JUDGMENT Vinod Prasad, J.
1. Heard Sri P.N. Mishra, learned senior counsel assisted by Sri Apul Mishra, advocate on the bail prayer of the present applicant and learned A.G.A. in opposition.
2. The applicant accused seeks bail in crime No. 1460 of 2005, under Sections 363, 376 and 304 I.P.C., police station Haldour, district Bijnor.
3. According to the prosecution case, it is alleged that Guddo Devi wife of informant Jai Singh had gone to purchase the medicine on 27.11.2005 at 4.00 P.M. at the shop of Ravi Kumar son of Heera Lal but she did not return. On enquiry being made, it surfaced to light that Ravi Kumar and Rajendra (present applicant) had abducted her. On 28.11.2005 at 4.30 P.M. when the informant Jai Singh accompanied by Ram Gopal Singh, Harpal Singh, Chandra Pal and brother-in-law Kali Singh reached in the sugarcane field near Idehgah at 4.30 P.M. searching for Guddo Devi they heard the moaning of the deceased, Approaching in that direction, they found Guddo Devi lying on the ground under intoxication and they also caught Ravi Kumar and the applicant who were present there. It was further alleged that Smt. Guddo Devi was raped by the two accused. The apprehended accused along with Guddo Devi were brought to the police station and the F.I.R. was lodged by Jai Singh at the police station on 28.11.2005 at 5.40 P.M. The Guddo Devi was subsequently admitted in the hospital. Later on for her treatment she was shifted from one medical hospital to another. At last she died on 8.12.2005. Her postmortem report indicates that she did not had any mark of violence on her body and the cause of her death could not be ascertained hence viscera was preserved. It further transpires that the deceased was in a precarious condition because of some disease and the fluid was taken out from her backbone. She was having fits with clinching of her fists and jaw and was referred to medical college for her further management. The noting on her medical paper further indicates that her husband got her discharged at his own risk at 7.12 P.M. after 1.12.2005 after giving this in writing that he is taking the deceased with him against the wishes of the doctors and he is responsible for his patient and had no complaint against the doctor and medical staff inspite of the fact that her condition was precarious. It further transpires that a report was given by Medical Officer District Women Hospital, Bijnor that no definite opinion can be given regarding rape being committed on the deceased. It further transpires that the deceased was suffering from some fatal injury because of which she was kept under treatment on heavy medication for a long period.
4. Sri P.N. Mishra, learned senior counsel submitted that there is absolutely no evidence on record to show that the deceased was abducted by the applicant. He further contended that the cause of death of the deceased could not be ascertained and hence viscera was preserved on 8.12.2005 and till date there has been no viscera report after a lapse of seven months. He further contended that so far as allegation of rape is concerned, there is no material on record suggestive of the said allegation. Neither from the condition of the body nor from the medical examination of the deceased it can be inferred that she was subjected to rape. He further submitted that even according to the doctor no opinion about rape could be given and no mark of injury was fond on the body of the deceased as well as on her private parts. He further submitted that if the two applicants would have been the real culprits, they would not have waited to be caught at the spot and infact it transpires that they have been implicated in this case due to suspicion. It is further submitted that the applicant does not have any criminal history and they have got a clean antecedents.
5. Learned A.G.A. on the other hand contended that the applicant was apprehended on the spot and there are allegations of rape. He further submitted that initially the deceased was examined and medically treated in District Hospital, Bijnor from where she was transferred to the Medical College, Meerut but subsequently she was brought back to her house where she lost her life on 8.12.2005.
6. I have considered the submission raised by the rival sides. It is not disputed that no mark injury was found on the person of the deceased anywhere and that the cause of her death could not be ascertained and till date there is no viscera report. Moreover, Various medical prescriptions of the deceased filed along with this bail application, supplementary counter affidavit indicates that no external injury was seen on her body nor any vaginal injury was found and the medical report does not prima facie indicate that the deceased was subjected to rape. It is also not disputed that the applicant does not have any criminal history and no statement of the deceased could be recorded, as her condition was precarious. The deceased was under severe medical treatment for fits and even the water was taken out from her backbone. She was got discharged from the medical college hospital by her husband on his own accord and subsequently she lost her life. Keeping all these facts specially the fact that there is no evidence of rape and murder found against the applicant till date that I considered it appropriate to release the applicant on bail.
7. Let the applicant Rajendra be released on bail in case crime No. 1460 of 2005, under Sections 363, 376 and 304 I.P.C., police station Haldour, district Bijnor on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of C.J.M. Bijnor.