Judgment : CHITRA VENKATARAMAN, J. This criminal appeal is at the instance of appellants/Accused Nos. 2 and 3 against the judgment dated 31.12.2003 of the learned Additional District and Sessions Judge, Fast Track Court, Virudhunagar in S.C. No. 151 of 2003, convicting and sentencing A-2 to undergo simple imprisonment for one month under Section 341 I.P.C., to undergo rigorous imprisonment for six months under Section 342 I.P.C and to undergo rigorous imprisonment for two years under Section 326 read with Section 34 I.P.C along with a fine of ` 1,000/-, in default to pay the fine amount, to undergo further rigorous imprisonment for six months, convicting and sentencing A,-3 to undergo simple imprisonment for one month under Section 341 , I.P.C, and to undergo life imprisonment under Section 302 I.P.C. 2 The case of the prosecution is that the daughter of the deceased -P.W.4 had love affair with P.W.5 and wanted to marry him. The deceased supported his daughter ‘ s love affair. P.W.5 belonged to Mooppan community and the deceased belonged to Nadar community. The panchayat opposed the marriage of P.W.4 with P.W.5. However, the deceased proceeded to perform the marriage of his daughter with P.W.5. Enraged by the attitude of the deceased, on 11.3.2002 at about 6.15 p.m., while the deceased was going in his T.V.S.Super XL motor cycle carrying two bags in Aruppukkottai Road, the accused numbering 3, way laid the deceased and A-3 attacked the deceased with broken soda bottle and thereby caused the injuries. The deceased himself got admitted in Government Hospital, Virudunagar. However, later on, he succumbed to the injuries. P.28 and produced M.Os.1 to 10. On questioning under Section 313 of the Cr.P.C, the appellants/accused denied their complicity in the offence. The appellants/accused neither examined any witness nor marked any document. The Court below convicted the accused on the basis of the evidence of the eye witnesses and the motive as spoken to by the witnesses to convict the accused. 3 In support of its case, the prosecution let in evidence through P.Ws.1 to 20, marked Exhibits P-1 to 4 The facts in brief, are as follows: P.W.4 is the daughter of P.W.3 and the deceased. P.W.4 fell in love with P.W.5. The deceased and P.W.5 ‘ s family belonged to different communities. However, the deceased had no objection in giving P.W.4 in marriage to P.W.5. P.W.4 fell in love with P.W.5. The deceased and P.W.5 ‘ s family belonged to different communities. However, the deceased had no objection in giving P.W.4 in marriage to P.W.5. However, the residents of the village belonging to the deceased ‘ s community, objected to this proposal and convened the panchayat on 10.3.2002. The deceased who did not agree to this, however, did not attend the panchayat. P.W.5 is the husband of P.W.4. It is stated that they got married after the occurrence. On 11.3.2002 at about 6.15 p.m., the deceased was returning in his T.V.S.Super XL motor cycle. The deceased did not attend the panchayat. Enraged by that, A2 Athimuthu, his brother Ramesh A3 and Periasamy Al warned the deceased not to act against the resolution of the panchayat. The deceased however did not seriously take notice of the same. Thus, at 6.15 pm on 11.3.2002, while the deceased was returning back towards Palavanatham in his motor cycle after making purchases in Virudhunagar for his provision store, near Allampatti Junction Road, the accused were standing therein. The accused way-laid the deceased. A-2 pulled him down and stamped on him. The deceased ignored him and moved ahead. However, when he got up, A-2 held him tight by his hands and A-3 took the soda bottle, held in his hand, broke it and hit him on the abdomen and thus, resulting in bleeding injuries. When the deceased raised alarm, all the three accused ran away from the scene of occurrence. Thereafter, the deceased himself got admitted in the Government Hospital, Virudhunagar, by getting into an autorickshaw. 5 P.W.15 is the Doctor who treated the deceased on his admission in the hospital. Exhibit P-ll is the Accident Register wherein the deceased stated that he was stabbed by known persons. P.W.15 sent Exhibit P-12 intimation to Virudhunagar East Police Station. P.W.18 - Head Constable, on receipt of the intimation from the Government Hospital, Virudhunagar at about 6.45 p.m. on 11.3.2002, came to the hospital and recorded the statement of the deceased at about 7.00 p.m. According to P.W.18, at that time, the deceased was fully conscious to make the statement and he recorded the same under Exhibit P-13. P.W.18 - Head Constable, on receipt of the intimation from the Government Hospital, Virudhunagar at about 6.45 p.m. on 11.3.2002, came to the hospital and recorded the statement of the deceased at about 7.00 p.m. According to P.W.18, at that time, the deceased was fully conscious to make the statement and he recorded the same under Exhibit P-13. Thereafter, P.W.18 came to the police station and on the basis of Exhibit P- 13, he registered a case in Crime No. 67 of 2002 for the offences punishable under Sections 341,342Sections 341,342 , 324 and 307 I.P.C. Exhibit P-14 is the printed first information report. 6 On receipt of the said information at about 8.15 p.m., P.W.20 - Inspector of Police visited the scene of occurrence in the presence of P.Ws.9 and 10. He prepared Observation Mahazar Exhibit P-1 and Rough Sketch Exhibit P-18. He examined the witnesses and recorded their statements. Then, he went to the Hospital and recorded the statement of the deceased under Exhibit P-19. In the presence of witnesses, he recovered blood-stained shirt M.O.2 and lungi M.O.1 under mahazar Exhibit P-20. Thereafter, P.W.20 went to Allampatti, Virudhunagar in search of the accused. On the next day viz., on 12.3.2002, on receipt of death memo at 9.30 a.m., he altered the charge as under Section 341,342Section 341,342 and 302 I.P.C. The altered first information report was marked as Exhibit P-21. At about 11 a.m., he went to the Government Hospital, Madurai and conducted Inquest over the dead body of the deceased in the presence of panchayatdars and witnesses. Exhibit P-22 is the Inquest Report. He examined P.Ws.3 and 4 and recorded their statements. He sent the body of the deceased for conducting autopsy. P.W.19 conducted autopsy on the body of the deceased on 12.3.2002 at 2.00 p.m. He issued the post mortem certificate marked as Exhibit P-15. It noted: “ Sutured stab wound on the left hypochondrium 14 cm below and lateral to the left nipple 6 cm x 4 cm x cavity deep. Both ends pointed margins irregular ” . Exhibit P-28 is the Serologist ‘ s report which pointed out to the presence of human blood B Group in the shirt - M.O.5, lungi -M.O.4, Dhoti - M.O.10 and bottle -M.O.9. 7 In continuation of his investigation, on 12.3.2002, P.W.20 arrested the accused near Bharathi Nagar, Kullursanthai in the presence of witnesses. Both ends pointed margins irregular ” . Exhibit P-28 is the Serologist ‘ s report which pointed out to the presence of human blood B Group in the shirt - M.O.5, lungi -M.O.4, Dhoti - M.O.10 and bottle -M.O.9. 7 In continuation of his investigation, on 12.3.2002, P.W.20 arrested the accused near Bharathi Nagar, Kullursanthai in the presence of witnesses. A-3 Ramesh volunteered to give a confession statement. The admissible portion of the confession statement is marked as Exhibit P-23. On the basis of the same, the accused took and produced the broken soda bottle M.0.9 as well as the blood stained pants M.O.6 and shirt M.O.7 in the presence of witnesses. The same were received under mahazar Exhibit P-24. On 13.3.2002, he examined further witnesses and recorded their statements. On 22.4.2002, he examined the doctors, who had treated and conducted autopsy on the deceased and recorded their statements. After completing the Investigation, he laid the final report before the Court. 8 Learned counsel appearing for A-3 submitted that there are two dying declarations made by the deceased one under Exhibit P-13 and the other under Exhibit P-19 on two different dates before P.Ws.18 and 20. Questioning the reliability of the declarations, learned counsel pointed out that P.W.18 reached the hospital and recorded the statement from the deceased. At the time of recording the statement, evidently, the Doctor, who had treated the deceased originally was very much available in the hospital. However, Exhibit P-13 is not certified by the Doctor as regards the mental capacity of the deceased at the time of recording the statement. The evidence of P.W.16 also refers to the presence of the Doctor. He also pointed out that the said statement of the deceased reached the Court only on 3.5.2002. Referring to the evidence of P.W.20, learned counsel pointed out that admittedly, the said Investigating Officer had not taken the medical records as regards the mental status of the deceased. Having regard to the enormous delay therein, no credence could be given to Exhibit P-13 declaration by the deceased or Exhibit P-19 to implicate the accused/A-3 in the commission of the crime. He also submitted that evidently, there was no motive shown against the accused and in the absence of any specific motive, the case of the prosecution has to be rejected. In connection with the same, learned counsel placed reliance on the decision in Mohd. He also submitted that evidently, there was no motive shown against the accused and in the absence of any specific motive, the case of the prosecution has to be rejected. In connection with the same, learned counsel placed reliance on the decision in Mohd. Islam v. State (NCT) of Delhi(2007) 15 SCC 718 as well as Brundaban Moharana and Another v. State of Orissa (2011) 2 MLJ (Crl) 97 : (2011) 1 L.W. (Crl) 61. 9 Learned counsel for A-2 while reiterating the argument of the learned counsel for A-3, questioned the conviction imposed on A-2 under Sections 341and342Sections 341and342 I.P.C. He further pointed out that A-2 had not participated in attacking the deceased and as such, the conviction and sentence under Section 326 read with 34 I.P.C, are not sustainable. 10 In reply to the above-said submissions of the learned counsel for the appellants, learned Additional Public Prosecutor pointed out that Exhibits P-11, P-13 and P-15 fully pointed out to the overt act of A-3. He also submitted that immediately after the occurrence at about 6.30 p.m., the deceased rushed to the hospital on his own and got himself admitted in the hospital. Exhibit P-13, the audit report, clearly pointed out to the attack on the deceased by the accused. As regards the submission made on reliability of Exhibit P-13, learned Additional Public Prosecutor submitted that Exhibit P-13 was recorded from the deceased by P.W.18 and it was not recorded as a dying declaration, as at the time of making the declaration, the situation was not such as to treat the same as a dying declaration and in the circumstances, the question of either summoning the doctor or to give certificate about the mental capacity of the deceased did not arise. In any event, going by the earliest document - Exhibit P-11 - Accident Register, which clearly pointed out to the attack by the accused, the action taken on the basis of Exhibit P-13 thus supported by P.W.15, the case of the prosecution stood proved beyond any doubt. 11 It is seen from the records that A-1-Periyasamy was convicted under Section 341 I.P.C and he was sentenced to undergo simple imprisonment for one month. As against the said judgment, A-1 has not preferred any Criminal Appeal and thus, it has become final. 11 It is seen from the records that A-1-Periyasamy was convicted under Section 341 I.P.C and he was sentenced to undergo simple imprisonment for one month. As against the said judgment, A-1 has not preferred any Criminal Appeal and thus, it has become final. 12 As far as A-3 is concerned, a reading of Exhibit P-11 the accident register recorded at 6.30 p.m, is the earliest document to speak on the injury caused by known persons and the place of occurrence and that the deceased got himself admitted in the hospital at 6.45 p.m. Immediately on receipt of the information, P.W.18 came to the hospital and on ascertaining the mental status of the deceased, he recorded the statement. As rightly pointed out by the learned Additional Public Prosecutor, at that time, the situation had not arisen to record the same as a dying declaration. The statement thus recorded was immediately registered as a complaint and the case was taken up for further investigation. P.W.20 once again enquired the deceased and recorded his statement (Exhibit P-19). The records placed before this Court reveal that Exhibit P-13 reached the Court on the same day at 11.30 p.m. However, Exhibit P-19 reached the Court subsequently on 3.5.2002. Considering the fact that the earliest statement by the deceased reached the Court on time and leaving aside the delay with reference to Exhibit P-19, we find there is no delay in sending the complaint and the first information report to the Court. A reading of Exhibit P-13 shows that the deceased was conscious enough to make a statement as regards the place of occurrence, the persons who had attacked him and the weapons used for attacking the deceased. The said statement was made at 7.00 p.m., and thus after making the statement, he also signed. Even though the appellant questioned the signature, the same has not been, in any manner, proved otherwise. Going by Exhibit P-11, the accident register indicating the state of mind of the deceased at the time of his admission in the hospital at 6.45 p.m., and the recording of the statement immediately at 7.00 p.m., the case of the prosecution stands proved as regards the overt act of A-3, who had attacked the deceased with broken soda bottle and A-2 holding the deceased, thereby preventing the deceased from escaping from the attack. 13 It is seen from Exhibit P-11 - Accident Register that the deceased had sustained the following injuries: 1. A wound just below left lypochest with protruding omenter 2. A noted wound 2 ” right of navel with protruding small intestine 3. A choppel wound of 2 ” in right forearm. Exhibit P-15 - Post Mortem Certificate also reveals the following injuries: “ Sutured stab wound on the left hypochondrium 14 cm below and lateral to the left nipple 6 cm x 4 cm x cavity deep. Both ends pointed, margins irregular. ” The material objects sent for chemical examination pointed out to the presence of “ B ” group human blood in the bottle which matched with the blood group found in the lungi of the deceased. Exhibit P28 is the Serologist ‘ s Report in this case. In his evidence, P.W.19 - the Post Mortem Doctor pointed out that the injury could be caused when one is attacked by a soda bottle and that the injury, originally simple in nature, in due course, may cause death of a person. Thus going by all these documents, it is clear that the deceased died of homicidal violence caused by A-3. In the context of the above-said evidence available and Exhibit P-13, the time of recording the statement from the deceased, we have no hesitation in accepting the case of the prosecution as regards the conviction and sentence imposed on A-3. 14 As to the reliance placed on the decision in Mohd. Islam v. State (NCT) of Delhi (supra) that there was no certificate by the Doctor that the victim was in a fit state of mind and health to make a declaration of that nature, a perusal of the said decision shows that such certification by the doctor is not always necessary and that the said requirement assumes significance depending on the facts of the case. Going by the facts narrated above, we have no hesitation in confirming the conviction and sentence imposed by the Court below on A-3. 15 As regards the conviction and sentence imposed on A-2, particularly under Section 326 I.P.C, as seen from Exhibit P-13, while A-1 way-laid the deceased and the deceased was going on persistently, A-2 pushed him down and when he got up, A-2 held him tight and A-3 attacked him with a broken soda bottle. 15 As regards the conviction and sentence imposed on A-2, particularly under Section 326 I.P.C, as seen from Exhibit P-13, while A-1 way-laid the deceased and the deceased was going on persistently, A-2 pushed him down and when he got up, A-2 held him tight and A-3 attacked him with a broken soda bottle. The statement thus recorded from the deceased while he was in hospital reveals that the attack was only by A-3 and the weapon used for the attack is the broken soda bottle and the role of A-2 is in holding the deceased tight. Beyond that, no overt act was attributed to A-2. Hence, with the possibility of A-2 not directly involved in attacking the deceased, except to the extent of contributing to the act of A-3, we hold that A-2 would be liable to be punished under Section 324 read with Section 34 I.P.C. Thus instead of 326 I.P.C, A2 is convicted of the offence punishable under Section 324 read with Section 34 , I.P.C and sentenced to the period already undergone viz., two months. The fine amount imposed by the trial Court, however, remains unaltered. The conviction and sentence imposed on A-2 under Section 341 I.P.C, stands confirmed and the conviction and sentence under Section 342 I.P.C, stands set aside. The conviction and sentence under Section 326 I.P.C stands modified as under Section 324 read with Section 34 I.P.C. and he is sentenced to undergo the period already undergone viz., two months. 16 In the result, this criminal appeal is dismissed as regards the second appellant/A-3 and in respect of the first appellant/A-2, the appeal is partly allowed as stated above. Learned Additional District and Sessions Judge, Fast Track Court at Virudhunagar, is directed to take steps to apprehend the second appellant/A-3 - Ramesh and send him to judicial custody. The bail bonds executed by the first appellant/A-2 shall stand cancelled.