HIGH COURT OF UTTARAKHAND AT NAINITAL ORIGINAL JURISDICTION Dated Nainital the 21st April, 2011 1st Bail Application No. 97 of 2011 Order on the bail application of the accused. Mohar Singh S/o Amar Singh ……. Applicant Versus State of Uttarakhand …….. Opposite Party In Case Crime No. 261 of 2010 U/S 302 I.P.C. & 3 (2)/5 SC/ST Act Police Station Kotwali Laksar District Haridwar Hon’ble Tarun Agarwala, J. Heard Mrs. Pushpa Joshi, the learned counsel for the applicant and Shri B.S. Parihar, the learned Brief Holder for the State. The first information report indicates that the deceased was assaulted with a sharp edged weapon and was brought to the hospital by the complainant and his brother where he succumbed to his injury. The deceased while being taken to the hospital whispered the name of the applicant in the ears of the complainant to be the person responsible for the action. On this basis, the applicant was apprehended and the recovery of the sharp edged weapon was also made from his possession. The bail application was rejected by the Court below and, consequently, the present bail application has been filed. The learned counsel for the applicant has placed reliance upon the post mortem report which says that the trachea was ruptured at the 5th and 6th tracheal ring and submitted that in the light of this gaping wound, no speech was possible from the mouth of the deceased and, consequently, the naming of the applicant by the complainant on the basis of the statement given by the deceased appears to be based on previous enmity between the applicant and the deceased. The question raised requires consideration, namely, when the trachea is ruptured could the deceased speak or whisper in the ear of the complainant. Before discussing, the Court finds that two constables Sanjeev Kumar and Jitendra who reached at the spot and 2 who accompanied the deceased and the complainant submitted that the deceased was whispering something in the ear of the complainant which they could not hear as it was not audible. In the light of the aforesaid facts which has emerged so far, the Court has taken resort to the medical jurisprudence of Modi’s Medical Jurisprudence and Toxicology, Twenty-third Edition published by Butterworths Wadhwa Nagpur, page 815, wherein the wounds in the neck have been detailed. For ready reference, the same is quoted hereunder:- “Wounds of the larynx and trachea are not necessarily fatal, if the large blood vessels are not injured. They may, however, cause death by suffocation due to the flow of blood into the air-passages, though most of it is coughed up. They may also cause death by subsequent oedema or inflammation, blocking the air-passages or by pulmonary sepsis. In the case of a wound of the larynx, speech is possible, if the wound is above the local cords, even if it is gaping. However, in a wound of the larynx below the vocal cords, and in that of the trachea, no speech is possible. In such a case, one may be able to speak in a whisper, if the wound is not gaping sufficiently to allow air to pass into the mouth.” From the aforesaid, it is stated that in a wound of the larynx below the vocal cords, and in that of the trachea, no speech is possible, meaning thereby, that a person is not able to speak but it further says that even though speech may not be possible, the injured person may be able to whisper. In the light of the aforesaid, the F.I.R. indicates that the deceased was whispering something in the ear of the complainant which fact is corroborated by the statement of the two constables. Consequently, at this stage, it is not possible for the Court to hold that the deceased could not even whisper forget about making a speech. The applicant has been named. There are statements of the witnesses and, in the light of the aforesaid and without commenting any further on the merits of the case, the Court is of the opinion that it is not a fit case for bail at this stage. The bail application is rejected. (Tarun Agarwala, J.) Dated 21.04.2011 Shiv