This is projectedas the motive for the occurrence.On 29.03.2000, at about 10.00 AM, PW-1 and the deceased wereproceeding through the land of one Annamalai Thevar.At that time, the accusedcame there with a sickle in his hand.He shouted at the deceased saying that hewould not leave the deceased without wrecking vengeance.So saying, the accusedcut the deceased with sickle.The deceased warded off the said attack by hishands.The blow fell on the right forehand.Then, the accused cut him on theright side of the abdomen of the deceased.The injury was so deep and theintestine protruded out.PW-1 attempted to rescue the deceased.Immediately, theaccused cut PW-1 on her right hand, left hand, right shoulder and right upperhand, repeatedly with sickle.In the said dying declaration,the deceased told that due to previous enmity, the accused cut him with sickle.[Dr.Ramakrishnan was not examined before the Trial Court, as he had goneabroad].PW-15 was a Head Constable, attached to the Murappanadu Police Station.Then, he handed over the case diary to the Inspector of Police forinvestigation.He proceeded to the place of occurrence and prepared an ObservationMahazer, EX-P3 and a Rough Sketch, EX-P27, showing the place of occurrence inthe presence of PW-4 and another witness.Then, he recovered bloodstained earthand sample earth from the place of occurrence under a mahazer in the presence ofthe same witnesses.Then, he examined PW-2 to PW-4 and recorded theirstatements.At 07.30 PM, he examined the deceased at the hospital and recordedhis statement.[The said statement, though a dying declaration, falling withinthe sweep of Section 32 of the Indian Evidence Act, 1872, has not been proved inevidence by the prosecution].He recovered the dressmaterials of PW-1 and the deceased.On 31.03.2000, the accused surrendered before the learnedJudicial Magistrate No.V, Tirunelveli.On the orders of the learned JudicialMagistrate, on 10.04.2000, PW-18 took the accused into his custody.On the sameday, at 06.30 PM, while in the Police Station, the accused gave a voluntaryconfession in the presence of PW-6 and another witness.In the said confession,he had disclosed that he had hidden the sickle in his house.In pursuance of thesaid statement, he took PW-18 and the witnesses to his house and produced thesickle, [MO-1].The deceased was removed to the hospital.*************[Judgment of the Court was delivered by S.NAGAMUTHU, J.] The appellant is the sole accused in S.C.No.369 of 2001, on the fileof the learned Additional Sessions Judge, [Fast Track Court No.I], Tuticorin.Hestood charged for offences under Sections 341, 302, 326 and 506(ii) of theIndian Penal Code.By Judgment dated 07.10.2003, the Trial Court has convictedhim under all the charges.For the offence under Section 341 of the Indian PenalCode, the Trial Court has sentenced him to undergo rigorous imprisonment forone month and to pay a fine of Rs.100/-, in default to undergo imprisonment forone week, for the offence under Section 302 of the Indian Penal Code, to undergoimprisonment for life and to pay a fine of Rs.1,000/-, in default to undergoimprisonment for six months, for the offence under Section 326 of the IndianPenal Code, to undergo rigorous imprisonment for three years and to pay a fineof Rs.500/- in default to undergo imprisonment for six months and for theoffence under Section 506(ii) of the Indian Penal Code, to undergo rigorousimprisonment for one year and to pay a fine of Rs.500/- in default to undergoimprisonment for one month.Challenging the said conviction and sentence, theappellant has come up with this Criminal Appeal.The case of the prosecution, in brief, is as follows:- The deceased, in this case, was one Mr.PW-1 is hiswife and PW-2 is the son of the deceased.Twoyears prior to the occurrence, there arose a dispute between the deceased andthe accused in respect of cutting of acacia trees.This resulted in a criminalcase against the deceased, PW-2, one Marimuthu and few others.PW-2 and PW-3 were then working in a nearby field.On hearing the alarm raised, they rushed towards the place of occurrence andwitnessed the entire occurrence.On seeing them, the accused criminallyintimidated them by brandishing sickle against them.Then, the accused fled awayfrom the scene of occurrence with the weapon.PW-2 and PW-3, forthwith, took PW-1 and the deceased to theGovernment Medical College Hospital at Palayamkottai, Tirunelveli District.PW-12, Dr.The deceasedtold him that on 29.03.2000, at 10.00 AM, in a field at Agaram, he was attackedby a known person with sickle.The deceased was, at that time, fully conscious.He noticed two injuries on his body as follows:-"(i) A cut injury measuring 15 x 3 cm-traverse- on the right side of theabdomen.(ii) A cut injury on the right upper arm measuring 15 x 4 x 3 cm exposingthe bone."According to P.W.12, from out of the X-ray taken and on his own assessment, boththe injuries were grievous in nature.On the same day, at 11.10 AM, he examined PW-1, who told thatat 10.00 AM, on 29.03.2000, in a field at Agaram, she was attacked by a knownperson with sickle.A cut injury on the right arm above elbow measuring 2 X + cm.A cut injury measuring 5 cm X + X + cm at the right shoulder.A cut injury measuring 2 X 1 cm on the left arm.A swelling on the middle of left arm."X-ray was taken on PW-1, which revealed that the injuries 1 and2 were grievous in nature.PW-1 and the deceased were admitted in the hospitalas inpatients.P.W.12 opined that the injuries on the deceased as well as on PW-1 would have been caused by a weapon, like sickle.He gave an intimation to thepolice as well as to the learned Judicial Magistrate in respect of the same.PW-17 was the then Judicial Magistrate No.6 at Tirunelveli.Onreceipt of the intimation from the Hospital Authorities, he proceeded to thehospital at 12.05 PM.One Dr.Ramakrishnan was attending on the deceased.Ramakrishnan opined that the deceased was conscious and was in a fit state ofmind to make dying declaration.On his own assessment and also based on theopinion of Dr.PW-16 was the then Sub - Inspector of Police, attached to the said PoliceStation.Since PW-16 could not write, as he had met with an accident,PW-15 reduced the same into writing.EX-P1 is the statement.On returning to thePolice Station, PW-16 registered a case in Crime No.65 of 2000 under Sections341, 302, 326 and 506(ii) of the Indian Penal Code.PW-16 forwarded thestatement, EX-P1 and the First Information Report, EX-P24 to the jurisdictionalMagistrate.Then, he forwarded the accused to the Court for judicial remandand also produced the Material Objects before the Court.While so, at 06.00 AM, on 22.04.2000, the deceased died in thehospital.PW-19 was the then Inspector of Police, attached to the MurappanaduPolice Station.On receipt of the death intimation from the HospitalAuthorities, he altered the case into one under Section 302 of the Indian PenalCode.Then, he proceeded to the hospital and conducted inquest on the body ofthe deceased between 10.00 AM and 12.30 PM.Duringinquest, he again examined PW-1, PW-2 and few more witnesses and recorded theirstatements.Then, he forwarded the dead body for postmortem.K.Selvaraj, was an Assistant Professor, Forensic Medicine, TirunelveliMedical College Hospital, Tirunelveli.He found the followinginjuries:-"1.Partly healed vertically oblique cut injury with evidence of suturingon the right lateral abdomen, 16 X 5 CM entering into the abdominal cavity.Sutured vertically oblique cut injury on the back, outer aspect of andfront of right forearm, 15 cm below the right elbow, measuring 15 cm X 5 cm Xbone deep.On dissection: fracture of right radius with surrounding infection.Sutured incised wound in the front of abdomen in the middle withproline sutures.18 cm X 1 cm entering peritoneal cavity, through the lower partof the wound a loop of intestine seen protruding out.[end to end anastomosis ofthe intestine has been done] [surgical procedure].Durainage wounds on the right and left flanks of abdomen withcorrugated rubber drainage tubes in situ [surgical procedure]."He opined that the deceased would appear to have died of cutinjuries - abdomen and its complications.PW-19 collected the PostmortemCertificate and examined the doctor.Then, he made a request to the Court toforward the Material Objects for chemical examination.EX-P16 is the ChemicalAnalyst Report and EX-P17 is the Serology Report.As per EX-P16, there wasbloodstain found on the sickle [MO-1].Finally, on completing the investigation, PW-19 laid chargesheet against the accused.The Trial Court framed charges under Sections 341,302, 326 and 506(ii) of the Indian Penal Code.The accused pleaded innocence,and therefore, he was put on trial.During trial, on the side of theprosecution, as many as nineteen witnesses were examined and twenty eightdocuments were exhibited, besides, five Material Objects.Out of the said witnesses, PW-1 is the injured eye witness andPW-2 and PW-3 are the eye witnesses to the occurrence.They have vividly spokento about the entire occurrence.PW-6 has spoken to about the recovery of MO-1,sickle on the disclosure statement made by the accused.PW-12 has spoken to thefact that he admitted PW-1 and the deceased as inpatients in the hospital.PW-13has spoken to about the postmortem conducted by him and the cause of death.PW-15 and PW-16 have spoken to about the complaint made by the deceased and theregistration of the case.PW-17 has spoken to the fact that he recorded thedying declaration of the deceased.The others are the official witnesses.When the above incriminating materials were put to the accusedunder Section 313 of the Code of Criminal Procedure, he denied the same asfalse.However, he did not choose to examine any witness on his side nor toexhibit any document in his defence.Having considered all the above materials,the Trial Court found him guilty under all the charges, and accordingly,punished him.That is how, the appellant is now before this Court with thisCriminal Appeal.We have heard the learned counsel for the appellant and thelearned Additional Public Prosecutor for the State and also perused the recordscarefully.As we have already pointed out, PW-1 is an injured eye witness.Due to the attack made by the accused with sickle, she had suffered twofractures.According to the medical evidence, the said injuries were grievous innature.There is no controversy before this Court that PW-1 and the deceasedsustained injuries in the very same transaction.Therefore, the presence of PW-1, at the time of occurrence, cannot be doubted at all.Of course, they are inimical towards the accused.It is on this ground,the learned counsel for the appellant would contend that these two witnessescannot be believed at all, and their presence, at the time of occurrence, cannotbe true.But, we do not find any force in the said argument advanced by thelearned counsel for the appellant.PW-2 and PW-3 have stated that they wereworking in a nearby field at Aharam and on hearing the alarm raised, they rushedto the place of occurrence and witnessed the entire occurrence.Simply becausePW-2 and PW-3 are closely related to the deceased and enimical towards theaccused, their evidence cannot be rejected.In our considered view, theevidences of PW-2 and PW-3 deserve to be accepted.Immediately, after the occurrence, PW-2 and PW-3 took PW-1 andthe deceased to the hospital.On 29.03.2000, at 11.05 AM, when PW-12 examinedPW-1, she told that she was attacked by a known person at 10.00 AM, on29.03.2000 with sickle.The said statement duly corroborates the evidence of PW-This statement falls within the sweep ofSection 32(1) of the Indian Evidence Act, 1872, as a dying declaration.Nextly, PW-17, the learned Judicial Magistrate, recorded thedying declaration of the deceased at 12.15 PM.One Dr.Ramakrishnan, who wasattending on the deceased, certified that the deceased was in a fit state ofmind to make dying declaration.It is the contention of the learned counsel forthe appellant that in the absence of the examination of Dr.The said argument of the learned counsel, in our consideredopinion, deserves only to be rejected, for the reason that PW-17 has stated thatnot only on the basis of the opinion offered by Dr.Ramakrishnan, but on his ownassessment, from the answers given by the deceased to the questions put by him,he was satisfied that the deceased was in a fit state of mind to make dyingdeclaration.At this juncture, we may point out that the opinion of the doctoris only a guiding factor to a Magistrate to arrive at a satisfaction regardingthe mental fitness of an injured person.Ultimately it is only the subjectivesatisfaction of the Magistrate about the mental fitness of the declarant thatmatters.In this case, PW-17 has categorically stated that from theopinion of the doctor and out of his own assessment, he was satisfied that thedeceased was in a fit state of mind to make dying declaration.In respect of thenon - examination of Dr.Ramakrishnan had gone abroad, and therefore, hispresence could not be secured.Thus, we hold that EX-P26, dying declaration,recorded by PW-17 does not carry any infirmity with it.Next comes the complaint given by the deceased to PW-15 and PW-16, at 12.25 PM.The deceased gave a statement orally to PW-16 and the same wasreduced into writing by PW-15, [vide EX-P1].This statement is yet another dyingdeclaration.In the said dying declaration also, the deceased had stated that hewas cut by the accused with sickle.There is no reason to doubt this dyingdeclaration as well.During the course of investigation, PW-18 recorded the statementof the deceased under Section 161 of the Code of Criminal Procedure.In thesaid statement also, we find that the deceased said about the circumstancesleading to his cause of death.But, unfortunately, the prosecution has not proved the same in evidence.We apprehend that the prosecution was under the mistaken impression that thesaid statement recorded under Section 161 of the Code of Criminal Procedure isnot admissible in evidence, in view of the bar contained in Section 162 of theCode of Criminal Procedure.For a moment, the prosecution had failed to noticethe proviso to Section 162 of the Code of Criminal Procedure, which makes itclear that a statement, falling within the ambit of Section 32 of the IndianEvidence Act, 1872, as a dying declaration, is admissible in evidence and thebar contained in Section 162 of the Code of Criminal Procedure is not applicableto such a dying declaration.From 29.03.2000 onwards, the deceased wasundergoing treatment in the hospital and he died at 06.00 AM, on 22.04.2000.Thus, he was in the hospital for 24 days as an inpatient, undergoing treatment.PW-13, who conducted autopsy on the body of the deceased, noticed as many asfour external injuries.Two of those injuries were surgical wounds.The injury found onthe abdomen was partly healed and the other injury found on the forearm was alsopartly healed.According to the doctor, the deathwas due to the cut injury to the abdomen and its complications.In other words,according to him, the death was due to infection and the injury to the abdomen.He underwenttreatment as in-patient.The deceased died after 16 days.Injury No. 1 was the fatal injury.The deceased died in the hospital after five days.We see from the injuries that they had been caused from a very closerange as tattooing was present.As stated above theoccurrence took place on November 18, 1988 and the deceased died 18 days lateron December 5, 1988 due to septicaemia and other complications.The Doctor foundonly one injury on the head and that was due to single blow inflicted with aniron pipe not with any sharp-edged weapon.1.The Additional Sessions Judge, [Fast Track Court No.I], Tuticorin.2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.3.The Inspector of Police, Murappanadu Police Station, Tirunelveli District.

Sections cited: Section 302 in The Indian Penal Code, Section 300 in The Indian Penal Code, Section 326 in The Indian Penal Code, Section 304 in The Indian Penal Code, Section 299 in The Indian Penal Code, Section 506 in The Indian Penal Code, Section 341 in The Indian Penal Code, Section 34 in The Indian Penal Code