1. As disclosed in the F. I. R. Lodged by complainant Jagan on Ist June, 1980 at 3-30 p. -m. All the three applicants caused the death of Mst. Feroza by giving her hatchet blows. Motive attributed to them is the ---tawiz--- given by the deceased to the petitioners' sister, Mst. Nooran, who on account of the effect of the `tawiz' has been leading sick life.
2. Having failed to get bail in the Sessions Court, the applicants have moved this bail application.
3. I have heard Mr. Shamsuddin Shah, learned counsel for the peti--tioners and Mr. Agha Saifuddin for the State. The only point stressed by Mr. Shah is that the timing of the incident mentioned in the F. I.
4. R. Is belied by the medical opinion and it is therefore doubtful if the murder was committed in the circumstances alleged by the prosecution. 1n this connection he has relied on 1982 P Cr. L J 30. The learned counsel has also referred me to page 139 of the Medical Jurisprudence by Modi.
5. It would be noticed that even in the reported case page 139 of the Modi's Medical Jurisprudence has been referred to for support to the views expressed in the case. It would therefore be useful to produce the relevant portion of the expert opinion appearing on page 139 of the said book. It reads as under :- "In addition to these, the time of death can be ascertained to some extent from the state of the stomach and the degree of digestion of the stomach contents, and from the contents of the bladder and intestines.
6. It has been ascertained by physiologists that a mixed diet containing more of animal food and less of vegetable food leaves the stomach in four to five hours after it is completely digested, while a vegetable diet containing mostly farinaceous food as usually taken by an Indian does not leave the stomach completely within six to seven hours after its ingestion. But this cannot always be -- relied upon in determining the time of death, as tone and mobility of the stomach, consistency and quantity of the stomach contents are other varying factors. Sometimes the power of digestibility may remain in abeyance for a long time in state of profound shock and coma. Food has been seen in the stomach remaining undigested in persons who received severe head injuries soon after their meal and died within twelve to twenty-four hours afterwards. In one case the food consisting chiefly of rice and dal (pulse) remained in the stomach for about forty hours without undergoing digestion. It must also be remembered that the process of digestion in normal, healthy persons may continue for a time after death. The presence of tablets or parts of capsules may be significant."
7. It is clear from the above views that digestion of food depends upon the stomach's power of digestion, the kind of diet etc. This is because the tone and mobility of the stomach and consistency and quantity of the stomach contents vary from case to case. It has been found that if in one case the food left the stomach in four to five hours, still in another case the food remained in the stomach for about forty hours without undergoing digestion. Thus the state of food found in the stomach of the deceased is not a safe guide for determining the time of death. This is admitted even by the author of the book himself.
8. In view of above I regret I cannot persuade myself to follow the view taken in the aforesaid reported case. It also does not seem desireable to go into such details of the case as relating to the condition of food contained in the deceased's stomach at this stage when the only document indicating the condition of food is the post-mortem notes and even the medical officer has not been examined.
9. In the instant case the incident took place in the month of June when 7.30 to 8.30 is usually the time for breakfast. Keeping this view, it was not wholly improbable that by I l O' Clock, the time of occurrence, the food taken by the deceased for breakfast was found in the semi--digested state.
10. Even if the formula given in the Modi's book is applied, the food would take four to five hours to leave the stomach at the earliest. In this case hardly three hours had elapsed after the deceased had taken food when the incident occurred. By that time the food was not expected to have left the stomach and hence it was found in semidigested condition. I find no force in the arguments of the learned counsel for the petitioners. Accordingly the prayer for bail is rejected.