Judgment : ARUNACHALAM, J. ( 1 ) FOR having caused the death of his wife Mathammal, by stabbing her in the abdomen/flank portion, with a sun knife, at or about 5. 00 p. m. on 5-4-1984, at Jarugu village, appellant Balu alias Balusamy, was charged under Section 302, I. P. C. in Sessions Case No. 57 of 1984 on the file of Court of Session, Krishnagiri at Dharmapuri. He was further charged under Section 326, I. P. C. for having caused grievous hurt to P. W. 1 Kasi, in the course of the same transaction. A third charge under Section 324, I. P. C. was also framed alleging that the appellant caused hurt with the same sun knife on P. W. 2, Chinna Mookan when he intervened. ( 2 ) AFTER an elaborate trial, learned trial Judge found the appellant guilty of all the charges. For the capital offence, he was sentenced to undergo imprisonment for life, while under Charges 2 and 3, he was sentenced respectively to undergo rigorous imprisonment for three years and one year. Substantive sentences of imprisonment were directed to run concurrently. ( 3 ) THE prosecution case fans within a narrow compass. Appellant and deceased Muthammal had married just three months prior to occurrence. They were residing in Jarugu village. P. W. 1, Kasi, who had moved closely with deceased Mathammal, from her younger days was also a resident of the same village. P. W. 2, Chinna Mookkan, another eye-witness, is related to the deceased, in that the latter happened to be the daughter of his co-brother. P. W. 3; Jayaraman, another resident of Jarugu village, has given his eye-witness account of the incident virtually corroborating the versions of P. Ws. 1 and 2. On 5-4-1984 at or about 5-00 p. m. appellant went over to the shandy after collecting RS. 2/- from his wife. When he returned from the shandy, the deceased noticed that the appellant had a knife in his pocket Deceased then went out to pick up fire-wood. Appellant followed her and after some time, engaged himself in chasing her. Unable to run, the deceased fell down. Appellant stabbed her on the abdominal region. When the deceased caught hold of the knife with both her hands, she sustained injuries in her hands also. Appellant followed her and after some time, engaged himself in chasing her. Unable to run, the deceased fell down. Appellant stabbed her on the abdominal region. When the deceased caught hold of the knife with both her hands, she sustained injuries in her hands also. P. W. 1 obstructed the accused and hence received grievous hurt, (neck and chest) on being caused by the appellant with the same knife. P. W. 2 questioned the appellant as to why he had attacked the intervener and in that process, he also sustained a simple injury. Injure Mathammal, P. W. 1 and P. W. 2 were taken by certain villagers to Government Hospital, Dharmapuri. Deceased Mathammal was then accompanied by her father. She was allegedly assaulted by her husband on the same day at 5-00 p. m. with a knife, on her hands. P. W. 5, Dr. Basheeth, noticed three injuries on her, namely, (1) an incised injury on the left side abdomen i" x 1/2" with protruding omentum, (2) an incised injury 1,, x 1/2 x 1/2 on the left palm and (3) an injury 1 x 1/2 x 1/2" on the right wrist joint. Ex. P4 is a copy of the accident register. P. W. 5 admitted injured Mathammal in female surgical ward and sent intimation to P. W. 7, Judicial I Class Magistrate, Dharmapuri, to record the dying declaration of Mathammal. ( 4 ) AT 7-25 p. m. , the same doctor examined P. W. 2 for injuries allegedly sustained by him at 5-00 p. m. on the same day due to an attack by a known person with lathi at Jarogu village. P. W. 5 found the following injuries on P. W. 2: (1) A lacerated injury 2 x i" x 1/2 on the left side fore-head, on the left eye-brow obliquely placed. The injury was simple in nature. Ex. P-S is the wound certificate. ( 5 ) AT 7-15 p. m. on the same day, the same doctor examined P. W. 1 for injuries allegedly sustained by him at 5. 0 p. m. on the same day at Jarugu village due to attack by a known person. The following injuries were noticed: (1) An incised wound in front of neck " x 1/2 which had pierced the trachea. (2) An incised wound 1 x 1/2 x 1/2" right side neck above the clavicle in the middle. 0 p. m. on the same day at Jarugu village due to attack by a known person. The following injuries were noticed: (1) An incised wound in front of neck " x 1/2 which had pierced the trachea. (2) An incised wound 1 x 1/2 x 1/2" right side neck above the clavicle in the middle. (3) An incised injury 1 x 1/2 x 1/2 left side chest on the back. Emergency tracheotomy was done on P. W. 1 at 9-00 P. M. on the same day. As a result of injury No. 3, P. W. 1 developed pyonemothore in the ward. He was discharged from the hospital on 28-4-1984. In the opinion of the doctor, injuries Nos. 1 and 3 were grievous, while injury No. 2 was simple in nature. Those injuries could have been sustained at the time and in the manner alleged. Ex. P-6 is the wound certificate. All the injuries found on the three persons could have been caused with a knife like M. O. 1. The first injury found on Mathammal was sufficient in the ordinary course of nature to cause death. P. W. 7, Venugopal, Judicial I Class Magistrate, Dharmapuri, on receipt of information (Ex. P-9) at 800 P. M. , proceeded to the hospital soon thereafter and between 8-20 P. M. and 8-35 P. M. recorded Ex. P-10, the dying declaration of the deceased. That the patient was conscious, throughout recording of the statement, stood certified by the concerned Medical Officer. The endorsements in Ex. P-b show that the victim was conscious and in a fit state of mind to give out her statement. ( 6 ) P. W. 8, Ramasami, I Grade Constable, Dharmapuri Police Station, received intimation, Ex. P-li, from P. W. 5 intimating about the admission of the deceased, P. W. 1 and P. W. 2 in the hospital and the need to have dying declaration recorded from Mathammal. P. W. 8 proceeded to Government Hospital, Dharmapuri and recorded Ex. P-12, the statement of Mathammal. This statement does not contain any endorsement by the Medical Officer. On return to the police station, P. W. 8 became aware that the occurrence had taken place within the jurisdiction of Thoppur Police Station and hence he personally handed over Ex. P. W. 8 proceeded to Government Hospital, Dharmapuri and recorded Ex. P-12, the statement of Mathammal. This statement does not contain any endorsement by the Medical Officer. On return to the police station, P. W. 8 became aware that the occurrence had taken place within the jurisdiction of Thoppur Police Station and hence he personally handed over Ex. P-12 to P. W. 9, Chinnappan, Sub-Inspector of Police, Thoppur, at or about 5-30 a. m. P. W. 9 registered Crime No. 50 of 1984 on Exs. P-li and P-12 under Sections 324 and 326, I. P. C. He prepared Ex. P-13, printed first information report. As usual, the original F. I. R. and copies of the same were forwarded to the concerned Magistrate and superior police officials. P. W. 9 took up investigation and reached the venue of crime at 9-00 a. m. He prepared observation mahazar, Ex. P2, and scene sketch, Ex. P-14, in the presence of P. W. 4, Rajamanickam and another. He seized from the roofing of the house of the appellant, M. O. 1, knife, around 10-15 a. m. Ex. P-3 is the related mahazar. At 12-30 noon on the same day, P. W. 9 arrested the appellant near a school at Jarugu. He noticed a small injury on the palm of the appellant and hence forwarded him for treatment to Government Hospital, Dharmapuri. In the course of investigation, P. W. 9 went over to Government Hospital, Dharmapuri, and recorded Ex. P-is, the statement of Math am mal. He also examined P. Ws. 1 to 3. ( 7 ) AT or about 5-30 a. m. on 10-4-1984, from Dharmapuri Police Station, the Thoppur Police Station had a message, that the deceased had died at 12-20 a. m. on the same morning. On the basis of the said information (Ex. P-16),the crime was altered into one under Section 302, I. P. C. Ex. P-17, Express First Information Report, was prepared and copies were forwarded to the Magistrate and other police officials. P. W. 12 Govindarajan, Inspector of Police, Athiyamankottai, took up investigation on and from 10-4-1984. Between 10-00 a. m. and 1-00 P. W. 12 held inquest over the corpse of Mathammal, during the course of which he examined P. Ws. 1 to 3 and others. Ex. P-22 is the inquest report. After inquest, he sent in a requisition, Ex. P. W. 12 Govindarajan, Inspector of Police, Athiyamankottai, took up investigation on and from 10-4-1984. Between 10-00 a. m. and 1-00 P. W. 12 held inquest over the corpse of Mathammal, during the course of which he examined P. Ws. 1 to 3 and others. Ex. P-22 is the inquest report. After inquest, he sent in a requisition, Ex. P-7, through police constable Narayanan (P. W. 10) to P. W. 6, Dr. Rajan, for conducting post-mortem. ( 8 ) P. W. 6, Dr. Rajan, commenced autopsy on the dead body at or about 3-30 P. M. on 104-1984 and found the following injuries: (1) A sutured TL long paramedial wound extending from the left lower costal margin to the supra pubic area of 10 length. (2) An incised would 1-1/2 x 1/2 communicating with the peritoneal cavity through which a drainage tube was protruding out. (3) An incised wound 2 x 1" communicating with the peritoneal cavity through which a loop of transverse colon is placed out and stitched around with the skin margin. (4) Two sutured wounds of 1/2" length each, one on medial aspect of both angles. (5) Bedsore of on the lumbo sacral region. On exploration of the abdominal wound, the peritoneal cavity was found to contain about 300 c. c. of bile stained feculent fluid. There were two sutured wounds of size each on the posterior aspect of body of stomach, one of which was leaking. There was a suture on the fundus of gall bladder which was also leaking, 1/4 in size. There were two sutured wounds each of length, 3 apart on the transverse colon. In the opinion of the doctor, the deceased would appear to have died of septicaemia and shock due to multiple injuries sustained, approximately 8 to 10 hours prior to conduct of autopsy. Ex. P-8 is the postmortem certificate. Admittedly, except injury No. 5, other injuries are surgical wounds. He has reiterated that the cumulative effect of the injuries and post-operative shock and septicaemia had resulted in the death of the deceased. The injuries on the vital organs of the deceased could have been caused with a weapon like M. O. 1. ( 9 ) STATEMENTS under Section 164, Cr. P. C. were recorded from all the witnesses examined during investigation. Material objects seized during investigation were forwarded to the Laboratory, through the Magistrate, for chemical analysis. Exs. The injuries on the vital organs of the deceased could have been caused with a weapon like M. O. 1. ( 9 ) STATEMENTS under Section 164, Cr. P. C. were recorded from all the witnesses examined during investigation. Material objects seized during investigation were forwarded to the Laboratory, through the Magistrate, for chemical analysis. Exs. P-20 and 21 are the reports of the Analyst and Serologist respectively. M. O. 1 contained human blood, but its grouping did not yield any worthwhile result. After completion of investigation, P. W. 12 laid the final report on 166-1984. ( 10 ) WHEN the appellant was examined under Section 313, Cr. P. C. to explain the incriminating circumstances appearing against him in evidence, he denied his complicity in the crime. He went on to add that P. W. 1 and his wife were moving closely from their youthful days. According to the appellant, both of them had illicit connection. He would have it that when he returned to his house from his land, he noticed P. W. 1 and his wife coming out of the house. When he obstructed P. W. 1, the letter stabbed him on his hands. The deceased intervened and sustained injuries in the process. He would also urge that a group of persons came and dismantled his house roofing. However, no evidence was adduced in defence. ( 11 ) LEARNED trial Judge, on appreciation of oral and documentary evidence, accepted the prosecution case, rejected the defence and dealt with the appellant in the manner stated earlier. ( 12 ) MR. T. Sudanthiram, learned counsel appearing on behalf of the appellant, contended that the prosecution had not placed the entire truth regarding the occurrence and it was fairly evident, that the appellant had inflicted a single injury on his wife, when he noticed her in the company of P. W. 1, her friend, from the younger days. He submitted that there was no immediate cause for the appellant to attack the deceased, but for the presence of P. W. 1 at the scene. He underlined that the appellant had already suspected about the illicit relationship between the deceased and P. W. 1. He would urge that the evidence on record may have to be looked into from this angle as well, and therefore submitted that the offence, if any, committed by the appellant would not be murder. He underlined that the appellant had already suspected about the illicit relationship between the deceased and P. W. 1. He would urge that the evidence on record may have to be looked into from this angle as well, and therefore submitted that the offence, if any, committed by the appellant would not be murder. He placed for our scrutiny a judgment of the Supreme Court in support of his contention that in a case where death was due to septicaemia, the offence committed will fall within the ambit of Section 326, I. P. C. ( 13 ) WE have heard Mr. R. Raghupathi, learned Additional Public Prosecutor. On the basis of available evidence, he was fair enough in submitting that in the is case of a single stab, coupled with other circumstances relating to the friendship between P. W. 1 and the deceased, the offence committed by the appellant, may not fall within the purview of Section 302, I. P. C. ( 14 ) WE have carefully considered the contentions urged by counsel on either side. There is no evidence to show that the appellant had at any point of time tried to chastise his wife and inflict cruelty on her, though it is apparent, that he had, entertained suspicion about her moral conduct, her paramour being P. W. 1. Deceased and the appellant had been living together for three months after marriage and there is no evidence that they were not living amicably. ff suddenly, the impugned incident had taken place, in which, not only the deceased was injured, but P. W. 1 also was attacked, due to his intervention, it tends to show that the case of the defence prima facie appears probable. P. Ws. 1 to 3 have been examined as eye-witnesses, of whom P. W s. 1 to 2 are injured witnesses. Their presence at the scene cannot be doubted, more so, because of the injuries sustained by them. P. W. 3 is yet another witness, who has spoken about the occurrence proper. In Ex. P-1o, the earliest dying declaration recorded by P. W. 7 from the deceased, there is no mention about the presence of P. Ws. 2 and 3. It may not make any difference, since we have to keep in view, that the deceased had sustained a grievous injury and omentum was protruding out side from the abdomen. In Ex. P-1o, the earliest dying declaration recorded by P. W. 7 from the deceased, there is no mention about the presence of P. Ws. 2 and 3. It may not make any difference, since we have to keep in view, that the deceased had sustained a grievous injury and omentum was protruding out side from the abdomen. Salient facts necessary for registration of a crime were available to the investigating agency, not only from Ex. P-1o, but from Ex. P-12 as well. Exs. P-12 and P-is, are also now in the elevated status of dying declarations. The only major difference between Ex. P-b and Exs. P-12 and P-is, is that in Ex. P-1o, the deceased claims to have gone out to pick up firewood sticks, whereas in Exs. P-12 and P15, she would state that she wanted permission from her husband to witness sevattam performed by her father and such permission was not granted, with an exclamation as to which person she intended to see, and thereafter the stabbing incident took place. In Exs. P12 and P-is, the names of P. Ws. 2 and 3 have been mentioned. These statements were given later to Ex. P-1o, and after some initial treatment was given, in all probability, the deceased was able to give out more information. Even if we exclude Exs. P-12 and P-is, as they do not have medical attestation, on the basis of Ex. P-b alone, the appellant can clearly be fixed as the assailant of the deceased. It can also be stated, that there is scope for contradiction, that the deceased had no specific case, as to whether she went out to pick up firewood or was interested in going to the shandy to witnesses her fathers sevattam, more so, when the statements were recorded without much of a time gap. It appears to us, that though the appellant is the assailant of the deceased, the circumstances under which the deceased had sustained injuries must be connected with the presence of P. W. 1 in the vicinity of the scene, probably in the company of the deceased. That is the reason why the appellant had suddenly thought it fit to inflict a single stab on his wife, as well cause injuries on P. W. 1 who was spoiling his marital life with the deceased. That is the reason why the appellant had suddenly thought it fit to inflict a single stab on his wife, as well cause injuries on P. W. 1 who was spoiling his marital life with the deceased. Considering the mood in which the appellant should have been at that point of time, sustaining of injuries by P. W. 2 appears to be quite natural, in that process. P. Ws. 2 and 3, one of whom is related to the deceased, had chosen to tow the line of P. W. 1, in not clearly speaking out the circumstances under which the appellant had inflicted a single stab injury on the deceased. The admission of P. W. 1 that he and his elder brother went over to the house of the Village Administrative Officer on the Same day and his elder brother gave a complaint, which was reduced into writing, does project the possibility of the earliest information not having been brought on record, for it might have had information about P. W. 1 and the deceased having been seen together. Whatever it be, even sans the presumption, the fact remains that PW. 1 and his elder brother attempted to set the law in motion. It must be made clear that there can be no doubt about the identity of the sole assailant. It was sought to be contended by Mr. T. Sudanthiram, appellants learned counsel on the admission of the investigating officer, that the appellant also had sustained injuries in the course of the same occurrence. Those injuries were in the hand and apparently they were sustained while wielding a knife. Nothing turns out on this statement. ( 15 ) MEDICAL evidence afforded by P. W. 5 and P. W. 6, corroborates the ocular testimony of P. Ws. 1 to 3 about infliction of stabs by the appellant on the deceased, P. W. 1 and P. W. 2. If P. W. 1 was not in the nearness of the deceased, he would not have been in a position to prevent the appellant, when he was attacking his wife and that is one more reason, which highlights that the deceased and P. W. 1 were together or in the vicinity of the other, when the appellant had arrived at his residence. As rightly pointed out by Mr. As rightly pointed out by Mr. T. Sudanthiram, the deceased had died five days later and the cause of death, in the words of P. W. 6, is the cumulative effect of all the injuries and post-operation shock and septicaemia. When he has stated all the injuries, we have to fake it, to include, the surgical injuries as well. If those injuries had also caused shock and septicaemia, ultimately leading to the death of the deceased, it will be unfair and odd to hold that the accused had the mens rea to murder. ( 16 ) ON auditing of the totality of facts available, we are satisfied that the appellant could be held to have had knowledge that by his act, he was likely to cause the death of the deceased. We have said enough and more about the circumstances under which the appellant had inflicted, for all practical purpose, a single stab. The appellant, therefore, cannot be held to be guilty of murder. In 1994 SCC (Cr1.) 5791, on the fact perspective before it, the Supreme Court held that when the Medical Officer who conducted autopsy had opined that the death was the result of septicaemia secondary to injuries to peritonitis, the offence committed by the accused therein would be punishable under Section 326 read with Section 34, I. P. C. In the present prosecution, we have, from Exs. P-12 and P-15, the statement of the deceased herself, which, we are prepared to accept, that the appellant had exclaimed that she was cheating him for a long time and he would not leave her. This fact will make all the difference and we are satisfied, that properly, in the instant case, the appellant can be convicted under Section 304 Part II, I. P. C. and not under Section 326, I. P. C. Peculiar facts available in each case would have to dictate the nature of offence that could be held to have been committed by the accused. ( 17 ) WE have no hesitation in setting aside the conviction and sentence imposed on the appellant, under Section 302, I. P. C. under charge No. 1 and instead convicting him under Section 304 Part II, I. P. C. For the modified conviction, we impose a sentence of rigorous imprisonment for five years. ( 17 ) WE have no hesitation in setting aside the conviction and sentence imposed on the appellant, under Section 302, I. P. C. under charge No. 1 and instead convicting him under Section 304 Part II, I. P. C. For the modified conviction, we impose a sentence of rigorous imprisonment for five years. Under Charges 2 and 3, convictions and sentences imposed on the appellant will have to be necessarily confirmed It shall be so done. Substantive sentences of imprisonment imposed on the appellant shall nm concurrently. ( 18 ) WE were informed that the appellant is still in jail, he not having applied for bail pending appeal. It is clear that he has over served the sentence of imprisonment now imposed by us. He shall stand released immediately from the prison, where he is confined unless his detention is otherwise required. An advance order shall be forwarded to this effect. This appeal is disposed of accordingly. Appeal disposed of accordingly.