JUDGMENT

Tek Chand, J. - The appellant, Suba, an Indian Christian of Chak No. 68/10 R, has been convicted by the Sessions Judge, Multan, under Section 302, I.P.C. for having committed the murder of Mt. Fini, of the same village and has been sentenced to death. He has appealed and the record is also before us under Section 374, Criminal P.C.

2. The facts are very-simple. The wedding of a daughter of Labhu Ram Jhiwar (P.W. No. 2) was being celebrated in the village and on the evening of 8th May 1927, a number of women had assembled in the court-yard of Labhu's house and were singing. Among those present were Mt. Barkati, the wife of the appellant and Mt. Fini deceased, a woman 18 years of age, who had been married to Tabu (P.W. No. 5). The appellant came to Labhu's house and asked his wife to go back to her own house as the children were crying. She said that she would go after a short time. He repeated his request three times but she gave the same reply. He accordingly went back. About an hour after, he returned to Labhu's house with a toka in his hand and again asked Mt. Barkati to go along with him. She replied that she would go after the sweetmeats had been distributed. He repeated his request and she said "go and I will come." On this he got excited and struck the toka at Mt. Barkati, but she evaded it by ducking her head and the blow struck Mt. Fini, who was sitting close to her. Mt. Fini lost consciousness at once and about 10 p.m. she was taken to her own house. On the third day she was removed to the hospital at Khanewal and on 12th her statement (Ex. P-D) was recorded by Altaf Hussain, Sub-Divisional Officer. She remained in the hospital till her death on 15th May.

3. The post-mortem examination was conducted by Dr. S.C. Lal (P.W. No. 1) who found the following injuries on her body.

(1) An incised wound on the left side of the head above the temple cutting through the skull.

(2) A granulating incised wound on left forearm.

(3) An incised wound on the left thigh skin deep.

(4) A fresh incised wound on the bend of the right elbow.

4. The witness expressed the opinion that death was due to an abscess in the brain following upon a compound fracture of the skull caused by injury No. 1. It was found that the skull had a cut under the wound 3¼ inches long and there was also a small loose piece of bone lying embedded in a small thin blood clot on the outer surface of the dura. The witness was of opinion that this injury (No. 1) had been caused by a direct blow struck with a fair amount of force, but that the other injuries were of a simple nature and were probably caused by the falling of the chopper from the assailant's hand on the body of the victim.

5. The main facts of the story are fully established by the evidence of Labhu Ram (P.W. No. 2) and Mt. Jhandi P.W. No. 3) and the dying declaration of Mt. Fini (Ex. P-D) recorded on 12th May. Both these witnesses are absolutely disinterested persons and counsel could not urge anything against their veracity. It is not necessary to discuss their evidence at length as the appellant in the grounds of appeal which he submitted to this Court from jail practically admitted all the facts. After describing his first visit to Labhu's house, he states that as Mt. Barkati had not returned to the house after having promised to do so he felt much excited and made a search for a lathi but as he could not find one he picked up a toka and left for Labhu's house so that he might fetch her after holding out threats to her. On her refusing to return he got still more excited and was about to strike her with a back side of the toka when Labhu came behind him and seized him. In the course of the struggle

he tried to strike his wife with the back side of the toka but she escaped and it hit Mt. Fini deceased with the sharp side.

6. It will be seen that the appellant's version of the occurrence differs from that of the prosecution in one particular only, viz., that he suggests that he aimed a blow at his wife wit