JUDGMENT

Broadway, J. - Chhajju, son of Mangu a Teli of Chak No. 256 G.B. has been found guilty of the murder of one Mali of the same Village and, under Section 302, I.P.C., has been sentenced to death. He has appealed through Mr. Shamair Chand and the case is also before the Court for orders as to the confirmation or otherwise of the death penalty.

2. The facts of the case are given in great detail in the judgment of the learned Sessions Judge and need only be briefly recapitulated here. It is said that one Dulla had a sister named Mt. Jaina who was married to a man named Buta who some twenty-five years ago migrated to Australia and has not been heard of for several years. Latterly Mali, the deceased, who lived in this village, and who had a wife and some five children, began to pay attentions to Mt. Jaina, his wife having become blind. Dulla objected to the friendship between Mt. Jaina and Mali and removed the former to Haripur in the Jullundur District where her father-in-law lived. Mali, however, followed her there and took up his abode at Haripur for some time. About two years before this occurrence, however, he took Mt. Jaina to Chak Makhdum, a village some two kos from Chak No. 256 G.B. and made her his wife. At the same time he used to pay visits to his former hak No. 256 G.B. In addition to cultivation he plied a cart for hire. On the night of 13th February 1927, he was driving his cart from Chak No. 256 G.B. to Toba Tek Singh. Behind him another cart was being driven by Wir Din and Rahmat Ullah. After going a few miles, the night being a moonlit one, two men suddenly appeared, and, it is said, attacked Mali. One of these men was armed with hatchet and the other with a dang. Wir Din and Rahmat Ullah at first are said to have attempted to assist but, on being threatened, they ran away. Wir Din returned to the village and informed Nizam Din, brother of Mali, that the latter had been attacked by two men of whom he had identified Dulla, brother of Jaina, as one, and as the one armed with a hatchet, and, when they had collected the lambardar Abdullah and a party of other men, they proceeded to the spot. There, according to Abdullah and Nizam Din, they found Mali lying on the road by the side of his cart. Nothing in the cart had been taken away, and it is therefore, clear that robbery was not the motive of the attack. After a little time Nizam Din was sent to make a report at the police station, which is some five or six miles away, and in this report Nizam Din clearly mentioned the fact that he had been told by Wir Din that he (Wir Din) had recognized Dulla alone. It is also stated in the first report that Wir Din and Rahmat Ullah, cartmen, had stated that Dulla had threatened them that if any one of them would move a pace forward his death would be certain. For this reason they did not go near him. From this it is apparent that Rahmat Ullah was present at the spot when Abdullah and Nizam Din, etc., arrived and was questioned by them. When the police arrived at the scene they found the appellant Chhajju in the custody of the lambardar and others and it then transpired that Rahmat Ullah claimed to have identified not only Dulla but Chhajju as well, Chhajju being the man who attacked Mali, armed with a dang.

3. The police investigation proceeded, and 16th February 1927, Chhajju was sent to the doctor for examination as he was said to have received injuries. The usual statement of injuries prepared by the police is dated 14th February 1927, but the Sub-Inspector admits that no mention of any injuries or of the preparation of this statement of injuries was made in the zimni or police diary of the 14th February. Nor is there any mention of it on the 15th February, and it is only on the 16th February that the police diary shows that Chhajju was sent for examination by the doctor on account of his injuries. This omission is said to have occurred owing to the large amount of work which the Sub-Inspector had to do. During the enquiry