ORDER
A.K. Saxena, J.
1. This application has been filed on behalf of three applicants under Section 439 of Cr.PC for grant of bail in connection with Crime No. 346/04 registered at Police Station, Kohefiza, Bhopal for the offences under Sections 330, 304 Part-II and 323 read with Section 34 of IPC. The Sessions Trial No. 212/05 is pending in the Court of Sessions Judge, Bhopal.
2. The Sessions Judge, Bhopal rejected the bail application filed under Section 439 of Cr.PC of all these applicants vide order dated 3-8-2005 passed in Sessions Trial No. 212/05 on these grounds that the earlier application of these applicants was rejected and at that time, it observed that probably, the applicants caused serious injuries to R.K. Jain as they were on duty at that place where R.K. Jain was kept in custody. There is no material change in the circumstances since the earlier application was rejected, therefore, the applicants are not entitled to be released on bail.
3. The bail application of K.S. Solanki, Inspector, S.P.E. Lokayukt Office, Bhopal was allowed by this Court vide order dated 8-7-2005 passed in M.Cr.C. No. 4237/05 and the copy of that order has been filed with this application. In that order, the story of the prosecution has been stated briefly and there is no need to repeat the story of the prosecution. Only these facts can be added that the trap was conducted on 14-7-2004 by B.P. Singh under the supervision of M.S. Nain, Incharge S.P. of Lokayukt Establishment and thereafter, R.K. Jain was kept in one room where the applicants were on duty during the night time. In the next morning, he was found unconscious and shifted to hospital where he was declared dead. The applicants and other accused persons kept R.K. Jain in such a situation which was not proper for the patient of Asthma and they also tortured R.K. Jain physically and mentally, as a result of which he died.
4. The learned Senior Counsel for the applicants has contended that no 'marpeet' had taken place during the night time as R.K. Jain did not disclose anything about 'marpeet' by anybody to these witnesses who reached at the place of incident to meet him. The prosecution also has not filed the charge-sheet under Section 302 of IPC. Even no charge under Section 304 II of the IPC is made out against all the applicants. R.K. Jain sustained injuries to the ribs because of artificial respiration process. Since the main accused persons have been enlarged on bail, therefore, the applicants are also entitled to be enlarged on bail as the case of present applicants is identical to the cases of other accused persons, who have been enlarged on bail.
5. The learned Counsel for the State opposed the application and has submitted that the offence relates to custodial death and the applicants were on duty during the night time at the place of incident, therefore, they are responsible for the incident and they should not be released on bail.
6. The learned Counsel for the objector has contended that the offence under Section 302 of IPC is made out prima facie against all the accused persons including the applicants on the basis of medical evidence produced with the charge-sheet. Therefore, the applicants are not entitled to be released on bail.
7. It is apparent from the case diary that the applicants were on duty during the night time when R.R. Jain made a complaint to some witnesses about the mental and physical torture. Those witnesses have not categorically stated in their statements that R.K. Jain told them that he has been tortured by the applicants or the applicants caused injuries to him. The medical reports are also interesting factor in this case. The charge-sheet has been filed under Sections 330, 304 II and 323 of the IPC and charges have been framed under Section 304 II of the IPC only and the Sessions Judge, Bhopal found that no prima facie case is made out under Section 302 read with Section 34 of IPC against any of the accused. On perusal of case diary, it is also apparent that the main accused persons are M.S. Nain and B.P. Singh, who have been granted bail by the Sessions Court on the basis of various grounds as well as on the basis of order of this Court passed in respect of accused K.S. Solanki.
8. The learned Counsel for the objector placed his reliance on few lines of Modi's Medical Jurisprudence and Toxicology at Page 280. The relevant lines are as follows :--
'Symmetrical fractures of the ribs on both sides are often met with, when a person sits on the chest and compresses it considerably by means of the knees or elbows, by trampling under feet, or by means of two bamboos, a process known as bans dola.'
9. The learned Counsel for the objector has also placed his reliance on the Self Instructional Workbook for Emergency Care (Third Edition) Page 94, which runs as follows :--
'Injury to the rib cage is the most common complication of CPR. When the hands are placed too high on the sternum, fractures to the upper sternum and the clavicles may occur. If the hands are too low on the sternum, the xiphoid may be fractured or driven down into the liver, producing severe lacerations (cuts) and profuse internal bleeding. When the hands are placed too far off centre, or when they are allowed to slip from their position over the CPR compression site, the ribs or their cartilage attachments may be fractured.'
The learned Counsel for the objector submits that looking to this fact that several ribs were fractured, it can safely be concluded that R.K. Jain was physically tortured.
10. On the other hand, the learned Counsel for the applicants has submitted that the fracture of the ribs may be caused due to external cardiac massage and for this, he placed his reliance on Dr. K.S. Narayan Reddi's Medical Jurisprudence and Toxicology Page 266, and the relevant portion is as follows :--
'Fractures of the ribs are also seen in battered babies and due to external cardiac massage. In compound fracture of a rib or ribs into the chest cavity, there may be tearing of the intercostal artery, and death may occur due to haemorrhage, even in the absence of injury to the heart or lungs. In the aged and infirm who fall around, one or more ribs may be fractured usually on the back or side of the chest, without displacement of the rib. Fat embolism may occur due to fractures of ribs, especially in old persons.'
He has further submitted that in the book on Emergency Care, it has also been observed that even when CPR is correctly performed, ribs may be fractured. In such cases, do not stop CPR. Far better that the patient suffer a few broken ribs, than die because you did not continue to perform CPR for fear of inflicting additional injury.
11. Without commenting on merits of the case, in the opinion of this Court, this application should be allowed on these grounds that the main accused persons have been enlarged on bail either by this Court or by the Sessions Court. It is a well established principle that then an accused has been granted bail, the other identically placed accused or an accused whose case is better, shall also be entitled to have the same relief. There is no direct evidence to show that during the night time when the applicants were on duty, they caused any injury to R.K. Jain and the investigating agency has also not filed this case under Section 302 of IPC. On perusal of the whole record, the Sessions Court also framed the charges under Section 304 II of IPC against all the accused persons including present applicants.
12. Therefore, the application is allowed and it is directed that the applicants Badri Nihale, Ram Ashish and Silvanus Tirki shall be enlarged on bail on their furnishing a personal bond in the sum of Rs. 25,000/- (Rs. Twenty live thousand) with two solvent sureties in the like amount to the satisfaction of Chief Judicial Magistrate, Bhopal.