents being on record, the accused Tehsildar is arrested, challan is filed and the charge has been framed against him by the Court for causing death of his real brother. The documents, i.e. FIR dying declaration of the deceased, recorded by the doctor on 18-4-2000 and the subsequent statement of the same doctor dated 18-6-2000, are there on the record in original.
10. This Court heard all the parties including the Investigation Officer, notices as recorded in earlier order-sheet, doctor and Shri J.P. Gupta, Sr. Counsel appeared as Amicus curiae, at length.
11. A perusal of the record and the documents especially, the FIR and the dying declaration, show the involvement of accused Ramraj and the other two companions, who are his brothers. Subsequently, now the prosecution says that it is Tehsildar, who is an accused. Saying so is the statement of the doctor given on 18-6-2000.
12. Learned counsel for the applicant submits that unless the dying declaration recorded is proved to be false, the same cannot be ignored. It is stated that ignoring the FIR and the dying declaration, the applicant has been made an accused on the basis of investigation and the statement of the doctor given subsequently on 18-6-2000.
13. Under the circumstances, counsel for the parties submitted and agree that the matter is such one which requires fresh investigation by the Central Bureau of Investigation. In the opinion of this Court, the facts which have emerged require due investigation by the CBI. It is not disputed that Subedarsingh had died. It is also not disputed that he died homicidal death. According to the prosecution, documents, i.e. FIR dying declaration, which is recorded on 18-4-2000 show the innocence of the accused Tehsildarsingh, who on investigation made subsequently and on the statement of the doctor recorded on 18-6-2000 and the investigation, has been made an accused, as stated by the counsel representing him.
14. In view of the above to avoid miscarriage of justice, the matter needs thorough probe. Accordingly, it is directed that the matter shall be investigated by the CBI afresh. All parties to render due co-operation to CBI.
15. Counsel for the applicant submits that the applicant Tehsildar Singh is in jail. It is stated that the inquiry by the CBI take a long time. Therefore, it is prayed that the applicant be released on bail.
16. Counsel for the parties heard on the application (M.Cr.P. No. 137/2000), for grant of bail.
17. Having heard counsel for the parties and after considering the facts and circumstances and the material on record, in the opinion of this Court, it is just and proper to release the applicant on bail, on furnishing a personal bond in the sum of Rs. 50,000/- with two solvent sureties in the like amount each to the satisfaction of the Chief Judicial Magistrate, Morena for his appearancebefore the Court on all the dates fixed by that Court unless otherwise evidence subject to the following conditions :--
(1) that the applicant shall attend the Court concerned on every fifteen days after his release on bail;
(2) that he shall submit his passport size photograph and the requisite details of the movable/immovable property belonging to him, at the time of furnishing a personal bond, before the CJM concerned;
(3) that the applicant shall attend all the dates fixed or given by CBI during investigation and shall not tamper with the evidence in any manner and shall not misuse the liberty, failing which his bail is liable to be cancelled and the Investigating Agency/Competent Court would be at liberty to take necessary steps for his arrest;
(4) that the bail bonds shall contain crime number of the police station and before accepting the bail bonds copies of the same shall be supplied to the ADP/APP, who shall forward the same to the P.S. concerned.
18. In view of what has been stated above, the impugned order framing charge is set aside as the entire matter is being handed over to the CBI for fresh investigation. The CBI, if required, shall collect the relevant documents in original from the Trial Court, which shall be supplied by Court concerned.
19. Let the record of the Court below be sent back alongwith the copy of this order.
20. Photocopy of this order to the concerned.