S. Murtaza Fazal Ali, J.
1. In this appeal by special leave the appellant Arumuga Nadar along with his younger step-brother Ratnasami Nadar was tried by the Sessions Judge of the Tirunelveli Division for offences under Sections 302/109 and 302 I.P.C. respectively. The prelude to the present occurrence appears to be an incident in April, 1969 when at about 10.30 p.m. Accused No. 1 Ratnasami Nadar entered the house of P.W. 5 who flashed his torch light and saw the accused jumping out of the compound. Thereafter P.W. 5 made a complaint to the villagers resulting in the convening of the Panchayat on June 27, 1969, where the first accused was interrogated by the Panchayat and this strongly presented by the appellant who considered it as a great insult to his respectable family. The deceased Samuel is alleged to have told the appellant that the question of respectability of his family was wholly irrelevant and he should ask his brother accused No. 1 to express regret fro his conduct but the accused No. 1 flatly refused to do so and threatened the deceased On the day of occurrence i.e. Tune 27, 1969 at about 12.45 p.m. the deceased Samuel was standing in front 'of the shop of P.W. 3 waiting for a jeep to go to Thisaiyanvilai when both the accused suddenly emerged from the north and at. that time accused No. 1 was armed with 'Vettu Aruval' (spear). The appellant on seeing the deceased Samuel exhorted the first accused to kill the deceased as he has been constantly insulting the family of the appellant. Thereupon the first accused assaulted the deceased with Vettu Aruval and inflicted several injuries on him. The appellant, however, left the place of occurrence and when the witnesses gathered at the spot, the first accused also ran away. P.W. 4 at the request of P.W. 2 proceeded to Thisayanvilai village to bring a jeep in order to take the deceased to the hospital or to the police station. At about 3-15 p.m. the jeep was brought to the place of occurrence from where the deceased was taken in the jeep to the P. Section by PWs. 1 and 2. They reached the police Station at 4-00 p.m. and lodged the F.I.R. with the Sub-Inspector of Police P.W. 15. The deceased Samuel was sent to the Government Hospital in the same jeep where he reached near about 5.15 p.m. The Doctor, however, sent the injured to the Government Hospital at Palayamkottai for better medical treatment where he was admitted at about 6.40 p.m. As the condition of the deceased grew worse, P.W. 14 a Magistrate of the area was sent for & he recorded the dying declaration of the deceased Samuel which is Ext. P-5. This dying declaration was recorded between 7.15 and 7.30 p.m. in the presence of the Doctor P.W. 8 when the deceased was fully conscious. Even Ext. P-1 the F.I.R. was the statement given by the deceased regarding the circumstances relating to his death.
2. The defence pleaded innocence and contended that the accused were falsely implicated due to enmity. The Trial Judge convicted both the accused, namely, the first accused under Section 302 I.P.C. and the appellant under Section 302/109 I.P.C. i.e. for committing abetement of the murder of the deceased. The accused filed an appeal to the High Court which was dismissed and an application for leave to appeal to this Court met a similar fate. The appellant alone then Came up to this Court and obtained special leave and hence this appeal before us.
3. Both the courts below have concurrently believed the evidence of the eye witnesses PWs. 1 to 3 as also the evidence furnished by the two dying declarations Exts. P-1 and P-5.
4. Appearing in support of the appeal Mr. R.K. Garg raised two short points before us. In the first place he submitted that according to the evidence of P.W. 4 who was undoubtedly one of the eye-witnesses present at the scene of occurrence along with P.Ws. 1 to 3 did not at all speak about the presence of the appellant, nor did he ascribe any act to him which shows that the entire prosecution case was false and that the appellant did not participate in the occurrence at all. It is true that P.W. 4 has in fact not mentioned about the presence of the appellant at the spot, nor has he said that the appellant exhorted the first accused to kill the deceased. Both the courts below have noticed this omission and have held that this by itself is not sufficient to outweigh the other circumstances and the evidence produced by the prosecution. In view of the concurrent finding of the two courts on this point, it is difficult for us entertain this argument in an appeal by special leave. Taking, however, the argument at its face value, it does not appear to be tenable. The High Court has rightly pointed out that P.W. 4 merely gave a negative evidence on this point and does not positively assert that the appellant was not present at the spot or that he did not exhort the first accused to kill the deceased. In view of the negative evidence given by P.W. 4, it is indeed difficult to discard the evidence of P.W.S 1 to 3 of whom P.Ws 2 & 3 are independent witnesses and bear no animus against the appellant. Secondly, P.W. 4 in an answer to the question put by the Court clearly stated that he did not see the accused/appellant as he was talking to P.W. 1. As the occurrence must have taken a very short time and the witness was busy in talking to P.W. 1 he may not have noticed the presence of the appellant or hear the words used by him to incite the first accused to kill the deceased. This furnishes a sufficient explanation for the omission on the part of P.W. 4 to name the appellant as being present ot the spot.
5. It was then submitted that no reliance should be placed on the evidence of P.W. 1 because the occurrence does not appear to have taken place at 12.45 p.m. as alleged in the F.I.R. but at 2.45 p.m. as deposed to by the Doctor. Reliance was placed on Ext. P-3 which is the injury Certificate issued by the Assistant Surgeon where it is mentioned that the deceased for report as to certain injury said to have been caused on June 27, 1969 about 2.45 P.M. It is true that P.W. 7 who gave the Injury Certificate has stated in his evidence that he had mentioned the time when the deceased appear to have received the injuries as 2-45 P.M. because this is that what the deceased told him. In the first place the Doctor never recorded the statement of the deceased and he is deposing purely from his memory. Further more in Tamil there is very little difference between pronouncing the words 'two' and 'twelve'. The word 'twelve' is pronounced as 'Panrandu' where as 'two' is pronounced; as 'Randu' At the time when the deceased was examined by the Doctor P.W 7 he was seriously injured and he must have been in serious agony and pain and may have spoken in such a feeble voice that the Doctor may not have heard the first syllable of the word 'Panrandu' and heard only 'Randu' and he may have due to an honest mistake written 2.45 instead of 12.45 in the Injury Certificate. At any rate Ext. P. 3 by itself if not sufficient to put the prosecution out of court.
6. It was argued that since Ext. P-3 shows that the deceased must have been assaulted at about 2.45 p.m. this falseifies the entire prosecution case, and particularly the evidence of P.W. 1 whose only occasion for his presence at the spot was that he was returning from the school which closes after 12 in the noon. In the first place the statement in Ext. P-3 is not admissible to prove the actual time of occurrence, because there is no evidence to show who gave the statement to the Assistant Surgeon. Further more, if P.W. 1 was prepared to oblige the deceased he could have been brought in even at 2.45 p.m. when he was free from the school and there was no reason for the prosecution to have shifted the time from 2.45 p.m. to 12.45 p.m. The F.I.R. which is the first statement of the deceased and which contains a brief narration of the circumstances under which the deceased was assaulted by the first accused at the instance of the appellant also mentions that the time of occurrence was 12-45 p.m. A similar dying declaration was made by the deceased later to a Magistrate which is Ext. P-5 where also the time of occurrence is mentioned as 12-30 to 1-00 p.m. We have gone through both these documents and we find it difficult to disbelieve any of them. Both the dying declarations made by the deceased contain a ring of truth and it seems that the deceased had given a very clear though brief narrative of1 what had happened. These two documents coupled with the evidence of P.Ws 1, 2 and 3 completely dislodge the effect of the omission on the part of P.W. 4 to mention the presence of the appellant.
7. Lastly it was suggested that no reliance should be placed on the evidence of P.W. 3 because he was an accused in a murder case and was convicted. It appears from the statement of P.W. 3 in re-examination that the murder case was tried as far back as 1932 about 43 years ago. In view of the huge lapse of time between his conviction and the present occurrence, it is difficult to discard the testimony of this witness on this ground alone. Even P.W. 1 who is said to be an enemy of the accused admitted that there was some dispute between him and the appellant but he testified in re-examination that the dispute had been settled a year ago.
8. The position, therefore, is that P.W. 1, 2 and 3 are absolutely independent witnesses and there is no reason why they should falsely implicate the appellant. As the evidence of these eye witnesses is further corroborated by the two dying declarations Exts. P-2 & P-5 the case against the appellant is proved to the hilt. We, therefore, find ourselves in complete agreement with the view taken by the Sessions Judge and the High Court and hold that the appellant was rightly convicted under Sections 302/109. I.P.O. The main accused, namely, accused No. 1 Ratnasami Nadar has not filed any appeal in this Court.
9. The result is that the conviction and sentence passed on the appellant are affirmed. The appeal fails and is accordingly dismissed.