B.L.Yadav - (1.) THIS is the second bail application having been filed under Section 439 of the Code of Criminal Procedure, 1973 in Crime no. 78 of 1985 under Section 302, IPC, P. S. Kurra, district Mainpuri. Earlier bail application was rejected by this Court on 9-10-85.
(2.) THE prosecution story as unfolded in the FIR (Annexure A to the application), is that on 25-6-85 at about 11 a.m. Banti, the deceased, aged about 6 years, the nephew of the informant was taking his bath along with other children in a Bamba (stream of a canal). THE applicant caught hold of the deceased and strangulated him and threw him into the water. THE occurrence was seen by Km. Sadhna and Manish Kumar, the daughter and son respectively of the informant. Immediately after the occurrence the accused ran away and was seen by other persons. Annexure 2 is the post mortem report indicating no sign of injury on the neck. But there appears to be swelling of 3 cm on the forehead and the cause of the death was due to asphyxia caused by strangulation. Sri G. P. Dixit, learned counsel for the applicant urged that some fresh evidence and relevant documents have been brought on record which were not filed when the earlier bail application was filed. Only the FIR, post mortem report and the order of the Sessions Judge rejecting the prayer for bail was filed along with the first application. With the second bail application a copy of the Panchayatnama (Annexure C to the application) has been filed indicating some discrepancy in the injuries received by the deceased. It was urged that it is clear from the post mortem report that no sign of injury was seen over the neck (vide Annexure B) whereas in the Panchayatnama it has been stated that on the right and left side of the neck there appears to be marks of injury by nail. Further reference was made to the Modi's Text Book of Medical Jurisprudence and Toxicology, 20th Edn. page 151 for the proposition that in cases of death by strangulation in case the fingers are used (throttling) marks of pressure by the thumb and finger tips are usually found on either side on the wind pipe. But in the instant case no such marks were found as is clear from the post mortem report conducted on the next day. Whereas in the Panchayatnama it has been stated that on the left and right side of the neck there appears to be marks of injury as if by nail but they are not very clear. It was urged that there was discrepancy in the Panchayatnama and the post mortem report, which entitles the applicant to be released on bail. Learned State Counsel on the other hand urged that it was not a case for bail and this being a second bail application no new facts and grounds have been made out.
(3.) BEFORE grappling with the actual controversy involved, it is better to appreciate the concept of bail which is taken slightly otherwise in common parlance. According to grammer the woTd ' bail ' is both noun and transitive verb. The word ' Bail ' means the security for a prisoners' appearance for trial. The effect of granting bail is, accordingly, not to set the prisoner free from jail or custody, but to release him from the custody of law and to entrust him to the custody of his sureties who are bound to produce him to appear at his trial at a specified time and place. The necessary corollary is that it is open to the sureties to seize the prisoner at any time and may discharge themselves by handing him over to the custody of law and the result would be that he (the prisoner) would be then imprisoned. As the matter has been argued at considerable length it is better to decide this Second Bail Application by a bit detailed order. The points for consideration is as to whether in a case of death by asphyxia there would appear some mark of injuries on the neck or not. It is better to ascertain the true import of word ' asphyxia ' which is very commonly used. The word ' asphyxia ' has been derived from a Greek word, which means pulselessness. In fact, it means a condition in which supply of oxyzen is reduced below the working level by causing some interference to the respiratory system. As the supply of oxyzen, which is so essential for the human body, is reduced below the normal level, hence the death occurs. There are some other synonyms, i.e. suboxia, anoxia etc. In fact, the literal meaning of the word asphyxia is the stoppage of pulse or blockade of air passages or paralysis of respiratory muscles or collapse of the lungs. In other words it is cessation of vital functions as a result of interference with respiration.;