M.HIDAYATULLAH, J.

(1) THIS is an appeal against the judgment of the High court of Madras, with special leave granted by this court. The appellant was convicted under S. 302, 1. P. C. and sentenced to death for the murder of one Elumalai on 24/01/1960, at Kannankurichi. The facts of the case are simple:

(2) TWO days before this occurrence the appellant Muniappan & Elumalai had a quarrel at a tea-stall. Though the quarrel really was between the appellant and some others, Elumalai had intervened in that quarrel, and made some remarks about the appellant, and had advised the party opposite to him to make a complaint. Two reports of that incident were made, one by the appellant and the other by his rivals. On 24/01/1960, at about 12-30 p.m., P. W. 1 Muthuswami Udayar was having a bath when he heard Elumalai calling out to him "Mama". Muthuswami Udayar ran to the place from which this cry had come and found Elumalai with several stab wounds On his body. Muthuswami Udayar questioned Elumalai, and the latter told him that it was the appellant Muniappan who had caused injuries to him. Muthuswami gave first aid to Elumalai, and meanwhile Elian alias Kundaswami (P. W. 2) and K. R. Perumal (P. W. 3) also arrived on the scene. These persons carried Elumalai to the Police Station House which was at a distance of about 80 yards. The Sub-Inspector was seen approaching from the opposite direction ana Elumalai was taken to the verandah of the Police Station House. The Sub-Inspector immediately started recording the statement of Elumalai. After Elumalai had spoken one complete sentence, he could not speak any further, and though he was given some soda-water to .drink, it was found that he could not swallow it and had, in fact, died. The Sub-Inspector thereupon took the thumb-impression of Elumalai upon the statement as recorded, and four other witnesses also signed or put their thumb marks on-it. Muniappan also reached the .Police Station House after a few minutes and virtually surrendered himself to the police. One of his clothes, which was stained with blood, was seized and in one of his pockets was found a sheath which was also seized as presumably belonging to the knife with which the stab injuries were caused. Or a statement by Muniappan the Police went to a garden and recovered from there a knife which later was found to be stained with human blood. Investigation disclosed that this knife together with the sheath was purchased by Muniappan from Ameer Khan (P. W. 6) on the evening of 23/01/1960.

(3) THE police therefore charged Muniappan with an offence under S. 302, I. P. C. The evidence led against him consisted of the testimony of Ameer Khan (P. W. 6) about the purchase of the knife complete with a sheath for Rs. 6.00; the testimony of witnesses about the incident which took place two days before the murder; the dying declaration made to Muthuswami (P. W. 1); the dying declaration recorded by the Sub-Inspector in the presence of witnesses; an alleged statement made by the accused to the doctor when he was examined for an injury on his thumb and -the evidence of the alleged eye witness Elaan alias Kundaswami (P.W. 2). The two courts below convicted the appellant of the offence of murder and sentenced him to death.

(4) IN this appeal it is contended that the evidence of the eye witness (P.W. 2) and the statement of the appellant made to the Doctor, who examined him, having been excluded, there was not sufficient evidence in the case if the dying declaration recorded by the Sub-Inspector is excluded. The main argument in this case is, therefore, about the admissibility and the probative value of the dying declaration which is described as an incomplete document completed dishonestly by getting the thumb impression of Elumalai when he was dead. No doubt, the thumb impression of Elumalai was taken on the dying declaration after he was dead and to that extent the thumb impression must be ignored. We