JUDGMENT

Young, C J - Gian Chand has been sentenced to death by the learned Sessions Judge of Shahpur at Sargodha for the murder of Sant Ram, a boy between 15 and 16. Diwan Chand, a banker and money-lender of village Bhabra, had in his house an almirah and a safe. In the safe, he had some jewellery. This jewellery had been transferred to the safe some 20 days before the murder of Sant Ram. On 19th June 1936 Diwan Chand discovered that the jewellery in the safe amounting to some Rs. 2,000 in value and a note of Rs. 100 had been stolen. Diwan Chand suspected his nephew, Sant Ram, who has been murdered. Suspicion fell on Sant Ram as previously small sums had been found to be stolen from the safe. Diwan Chand and Har Bhagwan, father of Sant Ram, closely questioned Sant Ram and as a result obtained a confession from him that he had stolen the jewellery and the money at the instigation of Gian Chand and that he had handed the jewellery to Gian Chand. Sant Ram agreed to go and see Gian Chand and get the jewellery back. On the morning of 20th June Sant Ram left his father's house and after that day was never seen again alive. The relatives of Sant Ram made inquiries on the 20th as Sant Ram had not returned and it was discovered by them that three persons had seen Sant Ram walking with Gian Chand on the 20th. Gian Chand was approached and it is in evidence that he said that Sant Ram had gone to a village called Waryam. Har Bhagwan, Sant Ram's father, went to Waryam with no result. On 22nd June a report was made to the police. Suspicion very naturally under the circumstances fell upon Gian Chand who on the night of the 22nd was subjected to questions by persons who had joined the investigation with the results that on the morning of the 23rd he took a witness Beli Ram to some reeds near the well of his father and from there produced the missing jewellery wrapped up in a cloth. He also pointed out a turban and shoes which are alleged to belong to Sant Ram. The jewellery was then taken and handed over to the police. Gian Chand also showed the police where the body was lying. On 25th Gian Chand was taken to a Magistrate, First Class, who recorded a confession in which Gian Chand admitted that he had murdered Sant Ram.

2. This is the whole evidence against the accused. Mr. Ram Lal Anand, who appears for the appellant, argues that circumstances of the recovery of the jewellery are suspicious. We see nothing suspicious about it. We have examined the evidence of Beli Ram and we see no reason to doubt his evidence that Gian Chand did in fact take Beli Ram to the reeds where the jewellery was discovered. The only argument advanced on this point is that Gian Chand, if he was ever in possession of the jewellery, would not have placed it in these reeds. We have not seen the reeds but we imagine they must have made a useful hiding place. Counsel then urges that the statement of Sant Ram to his relatives as to the theft of the jewellery and the complicity of Gian Chand is inadmissible, as his evidence is hearsay. Reference, however, to Section 32, Evidence Act, and in particular to sub-ss. (1) and (3) would appear to make it clear that this statement is clearly admissible. It certainly is a statement which would have exposed Sant Ram, who could not be called, to a criminal prosecution, and in our view it is also a statement as to the circumstances of the transaction which resulted in the death of Sant Ram.

3. The evidence of the three witnesses who saw Gian Chand and Sant Ram together on the 20th has also been attacked. They have been described as waj takkar witnesses. It is quite clear as regards Harnam Das at any rate that he would normally be expected to be at the brickkiln where he said he was, and from which he saw Gian Chand and Sant Ram. Equally Kartar Singh was at his well and he gives evidence that at that well he had land of which he was the lessee. He, therefore, too would have every reason to be in that particular spot. These two witnesses,