Judgment :- M. KARPAGAVINAYAGAM, J. The appellant Subramanian (1st accused) in C.A. No. 556 of 1987 and the appellant Chinnakannu (2nd accused) in C.A. No. 644/87 were the accused in S.C. No. 9 of 1987 on the file of Sessions Judge, Pudukottai. They were tried and convicted for the offences under Sections 302 and 303 read with 34, I.P.C. respectively and sentenced to undergo life imprisonment 3. The crux of the accusation against the appellants is that on 22-10-1986 at about 11.00 a.m. near a drama theatre of Mannavelampatti village, the appellant Subramanian (1st accused) stabbed the victim Chinnayya with knife on his stomach, while Chinnakannu (2nd accused) caught hold of the said victim due to which the deceased Chinnayya died on 23-10-1986 at 8.00 p.m. at the Government General Hospital, Pudukkottai 3. The short facts giving rise to the presentation of appeal could be summarised as follows :- (a) The deceased Chinnayya and the appellants, accused 1 and 2 being brothers hailed from the same village, Mannavelampatti situate in the Annavasal police jurisdiction. P.W. 1, Ponnayya, P.W. 2 Sannasi P.W. 3 Manoharan and P.W. 4 Shanmugham Servai also belonged to the same village. P.W. 1 is closely related to the appellants. P.W. 2 is related to both deceased Chinnayya and the appellants. P.W. 4 Shanmugham Servai is the Panchayat Board President of Mannavelampatti village. There is a toddy shop situate at a village Mangudi at a distance of 2 furlogns away from Mannavelampatti village. This is run by P.W. 2 Chinnayya Servai on behalf of one Rammayya (b) On 22-10-1986 at about 10.30 a.m. P.Ws. 1 and 2 went to the toddy shop in order to obtain some hand loan. At that point of time both the appellants came there. The deceased Chinnayya also came to the shop in order to consume toddy. The appellants on seeing the deceased Chinnayya in the shop, questioned him as to how he could eve-tease their sister. Wordy quarrel was ensued between them. Then the appellants caught hold of the shirt of the deceased and beat him with hands. P.Ws. 1 and 2, who were present there intervened and pacified them and asked them to go away from the shop. Thereafter, the deceased Chinnayya was going along with the road towards his village. Behind him, the appellants 1 and 2 were also going 50 feet away from him. P.Ws. P.Ws. 1 and 2, who were present there intervened and pacified them and asked them to go away from the shop. Thereafter, the deceased Chinnayya was going along with the road towards his village. Behind him, the appellants 1 and 2 were also going 50 feet away from him. P.Ws. 1 and 2 both went accompanying these persons to go to Annavasal(c) When deceased Chinnayya was going near drama Kottagai, the appellant chinnakkannu (2nd accused) caught hold of him and when the deceased turned to the right side, the appellant Subramanian (1st accused) with a knife M.O. 1 stabbed on his stomach. On receipt of the injury, the deceased cried aloud and fell down on the ground. On seeing this sight, both P.Ws. 1 and 2 rushed towards the scene. In the meantime both the appellants accused fled away from the scene by running towards the eastern side. P.W. 3 Manoharan, who was also happened to be there nearby rushed to the scene. P.Ws. 1 to 3 tied a red towel on the stomach of the victim and prevented further bleeding. Thereafter, the victim Chinnayya was taken inside the village. In the mean time P.W. 4 Shanmugham Servai the Panchayat Board President and another came to the scene and enquired the deceased as to what happened. The deceased told him that the second accused caught hold of him and the first accused stabbed him on the abdomen. Thereafter P.W. 4 arranged to get a bullock cart in which the victim was put and then took him to the Annavasal Police Station. It was at about 11.00 a.m (d) At 12.45 p.m. P.W. 17 the Station Writer at the Annavasal Police Station received the written complaint Exhibit P. 1 from the victim deceased. He registered the case in Crime No. 146 of 1986 for the offences under Sections 341 and 324, I.P.C. He prepared the printed F.I.R. Exhibit P. 18. Then he sent the victim Chinnayya to the hospital along with the police memo (e) P.W. 9 Dr. M. S. Jaman attached to Pudukkottai Government Headquarters hospital examined the victim at 1.30 p.m. and found the following injury :- B.P. 70/60. A bunch of omentum protruding through the wound inflicted on the anterior abdominal wall size 2 1/2 cm. x 2 1/2 cmHe gave first aid treatment and then admitted him in the ward for expert management. M. S. Jaman attached to Pudukkottai Government Headquarters hospital examined the victim at 1.30 p.m. and found the following injury :- B.P. 70/60. A bunch of omentum protruding through the wound inflicted on the anterior abdominal wall size 2 1/2 cm. x 2 1/2 cmHe gave first aid treatment and then admitted him in the ward for expert management. He issued a wound certificate Exhibit P. 10 (f) P.W. 14 another Doctor Dhileepan attached to Government Headquarters Hospital, Pudukkottai examined the victim at 2.00 p.m. He performed surgery on him at 4.30 p.m. and gave further treatment (g) P.W. 19 Sub Inspector of Police on receipt of the information that case was already registered by P.W. 17, came to the police station at 6.45 a.m. on 23-10-1986 and took up investigation. At 9.00 a.m. he went to the spot and prepared observation mahazar Exhibit P. 4. He drew rough sketch Exhibit P. 20. Then he went to the hospital and recovered the clothes of the deceased M.Os. 2 to 4 under Exhibit P. 5 mahazar at 1.00 p.m. in the presence of P.W. 5 (h) On 23-10-1986 at 8.00 p.m. the victim who was in the hospital in the hospital despite treatment died. So, P.W. 14 sent death intimation to the Police, which is Exhibit P. 17 PW 18 the Head Constable received the wireless message 10.00 p.m. about the death of the deceased and altered the case into one under Section 302, I.P.C. He sent express report Exhibit P. 19 through P.W. 15 another Constable (i) At 10.30 p.m., P.W. 15 the Constable after receipt of this document served the express reports to the Deputy Superintendent of Police and to the Court next day morning on 24-10-1986. P.W. 20, the Inspector of Police on receipt of the express report at 11.30 a.m. on 24-10-1986 through P.W. 15 went to the Government Headquarters Hospital at Pudukkottai and concluded the inquest between 12 Noon and 2.00 p.m. He examined during the course of inquest P.Ws. 1 and 4 and another. The inquest report is Exhibit P. 21. Then he sent Exhibit P. 11 requisition for post mortem through P.W. 16 for taking the body to hand over to the Doctor for post mortem. 1 and 4 and another. The inquest report is Exhibit P. 21. Then he sent Exhibit P. 11 requisition for post mortem through P.W. 16 for taking the body to hand over to the Doctor for post mortem. Accordingly, P.W. 16 handed over the same to the Doctor P.W. 10 at 2.45 p.m. At about 3.00 p.m., P.W. 10 commenced the post mortem over the body of the deceased and he found the following injuries :-External examination of Abdomen :- A sutured wound with silk interrupted 10 inches in length starting from the epigestic region downwards below the umblucus in the midline. Two corrugated rubber tubes sutured to the skin with silk were present in both flanks, protruding out through separated wounds. On opening the sutures in the abodminal wall and peritorium there was a sutured wound with silk 2 cm. in length in the omentum. Omentum was dark brown in colour. There was a hameatoma 5 cm. x 5 cm. in the mesentery. On opening the hematoma there was clotted blood Stomach empty : On the anterior wall of the stomach there was a sutured wound 4 cm. in length with silk and catgut. On opening the sutures there was a wound 3 cm. x 3 cm. with clean edges involving the whole thickness of the anterior wall just away from the pyloric end. On in an oblique direction the posterior wall of stomach there was a sutured wound 4 cm. x with silk and catgut. On removing the sutures there was a wound 3 cm. x 3 cm. with clean edges including the whole thickness near the pyloric end in an oblique direction. In the fixed part of the junction there was a sutured wound 4 cm. with silk in the anterior wall. On opening the sutures there was a wound 3 cm. x 3 cm. involving the whole thickness with clean edges in an oblique direction. There was fluid blood in the peritonial cavity about 300 ml Intestines distended with gas. Bladder : Empty Kidney : Liver, Heart, Spleen : Normal Skull bones and Brain : Normal Exhibit P. 12 is the post mortem certificate. x 3 cm. involving the whole thickness with clean edges in an oblique direction. There was fluid blood in the peritonial cavity about 300 ml Intestines distended with gas. Bladder : Empty Kidney : Liver, Heart, Spleen : Normal Skull bones and Brain : Normal Exhibit P. 12 is the post mortem certificate. He opined that the deceased would appear to have died of shock and haemorhage due to the injury sustained in the viscera about 18-20 hours prior to the post mortem (j) After the post mortem was over, P.W. 16 recovered M.O. 16 dhoti of the deceased and handed over the same in the police station 4.00 p.m. P.W. 20 went to the spot and recovered M.Os. 5 and 6 blood stained rock pieces and M.O. 7 sample pieces under Exhibit P. 6 mahazar attested by P.W. 6. Then he arranged to take photographs of the scene through P.W. 12 the photographer, M.Os. 8 and 9 are negatives and M.Os. 10 and 11 are the photos of the body. M.Os. 12 and 13 are negatives and M.Os. 14 and 15 are the photos of the scene of occurrence(k) P.W. 20 took steps to arrest both appellants. On 27-10-1986, he received information that the first appellant surrendered before the Judicial Magistrate at Tiruppathur. On 31-10-1986 at about 2.00 p.m. on information went to Annavasal Pudukkottai road and arrested the appellant in C.A. 644/87 the second accused. During the course of interrogation, he gave confession, the admissible portion of which is Exhibit P. 2. In pursuance of the said confession, the police party was escorted to his house from where he took out M.O. 1 button knife from inside the house and handed over the P.W. 20, which was recovered under Exhibit P. 3 in the presence of P.W. 4 and another. Next day the second appellant was sent for judicial custody. On 21-11-1986 P.W. 20 sent a requisition to the Magistrate P.W. 7 to record Section 164, Cr.P.C. statements from P.Ws. 1 to 3. On 24-11-1986 he sent a requisition Exhibit P. 13 along with the memos to the Court to send the same for the chemical analysis. PW. 13 on receipt of Exhibit P. 13 requisition sent these M.Os. with a covering letter. Exhibit P. 14 for chemical analysis. On 15-12-1986 P.W. 13 the Court clerk received Chemical Analysis report Exhibit P. 15. On 24-11-1986 he sent a requisition Exhibit P. 13 along with the memos to the Court to send the same for the chemical analysis. PW. 13 on receipt of Exhibit P. 13 requisition sent these M.Os. with a covering letter. Exhibit P. 14 for chemical analysis. On 15-12-1986 P.W. 13 the Court clerk received Chemical Analysis report Exhibit P. 15. On 2-2-1987, he received Exhibit P. 16 the Serologist report (l) In the meantime, on 3-12-1986, in pursuance of the directions by the Chief Judicial Magistrate, P.W. 7 the Judicial Magistrate. Aranthangi recorded Section 164, Cr.P.C. statement from P.Ws. 1 to 3, viz., Exhibits P. 7 to P. 9 respectively. After contemplating the investigation, P.W. 20 on 10-2-1987 field the charge sheet, against the appellants for the offences under Section 302 and 302 read with 34, I.P.C 4. On committal, the learned Session Court framed the charges against the appellants for the above referred offences. The appellants pleaded not guilty and claimed to be tried 5. The prosecution to substantiate the charges framed as referred above, examined P.Ws. 1 to 20, filed, Exhibits P. 1 to P. 22 and marked M.Os. 1 to 16. After the evidence was over, the appellants were questioned under Section 313, Cr.P.C. with reference to the incriminating materials found against them in the evidence brought on record. Both the accused choose to deny their complicity in the commission of offence and failed their statements. In their statements they stated that they had no connection whatsoever with the murder of the deceased, that the victim Chinnayya is a very bad man, drunkard and has got many enemies and he must have been murdered by somebody else in some other place. They would also further state that P.Ws. 1 to 4 are inimically disposed of towards them and so, this case had been foisted against them at their instance 6. After the termination of trial, the Sessions Court on consideration of the evidence oral and documentary found the accused 1 and 2 guilty for the above referred offences and dealt with them as indicated above 7. Being aggrieved over this judgment the appellants have presented this appeal, challenging the conviction and sentence 8. Mr. After the termination of trial, the Sessions Court on consideration of the evidence oral and documentary found the accused 1 and 2 guilty for the above referred offences and dealt with them as indicated above 7. Being aggrieved over this judgment the appellants have presented this appeal, challenging the conviction and sentence 8. Mr. V. Deenadayalan appearing for both the appellants after taking through the entire evidence would strenuously contend that Exhibit P. 1, which was given by the victim-deceased is not to be relied upon, that P.Ws. 1 and 2 the eye witnesses are not truthful witnesses and they could not have seen the occurrence and that the recovery of the weapon as spoken to by P.W. 4 and P.W. 20 also would not inspire confidence since the weapon was recovered not from 1st accused, who is alleged to have used the knife, but from 2nd accused. However, ultimately while concluding his submissions, he submitted that even if the evidence adduced by the prosecution is accepted, the conviction under Section 302, I.P.C. could not be sustained and if at all any offence is made out, it should be only under Section 304, Part II, I.P.C. and he cited some authorities for the above submission, about which we shall deal with it later. The counsel for respondent would repeal such submission 9. We have carefully scrutinised the divergent contentions raised by the counsel on either side 10. At the outset, we must mention Exhibit P. 1, which was given by victim deceased to P.W. 17 Head Constable, who registered the case does not inspire confidence of this Court. According to P.W. 1, though in the chief examination he stated that the victim deceased gave an oral statement to P.W. 17, which was reduced to writing and thereupon his thumb impression was obtained, in the cross-examination he has given a complete go-by to that version. He would state that when the victim was taken to the police station, he was unconscious and he was not able to given any statement to P.W. 17. He would also further state that P.W. 17 in a white blank paper obtained thumb impression of the victim and that he could not know as to when the blank paper was filed up by P.W. 17. He would also further state that P.W. 17 in a white blank paper obtained thumb impression of the victim and that he could not know as to when the blank paper was filed up by P.W. 17. P.W. 17 during the course of his examination would state that the victim deceased along with others came with the written complaint and the same was registered by him for the offences under Section 341 and 324, I.P.C. He would deny the fact of the victim deceased having given any such oral statement. Though P.Ws. 2, 3 and 4 would say that the victim deceased was conscious while he gave oral statement to PW. 17 which he recorded, the admission of P.W. 1 who stated that P.W. 17 obtained the thumb impression in a blank paper would make it clear that Exhibit P. 1 the alleged dying declaration given by victim deceased to P.W. 17 could not have been prepared at the time as alleged by the prosecution. Moreover, Exhibit P. 1 though it was registered under Section 324. I.P.C., was received by the Magistrate only next day of course prior to death of the deceased. Therefore, we are not able to persuade ourselves to accept the genuineness of Exhibit P. 1 11. Even with regard to the recovery, we could see some dismal features. The occurrence had taken place on 22-10-1986 at about 10.30 a.m. According to P.W. 10, 2nd accused was arrested on 31-10-1986. But the suggestion had been put to P.W. 20 that 2nd accused was arrested as early as on 23-10-1986 itself. Of course this suggestion had been denied. But the disquieting feature which we have to take note of in this case is that though P.W. 4, who is the mahazar witness for recovery of the weapon would say that the weapon contained blood stains at the time of recovery from 2nd accused in pursuance of the confession, the chemical analysis report would show that no blood stain was found at all on the weapon. Further more, it is not the case of the prosecution that 2nd accused had used the weapon. 2nd accused simply caught hold of the deceased while 1st accused with the weapon M.O. 1 caused injury to the victim. Therefore, the evidence relating to the recovery also, in our view, would not be of any no use to the prosecution. Further more, it is not the case of the prosecution that 2nd accused had used the weapon. 2nd accused simply caught hold of the deceased while 1st accused with the weapon M.O. 1 caused injury to the victim. Therefore, the evidence relating to the recovery also, in our view, would not be of any no use to the prosecution. So de hors these things, we have to consider whether the remaining materials would be sufficient to hold that appellants are found to be guilty for the above referred offences 12. P.W. 1, who is related to the accused would say about both the occurrence, the first occurrence relating to the man-handling of the deceased by accused 1 and 2 infront of the toddy shop and the second occurrence relating to the attack made by 1st accused by stabbing on the stomach of the deceased. He is the witness, who speaks about the obtaining of thumb impression by P.W. 17 in the white blank paper. The close reading of the evidence of P.W. 1 goes to show that he is a truthful witness, specially when he has no animosity to speak anything against the appellants, who are the close relations. Moreover, the evidence of P.W. 1 is amply corroborated by the medical evidence, adduced through P.W. 9, P.W. 10 and P.W. 14 Doctors. So, nothing has been elicited in the cross-examination to discredit the evidence of P.W. 1 One more thing to be noted is P.W. 1 had been examined even the course of inquest. Therefore, we have no hesitation to hold that the evidence of P.W. 1 is beyond reproach and above suspicion 13. Then, the next piece of the evidence, which is incriminating against the accused is oral dying declaration given by the deceased to P.W. 4. P.W. 4 is a Panchayat Board President. He is a common man against whom no motive was attributed. Further more, it is quite natural to see that he only arranged for bullock cart for the victim to be taken to the police station even before taking him to the hospital and even as per the evidence of P.Ws. 1 to 3 the deceased was in conscious stage after he received the injuries and they would also state that the victim told P.W. 4 that when 2nd accused caught hold of the deceased, 1st accused stabbed him on the abdomen and ran away. 1 to 3 the deceased was in conscious stage after he received the injuries and they would also state that the victim told P.W. 4 that when 2nd accused caught hold of the deceased, 1st accused stabbed him on the abdomen and ran away. The further factor to be taken note of is that the evidence of the Doctors P.Ws. 9 and 14 would show the deceased was in a conscious stage. Therefore, the evidence of P.W. 4 who states that the deceased told him about the actual occurrence and the details of the participatants would inspire confidence of this Court to hold that PW. 4 is the witness of truth 14. With regard to the evidence of P.W. 2, we see some vital contradiction. Though P.W. 2 in the deposition gave clear account of the occurrence corroborating the evidence of P.W. 1. In the statement given by him and Section 164, Cr.P.C. to the Magistrate P.W. 7 under Exhibit P. 8, he did not mention that he saw the occurrence. He only would state that he heard the sound from the deceased as 'varnacular matter is omitted' and immediately he rushed to the scene and attented to the victim, who was thereafter taken to the police station along with the help of P.Ws. 1, 3 and 4. Therefore, with reference to the main occurrence, the evidence of P.W. 2 in the absence of his mentioning about this to the Magistrate P.W. 7, we cannot take P.W. 2 as an eye witness. However, we can consider him as a witness, who has adduced the acceptable res gestae evidence. So, in view of the above materials, we feel that the prosecution has established the case by bringing home the guilt of the appellant in C.A. No. 556/87 1st accused by showing that the 1st accused alone caused the death of the deceased. Coming to 2nd accused the appellant in C.A. No. 644/87, we feel that there is no sufficient materials to show that 2nd accused had common intention while the first accused stabbed on the stomach of the deceased 15. It is the case of the prosecution that the first occurrence had taken place in front of the toddy shop at about 10.30 a.m. At that time, there was a wordy quarrel between the deceased and the accused. It is the case of the prosecution that the first occurrence had taken place in front of the toddy shop at about 10.30 a.m. At that time, there was a wordy quarrel between the deceased and the accused. It is not the case of the prosecution that at that point of time weapon was used. There are no other materials to show that 2nd accused knew that 1st accused had weapon with him. It is the evidence of P.W. 1 that when the deceased was going near the drama kottagai, 2nd accused suddenly caught hold of him and that the deceased turned to the right side and thereupon first accused took out the knife and stabbed on his stomach. So, in the light of this evidence, we are not able to persuade ourselves to hold that 2nd accused knew while catching of the deceased that 1st accused would stab the deceased on his stomach. Therefore, we feel that conviction and sentence imposed upon 2nd accused for the offence under Section 302 read with 34, I.P.C. is not sustainable and therefore, 2nd accused is entitled to be acquitted. Hence the appeal C.A. No. 644/87 filed by the second accused Chinnakannu has to be allowed 16. The next question that crops up for consideration is as to what is the exact offence that has been committed by 1st accused the appellant in C.A. No. 556/87. According to the counsel Mr. V. Deenadayalan, even if the entire evidence is accepted, the conviction could be only for the offence under Section 304, Part II, I.P.C. and not under Section 302, I.P.C. To substantiate this submission, he submitted an authority reported in "Jagtar Singh v. State of Punjab", 1983 CAR 240, 1983 CrLR 228, 1983 (1) Crimes 976, 1983 (1) Scale 787 , 1983 (2) SCC 342 , 1983 AIR(SC) 463, 1983 (89) CRLJ 852, 1983 SCC(Cr) 459, wherein it has been held that when accused in a sudden quarrel wielded a knife and landed a blow, it could be a permissible inference that the accused appellant could be imputed with a knowledge that he was likely to cause, an injury, which was likely to cause death. We have gone through the citation. We have gone through the citation. In that case on the similar facts, the Apex Court held that the accused is shown to have committed an offence under Section 304, Part II, I.P.C. and not under Section 302, I.P.C. In this case also we cannot hold that he had planned to kill the deceased because in the first incident, which took place in front of the toddy shop at about 10.30 a.m., if the first accused had intended to cause death, he would have used knife at that time itself. Therefore, the act of the first accused having used M.O. 1 and inflicted single stab that too on the abdomen would not be sufficient to hold that he had the intention to kill the deceased especially when the deceased died only next day night. Therefore, in view of the fact that only knowledge could be attributed to the act of the first accused, we feel that the, conviction and sentence imposed upon the appellant in C.A. No. 556/87 the first accused for the offence under Section 302, I.P.C. is not sustainable and the same is liable to be set aside, but instead the first accused could be liable to be convicted under Section 304, Part II, I.P.C., and sentenced to undergo R.I. for five years 17. In the result, the conviction and sentence imposed on the appellant in C.A. No. 556 of 1987 (1st accused Subramanian) for the offence under Section 302, I.P.C. are set aside, but instead the appellant (1st accused) is convicted under Section 304. Part II, I.P.C. and sentenced to undergo rigorous imprisonment for five years. With this modification, the appeal is dismissed 18. The Criminal Appeal in C.A. No. 644/87 is allowed. The conviction and sentence imposed on the appellant in C.A. No. 644 of 1987 (2nd accused Chinnakanu) for the offence under Section 302 read with 34, I.P.C. are set aside and the appellant 2nd accused is acquitted forthwith.