Terrell JA:

The Judgment of the Court was delivered by

McElwaine CJ: There were originally three accused before the Court, Lechman Singh, Hazara Singh, and Isher Singh. The case for the prosecution was that at about 3.15 a.m. on the morning of 11 September 1938, one Najar Singh, a watchman at the Lower Station of the Penang Hill Railway, was attacked by two men, one of whom, Lechman Singh, drove a long spear into Najar Singh's stomach, inflicting a wound from which Najar Singh died two days later. In the meantime another Sikh attacked him from the side with a knife, inflicting wounds on the deceased's head and shoulder. According to the deceased's statement there was a third Sikh close by who took no part in the actual attack, but when the deceased succeeded in extracting the spear and attacked his two assailants, the third man called upon the two others to run away.

The deceased made several statements with regard to the assault, and on every occasion identified Lechman Singh as the man who inflicted the fatal wound with the spear. His last statement was a dying deposition made in hospital before a Magistrate in the presence of Lechman Singh. There was also other evidence that Lechman Singh had been seen in the vicinity of the Lower Station a little before and after the murder, and the Court is satisfied that there is no ground for disturbing the verdict in the case of the first appellant.

The cases against the second and the third accused were somewhat different. Neither of them was identified by the deceased, though he described his other actual assailant as a 'tall thin man with a short beard.' This description certainly does not fit the second appellant who is a shortish thick-set man with a full beard. It may or may not have been a description of the third accused, but as the only evidence against him was that of the deceased's widow Mukhtar Kaur, the jury discharged him at the end of the prosecution case.

As regards the second appellant, who was found guilty by a majority of six to one which was accepted by the learned trial Judge, the prosecution case rested on circumstantial evidence. There was evidence which the jury were entitled to accept, that he was the owner of the spear used by the 1st appellant to inflict the fatal injury. There was also the evidence of several witnesses, most of them Tamils that the second appellant was seen in the vicinity of the crime shortly before and shortly after the crime. It was also proved that the second appellant hoped to obtain employment as watchman on the Penang Hill Railway, and that through the influence of the deceased the job was given to someone else. There was also the evidence of Mukhtar Kaur, of Ujagar Singh and of the deceased himself that he had been threatened by the second appellant in consequence thereof. As regards Mukhtar Kaur, the learned Judge warned the jury to pay little attention to her evidence, and if, is possible that she was an accomplice. This Court would, however, point out that in many important details she was corroborated by other witnesses, and if, as would appear to be the case, the jury accepted those witnesses as witnesses of truth, there was ample evidence to justify the conclusion that the second appellant was present when the deceased was murdered, or, at all events, abetted the murder in circumstances which would make him liable to the punishment for murder.

The only difficulty in the case is that the second appellant was well known to the deceased, and if the latter had recognized him as one of his assailants, he would have mentioned him by name, and not attempted to give a description which by no means fitted him. The deceased mentioned Hazara Singh as a possible assailant, but did not identify him as the man who struck at him with a knife. The conclusion seems inevitable that if the second appellant was there, he was the third man in the back ground, and it is probable that the deceased was too preoccupied with his actual ass