ORDER :

1. This criminal appeal is preferred against the judgment and order dated 24.3.2004, passed by the Addl. Sessions Judge, Pilibhit in S.T. No. 340/2001 (Case Crime No. 181/2000), convicting/sentencing the appellants under Section 302/34 IPC with life imprisonment. The case of the prosecution is that the daughter of PW-1, aged about three months was strangulated by her husband-Ved Prakash and mother-in-law/Ramawati on 14.10.2000 at 4 p.m. in which she too sustained injuries, witnessed by Babu Ram (PW-2) and others. On above allegation an FIR as Case Crime No. 181 of 2000, under Sections 323/302 IPC came to be registered against the above two accused at the PS, at a distance of 17 kms. on 14.10.2000 at 11.40 p.m.

2. The Trial Court finding PW-1 and 2 to be wholly reliable, medical evidence compatible with the oral account and DW-1 not reliable, convicted the accused-appellants above.

3. Heard Sri Ajay Kumar Srivastava, holding brief of Sri R.K. Koli for the appellants and Sri A.N. Mulla, the learned A.G.A.

4. Learned counsel for the appellants raised the following submissions:

(i) The FIR is highly belated.

(ii) Victim died on account of accidental fall.

(iii) Highly improbable for a father to kill his first issue.

(iv) There are contradictions as to who went to the P.S. to lodge a report.

(v) Why would 2 persons strangulate a child to death when one is sufficient?

(vi) No independent witnesses examined.

5. Learned AGA opposed the submissions.

6. PW-1 is the mother of the victim. She on the fateful day, like previous occasions, was castigated by accused/appellants her for giving birth to a girl child, the accused persons assaulted her with leg/danda blows, in which she sustained injuries and strangulated her child who lay on a cot to death in presence of her brother-in-law/PW-2. The house of PW-2 and that of the in-laws of PW-1 are near, separated by two houses. PW-1 is so rustic that she does not even know from which direction Sun rises as also the difference between steps and a kose/mile (Kose, a unit of distance of about 3 kms.) as she was alleging that the police station must be 100 kose i.e. 300 kms, which only reflects extent of her ignorance. Against above backdrop, contradictions, if any, are trivial not affecting the basic prosecution case.

7. PW-1 got herself medically examined by PW-5 in respect of her injuries on 15.10.2000 at 1.00 PM, who reported the following injuries:

"Abraded contusion & swelling 1 x 1.5 cm on the angle of right mandible. Reddish blue colour.

Complain of pain back and abdomen. No visible mark seen."

PW-5 opined that injury No. 1 could be attributed to a hard/blunt object, a day old, compatible with the case of prosecution. The accused appellants did not cross-examine PW-5. Thus, injuries of PW-1 in respect of the occurrence not only stands established but also admitted to the accused.

8. PW-2 is the brother-in-law of PW-1/her neighbour who too supported the case of prosecution. He is a natural and a probable witness. Nothing material could be elicited during cross-examination which could doubt his presence at the time of occurrence.

9. PW-4 is the medico who conducted the autopsy (Ex Ka-4) of the deceased on 15.10.2000 at about 5 p.m. He was opining that upon dissection, trachea, larynx and lungs were congested and cause of death was opined "asphyxia" due to suffocation and throttling. He was not ruling out the possibility that the victim may have been strangulated on the date and time as alleged by prosecution. During cross-examination he admitted that it is not necessary that if a child is strangulated to death her eyes and tongue would protrude as such symptoms would only arise when the victim offers resistance which is not possible in case of a 3 month child. He also opined that for a victim, three month old, not much force/ pressure is required to strangulate her to death by hands to produce a visible mark on the neck of the victim.

10. We cannot be oblivious of a general prejudice that unfortunately e