Case: Arumuga Nadar Vs. State of Tamil Nadu

FAZAL ALI, J.1. In this appeal by special leave the appellant Arumuga Nadar along with his younger stepbrother 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 1 Ratnasami Nadar entered the house of PW 5 who flashed his torchlight and saw the accused jumping out of the compound. Thereafter PW 5 made a complaint to the villagers resulting in the concerning of the panchayat on June 27, 1969, where the first accused was interrogated by the panchayat and this was strongly resented 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 1 to express regret for his conduct but the accused 1 flatly refused to do so and threatened the deceased. On the day of occurrence i.e. June 27, 1969 at about 12.45 p.m. the deceased Samuel was standing in front of the shop of PW 3 waiting for a jeep to go to Thisaiyanvilai when both the accused suddenly emerged from the north and at that time accused 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. PW 4 at the request of PW 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 police station 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 PW 15. The deceased Samuel was sent to the government hospital in the same jeep where he reached nearabout 5.15 p.m. The doctor, however, sent the injured to the government hospital at Paayamkotta for better medical treatment where he was admitted at about 6.40 p.m. As the condition of the deceased grew worse, PW 14 a magistrate of the area was sent for and 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 PW 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 abetment of the murder of the deceased. The accused file 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 eyewitnesses 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 PW 4 who was undoubtedly one of the eyewitnesses present at the scene of occurrence along with PWs 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 PW 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 to 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 PW 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 PW 4, it is indeed difficult to discard the evidence of PWs 1 to 3 of whom PWs 2 and 3 are independent witnesses and bear no animus against the appellant. Secondly, PW 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 PW 1. As the occurrence must have taken a very short time and the witness was busy in talking to PW 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 PW 4 to name the appellant as being present at the spot.5. It was then submitted that no reliance should be placed on the evidence of PW 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 came for report as to certain injury said to have been caused on June 27, 1969 about 2.45 p.m. It is true that PW 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 at 2.45 p.m. because this is what the deceased told him. In the first place the doctor never recorded the statement of the deceased and he deposing purely from his memory. Furthermore in Tamil there is very little difference between pronouncing the words two and twelve. The word twelve is pronounced as panrandu whereas two is pronounced as randu. At the time when the deceased was examined by the doctor PW 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 is 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 falsifies the entire prosecution case, and particularly the evidence of PW 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 Assistance Surgeon. Furthermore if PW-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 of what had happened. These two documents coupled with the evidence of PWs 1, 2 and 3 completely dislodge the effect of the omission on the part of PW 4 to mention the presence of the appellant.7. Lastly it was suggested that no reliance should be placed on the evidence of PW 3 because he was an accused in a murder case and was convicted. It appears from the statement of PW 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 PW 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 PWs 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 eyewitnesses is further corroborated by the two dying declarations Exts. P-2 and 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 Section 302/109 I.P.C. The main accused, namely, accused 1 Ratnasami Nadar has not filed any appeal in this Court.

Decision reasoning: 0[ds]7. Lastly it was suggested that no reliance should be placed on the evidence of PW 3 because he was an accused in a murder case and was convicted. It appears from the statement of PW 3 inthat 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 PW 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 inthat the dispute had been settled a year ago.8. The position, therefore, is that PWs 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 eyewitnesses is further corroborated by the two dying declarations Exts.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 Section 302/109 I.P.C. The main accused, namely, accused 1 Ratnasami Nadar has not filed any appeal in thishave 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 of what had happened. These two documents coupled with the evidence of PWs 1, 2 and 3 completely dislodge the effect of the omission on the part of PW 4 to mention the presence of the appellant.