JUDGMENT (Prayer: Criminal Appeal filed under Section 374 (2) of the Code of Criminal Procedure, against the judgment made in S.C.No.195 of 2016, by the Principal Sessions Judge, Thanjavur, dated 13.02.2019.) P.N. Prakash, J. 1. This criminal appeal is filed against the judgment and order dated 13.02.2019 in S.C.No.195 of 2016, on the file of the learned Principal Sessions Judge, Thanjavur. 2. The prosecution story runs thus: 2.1. One Soosaimanickam [P.W.5] had taken on auction, the right to harvest coconuts in a Church in Kulamangalam Village, Thanjavur District. While so, the deceased Kulandaisamy, the paternal uncle of Soosaimanickam [P.W.5], overheard the appellant saying that he would harvest the coconuts, knowing full well that Soosaimanickam [P.W.5], had taken the lease in auction and so, when Kulandaisamy questioned the appellant, the appellant is said to have picked up an eucalyptus stick that was lying on the ground and assaulted Kulandaisamy, causing injuries to him. This was witnessed by Sahayaraj [P.W.1], son-in-law of Kulandaisamy, Juliet Raj [P.W.2], uncle of Kulanthaisamy, Govindaraj [P.W.3 / turned hostile] and Rajesh Kanna @ Ismail [P.W.11/ turned hostile]. Thereafter, Kulandaisamy was carried to the Government Medical College and Hospital, Thanjavur, where Dr.Kumara Senthil [P.W.6], examined Kulandaisamy at 06.45 p.m. on 15.07.2015 and noted the following injuries in the copy of the Accident Register [Ex.P.6], which reads as follows: “1) Abrasion 2x2 cm over left arm; 2) Abrasion of size 2x1 cm over back of arm; 3) Abrasion of size 4x4 cm over right side of back; 4) Abrasion of size 2x2 cm over left knee; 5) Contusion over middle of left arm; 6) Tenderness over left side of chest.” 2.2. Kulandaisamy was admitted as an inpatient in the hospital. While he was under treatment, his statement [Ex.P.1] was recorded by Viruthachalam [P.W.8], Special Sub-Inspector of Police, based on which, a case in Thanjavur Taluk Police Station Crime No.326 of 2015 was registered for the offences under Sections 294(b), 324 and 506(ii) IPC, against the appellant on 17.07.2015, at about 08.00 a.m. and prepared the printed FIR [Ex.P.8], reached the jurisdictional Magistrate at 05.55 p.m. on the same day, as could be seen from the endorsement thereon. Thereafter, the I.O. went to the place of occurrence and prepared the observation mahazar [Ex.P.2] and rough sketch [Ex.P.9]. 2.3. The appellant was arrested by the police on 17.07.2015 at about 01.00 p.m. and was sent in judicial custody. Thereafter, the I.O. went to the place of occurrence and prepared the observation mahazar [Ex.P.2] and rough sketch [Ex.P.9]. 2.3. The appellant was arrested by the police on 17.07.2015 at about 01.00 p.m. and was sent in judicial custody. Pursuant to the confession statement of the appellant, an eucalyptus stick that is alleged to have been used by the appellant to assault Kulandaisamy was recovered under the cover of a seizure mahazar [Ex.P.4], on 17.07.2015. 2.4. Thereafter, the investigation of the case was taken over by Somasundaram [P.W.12], Inspector of Police. Kulanthaisamy, who was under treatment in the Government Medical College Hospital, Thanjavur, succumbed to the injuries on 28.07.2015 at about 02.30 a.m. and therefore, the case was altered into one under Section 302 IPC, vide Express report [Ex.P.14], which reached the jurisdictional Magistrate at 09.50 a.m. on 28.07.2015, as could be seen from the endorsement thereon. Thereafter, the I.O. went to the mortuary at the Government Medical College and Hospital, Thanjavur, where he conducted inquest over the body of Kulandaisamy and the inquest report was marked as [Ex.P.15]. 2.5. Dr.Udhayabanu [P.W.9], performed autopsy on the body of Kulandaisamy and issued the Postmortem Certificate [Ex.P.11], wherein she has noted the following ante mortem injuries: “THE FOLLOWING ANTE MORTEM INJURIES WERE NOTED: 1) Inter costal drainage wound noted over outer aspect of 4the inter costal space of right and left chest cavity (Treatment procedure). 2) Multiple healed abrasions varying in size noted over right shoulder, right knee and left scapular region. 3) Blackish scab abrasion with fallen of peripheral scab 10 cm x 2 cm in size noted over outer aspect of left upper arm. 4) Blackish scab abrasion 3 cm x 1 cm in size noted over front of left knee. 5) Healed abrasion 5 cm x 0.5 cm in size noted over outer aspect of left elbow. ON DISSECTION OF THORACIC CAVITY: Fracture of 1-8 ribs noted over outer aspect of left chest cavity and fracture of 2-4 ribs noted over outer aspect of right chest cavity. Thoracic cavity contained 200ml of dark red fluid blood. Inner surface of left side chest cavity found to be contused.” 2.6. After obtaining the viscera report, Dr.Udhayabanu [P.W.9] gave her final opinion with regard to the cause of death of Kulandaisamy, in the Postmortem Certificate [Ex.P.11], which reads as under: “FINAL OPINION: DIED DUE TO COMPLICATIONS OF THORACIC INJURIES.” 2.7. Thoracic cavity contained 200ml of dark red fluid blood. Inner surface of left side chest cavity found to be contused.” 2.6. After obtaining the viscera report, Dr.Udhayabanu [P.W.9] gave her final opinion with regard to the cause of death of Kulandaisamy, in the Postmortem Certificate [Ex.P.11], which reads as under: “FINAL OPINION: DIED DUE TO COMPLICATIONS OF THORACIC INJURIES.” 2.7. After examining various witnesses and collecting various reports, the I.O. completed the investigation and filed a final report in P.R.C.No.14 of 2016, in the Court of the Judicial Magistrate No.II, Thanjavur, against the appellant for the offences under Sections 294(b) and 302 IPC. 3. On appearance of the appellant, the provisions of Section 207 Cr.P.C. were complied with and the case was committed to the Court of Session, Thanjavur, in S.C.No.195 of 2016, for trial. The trial Court framed charges under Sections 294(b) and 302 IPC against the appellant and when questioned, he pleaded “not guilty”. 4. To prove the case, the prosecution examined 12 witnesses, marked 15 exhibits and 1 material object. When the appellant was questioned under Section 313 Cr.P.C., on the incriminating circumstances appearing against him, he denied the same. No witness was examined nor any document marked from the side of the appellant. 5. After considering the evidence on record and hearing either side, the trial Court by judgment and order dated 13.02.2019, has convicted and sentenced the appellant as under: Offence under Section Conviction and Sentence 294(b) IPC Acquitted. 302 IPC Life imprisonment and to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for six [6] months. 6. Challenging the said conviction and sentence, the appellant is before this Court. The present appeal was filed with a delay of 93 days to condone which, Crl.M.P.(MD)No.6442 of 2019, was filed under Section 5 of the Limitation Act, 1963, which was allowed by this Court on 22.07.2019 and thereafter, the instant appeal was numbered and he was granted suspension of sentence and bail by this Court on 07.11.2019 in Crl.M.P.(MD)No.6718 of 2019. 7. Heard Mr.C.Mayilvahana Rajendran for Mr.M.P.Senthil, learned Counsel appearing for the appellant and Mr.T.Senthil Kumar, learned Additional Public Prosecutor appearing for the respondent. 8. It is to be noted that, the FIR in this case has been registered based on the statement [Ex.P.1] that was given by Kulandaisamy, while he was under treatment in the Government Medical College and Hospital, Thanjavur. Heard Mr.C.Mayilvahana Rajendran for Mr.M.P.Senthil, learned Counsel appearing for the appellant and Mr.T.Senthil Kumar, learned Additional Public Prosecutor appearing for the respondent. 8. It is to be noted that, the FIR in this case has been registered based on the statement [Ex.P.1] that was given by Kulandaisamy, while he was under treatment in the Government Medical College and Hospital, Thanjavur. This statement got elevated to the status of a Dying Declaration, after the death of Kulandaisamy on 28.07.2015. Kulandaisamy in his statement / Dying Declaration [Ex.P.1], has stated inter alia that he is a resident of Kulamangalam village; he is a daily wage; his younger brother's son Soosaimanickam [P.W.5] had taken the right to harvest coconuts in auction; on 15.07.2015 at around 05.45 p.m. he heard the appellant saying that he [appellant] would harvest the coconuts and therefore, when he [deceased] questioned the appellant, the appellant got angry, abused him and picked up an eucalyptus stick and assaulted him; on hearing his scream, Sahayaraj [P.W.1], Juliet Raj [P.W.2], Govindaraj [P.W.3 / turned hostile] and Rajesh Kanna @ Ismail [P.W.11 / turned hostile], came to his rescue and prevented the appellant from further assaulting him; he sustained injuries on his left hand, back, left knee, stomach, ribs and other places; after that, the appellant warned him by saying that 'if you continue to interfere in my matters, I would beat you to death'; saying so, the appellant left the place; he was taken by his relative Sahayaraj [P.W.1] to the Government Medical College and Hospital, Thanjavur for treatment; while he was in the hospital, he fainted and so, when the Taluk Police came on 16.07.2015, they were not able to record his statement and only on 17.07.2015 he was examined in the ICU ward by the police. 9. Mr.C.Mayilvahana Rajendran, learned Counsel appearing for the appellant submitted that there are corrections in the dates in the statement of complaint [Ex.P.1]. He further submitted that when the same was confronted to R.Somasundaram [P.W.12], the Inspector of Police, he accepted that there is overwriting in the statement of complaint [Ex.P.1] and therefore, he contended that Ex.P.1 deserves to be rejected. 10. He further submitted that when the same was confronted to R.Somasundaram [P.W.12], the Inspector of Police, he accepted that there is overwriting in the statement of complaint [Ex.P.1] and therefore, he contended that Ex.P.1 deserves to be rejected. 10. The fact remains that immediately after the attack, Kulandaisamy was taken to the Government Medical College and Hospital, Thanjavur, where he was examined by Dr.Kumara Senthil [P.W.6], at 06.45 p.m. on 15.07.2015, who in his evidence has stated that when he questioned the injured, he stated that he was assaulted by a known person at 05.45 p.m., on the same day. That apart, the evidence of Sahayaraj [P.W.1] and Juliet Raj [P.W.2] who were eyewitnesses cannot be discarded. The name of Sahayaraj [P.W.1] finds a place in the Accident Register [Ex.P.6], showing that it was he who had brought the injured Kulandaisamy to the hospital. 11. Sahayaraj [P.W.1], in his evidence has inter alia stated that on 15.07.2015, at around 05.45 p.m., while he along with Juliet Raj [P.W.2], Rajesh Kanna @ Ismail [P.W.11 / turned hostile] and Kulandaisamy were conversing near their village Church, the appellant came along with his friends Sanjay and Stephen and said that he would harvest the coconuts from the trees in the Church and therefore, Kulandaisamy questioned the appellant; at that time, the appellant picked up an eucalyptus stick and assaulted the deceased all over his body; hence, they all interfered and prevented the appellant from further assaulting Kulandaisamy; since Kulandaisamy was in a state of shock, they immediately summoned an ambulance and took him to the Government Medical College and Hospital, Thanjavur and admitted him there; on 28.07.2015, Kulandaisamy died in the hospital. The evidence of Juliet Raj [P.W.2] is also on the same lines. 12. It is true that Govindaraj [P.W.3] and Rajesh Kanna @ Ismail [P.W.11] turned hostile. The defence was not able to make any serious dent in the testimony of Sahayaraj [P.W.1] and Juliet Raj [P.W.2] and their presence at the place of occurrence was incidental and natural. Therefore, we find that the prosecution has proved the fact that on 15.07.2015, the appellant had picked up a quarrel with Kulandaisamy, in connection with the harvesting of coconuts from the trees belonging to the Church and had attacked Kulandaisamy with an eucalyptus stick, causing injuries to him, including fracture of his ribs. Therefore, we find that the prosecution has proved the fact that on 15.07.2015, the appellant had picked up a quarrel with Kulandaisamy, in connection with the harvesting of coconuts from the trees belonging to the Church and had attacked Kulandaisamy with an eucalyptus stick, causing injuries to him, including fracture of his ribs. However, even in the statement of complaint [Ex.P.1], it is stated that after assaulting Kulandaisamy, the appellant had threatened Kulandaisamy that he should not interfere with his affairs and if he does so, he [appellant] would beat him [deceased] to death. Sahayaraj [P.W.1] and Juliet Raj [P.W.2] have also stated so in their evidence. This means that the appellant did not have any intention to commit the murder of Kulandaisamy. After the assault, Kulandaisamy was under treatment for about 13 days and only thereafter, he died. 13. On a conspectus of the facts obtaining in this case, we are of the opinion that the conviction and sentence of the appellant for the offence under Section 302 IPC cannot be sustained. However, taking into consideration the nature of the injuries, especially the fractures of 1-8 ribs, the proven facts would disclose the commission of an offence under Section 304(II) IPC and accordingly, the appellant could be convicted under Section 304(II) IPC and sentenced to undergo seven [7] years rigorous imprisonment. 14. Accordingly, the conviction and sentence of the appellant under Section 302 IPC is set aside. Instead, the appellant is convicted under Section 304 (II) IPC and sentenced to undergo seven [7] years rigorous imprisonment. As regards the sentence of fine imposed on the appellant, the same shall stand maintained. The period of sentence already undergone by the appellant is ordered to be set off under Section 428 Cr.P.C. 15. The Police is directed to immediately secure the appellant and produce him before the trial Court. 16. In the result, this Criminal Appeal is allowed in part.