Judgment :- A.S.VENKATACHALAMOORTHY, J. Learned Principal Sessions Judge, Chengalpattu, by his Judgment dated 13.07.2000, in Sessions Case No.431 of 1998, convicted the appellant herein (1st accused) under Section.302 read with 34 IPC and Section.147 IPC., and sentenced him to undergo life imprisonment and rigorous imprisonment for one year respectively. Being aggrieved by the said Judgment, the appellant has filed the above appeal. 2. The short facts are: PW-2 is the wife of the deceased by name Lakshmanan, who was running a finance company in the name and style of "Amman Finance Company". There was some misunderstanding arose between appellant etc. and some persons belonging to Mugapair. Since the deceased was moving closely with persons belonging to Mugapair, A.1/appellant had a grievance against the deceased. At about 9 P.M. on 15.9.1993, when the deceased was in his office along with PW-1, the appellant after wishing him, asked as to whether Mugapair men would come to Korattur Colony that night, and for which the deceased replied that he has no knowledge about it. The appellant thereafter saying "don't you know", asked the deceased as to why he gave complaint against them. Saying so, the appellant/A-1 caught hold of the hands of the deceased and dragged him down the stairs shouting, "nkny th';flh ,tid ,';nfna xU tHp gz;zplyhk;" Then, the other accused came there with knife and one Senthil cut the deceased on left side of the head and one Prabha cut him on his left shoulder, while accused Lingesan cut the deceased on his left shoulder. Hearing the cry of the deceased, the people in the Street ran away. The accused after cutting the deceased indiscriminately ran away with weapons. The deceased, who received a number of injuries fell down. PWs-1 and 4 brought the deceased to the Kilpauk Medical College Hospital for treatment and from there, he was taken to Stanley Hospital. PW-7 is the Head Constable attached to Korattur Police Station, who on receiving telephonic message at about 9 P.M on 15.9.1993 about the assault on the deceased, rushed to the spot, where he was informed that the injured person had already been taken to Kilpauk Medical College Hospital. When he went there, he was informed about the shifting of the deceased to the Stanley Hospital. When he went there, he was informed about the shifting of the deceased to the Stanley Hospital. PW-7 thereafter proceeded to Stanley Hospital and reached there at 10.45 P.M There he recorded Ex.P-1 complaint from the deceased and obtained his left thumb impression in it. At about 11.30 PM, he came back to the police station and registered a case in Cr. No.2362/1993 for offences under Sections-147, 148 and 307 IPC, prepared Printed F.I.R. Ex.P2 and forwarded the same to the Court and copies to his superiors. PW-9 is the Doctor attached to Kilpauk Medical College Hospital. At about 9.30 P.M. on 15.9.1993, when she was in the Emergency Ward, the deceased was brought by his relative Jayapaul and to the Doctor, the deceased told that he was assaulted by one Robert and his men at about 9 P.M. with knife when he was in his Company-office. The doctor found him conscious and noted 12 injuries in the accident register copy Ex.P-7. As PW-9 felt that some better treatment has to be given, she immediately took steps to send the deceased to the Stanley Hospital. PW-11 is the Doctor working in Stanley Hospital at the relevant time. At about 10.00 P.M. on 15.9.1993, when he was working in the Emergency Ward, the said injured Lakshmanan was brought for treatment and he admitted the deceased in 9th ward as in-patient. The accident register copy is Ex.P-9. PW-12 is the Assistant Professor in the Stanley Medical College, Chennai, who was in charge of the Intensive Care Unit. On 17.9.1993, he declared that the said injured Lakshmanan died at about 7.10 P.M. on that day and he issued death report Ex.P-11. PW-13 is the Inspector of Police, Korattur Circle, who, on receipt of the copy of the Express FIR., went to the place of occurrence at 12.10 mid night. After inspecting the scene of occurrence, he drew the sketch Ex.P-12 and prepared Ex.P-3 observation mahazar at about 1.00 A.M. on 16.9.1993. He seized bloodstained cement plasters MO.1 series and sample cement plasters MO.2 series under Ex.P-4 mahazar. Later on, he went to the Stanley Medical College Hospital, where he recorded the statement Ex.P.13 from the injured and seized the bloodstained cloths from him. The Inspector thereafter examined PWs-1 to 7 and other witnesses and formed a party for arresting the accused. He seized bloodstained cement plasters MO.1 series and sample cement plasters MO.2 series under Ex.P-4 mahazar. Later on, he went to the Stanley Medical College Hospital, where he recorded the statement Ex.P.13 from the injured and seized the bloodstained cloths from him. The Inspector thereafter examined PWs-1 to 7 and other witnesses and formed a party for arresting the accused. Ex.P-11, the death report was received on 17.9.1993 and the offence was altered into Sections.147, 148 and 302 IPC. Express FIR Ex.P-14 was prepared and forwarded to the Court. The Inspector thereafter examined PW-11 and others. Inquest over the body of the deceased held between 8 A.M. and 10.30 A.M. on 18.9.1993 and Ex.P15 is the inquest report. After inquest, the Inspector forwarded the body for autopsy. PW-10 is Dr.Thangaraj, attached to the Madras Medical College. Autopsy over the body of the deceased was conducted by Dr.Sundaramoorthy. As he retired from service, PW-10 Dr.Thangaraj was examined to speak about the post mortem in his absence. Since PW-10 was previously working along with Dr.Sundaramoorthy, he knows the signature and writing of the said Doctor and on his behalf, he gave evidence in this case. According to PW.10, the autopsy surgeon found as many as 50 injuries on the body of the deceased as set out in Ex.P-8, the post mortem certificate. Since all the injuries are incised gapping wounds, the autopsy surgeon was of the opinion that the deceased would have died due to shock and haemorrhage caused by those injuries. PW-10 also confirms the said opinion. On 19.9.1993, the appellant was arrested by the Head Constable at Avadikuppam in connection with some other case and the appellant was arrested in this case also by the Inspector. The Inspector of Police then examined PW-12 Dr.Chandrasekaran and other witnesses. Steps were taken by him to send the Material Objects for chemical analysis. Ex.P-19 is the chemical analysis report and Ex.P.20 is the Serologist's report. After completing the investigation, the Inspector of Police filed his final report. 3. When questioned under Section 313 Cr.P.C., the appellant/accused pleaded innocence. 4. The question that arises for consideration is, as to whether the prosecution has proved its case against the appellant/accused beyond all reasonable doubts. 5. The post mortem on the body of the deceased was conducted at 11.40 A.M. on 18.9.1993 by one Dr.Sundaramoorthy. The post mortem certificate issued in this regard is Ex.P-8. 4. The question that arises for consideration is, as to whether the prosecution has proved its case against the appellant/accused beyond all reasonable doubts. 5. The post mortem on the body of the deceased was conducted at 11.40 A.M. on 18.9.1993 by one Dr.Sundaramoorthy. The post mortem certificate issued in this regard is Ex.P-8. In the said Certificate, the Doctor has noted the following:- " Injuries:- 1. An oblique sutured wound 5 cms. with 3 sutures over the right forehead near hair margin 2. Superficial incised wound 2.5 cms. long skin deep over the left forehead near hair margin. 3. Superficial incised wound 3 cms. long obliquely from left to right over the midline of forehead near hair margin. 4. A gaping chop wound 9.5x2.5x3 cms. (muscle deep) over the left cheek below eye. 5. Sutured wound 3 cms. long with 2 sutures over the right frontal region of scalp. 6. Incised wound 4x3 cms. muscle deep over the outer aspect of right elbow. 7. An oblique gaping chop wound 5x5 cms. muscle deep over the right frontal region of scalp. 8. Two oblique superficial incised wounds 4 cms. and 3.5 cms. over the left frontal region of scalp. 9. A semi circular sutured wound 4 cms. long with 4 sutures over the left parietal prominence. 10. An oblique sutured wound 7 cms. with 5 sutures over the parieto occipital region close to midline. 11. A sutured wound 5cms. long with 4 sutures over the left occipital region of scalp 2 cms. below the injury No.10. 12. A slightly curved sutured wound 11 cms. with 6 sutures over the right occipital region of scalp extending from behind right ear lobe. 13. An oblique sutured wound 5 cms. long with 3 sutures over the right occipital region 1.5 cm. below injury No.12. 14.Two incised wounds 1.5 cm. along each over the right ear lobe. 15. A superficial incised wound 6 cms. long skin deep over the outer aspect of right arm. 16. A semi circular gaping chop wound 13 x 3 cms. long over back of right forearm near elbow exposing the severed both bones of right forearm, the muscles and blood vessels (DW) 17. Chop wound 3.5x1 cms. muscle deep over the back of right forearm near lower third (DW). 18. A gaping chop wound 7 x 2 cms. 16. A semi circular gaping chop wound 13 x 3 cms. long over back of right forearm near elbow exposing the severed both bones of right forearm, the muscles and blood vessels (DW) 17. Chop wound 3.5x1 cms. muscle deep over the back of right forearm near lower third (DW). 18. A gaping chop wound 7 x 2 cms. over the back of right forearm near wrist exposing the severed both bones of forearm, muscles and blood vessels (DW). 19. Two gaping chop wounds 7x1.5 cms.12x3 cms. over the dorsum of right wrist exposing the severed both bones of right forearm underlying muscles, blood vessels and nerves (DW) 20. An oblique gaping chop wound 8x3 cms. over the dorsum of right hand exposing the severed metacarpal bones of index to little fingers and underlying muscles, nerves and blood vessels (DW). 21. The right little finger is found severed through and through at the proximal phalanx (DW). 22. A gaping chop wound 8.5 x 2.5 cms. over the palmar aspect of right hand exposing the underlying severed muscles and blood vessels (DW). 23. Chop wound 2.5 x .5 cms. over the palmar aspect of proximal phalanx (DW) of right index finger and middle finger exposing the severed underlying tissues (DW) 24. Abrasion 8x1.5 cms. obliquely over lateral aspect of left arm. 25. A gaping chop wound 7x3.5 cms. over the dorsum of left hand exposing the severed matacarpal bones muscles and blood vessels (DW). 26. Two incised wounds 1.5x5 cms. muscle deep x 1.5cm. muscle deep over the dorsal aspect of left forearm near wrist. (DW). 27. A gaping chop wound 6 x 3 cms. over the dorsum of left hand between left ring and little finger severing through and through exposing the bones the underlying muscles, blood vessels and nerves (DW). 28. An oblique chop wound 2.5 x 1.5 cms. muscle deep the terminal phalanx of left ring finger on the dorsal aspect severing the nail through and through (DW). 29. Chop wound 2x.5 cm. over the dorsal aspect of proximal phalanx of left middle finger exposing the severed bone. (DW) 30. A chop wound 2x1 cms. bone deep over the palmar aspect of distal phalanx of left thumb severing it.(DW) 31. A chop wound 9x1.5 ms. over the palmar aspect of left hand extending from base of left index finger (DW). 32. A chop wound 2.5 x.5 cms. (DW) 30. A chop wound 2x1 cms. bone deep over the palmar aspect of distal phalanx of left thumb severing it.(DW) 31. A chop wound 9x1.5 ms. over the palmar aspect of left hand extending from base of left index finger (DW). 32. A chop wound 2.5 x.5 cms. skin deep over the palmar aspect of middle phalanx of left index finger.(DW) 33. An oblique sutured wound 4.5 cms. long with 2 sutured over the left chest 1.5 cms below clavicle. 34. An oblique suture wound 7 cms. long with 8 sutures over the left chest 3 cms. below and lateral to left nipple. 35. A superficial incised wound 1.5x.25 cms. skin deep over the lateral aspect of left chest near costal margin. 36. A superficial incised wound 3x.25 cms. skin deep over the medial aspect of front of right knee joint. 37. A 'V' shaped sutured wound each limb being 3 cms. and 3.5 cms. over the upper medial aspect of right leg. 38. Abrasion 2x1.5 cms. over the medial aspect of right ankle. 39. Abrasion 3 cms. long over the medial aspect of dorsum of right ankle. 40. Two sutured wounds 5 cms. and 4.5 cms. with 3 sutures over the back of left shoulder with abrasions 6 cms. and 3 cms. extending from it. 41. Two oblique superficial incised wound 5 & 8 cms. long over the left scapular region of back. 42. Oblique sutured wound 5.5 cms. long with 3 sutures over left back close to midline. 43. Two oblique linear abrasions 20 cms. and 25 cms. over the left scapular region of back. 44. Abrasion 1x.5 cm. over the back of right shoulder. 45.Superficial incised wound skin deep 7 cms. long over the upper lateral aspect of right back. 46. Two superficial incised wounds 13 cms. and 10 cms. obliquely over the right back near costal margin. 47. An oblique sutured wound 3 cms. with 3 sutures over the lumbar region of right back. 48. Superficial incised wound 2x.5 cms. skin deep over the lateral aspect of right chest near costal margin. 49. An oblique sutured wound 4 cms. long with 3 sutures over the lower lateral aspect of left thigh. 50. An incised wound 1x.5 cm. skin deep over the lower lateral aspect of left thigh just in front of injury No.49. 48. Superficial incised wound 2x.5 cms. skin deep over the lateral aspect of right chest near costal margin. 49. An oblique sutured wound 4 cms. long with 3 sutures over the lower lateral aspect of left thigh. 50. An incised wound 1x.5 cm. skin deep over the lower lateral aspect of left thigh just in front of injury No.49. ON DISSECTION OF CHEST AND ABDOMEN:- An oblique incised wound over the underlying tissues of 2nd left intercostal space and 3rd rib region severing intercostal muscles, blood vessels and nerves and the third rib through and through communicating into left pleural cavity. An incised wound over the underlying tissues of left 5th and 6th ribs level severing both the ribs and intercostal muscles through and through communicating into left pleural cavity. Extravasated blood seen over the mediastinal tissues. Left pleural cavity contained 50 ml. of fluid blood. ON DISSECTION OF SCALP:- All the chop wounds of scalp region are muscle deep except injury No.11 which is bone deep. Subdural haemorrhage and mild subarachnoid haemorrhage over left occipital lobe of brain." Since the said Doctor K.Sundaramoorthy retired subsequently, PW-10 Dr. Thangaraj, who had worked with the said Doctor and who is familiar with the signature of the said Doctor, has been examined as PW-10. In the post mortem certificate, the Doctor had given an opinion that the deceased would have died of haemorrhage and shock due to chop injuries. Dr.Thangaraj, who has been examined as PW.10, has also endorsed the said opinion given by Dr.Sundaramoorthy. The cross examination is confined only with reference to injuries 27 to 30. Or in other words, the defence has not disputed that the deceased died of homicidal violence. 6. The case of the prosecution is that at about 9 P.M. on 15.09.1993, when the deceased was standing in front of his office along with PW-1 by name Gubendiran, appellant came there, took up a quarrel with him, pushed him down, dragged him and later, along with other accused, attacked the deceased with knife. Apart from PW-1, this was also witnessed by PW.4 Jayapaul. Both PWs-1 and 4 took the deceased to Kilpauk Medical College Hospital and thereafter, for further treatment, the deceased was taken to Stanley Hospital at about 10.30 P.M. on that day. Apart from PW-1, this was also witnessed by PW.4 Jayapaul. Both PWs-1 and 4 took the deceased to Kilpauk Medical College Hospital and thereafter, for further treatment, the deceased was taken to Stanley Hospital at about 10.30 P.M. on that day. At the Hospital, the deceased gave Ex.P-1 complaint to the Head Constable-642 attached to Korattur Police Station at about 10.45 p.m. Subsequently, the deceased died at about 7.10 P.M. on 17.9.1993. Both PWs-1 and 4 have turned hostile. 7. Learned counsel appearing for the appellant/accused submitted that the only piece of evidence that is available for consideration is, the complaint Ex.P-1 given by the deceased to the Head Constable at 10.45 P.M. on 15.09.1993 and that it would not be safe to act on the said piece of evidence, treating it as dying declaration. In elaborating his submission, the learned counsel submitted that there is nothing to show that the deceased was conscious and in a fit condition to give such a lengthy statement. The further submission is that the left hand thumb of the deceased had been chopped off during the course of attack and that being so, it is not known as to how the deceased could have affixed the thumb impression. The learned counsel would also draw the attention of this Court to the thumb impression found in Ex.P-1 as well as Ex.P-7 the accident register issued by the Doctor at the Kilpauk Medical College Hospital and submit that a very look at these two documents would show that the two thumb impressions differ very much and that being so, it would not be safe to rely on the said document viz., Ex.P-1. 8. The occurrence in this case was at about 9 P.M. on 15.9.1993 in front of the office-company of the deceased. The deceased was taken first to the Kilpauk Medical College, when he was seen by PW-9 at about 9.30 P.M. The accident register issued in this regard has been marked as Ex.P-7. In the said document, it is clearly mentioned that on examination, the patient is conscious and answering questions. Thereafter, the patient was sent to the Stanley Hospital. PW-11 is the Doctor attached to the said Hospital, who saw the deceased at about 10.00 P.M. on that day. The Duplicate copy of the accident register issued by him has been marked as Ex.P-9. Thereafter, the patient was sent to the Stanley Hospital. PW-11 is the Doctor attached to the said Hospital, who saw the deceased at about 10.00 P.M. on that day. The Duplicate copy of the accident register issued by him has been marked as Ex.P-9. On a perusal of the said document, we find that the doctor examined the patient at 10.30 P.M. It is very relevant to note that the Doctor has not mentioned as to whether the deceased was conscious and alert enough to give a statement. In the cross examination, PW-13, the Investigating Officer has clearly stated that when he examined the Doctor PW-11, he did not tell him that the deceased was conscious, when he (PW-11) examined the deceased that is to say at about 10.30 P.M.. on 15.9.1993. As already mentioned, the deceased sustained as many as 50 injuries. It is also relevant to point out that immediately by 11 O' clock, the deceased was taken to the Intensive Care Unit. These circumstances would certainly create a serious doubt in the minds of this Court as to whether the deceased would have been in a position to give a statement like Ex.P.1. In the absence of any clear evidence placed before this Court about the mental alertness or about the consciousness of the deceased, it would be rather difficult to place reliance on Ex.P-1. 9. Yet another aspect we would like to point out is that Ex.P-1 runs two pages. Even for a normal person to give the facts to the police officer and for the officer to write the complaint after digesting what is conveyed, it would take some time less than 20 to 25 minutes. As already mentioned, the deceased was in the Intensive Care Unit by 11 p.m. We are not prepared to accept the prosecution case, as according to the prosecution, the complaint was written in or about 10 minutes time. 10. The 3rd circumstance that would create further doubt is the left hand thumb impression obtained in Ex.P-1. We carefully perused the same and find that the same has not been properly obtained. That apart, this impression differs very much from that of the other one taken in Ex.P.7 viz., in the accident register issued by the Doctor at Kilpauk Medical College Hospital. We carefully perused the same and find that the same has not been properly obtained. That apart, this impression differs very much from that of the other one taken in Ex.P.7 viz., in the accident register issued by the Doctor at Kilpauk Medical College Hospital. Of course, the learned counsel for the appellant would contend that inasmuch as the thumb of the left hand had been severed, it could not have been possible for the deceased to fix the thumb impression. Again, on this aspect, the evidence is not clear. As could be seen from the post mortem certificate, we can only gather that the tip of the thumb was cut. Anyhow, that would not make any difference since this Court is convinced that Ex.P.1 which has to be treated as Dying Declaration does not infuse the confidence of this Court and it would not be safe to convict the appellant/accused, solely acting on Ex.P-1. 11. In this view of the matter, the conviction and sentence imposed on the appellant/accused under Section.302 read with 34 IPC. and Section.147 IPC. are hereby set aside. The appellant/accused is acquitted of all charges. The appellant/accused shall be released forthwith if he is not required in connection with any other case. 12. Criminal Appeal stands allowed.