Judgment : MARUTHAMUTHU, J. ( 1 ) THIS appeal arises from the judgment of the Sessions Judge, Periyar Division at Erode in Sessions Case No. 74 of 1985 dated 31. 10. 1985 convicting and sentencing the appellant to undergo imprisonment for life under Section 302, I. P. C. The charge against the appellant was that on 29. 4. 1985 midnight at 12-15 a. m. (00. 15 hour on 30. 4. 1985) at Surampattivalasu within the limits of Erode South Police Station, with the intention of causing the death of the deceased Veni alias Krishnaveni, the appellant stabbed on her abdomen with a pen-knife as a result of which the deceased died at 12lop. m. on 30. 4. 1985 at the Government Headquarters Hospital, Erode. The appellant pleaded not guilty to the charge. ( 2 ) BRIEFLY stated, the prosecution case is as follows: (i) Vembu Jami (P. W. 1) is a resident of Surampattivalasn. He is employed as a clerk in a turmeric mandy. About 13 year prior to the occurrence, h married Thangammal who is alive. About our years prior to the occurrence, P. W. 1 married the deceased Veni as his second wife and they were residing at Surampattivalasu. Thangammal was living in Narayanavalasu which is about two miles away from Surampattivalasu. P. W. 1 also used to visit Thangamals house. The appellant is the father of P. W. 1. He was unemployed and was living with P. W. I. The appellant used to demand and receive money from P. W. 1 and from the deceased quite often, for drinking arrack. About two or three weeks prior to the date of occurrence, the appellant started to drink more and consequently was creating trouble demanding more and more money from the deceased. On 29. 4. 1985 at about 9. 00 p. m. the deceased complained to P. W. 1 that the appellant was frequently quarrelling with her demanding money to drink and therefore she had asked him not to come over to her house and that thereafter the appellant went away giving out that he will come back and see. Then P. W. 1 told the deceased that he will enquire the appellant about it. However, the deceased asked P. W. 1 not to go to the appellant and create a problem. Thereafter P. W. 1 took his food and lay on a cot in front of his house. Then P. W. 1 told the deceased that he will enquire the appellant about it. However, the deceased asked P. W. 1 not to go to the appellant and create a problem. Thereafter P. W. 1 took his food and lay on a cot in front of his house. The deceased also took her bed on a mat near that cot. The appellant went to the house of Logayammal which is situate just opposite to the house of P. W. 1 and took his bed there. At 12-15 midnight on 29/30. 4. 1985 P. W. 1 and the deceased were asleep. Suddenly, the deceased raised an alarm. When P. W. 1 woke up and saw the appellant was standing there with a knife in his hand. He found that the deceased had been stabbed on the left side of her stomach. (ii) Subramani (P. W. 2) owns ten houses in a row in Rajaji Street in Surampattivalasu. In one of those house, P. W. 1 and the deceased were living for six or seven months prior to the occurrence. In one portion, P. W. 2 is running a lungi factory. He used to stay in the factory itself. On the date of occurrence, P. W. 2 was sleeping inside the factory after bolting the doors. At about 1215 midnight, the deceased knocked at the door of the factory. When P. W. 2 woke up and opened the door, he found the deceased standing there along with her husband, pressing a cloth on the injury on the left side of her abdomen. The deceased stated to P. W. 2 that she was stabbed by the appellant and she asked P. W. 2 to save her. At that time, the appellant came near them. P. W. 2 asked the appellant not to come near. Thereafter, the appellant went towards north with the knife. The street light was burning at that time. P. W. 1 went to fetch an auto rickshaw for taking the injured Veni to hospital, as directed by P. W. 2. (iii) Doraisami (P. W. 3) who is a resident of the same Rajaji Street and who is employed in the Post and Telegraphs Office for delivering telegrams, saw the appellant proceeding from south to north at about 12-15 midnight. (iii) Doraisami (P. W. 3) who is a resident of the same Rajaji Street and who is employed in the Post and Telegraphs Office for delivering telegrams, saw the appellant proceeding from south to north at about 12-15 midnight. When P. W. 3 enquired, the appellant why he was going there in the dead of night, tae appellant told P. W. 3 that he had stabbed Veni. When P. W. 3 proceeded further, he met P. W. 1 who told that the appellant had stabbed the deceased. Asking P. W. 3 to be present near his wife, P. W. 1 went to fetch an auto rickshaw. P. W. 3 found the deceased with a bleeding injury on the left side of her abdomen. The deceased stated to P. W. 3 that her father-in-law (the appellant) had stabbed her. P. W. 3 went to his house and brought his wife to the scene. Within five minutes thereafter, P. W. 1 came with an auto rickshaw P. W. 1 and P. W. 3 wife took the injured Veni to Government Headquarter Hospital, Erode in the auto rickshaw followed by P. W. 3 on a bicycle. (iv) At 12-45 a. m. (29/30-4-1985) at the Government Headquarters, Hospital, Erode, Dr. P. Kamal Batcha (P. W. 6) examined injured Veni for the stab injury said to have been caused by a known person at 12. 00 midnight and found on her a punctured wound about 2 over the left hypochondrium. The wound was bleeding and was not probed. Ex. P-4 is the Accident Register Extract. P. W. 6 immediately admitted her in the Emergency Ward and arranged to send for the duty surgeon. He also sent an. intimation of accident (Ex. P-5) to the Erode Town Police Station and a requisition (Ex. P-6) to the Judicial Second Class Magistrate, Erode for recording the dying declaration of the injured Veni. On receipt of Ex. P-5, P. M. Sheik Ahamed (P. W. 11), Gradel Police Constable, reached the Government Headquarters Hospital at 2-45 a. m. , retorded a statement (Ex. P-17) from, the deceased. (v) Dr. P. C. Balasubramanian (P. W. 7) conducted surgery for the injury on Veni at 3. 00 a. m. Ex. P 7 is the notes prepared by P. W. 7 for performance of surgery which forms part of the relevant case- sheet (Ex-P-8 ). (vi) On receipt of Ex. P-17) from, the deceased. (v) Dr. P. C. Balasubramanian (P. W. 7) conducted surgery for the injury on Veni at 3. 00 a. m. Ex. P 7 is the notes prepared by P. W. 7 for performance of surgery which forms part of the relevant case- sheet (Ex-P-8 ). (vi) On receipt of Ex. P-6 at 4-05 a. m. , Mr. Rukmangathan (P. W. 8), Additional Judicial Second Class Magistrate, Erode, reached the Government Headquarters Hospital at 4-15 a. m. and But, he could not record the dying declaration of the deceased as the duty doctor Manivannan informed him that the deceased was in the operation theatre, got a note from the said doctor to that effect and made an endorsement (Ex. P-9) on it and returned home. (vii) P. W. 1 who obtained Ex. P-17 came back to Erode Town Police Station and forwarded Exs. P-5 and P-17 to Erode South Police Station within the limits of which the occurrence had taken place. K. Natarajan (P. W. 13) Sub-Inspector of Police, Erode South Police Station, on receipt of Exs. P-5 andp-17 at 9. OOa. m. registered a case in Crime No. 353 of 1985 under Section 324 I. P. C. , prepared a printed First Information Report (Ex. P-22) and sent Exs. P-5, P-17 and P-22 to the Judicial Second Class Magistrate, Erode. P. W. 13 proceeded to the scene of occurrence, prepared an observation mahazar (Ex. P-1) in the presence of Subramanian (P. W. 4), Village Administrative Officer of Surampatti. He also prepared a rough sketch (Ex. P-26 ). He recovered from the scene a bloodstained mat (M. O. 4) under a mahazar (Ex. P-2) in the presence of the same witnesses. (viii) On receipt of a second intimation (Ex. P-l0) fr9m the Government Headquarters Hospital at 10-10 a. m. , P. W. 8 proceeded to the Hospital and recorded a dying declaration (Ex. 11) in the presence of Dr. Bango who has appended a certificate (Ex. P-12) to EX. P-H to the effect that the deceased was conscious. P. W. 8 also appended a similar certificate (Ex. P-13) to Ex. P-11. At 12-10 p. m. (30-4-1985) Veni died in the Hospital. On receipt of death intimation (Ex. P-24), P. W. 13 altered the offence into one under Section 302, I. P. C. and prepared express First Information Report (Ex. P-23) and dispatched Exs. P. W. 8 also appended a similar certificate (Ex. P-13) to Ex. P-11. At 12-10 p. m. (30-4-1985) Veni died in the Hospital. On receipt of death intimation (Ex. P-24), P. W. 13 altered the offence into one under Section 302, I. P. C. and prepared express First Information Report (Ex. P-23) and dispatched Exs. P-23 and P-24 to the Judicial Second Class Magistrate, Erode and the same were received by the Magistrate at 3. OOp. m. P. W. 13 sent copies of Exs. P23 and P24 to his superior officers. K. P. Muthusami (P. W. 14), Inspector of Police, Erode took up investigation. He held inquest over the dead body in the Hospital between 3. 00 p. m. and 6-45 p. m. during the course of which he examined P. Ws. 1, 3 and one Arulmani. Ex. P-25 is the inquest report. After inquest, he entrusted the dead body to police constable Raju (P. W. 10) with a requisition (Ex. P-14) to the Medical Officer, Government Headquarters Hospital, Erode for conducting post mortem. P. W. 14 then proceeded to the scene of occurrence, verified the investigation already done by P. W. 13 and examined P. Ws. 2 and other witnesses. At 10. 00 p. m. P. W. 14 attested the appellant in front of arrack shop No. 19 in the presence of Michael (P. W. 5) and one Sivalingam. The appellant produced the knife (M. O. 1) from his waist and the same was recovered under a mahazar (Ex. P-3) in the presence of the same witnesses. On the next day (1. 5. 1985) P. W. 14 produced the appellant before Court for being remanded. At 8-35 a. m. P. W. 10 handed over Ex P14 to Dr. Chitra (P. W. 9), the duty doctor at the Hospital. (ix) P. W. 9 conducted autopsy on the dead body of the deceased at 10-10 a. m. and noticed the following symptoms and injuries:external injuries: (1) A sutured wound (linear) left paramecia on-the abdomen about 12 inches in length. It had fifteen sutures. On deep dissection, other layers of abdomen were found to be sutured beneath the layer of skin suture. (2) Another sutured wound diagonal 2 away from the wound No. 1 on the left hypochondrium, 711 below the left nipple. On deep dissection, other layers of abdomen were found to be sutured beneath the layer of skin suture. On deep dissection, other layers of abdomen were found to be sutured beneath the layer of skin suture. (2) Another sutured wound diagonal 2 away from the wound No. 1 on the left hypochondrium, 711 below the left nipple. On deep dissection, other layers of abdomen were found to be sutured beneath the layer of skin suture. (3) On the left loin, a wound with drainage tube with in length found with two sutures. Internal injuries: (1) Two sutured wounds on the anterior surface of stomach, JTI apart were seen. Wound No. 1 was 1/2 away from the border of lesser sac about 11/2t1 in length and had five sutures. Wound No. 2 was 11/2 away from the border of lesser sac about 1-1/2 in length diagonal, had six sutures. Few clots seen the wounds. Internal examination revealed the, following: -Stomach: Contained partly digested rice particles, Wt,500 gms. with contents. Contents 200 ml. Heart: 200 gms. Cross section pale. Right lung: 450 gms. Left lung: 400 gms. Cross section: Pale. Liver: 1100 gms. Pale. Spleen: 150 gms. Pale. Intestines: No injury. Both kidneys: 175 gms. Cross Section: Pale. Brain: 1100 gms. Cross Section: Pale. Sample of blood was preserved for chemical analysis. P. W. 9 was of the opinion that the deceased would appear to have died of shock and hemorrhage due to the injury on the stomach and that death would have occurred 20 to 24 hours prior to autopsy. She added that the internal injuries and the bleeding due to internal injuries could have been the cause of death. She further stated that injury No. 2 could have been caused by a weapon like M. O. 1 and that the external injuries 1 and 3 were caused during the surgery on the deceased. Ex. P-15 is the post mortem certificate issued by her. Ex. P-16 is the report of the Chemical Examiner received in the Government Hospital on the sample of blood preserved by P. W. 9. (x) After postmortem, P. W. 10 seized the saree (M. O. 2), a red color blouse (M. O. 3) and a green colour shirt (M. O. 5) from the dead body and delivered them at the police station and handed over the corpse to the relations of the deceased. (xi) P. W. 14 examined P. W. 9 on 7. 5. 1985. He sent a requisition (Ex. (xi) P. W. 14 examined P. W. 9 on 7. 5. 1985. He sent a requisition (Ex. P18) to the Judicial Second Class Magistrate, Erode for sending the M. Os. seized in this case for chemical examination. Achuthanandam (P. W. 12), Head Clerk of that Court forwarded M. Os. 1 to 5 to the Chemical Examiner with a covering letter (Ex. P-19) of the Magistrate. Exs. P-20 and P-21 are the reports of the Chemical Examiner and the Serologist re spectively received by the Magistrate. After completing investigation, P. W. 14 laid the final report in the committal Court against the appellant under Section 302, I. P. C. ( 3 ) WHEN the appellant was examined under Section 313, Cr. P. C. with reference to the incriminating circumstances appearing against him in the evidence, he denied that he stabbed the deceased and stated that he used to get money from P. W. 1 for drinking arrack, but not from the deceased. He added that on the day prior to the occurrence, that is on Sunday, he took his food in the house of the deceased and went away and he did not go there till Tuesday when only he came to know of the death of the deceased and the police arrested him at 2. 00 p. m. He admitted that P. W. 2 who is having a lungi factory near the house of the deceased, was sleeping in the said factory and that the street light was burning. He further stated that the deceased might have made a dying declaration to the Magistrate. No defense witness was examined. ( 4 ) AFTER trial, the learned Sessions Judge believed the case of the prosecution, rejected the plea of the accused, found him guilty under Section 302, I. P. C. and dealt with him as mentioned earlier. The appellant has preferred the present appeal challenging the said verdict of the learned Sessions judge. ( 5 ) MR. N. Doraisami, the learned counsel for the appellant generally contended that the offence against the appellant has not been proved and that even if it was so, the offence committed by the appellant will come under Section 324 or 304 Part II, I. P. C. in view of the failure to give proper treatment to the deceased in the hospital and the deceased dying as a result of a single stab. Mr. Mr. Syed Fazruddin, Additional Public Prosecutor, controverter the contentions raised on behalf of the appellant and contended that the appellant has rightly been found guilty under Section 302, I. P. C. and that it is not liable to be varied. We heard the submissions of both sides on the respective claims and contentions. ( 6 ) THIS is a case in which a father-in-law is said to have stabbed and killed his daughter-in-law with a knife during midnight at 12-15 a. m. (29/30-4-1985 ). The father-in-law is none else than the appellant and the daughter-in-law is the deceased. According to the prosecution, the motive for the appellant to stab the deceased with a knife during that midnight is that the appellant from the deceased, his daughter-in-law for the was in the habit of drinking liquor, that he was purpose of drinking and that he had no maunder of ten demanding and getting money from the sending with the deceased. His statement cannot deceased and that as the appellant was demanding be accepted as true in the face of Ex. P-17, the more and more money to drink liquor frequently dying declaration of the deceased and the testy and excessively, the deceased had refused to give money of P. W. 1 who is none else than the son of him money some time prior to the occurrence and the appellant. We cannot believe that P. W. 1 that exactly on the date of occurrence, she not would speak falsely against the deceased, his own only flatly refused to give him any more money, father, especially in a grave crime of murder. In but also asked him not to step into her house. The circumstances, it may be held that the appeal appellant who was all along enjoying drinking at lent had the motive to attack the deceased on the expense of the deceased and who could not get fateful night it any more from the date of occurrence, is said to ( 7 ) COMING to the occurrence, we find that have been angered on the words of the deceased the offence is evidence is not lacking even though and is said to have threatened the deceased to do there is none to depose actually to the fact that the away with her. Even though the words used by the appellant had stabbed the deceased with a knife appellant were not so clear, the way in which he on her abdomen. We have got the only evidence gave out the threat to the deceased and went out of P. W. 1 to show that the appellant was seen with the house in a stiff manner is said to indicate that the weapon at the scene of occurrence, the dying the appellant went away from the house of the declarations of the deceased, the extra-judicial deceased with an intent to do harm to the de- confession of the appellant to P. W. 3 and the re ceased. Otherwise, he would not have uttered the gestate evidence of P. W. 1 with regard to the words that he would come back and see the currency. Those pieces of evidence are found to I deceased. That the appellant was often demand-be quite sufficient and satisfactory to prove the money from the deceased for grinding and essential fact that the appellant had assaulted the was quarrelling with her, has been stated by the deceased with a knife on her abdomen during the deceased herself in the first statement (Ex. P17) midnight and that as the result she had to die given to P. W. 11 at about 2-45 a. m. after the subsequently within about 12 hours. P. W. 1 who occurrence which also constitutes the first dying was sleeping by the side of the deceased has heard declaration of the deceased, P. W1, the husband the alarm of the deceased after she was stabbed by of the deceased and the son of the appellant has the appellant and has seen the appellant to stand also spoken to the fact that the deceased was there with a knife in his hand and the deceased complaining to him about the demand of the with bleeding injury on her abdomen. P. W. 2, a appellant for inane to drink and the quarrel that neighbor, has-also seen the deceased with injury took place between the deceased and the appellant on her abdomen and the deceased to tell him that lent P. W. 1 also states that the deceased had the appellant had stabbed her. P. W. 2, a appellant for inane to drink and the quarrel that neighbor, has-also seen the deceased with injury took place between the deceased and the appellant on her abdomen and the deceased to tell him that lent P. W. 1 also states that the deceased had the appellant had stabbed her. P. W. 2 also has asked the appellant not to enter her house for the seen the appellant with the weapon in his hand reason that the appellant was demanding more when P. W. 2 went to help the deceased. P. W. 2 and more money and quarreled with the deceased states that P. W. 1 was also present along with the Thus, the testimony of P. W. 1 along with the state- deceased at that time. P. W. 3 has stated that he mint of the deceased in EX. P17 clearly shows saw the appellant to be proceeding when he was that the appellant felt offended and that he had proceeding and turning towards Rajaji Street and decided to somehow harm the deceased when she that the appellant confessed to him that he had would remain in her house. Even the appellant stabbed the deceased and had come. P. W. 3 has would partially admit in his statement under gone to the house of the deceased immediately Section 313, Cr. P. C. that he was in the habit of and has seen the deceased with injury. The drinking. That he would seek to state is that he deceased also has stated to P. W. 3 that the applauded to get money-from P. W. 1, his son, and not lant had stabbed her and gone away. Thus, the statement made by the deceased to P. Ws. 2 and 3 will amount to oral dying declaration of the deceased and it will show that the appellant alone had stabbed the deceased with the knife. The confession made by the appellant to P. W. 3 that he had stabbed the deceased will also amount to extra-judicial confession of the appellant and it must to note that P. W. 3 visited the scene of occurrence after his meeting the appellant on his way. P. W. I who was present along with the decreased at the time of occurrence has also stated to P. W. 3 that the appellant had attacked the deceased with a knife and had gone away. P. W. I who was present along with the decreased at the time of occurrence has also stated to P. W. 3 that the appellant had attacked the deceased with a knife and had gone away. The evidence of P. W. I may also be said to be in the nature of registered ( 8 ) THAT apart, there are Exs. P-17 and p-11 to show that the appellant was the assailant. Ex. P11 is the dying declaration made by the deceased to P. W. 8, the judicial Second Class Magistrate, Erode, wherein the deceased had stated that she was stabbed by the appellant. In Ex. P-17, the deceased has clearly mentioned the appellant as her assailant by name Periannai Gounder and relation as father-in-law. In Ex. P-11 she would merely menuon that she was stabbed by her father-in-law. It is of little consequence if the name of the appellant has not been mentioned in EX. P-11. We have to take into account not only Ex. P-11, but also EX. P-17 and the evidence of I P. Ws. 1 to 3 while deciding the question as to, whether the appellant was the assailant. There is (absolutely nothing to doubt the statement that the 1 appellant had stabbed the deceased with a knife. t It may be that Thangammal, the first wife of c P. W. 1 with her two children, is living separately and that she was dead against the appellant mar-trying the deceased as his second wife. But, it does v not appear that the disharmony between P. W. 1 c, and Thangammal would have gone to the extent of the deceased being stabbed and killed. Evidently, at the dead of night, there was none else dl except the appellant who was seen with a knife in it his hand by the side of the deceased and P. W. I and it is the appellant who has confessed that has had stabbed the deceased. Further, the dying he declarations of the deceased, oral and written, a which are in abundance, pointedly show that none else except the appellant had attacked the de-caused on that midnight. Further, the dying he declarations of the deceased, oral and written, a which are in abundance, pointedly show that none else except the appellant had attacked the de-caused on that midnight. P. W. 14, the investigation officer who arrested the appellant on the same date of occurrence (30-4-1985) has recovered the knife (M. O. 1) from the appellant so as to) show that it was the weapon with which he t stabbed the deceased Of course, the Serologists f report (Ex. P-21) is not helpful in connecting M. O. I with the appellant and the deceased as blood could not be detected in M. O. I though 0 group of blood of human origin was found in dress (M. Os. 2, 3 and 5) of the deceased. But, there is clear proof in this case that the appellant had stabbed the deceased with M. O. I on her abdomen and as a result, the deceased died at 12-10 p. m. on 30. 4. 1985. ( 9 ) IT is not, however, possible in this case to hold that the appellant had committed a murder punishable under Section 302, I. P. C. We see here that the appellant who is none else than the father in-law of the deceased had no strong motive or enmity against the deceased. It is made to appear in this case that the refusal of the deceased to pay money to the appellant for his drinking liquor was the cause for the appellant to attack the deceased and if that is so, it must be characterised as a weak and flimsy one. Further, the appellant has dealt only a single stab on the abdomen of the deceased. The medical evidence of P. W. 9 who conducted autopsy on the dead body of the deceased does not indicate whether the injury was fatal or whether it was sufficient to cause death of the deceased. P. W. 9 has merely stated that the deceased would have died of shock and haemorrhage due to the injury on the abdomen. Certainly, this is not enough. The argument advanced on behalf of the appellant that the deceased might have survived if some more blood was transfused to the deceased during the treatment in the hospital, is not valid. P. W. 9 has merely stated that the deceased would have died of shock and haemorrhage due to the injury on the abdomen. Certainly, this is not enough. The argument advanced on behalf of the appellant that the deceased might have survived if some more blood was transfused to the deceased during the treatment in the hospital, is not valid. P. W. 7s evidence shows that he could do his best in the surgery of the injury found on the deceased with the available facilities. In the absence of a clear opinion from P. W. 9 as to the cause of death, we have to hold that the offence committed by the appellant will come only under Section 326, I. P. C. for the reason that the appellant had caused the grievous hurt by using a knife as the weapon of offence, which was likely to cause death. The finding of the learned Sessions Judge that the offence committed by the appellant will attract Section 302, I. P. C. is not acceptable. ( 10 ) WE hold that the appellant is guilty of the offence under section 326, I. P. C. and convict him there under instead of Section 302, I. P. C. The conviction under Section 302, I. P. C. and the sentence of imprisonment for life imposed by the trial Judge are set aside. The appellant is said to be in jail for about six years. We deem it fit to direct that the sentence already undergone by the appellant is sufficient to meet the ends of justice for the modified conviction under Section 326, I. P. C. With the above modification this appeal shall stand dismissed. Appeal dismissed.