Judgment :- Appellants are the Accused 1 to 4 in S.C.No.43 of 1996 on the file of Additional Sessions Court, Villupuram. By the Judgment (dated 08.10.1997) learned Additional Sessions Judge has convicted the Appellants under Sec.304(II) r/w 34 I.P.C (acquitting them of the Charge under Sec.302 r/w 34 I.P.C) for allegedly causing the death of Deceased-Rasi alias Rasu Chettiar and sentenced each of them to undergo Rigorous Imprisonment for Seven years. 2. Deceased-Rasu Chettiar is residing at Dhimmachur Village along with his family members. He has advanced a loan of Rs.2,000/- to one Meesaikkaran (Father of A-1-Palanivelu) of the same village. About Six months prior to the occurrence, without returning the loan of Rasu Chettiar, the said Meesaikkaran left the village. About Three months prior to the occurrence Rasu Chettiar was demanding Son of Meesaikkaran viz., A-1-Palanivelu to return the loan amount. 3. In this connection, on 30.06.1993 at about 10.30 a.m. P.W.4-Sekar asked A-1 to return the loan amount due to his Father. At that time, A-1-Palanivelu and A-2-Mandu alias Annamalai assaulted P.W.4 with stick. To complain about the same, P.W.4 went to Thirukkovilur Police Station. 4. On the same day - 30.06.1993 - 01.00 p.m., when Rasu Chettiar was in his House, his Wife P.W.1-Nalliammal and Daughter P.W.2-Rani informed him about the attack on P.W.4. When A-1 to A-4 were passing through the Courtyard of the House of Rasu Chettiar, he questioned the conduct of A-1 in beating his Son-P.W.4-Sekar and also demanded A-1 to repay the loan amount. Angered over the same, A-1 took a Stone and assaulted Rasu Chettiar on his Mouth and Abdomen; A-2 assaulted Rasu Chettiar over his Left Side Head with a stick (M.O.2); A-3 also assaulted him on his Teeth with a Cycle Chain; A-4 kicked him on his Stomach with his Leg. The attempt of P.Ws.1 and 2 and one Pasar Annadurai in trying to prevent the attack ended in vain. 5. P.Ws.1 and 2 and one Kesu Gounder had taken Injured - Rasu Chettiar to Government Hospital, Thirukkovilur and admitted him in the Hospital on 30.06.2003 - 06.00 p.m. 6. Registration of case and Investigation: P.W.8-Head Constable received intimation from the Hospital about the admission of Rasu Chettiar in the Hospital. P.W.8 went to the Hospital and recorded his Statement-Ex.P.10. Dr. Somasundaram who was on duty has endorsed in Ex.P.10-Statement certifying about the Conscious Fit Mental condition of Rasu Chettiar. Registration of case and Investigation: P.W.8-Head Constable received intimation from the Hospital about the admission of Rasu Chettiar in the Hospital. P.W.8 went to the Hospital and recorded his Statement-Ex.P.10. Dr. Somasundaram who was on duty has endorsed in Ex.P.10-Statement certifying about the Conscious Fit Mental condition of Rasu Chettiar. On the basis of Ex.P.10-Statement of Rasu Chettiar, P.W.8 registered a case in Crime No. 372 of 1993 under Sections 325, 324 and 323 I.P.C under Ex.P.12-F.I.R. 7. P.W.12-Sub-Inspector of Police had taken up the Investigation. He has inspected the scene of occurrence in Dhimmachur Village. He has prepared Ex.P.4-Observation Mahazar and Ex.P.21-Rough Plan. M.Os.6 and 7-Blood Stained Mud and Sample Mud were seized under Ex.P.5. 8. Since the condition of Rasu Chettiar was deteriorating, he was referred to Government Hospital, Cuddalore for further Treatment on 01.07.1993. P.W.4-Sekar received Tapal from the Medical Officer in respect of referring his Father to Cuddalore Government Hospital. He took his Father from the Hospital Ward and kept near the Compound Wall of the Hospital. P.W.4 was making arrangement for money for engaging the Ambulance. When P.W.4-Sekar visited his Father at about 11.30 a.m. Rasu Chettiar asked for water and P.W.4 gave water. On 01.07.1993 at about 11.45 a.m., Rasu Chettiar succumbed to the Injuries. 9. P.W.4-Sekar reported about the death of his Father to Thirukkovilur Police Station. On receipt of the Death Intimation, P.W.12-Sub-Inspector of Police altered the case into Sec.302 I.P.C. 10. P.W.13-Inspector of Police had taken up further Investigation. He has held the Inquest on the body of Deceased-Rasu Chettiar from 01.15 p.m to 04.15 p.m. Ex.P.23 is the Inquest Report. After the Inquest the body was sent to Autopsy through P.W.11-Constable. 11. Pursuant to the requisition from the Inspector of Police, P.W.3-Dr.Kasthuri held the Autopsy on the body of Deceased-Rasu Chettiar. She has noted Lacerated Injuries on the Left Parietal Region of Scalp; Sutured wound over the Right Side of the Upper Lip, the Abdomen distended and Three Upper front Teeth were loosened. The Doctor also found Lacerated lesser omentum, Lacerated outer wall of Small intestine and Contusion of Loop of Small Intestine below Jejunum and Rupture in the Superior mesenteric artery. P.W.3 issued Ex.P.2-Post Mortem Certificate opining that the Deceased would appear to have died of Haemorrhage and shock due to Injuries sustained. 12. The Doctor also found Lacerated lesser omentum, Lacerated outer wall of Small intestine and Contusion of Loop of Small Intestine below Jejunum and Rupture in the Superior mesenteric artery. P.W.3 issued Ex.P.2-Post Mortem Certificate opining that the Deceased would appear to have died of Haemorrhage and shock due to Injuries sustained. 12. In the Trial Court, to substantiate the Charges against the Accused, Prosecution has examined P.Ws.1 to 13. Exs.P.1 to 23 were marked. M.Os.1 to 7 were produced. The Accused were questioned about the incriminating evidence and circumstances under Sec.313 Crl.P.C. The Accused denied all of them and stated that a false case is foisted against them. 13. Upon consideration of the evidence, learned Sessions Judge accepted the evidence of P.Ws 1 and 2 and held that the Prosecution has proved the attack on Rasu Chettiar by the Accused. In consideration of the several points urged attacking Ex.P.10-Statement, learned Sessions Judge rejected those contentious points and found that Ex.P.10 was given by the Deceased-Rasu Chettiar in a Fit Mental condition. Finding that the attack on Rasu Chettiar is in continuation of the attack on P.W.4, learned Sessions Judge pointed out that the Statement of P.W.4 in Ex.P.3 that his Father was also attacked would not in any way undermine the Prosecution Case. On those findings, learned Sessions Judge found A-1 to A-4 guilty of the offence under Sec.304(II) r/w 34 I.P.C and sentenced them to undergo Rigorous Imprisonment as aforesaid in para (1). 14. Assailing the verdict of Conviction and the findings, learned counsel Mr.K.N.Basha appearing for the Appellants/ Accused has submitted that the Trial Court erred in basing the Conviction on the interested testimony of P.Ws.1 and 2. 14. Assailing the verdict of Conviction and the findings, learned counsel Mr.K.N.Basha appearing for the Appellants/ Accused has submitted that the Trial Court erred in basing the Conviction on the interested testimony of P.Ws.1 and 2. Seriously attacking the credibility of the Prosecution Case, learned counsel has interalia urged the following contentions: i. that the Prosecution has examined only interested Witnesses - Wife and Daughter - P.Ws.1 and 2 and that no independent witness was examined though one Pasar Annadurai is said to have intervened to rescue Rasu Chettiar and non-examination of Independent Witness is fatal to the Prosecution Case; ii.that in Ex.P.3 and in Ex.D.1, P.W.4-Sekar has made a Statement that in the course of same transaction of his attack, his Father was also attacked, which is not explained by the Prosecution and that the Prosecution is attempting to suppress the origin of the occurrence; iii.Reliance placed upon the answers elicited from P.W.1 that she has given earlier information to Thirukkovilur Police Station, which is deliberately suppressed by the Prosecution and the Investigating Agency was gaining time to foist the false case. iv.There is no evidence showing that the Deceased-Rasu Chettiar was in a Fit Conscious Mental state to make the Statement-Ex.P.10 and that the evidence of P.W.5-Dr.Venkatesan, who has spoken about the endorsement made by Dr.Somasundaram (since dead) would not be sufficient to prove the Mental Fit Condition of the Deceased-Rasu Chettiar. Urging the improbabilities and inconsistencies in the Prosecution case, learned counsel prays for reversal of the Conviction. In any event, it is submitted that the Accused had no intention of causing the death and that their act could only fall within Sec.323 I.P.C or under Sec.325 I.P.C and the Conviction of the Appellants/Accused under Sec.304(II) r/w 34 I.P.C is unsustainable. In this regard, reliance is placed upon A.I.R. 1994 S.C. 1582 and 1995 (3) S.C.C. 603 . 15. Countering the arguments and taking me through the evidence of Prosecution Witnesses and other materials on record, Mr.A.N.Thambidurai, learned Government Advocate (Criminal Side) has submitted that upon proper consideration of the evidence, the Trial Court has rightly found the Appellants/Accused responsible for the Injuries caused to Deceased-Rasu Chettiar. 15. Countering the arguments and taking me through the evidence of Prosecution Witnesses and other materials on record, Mr.A.N.Thambidurai, learned Government Advocate (Criminal Side) has submitted that upon proper consideration of the evidence, the Trial Court has rightly found the Appellants/Accused responsible for the Injuries caused to Deceased-Rasu Chettiar. Drawing the attention of the Court to the evidence of P.W.9, learned Government Advocate has submitted that P.W.9 has clearly spoken about the endorsement made by Dr.Somasundaram as to the Conscious Mental Condition of Rasu Chettiar, which is sufficient to uphold the findings of the Trial Court as to the Conscious Mental Condition of the Deceased-Rasu Chettiar. Pointing out the nature of the Internal Injuries and the Injuries caused to small intestines and other Internal organs, learned Government Advocate has submitted that the Trial Court in appreciation of nature of injuries sustained by Rasu Chettiar has rightly convicted the Appellants under Sec.304(II) r/w 34 I.P.C and that there is no reason warranting interference. 16. Whether the Trial Court was right in construing Ex.P.10-as Dying Declaration finding that it was made while Rasu Chettiar was in the Fit Conscious Mental state and whether the Conviction of the Appellants under Sec.304(II) r/w 34 I.P.C is sustainable warranting any interference is only the point falling for our consideration in this Appeal. 17. The occurrence is of Two parts. The preluding occurrence was at 10.30 a.m. A-1's Father Meesaikkaran has borrowed a sum of Rs.2,000/- from Deceased-Rasu Chettiar. P.W.4-Sekar-Son of Deceased asked A-1 about the return of money. At that time, A-1 and A-2 had beaten P.W.4. To report about the same, P.W.4 has gone to Thirukkovilur Police Station. Ex.P.3 is the Statement by P.W.4 as to the earlier occurrence. On that basis, the Accused 1 and 2 are also facing Trial in S.T.C.No.387 of 1994 on the file of Judicial Magistrate, Thirukkovilur. In Ex.P.3, P.W.4 is alleged to have stated that while he was attacked, his Father was also attacked In his Statement before the Judicial Magistrate (Ex.D.1) also, P.W.4 has stated on the same line. On the basis of the above Statement of P.W.4 in Ex.P.3, the credibility of the Prosecution Case is very much assailed that Rasu Chettiar also would have been attacked during the course of the same transaction and that the Prosecution is trying to suppress the origin of the occurrence. On the basis of the above Statement of P.W.4 in Ex.P.3, the credibility of the Prosecution Case is very much assailed that Rasu Chettiar also would have been attacked during the course of the same transaction and that the Prosecution is trying to suppress the origin of the occurrence. It is seen from Ex.P.3 that the preluding occurrence was at 10.30 a.m. and the Statement of P.W.4 was recorded only at 02.00 p.m. Perhaps on hearing about the attack on his Father, P.W.4 had casually stated in his Statement that his Father was also beaten. Hence, the Prosecution Case cannot be doubted on the above Statement made by P.W.4 in Ex.P.3. A Ruralite - like P.W.3 may not have been aware of the implication of making such Statement in clubbing the two attacks. Casual Statement of P.W.4 in Ex.P.3 does not in any way undermine the Prosecution case. 18. When Rasu Chettiar came back to his house at 01.00 p.m, P.Ws.1 and 2 had informed him about the attack on P.W.4. When A-1 to A-4 were passing through the courtyard, quite probably Rasu Chettiar would have asked them about the attack on his Son-P.W.4. P.Ws.1 and 2 have consistently spoken about the overt act of the Accused 1 to 4. A-1 assaulting Rasu Chettiar on his Mouth and Abdomen with Stone; A-2 assaulting on his Left Side of Head with Stick; A-3 assaulting him on the Mouth with Cycle Chain, resulting in shaking of the Teeth; A-4 kicked him on his Stomach with his Leg. The attack on Rasu Chettiar and Overt act of each one of the Accused is well brought out by the consistent version of P.Ws.1 and 2. Despite searching Cross-examination their evidence remains unshaken. Their evidence cannot be doubted on the ground of their relatedness to Rasu Chettiar. 19. While narrating the occurrence, Rasu Chettiar has stated that his Wife and Daughter prevented the attack and also one Pasar Annadurai. The said Pasar Annadurai was not examined. Non-examination of Independent Witness cannot in any way undermine the Prosecution case when it revolves around the evidence of P.Ws.1 and 2 and the Dying Declaration of Deceased-Rasu Chettiar. 20. Rasu Chettiar was admitted in the Government Hospital, Thirukkovilur at 06.00 p.m on 30.06.1993. Much arguments are advanced in attacking the Prosecution case on the ground of Delay in taking Rasu Chettiar to Thirukkovilur Government Hospital. 20. Rasu Chettiar was admitted in the Government Hospital, Thirukkovilur at 06.00 p.m on 30.06.1993. Much arguments are advanced in attacking the Prosecution case on the ground of Delay in taking Rasu Chettiar to Thirukkovilur Government Hospital. In this regard, learned counsel for the Appellant has also drawn the attention of the Court to the answers elicited from P.W.1 that before going to the Hospital they had gone to Thirukkovilur Police Station. No doubt, in her Cross-examination, P.W.1 has stated On the strength of these answers elicited from P.W.1, much arguments are advanced that the Prosecution had suppressed the earliest information available from P.W.1. 21. It is to be noted that P.W.1 has also stated that the Police had not written the Complaint at that time. Merely because Rasu Chettiar was taken to the Police Station, it cannot be said that P.W.1 and others have gone to the Police Station to lodge the Complaint. Their son P.W.4-Sekar was already in the Police Station. Perhaps to inform him about the attack and the Injuries sustained by Rasu Chettiar, P.W.1 might have gone to the Police Station along with the Injured. Any oral intimation to the Police about the attack on Rasu Chettiar cannot amount to the earliest information nor does it suggest suppression of the same. 22. Onbehalf of the Accused, the point of Delay is very much urged. Rasu Chettiar was admitted in the Hospital at 06.00 p.m and his Statement was recorded at 07.30 p.m. Hence, the credibility of the Prosecution case is attacked on the ground of Delay. This contention is to be appreciated in the light of the fact that the womenfolk P.Ws.1 and 2 were alone in the house without any Male support. They have gathered the support of one Kesu Gounder. Injured Rasi Chettiar is to be transported from Dhimmachur to Thirukkovilur by arranging for a Taxi. Reasonable indulgence is to be shown for making such arrangement. Absolutely, there is no delay in taking Rasu Chettiar to the Hospital and even if there is delay, it is quite reasonable and acceptable. The Appellants/Accused are not right in contending that the Prosecution was gaining time to deliberate upon the same to foist a false case against the Accused. This point raised before the Trial Court was rightly considered by the Trial Court. 23. The Appellants/Accused are not right in contending that the Prosecution was gaining time to deliberate upon the same to foist a false case against the Accused. This point raised before the Trial Court was rightly considered by the Trial Court. 23. The main point urged is the reliability of Ex.P.10-Statement recorded from Deceased-Rasu Chettiar construed as the Dying Declaration. 24. Rasu Chettiar was admitted in Thirukkovilur Government Hospital on 30.06.1993 - 06.00 p.m. P.W.8-Head Constable received intimation and went to the Hospital and recorded Ex.P.10-Statement from Rasu Chettiar. In his Statement, Rasu Chettiar has clearly narrated the overt act of the Accused. While Ex.P.10-Statement was recorded, Dr.Somasundaram made Ex-P.11-Endorsement "Patient Conscious throughout recording of the Statement". Down below, P.W.8 has made the endorsement 25. Left Thumb Impression of Rasu Chettiar in Ex.P.10-Statement and the above endorsements in Ex.P.10 are contemporaneous. The certification by Dr.Somasundaram on the Conscious Mental condition of Injured Rasu Chettiar is the evidence of strong character. 26. Normally in order to satisfy whether the Deceased was in a Fit Mental Condition to make the Dying Declaration, the Court would look into the Medical Opinion. In the instant case, Dr.Somasundaram has certified as to the Fit and Conscious Mental state of Rasu Chettiar. It is relevant to note that Rasu Chettiar survived for one day and died only on the next day-01.07.1993 and there is every possibility of making Statement in Conscious State. P.W.9-Dr.Thangavel has spoken about Ex.P.11-Endorsement made by Dr.Somasundaram. P.W.9 has stated that he is well acquainted with the signature of Dr.Somasundaram. There is nothing to doubt the version of P.W.9. In fact, only through P.W.9, Ex.P.13-Accident Register of Rasu Chettiar was marked. In Ex.P.13 also Rasu Chettiar has narrated the manner of assault as "...Alleged to have been assaulted with on 30.06.1993 at about 01.00 p.m at Timmachur.." which again goes a long way in strengthening the Prosecution case. Thus, the Conscious Mental Condition of Rasu Chettiar is well brought out by the Medical Evidence. 27. Fit mental condition of Rasu Chettiar is attacked on the answers elicited from P.W.1, during the Cross-examination Laying stress upon the above answers of P.W.1, much arguments are advanced on the Fit Mental Condition of the Deceased-Rasu Chettiar contending that he would not have been in a Fit Condition to make the Dying Declaration. 27. Fit mental condition of Rasu Chettiar is attacked on the answers elicited from P.W.1, during the Cross-examination Laying stress upon the above answers of P.W.1, much arguments are advanced on the Fit Mental Condition of the Deceased-Rasu Chettiar contending that he would not have been in a Fit Condition to make the Dying Declaration. It is the further contention that Left Thumb Impression of Rasu Chettiar was taken and the Prosecution has manipulated Ex.P.10 and gathered the evidence in support of its case. 28. This point was raised before the Trial Court, which was elaborately considered by the learned Sessions Judge. The learned Sessions Judge was right in saying that P.Ws.1 and 2 would not have been in a position to know the Fit Mental condition of Rasu Chettiar while he was in the Hospital. From Ex.P.13-Accident Register, it is seen that Rasu Chettiar was admitted in the Hospital only by Kesu Gounder. Though P.Ws.1 and 2 have accompanied Rasu Chettiar, they may not have been in a position to know the Mental Condition of Rasu Chettiar when P.W.8 went to the Hospital at 06.45 p.m. on 30.06.1993. Hence, the veracity of Ex.P.10-Dying Declaration cannot be tested on the touchstone of the answers elicited from P.Ws.1 and 2. 29. The main contention urged that Rasu Chettiar could not have made Ex.P.10-Statement and that his Left Thumb Impression would have been obtained to make Ex.P.10 has no force. Dr.Somasundaram has made contemporaneous endorsement - Ex.P.11 in Ex.P.10. There is no reason to doubt the correctness of the same. A responsible Medical Officer would not have obliged the Police in making such endorsement. In consideration of the same, the Trial Court has rightly held that Rasu Chettiar was in a fit Conscious Mental state while his statement was recorded in Ex.P.10. It is also to be noted that even dehors the Dying Declaration, Prosecution Case is well supported by the evidence of Eye Witnesses-P.Ws.1 and 2. 30. The Appellants/Accused are proved to have caused the Injuries to Rasu Chettiar. Alternatively, it is contended that considering the nature of injuries, the offence under Sec.325 or 323 I.P.C alone could be made out and that the Accused had no intention in attacking the Deceased-Rasu Chettiar. 30. The Appellants/Accused are proved to have caused the Injuries to Rasu Chettiar. Alternatively, it is contended that considering the nature of injuries, the offence under Sec.325 or 323 I.P.C alone could be made out and that the Accused had no intention in attacking the Deceased-Rasu Chettiar. This contention could be appreciated by referring to the Injuries in Ex.P.2-Post Mortem Certificate: i. A Lacerated wound of about 1 « cm x « cm x « cm over Left Parietal Region of Scalp. Dried up blood seen around the wound. ii.A sutured wound of about 1 « cm seen over the Right side of Upper Lip. iii.Abdomen Distended iv.Three upper front Teeth on right side loosened. On opening the Abdomen about 500 ml. of blood seen in abdominal cavity. Lesser omentum lacerated. Loop of Small intestine below jejunum contused and outer wall of small intestine lacerated in some places. Superior mesenteric artery ruptured. Large intestines slightly distended with gas. In the Cross-examination, it was elicited from P.W.3 that the death might have been caused due to the rupture of veins in the Abdomen. Injury No.3-Abdomen distended and the corresponding Internal Injury -Loop of small intestine below jejunum contused and outer wall of small intestine lacerated in small places alone could have affected the nerve system and hence only A-1 to A-4 alone could be held responsible for the death of Rasu Chettiar. It is the further contention that considering the manner and nature of attack, the Accused could not be said to have had the intention in causing the murder of Rasu Chettiar and hence, their act could fall only under Sec.323 I.P.C or at the most under Sec.325 I.P.C. This contention does not merit acceptance. The definite opinion of P.W.3 is that the Deceased died of Shock and Haemorrhage due to the injuries sustained. While so, it is not possible to discern which of the injuries could have caused the Shock and Haemorrhage causing the death of Rasu Chettiar. Hence, cause of the death cannot be attributed to the individuals. The contention that their act would fall under Sections 323 or 325 I.P.C does not merit acceptance. While so, it is not possible to discern which of the injuries could have caused the Shock and Haemorrhage causing the death of Rasu Chettiar. Hence, cause of the death cannot be attributed to the individuals. The contention that their act would fall under Sections 323 or 325 I.P.C does not merit acceptance. Considering the factual background of the case, the proposition laid down by the Supreme Court in A.I.R. 1994 S.C. 1582 and 1995 (3) S.C.C. 603 cannot be made applicable to the case in hand to hold that the attack would attract only Sec.323 or 325 I.P.C. The Trial Court has rightly convicted the Appellants/Accused under Sec.304 Part II r/w 34 I.P.C. 31. We are left with only the question of Sentence. The Trial Court has the discretion to impose the appropriate Sentence. The High Court would not interfere in the Sentence unless it is found to be unreasonable or harsh. In this case A-1 to A-4 were passing through the courtyard. Had not the Deceased intervened, the occurrence would not have taken place. From Ex.P.15-Accident Register of P.W.4, it is seen that during the first occurrence he was drunk. Perhaps P.W.4 might have exceeded in wordy abuses and in that way, A-1 and A-2 might have attacked P.W.4. There was no pre-plan or pre-meditation for the occurrence. Considering the nature of attack and the injuries caused, Sentence of Rigorous Imprisonment of Seven years imposed on the Appellants/ Accused is harsh and excessive. In the circumstances of the case, the Sentence of Rigorous Imprisonment is reduced from Seven years to Three years. 32. C.A.No.765 of 1997: Therefore, the Judgment of the Additional Sessions Judge, Villupuram (dated 08.10.1997) in S.C.No.43 of 1996 convicting the Appellants/Accused under Sec.304 Part II r/w 34 I.P.C is confirmed. For the Conviction under Sec.304 Part II r/w 34 I.P.C the sentence of Rigorous Imprisonment is reduced from Seven years to Three years and this Appeal is partly allowed accordingly. 33. The Trial Court is directed to take immediate steps for securing the Appellants/Accused to commit them to prison for serving the remaining period of sentence. The Trial Court is also directed to comply with the above direction with Three months and the compliance of the above direction may be intimated to this Court at once within the time stipulated.