Judgment B.L. Yadav, J. 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. 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. 3. 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. 4. 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 word '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. 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. 5. AS regards the absence of marks of pressure by thumb on the neck, suffice it to say that on page 151 of the Modi's Medical Jurisprudence and Toxicology, it has been stated that finger marks in cases of throttling are ' usually found ' on either side on the neck. The emphasis is on words ' usually found '. It has not been stated that it is necessarily found or always found rather it only states that it is ' usually found '. To put it differently in some cases it may not be found. In the instant case as it was a case of a boy of six years of age and as the medical examination was conducted on the next day, it may be possible that the marks may not have been visible to such extent that they could have been noticed by the Doctor. The report of internal examination has not been produced before me so as to take a definite view of the matter. 6. IN the instant case the boy was alleged to have been thrown into the canal after throttling. IN the case of drowning what happens is that the water penetrates into minute air tubes and thus no air could enter the place which is trapped and has already expanded its oxyzen. 6. IN the instant case the boy was alleged to have been thrown into the canal after throttling. IN the case of drowning what happens is that the water penetrates into minute air tubes and thus no air could enter the place which is trapped and has already expanded its oxyzen. Further the blood which circulates in the first law minutes after drowning contains too little oxyzen for the continuing support of life. As a matter of fact, when there is complete loss of oxyzen and circulation of the blood, the death takes place and it is called death by asphyxia. IN cases of drowning the death by asphyxia may be by throttling or choking the respiratory system by hand or by some other solid substance. In Parikh's Text Book of Medical Jurisprudence and Toxicology, at page 203 there is an observation as follows : - "Autopsy appearances : In homicidal smothering abrasions and brusses are generally found in the region of nose and mouth. They may be absent if soft material, such as cloth, has been used.............These injuries are usually produced as a result of struggling and may, therefore, be absent in infants, young children, the aged and debilitated persons." It has been further stated at page 212 as follows "Postmortem appearances : The typical appearances are seen only in recent cases, for when putrefaction advances, signs are masked or entirely obliterated." 7. IT means that unless postmortem examination is conducted immediately after the body was recovered from the water, even the marks of injury would be absent on the neck, even though the death might have been caused by throttling. I, therefore, do not agree with the submissions of the learned counsel for the applicants that the marks of injury invariably must have been present on the neck and as it was absent, hence it may be assumed that the death occurred in some other way other than in the mode suggested in the prosecution story. There is further an indication in the Panchayatnama that some marks did appear on both sides of the neck but they were not very clear and visible. IT is also one of the possibilities, even though it is premature, that the boy being just six years of age and thrown into the canal without causing any injury and he might have died by drowning. IT is also one of the possibilities, even though it is premature, that the boy being just six years of age and thrown into the canal without causing any injury and he might have died by drowning. At this stage no concluded opinion can be expressed on the cause of death nor it is necessary while disposing of the bail applications. IT is for the trial court to decide it when the evidence has been led in the sessions trial. 8. IT would not be out of place to mention the principles for granting bail in non-bailable offences, particularly where the trial has not yet started. The Court may take into consideration various aspects of the case including the nature and seriousness of the offence committed, the nature and character of evidence, circumstances peculiar to the accused, at the same time a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of the witnesses being tampered with on account of the accused being enlarged on bail, the prima facie case in favour of the accused being made out, the larger interest of the State or the public at large and similar other considerations. See State v. Jaspal Singh Gill, AIR 1984 SC 1503 . However, under the circumstances of the case, keeping in view the new facts brought on record in the second bail application, I am of the view that a case for bail has been made out. I am at the same time conscious that the second bail application is not being decided as a matter of course nor as an appellate court against the order rejecting the first bail application. 9. IT is further made clear that any opinion expressed above shall not be taken into consideration by the trial judge while deciding the Sessions Trial 10. AS a result of the discussions made hereinabove, let the applicant Rajendra be released on bail in Crime no. 78 of 1985 under Section 302, IPC, P.S. Kurra. district Mainpuri, on his executing personal bonds and furnishing two sureties to the satisfaction of the Chief Judicial Magistrate, Mainpuri. A copy of the order would be issued within three days from the date of order on depositing usual charges for obtaining certified copy. Application allowed.