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1. The appellants are A.1 and A.2 in S.C. No. 41 of 1998 on the file of the Principal Sessions Judge, Tuticorin. A.1 and A.2 are cousin brothers. Another deceased accused by name Gangari is the brother-in-law of A.1. P.W.l Irulappan is the brother of the deceased Shanmughaiah, P.W.2 is the wife of P.W.1. P.W.s 1 to 3 and all the accused belong to Vellalakkottai, near Sankarankovil. As early as 29.9.1991, brother of A.2 was said to have been attacked by P.W.1 which resulted in lodging of FIR which is marked as Ex.P.24. Nearly a month earlier to the date of occurrence i.e., 3.11.1996, P.W.4 a close relative of P.W.1 is said to have attacked the deceased accused Gangari which resulted in lodging of FIR which is marked as Ex.P.23. After this occurrence P.W.1 and deceased left their village out of fear for the accused and came to reside at Kovilpatti Town.

2. The case of the prosecution is that on 1.12.1996 when P.W.s 1, 2, 3 and the deceased were standing in the Kovilpatti Bus stand, near the Lottery Shop of one Sekar, A1, A.2 along with the deceased accused Gangari came there, each armed with Aruval. The deceased Gangari told the deceased that only at his instigation his relative Ramar has attacked him and so saying, he attacked the deceased on his left cheek and shoulder repeatedly. A.1 attacked the deceased with Aruval on his left shoulder, left flank and left leg. A.2 is said to have attacked the deceased on his right back and right hand repeatedly. The occurrence took place at 2.00 p.m., on a broad day light in the bus stand. Immediately P.W.1 engaged an Autorickshaw and took the deceased to Government Hospital at Kovilpatti for treatment. The injured was admitted at 2.30 pm., in the Kovilpatti Government Hospital and in the extract of Accident Register Ex.P.19 it is mentioned that the injured was brought by his brother Irulappan, and the injured has told the Doctor that at 2.00'o clock, near Kovilpatti Town Busstand he was attacked by three known persons by Aruval on his face, head, left leg, left hand, stomach and other places. P.W.11 Dr.Maheswari admitted the injured and also sent Ex.P.15 intimation to the Judicial Magistrate to record the dying declaration of the injured. The Doctor also sent Ex.P.17, intimation to the Police. P.W.10, Judicial Magistrate No. 1, Kovilpatti received the requisition memo Ex.P.15 and immediately reached the Government Hospital, Kovilpatti at 2.55 p.m., On seeing the injured, he informed himself as the Judicial Magistrate, put some questions to find out whether the injured is in a fit state of mind to give statement and after being satisfied that the injured was conscious and in a fit state of mind, recorded his statement which is marked as Ex.P.16.

3. P.W.11, the Doctor who attended the injured has also certified that the injured was was in full conscious and oriented and was in a fit state of mind to volunteer a statement. The said certificate issued by the Doctor is Ex.P.18. P.W.20, Sub Inspector of Police of Kovilpatti West Police Station received intimation about the admission of the injured in the Hospital at 3.00 p.m., and he reached the Hospital at 3.05 pm., and recorded his statement which is marked as Ex.P.1. After recording Ex.P.1 statement, he came to the Police Station at 4.45 p.m., and registered a case in Crime No. 932 of 1996 for alleged offences under Sections 341 and 307 IPC and the printed form of FIR is Ex.P.25. He sent the printed FIR to the Inspector of Police. P.W.21, Inspector of Police of the said Police Station received the FIR at 6.00 pm., and reached the scene of occurrence i.e., Kovilpatti Bus stand at 6.15 pm., and prepared Ex.p.2 Observation Mahazar. He also prepared the rough sketch Ex.P.26 at 7.00 p.m., under a cover of mahazar Ex.P.3. He seized bloodstained earth, M.O.1 and sample earth M.O.2 on the same day at 7.30 pm.,. He received intimation by wireless from the Outpost Police Station at Government Hospital, Tirunelveli that the injured has died and sent H.C.703, Sivakumar to get the death intimation. Thereafter he examined P.W.8, Subbulakshmi, first wife of the deceased and recorded her statement. At 11.30 p.m., P.W.8 produced M.O.8, dhoti, M.O.9, Shirt which were seized under form 93. He received the death intimation Ex.P.23 at 11.30 p.m., and thereafter he sent altered reoprt altering Sections 341 and 307 IPC into 341 and 302 IPC and sent Ex.P.27, Express Altered Report to the court. On 2.12.1996 between 7.00 am., and 10.30 a.m., in the presence of Panchayatdars, he conducted inquest on the body of the deceased Shanmughaiah and prepared Ex.P.28 inquest report. During the inquest, he examined P.W.1, Irulappan and other witnesses and recorded their statements. He sent the body for autopsy.

11. P.W.10, Judicial Magistrate No. 1, Kovilpatti, who received the intimation at 2.45 p.m., has reached the Hospital, at 2.55 pm., and he has informed the injured that he is the Judicial Magistrate and after questioning the injured he satisfied that the injured was conscious, oriented and in a fit state of mind to give statement. Thereafter he has recorded the statement of the injured in a question and answer form. A perusal of Ex.P.16, would show that the learned Judicial Magistrate has acted n a very fair manner without putting any leading questions and has simply recorded whatever the injured told him. Ex.P.16, dying declaration was recorded at 3.20 pm., and at the end of the dying declaration , P.W.11, Dr.Maheswari, who attended the injured has also certified that the injured was fully conscious, oriented and was in a fit state of mind to give a voluntary statement and the certificate is Ex.P.18. A perusal of Ex.P.16, would reveal that the statement by the injured is free from any tutoring or outside influence. In fact, he was not able to tell the name of A.1, though he was able to tell his father's name, but in the subsequent statement Ex.P.1, which was recorded by P.W.20, he has mentioned the name of A.1, A.3 and the deceased accused Gangari as the assailants. It is pertinent to note that in Ex.P.19, the earliest version told before he Doctor a the time of admission the injured has stated that he was attacked by Aruval by three known persons in various parts of his body at 2.00 p.m., at Kovilpatti Town Bus stand. At the time of admission and also at the time of recording Ex.P.16, dying declaration by the Judicial Magistrate P.W.10, and Ex.P.1 statement recorded by P.W.20, the Sub Inspector of Police, the injured has been conscious, oriented and in a fit state of mind.