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2014 DIGILAW 118 (RAJ)

Jagu v. State of Rajasthan

2014-01-08

SANDEEP MEHTA

body2014
ORDER The present bail application has been filed under Section 439 Cr.P.C. on behalf of the petitioner, who is in custody in connection with F.I.R. No.103/2013, Police Station Kalinjara, for the offences under Sections 498A and 302 IPC. Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the challan papers. Learned counsel for the petitioner submits that the petitioner has been arrested and charge-sheeted in a totally false and frivolous case. He submits that the petitioner was married to the deceased Shabnam 10 years ago. Shabnam was suffering from multiple organ cancer and ultimately she breathed her last on 2.5.2013. She was provided treatment for curing the disease but could not be saved. Learned counsel submits that in order to extract money, father of the deceased Shabnam filed a false report against the petitioner alleging that on 28.4.2013 the petitioner hit Shabnam on her abdomen with a brick due to which she fell down and thereafter she was assaulted by fists and kicks and as a result of the assault, she met with an unfortunate untimely death. Learned counsel drew the attention of this Court to the post mortem report of the deceased conducted by the medical officer of the Government Hospital, Banswara, as per which the cause of death of the deceased has been opined to be multiple cystic ovary with malignancy and secondary extension to pelvis, liver and lung. Learned counsel submits that it is obvious that the deceased expired due to multiple organ cancer. He has drawn the Court's attention to the statement of Dr. Vandana Agarwal. Dr. Vandana Agarwal stated that on 29.4.2013 Smt. Shabnam was brought to the M.G. Hospital, Banswara by her family members and was admitted. The Doctor treated Smt. Shabnam. Smt. Shabnam complained of abdomen pain and internal organ injury. She was subjected to sonography in which her spleen was found to be enlarged and multiple cyst were observed on her ovaries, no marks of injury were found on her abdomen in the sonography. On this she was prescribed some medicines and discharged on 30.4.2013. Learned counsel thus submits that it is obvious that the whole prosecution theory regarding the deceased having met with an unfortunate death due to assault made by the petitioner is palpably false. On this she was prescribed some medicines and discharged on 30.4.2013. Learned counsel thus submits that it is obvious that the whole prosecution theory regarding the deceased having met with an unfortunate death due to assault made by the petitioner is palpably false. Learned counsel urges that prima facie the case registered against the petitioner is false and frivolous and he thus deserves to be granted bail. Learned Public Prosecutor opposed the submissions advanced by the learned counsel for the petitioner but he too admits that the cause of death of Smt. Shabnam is not due to the alleged assault but she was suffering from acute cancer and multiple cysts on the internal organs of her body. Heard learned counsel for the petitioner and the learned Public Prosecutor. Perused the challan papers. The finding recorded by the Medical Jurist in the post-mortem report of the deceased Shabnam regarding the cause of her death are quoted hereunder:- “After examination of dead body and perform p.m. by board in our opinion. (i) She is expired within 24 hrs. before examination. (ii) Cause of death is due to multi cystic ovary with malignancy & with secondary infection liver and lungs.” After considering the submissions advanced at the bar and after considering the medical evidence available on record particularly the cause of death opined in the post mortem report and the statement of Dr. Vandana Agarwal referred to supra, this Court is of the opinion that the I.O. did not investigate the matter properly. The learned Sessions Judge too rejected the petitioner's bail application mechanically without considering the positive medical evidence which was available on record showing that the cause of death of the deceased was multiple organ cancer. The liberty of an individual is a valuable right guaranteed to every citizen under Articles 20 and 21 of the Constitution of India. Whilst dealing with bail applications filed by the accused, the Courts are required to be conscious of all the circumstances available on record and should not approach the matter with a bent of mind to reject the same and to banish the accused to approach the higher courts for seeking remedy. This Court feels that even a day's custody of the petitioner in view of the positive medical evidence which has been referred to above was absolutely unjustified. This Court feels that even a day's custody of the petitioner in view of the positive medical evidence which has been referred to above was absolutely unjustified. There is ample evidence on the record of the case to show that the deceased expired due to multiple organ cancer and the petitioner has been detained in the case with an absolute false allegation of having assaulted her. In this background, this Court is of the opinion that the bail application filed by the petitioner deserves to be accepted. Consequently, the bail application is allowed. It is ordered that the accused-petitioner, Jagu arrested in connection with F.I.R. No.103/2013 P.S. Kalinjara shall be released on bail; provided he furnishes a personal bond of Rs.40,000/-and two surety bonds of Rs.20,000/-each to the satisfaction of the learned trial court with the stipulation to appear before that Court on all dates of hearing and as and when called upon to do so.