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"Ext genitalia: healthy and normal no obvious discharge or bleeding. Hymen intact. No sign of injury...."

16. At about 5.15 A.M. Dr.Neetu made endorsements on the MLCs Ex.PW-2/A and Ex.PW-2/B of X and Y respectively that 'Pt. is not fit for statement because of tracheotomy.'

17. After collecting the MLCs of the deceased, X and Y, Inspector Baltej Singh PW-48, proceeded to the place of occurrence. In the meantime, the crime team also reached the place of occurrence; on being summoned. At the place of occurrence, the police officials found that two bed sheets which were spread on the beds which were lying in the room of the children were stained with blood and that a foot print was imprinted on one of the said two bed sheets; a blood stained pyjama and an underwear were lying on the floor of the children‟s room; a knife having an iron handle stained with blood was lying in the children‟s room; a bunch of hair was lying on the one of the bed lying in the children‟s room; a hair was lying on the floor of the children‟s room; the floor of the room of the parents of the children was stained with blood; bed sheet which was found spread on the bed which was lying in the room of the parents of the children was stained with blood; the floor of a bathroom which was situated near the children‟s room was stained with blood and that a knife was lying outside the said bathroom. The police lifted the aforesaid materials and seized the same vide memo Ex.PW-40/A.

Wounds stitched in layers......."

25. On 19.10.2006 at about 5.15 P.M. X was examined by Dr.Urvashi Prasad Jha PW-46. Since X was unable to speak as she had undergone tracheotomy in her throat, she wrote her statement Ex.PW-46/A and gave the same to the doctor. The statement Ex.PW-46/A of X reads as under:-

"He tried to molest me. He entered inside me, took off his clothes. It pained. I tried to fight. This all happened in the end when he already stabbed me. He hurt all three of us simultaneously. Firstly he stabbed my younger sister, then me and then my brother. I don‟t know his name, my mom must be knowing it. I had seen him earlier also and I opened the light. He was working in my house since about 1 week. I don‟t remember his name. I think its Sanjay. (Emphasis Supplied)

128. The answer to the fourth improbability pointed out by learned counsel lies in the testimony of Y. Y stated in her cross-examination that the accused returned to their room from the kitchen within 3-4 minutes of his leaving the room. Where was the time for X and Y to comprehend that the accused has left their room and that they should rush to the room of their parents in the absence of the accused?

129. This takes us to the next two submissions advanced by the learned counsel predicated upon the statement Ex.PW- 46/A of X. X was seriously ill at the time when she wrote her statement Ex.PW-46/A. She had undergone tracheotomy and the tracheotomy tube was still inside her neck. It is most reasonable to assume that the mental faculties of X were slow at that time because of which she took some time to remember the name of the accused. What is significant to note that X was able to correctly state that the name of the accused was Sanjay, that he was their domestic servant and that he was working in their house since last one week even when she was seriously ill. Far from showing that X was tutored to falsely implicate the accused statement Ex.PW-46/A goes a long way in showing that X spoke the truth at the first available opportunity.

183. Insofar as the conviction of the accused under Section 307 IPC pertaining to the injuries caused to Y is concerned, it may be noted here that the case note Ex.PW-11/A records that injuries were found on neck, fingers and right shoulder of Y. Except for the said document, no other medical document pertaining to Y talks about the injury on the right shoulder of Y. There is no empirical data to show the depth of wound found on the neck of Y or the extent of damage suffered by Y because of the said injury. It is true that tracheotomy was undergone by Y as recorded in the MLC Ex.PW-2/B of Y but it cannot be overlooked that sometimes there is no need to perform a tracheotomy but the same is done by the doctors as a precautionary measure. In such circumstances, we find it difficult to hold that the accused injured Y with an intention to cause her death or that he can be presumed to have known that death of Y would be caused because of said injury.