JUDGMENT A.B. BROADWAY, J.- Ilam Din, son of Tallia-Mand, a Tarkhan of some 19/20 years of age, and I resident of Mohalla Sirianwala in Lahore City, has been convicted of having caused the death of one Rajpal on the 6th of April, 1929, and, under section 302 of the Indian Penal Code, has been sentenced to death. He has appealed, and the case is also before us under section 374 of the Code of Criminal Procedure.
2. The deceased was a Hindu Book-seller having a shop in the Hospital Road. Some little time back he had given grave offence to the Muslim community by the publication of a pamphlet entitled Rangila Rasul". He had been proceeded against under section 153-A of the Indian Penal Code in connection with this publication, and, after a protracted trial, had been convicted in January, 1927.
His conviction was, however, set aside by the High Court in May, 1927. The pamphlet was a scurrilous production and had wounded the susceptibilities of certain members of the Muslim community to such an extent that his acquittal was followed by two abortive attempts to murder the author, with the result that it was found advisable to afford him police protection.
3. It seems that he had recently gone on a visit to Hardwar and, during his absence, the guard was removed. He returned from Hardwar on the 4th: April and whether the guard had not yet been restored or had temporarily absented himself (the point is immaterial) he was murderously attacked in his shop at about 2 p.m on the 6th April.
4. That his assailant intended to cause death is established by the medical evidence which shows that he received no less than eight wounds,- seven being incised and one a punctured one. The nature of these injuries also shows that Rajpal endeavoured to defend himself for for of the incised wounds were on his hands. He received a wound on the top of his head that cracked the right, parietal bone, two incised wounds above the spine of the lift scapula and a punctured wound in his chest, this last pierced the heart cutting the fourth rib and caused almost instantaneous death.
5. The case for the prosecution is that the appellant purchased a knife from Atma Ram (P.W.8) on the morning of the 6th: April, proceeded to the shop of the deceased at about 2 p.m and attacked him as he was sitting on the gaddi in the outer verandah writing letters. The assault was witnessed by Kidar Nath (P.W.2) and Bhagat Ram (P.W.3), employes of the deceased who were in the shop at the time, the former sitting at work in the inner verandah arranging books on the shelves. They raised an alarm, threw books at the appellant who dropped his knife and ran out. He was pursued by Kidar Nath and Bhagat Ram who were joined outside by Nanak Chand (P.W.4) and Parma Nand (P.W.5) The appellant turned into a woodyard belonging to Vidya Rattan, who had seen the pursuit from his office door and who hastened into, the woodyard and seized the appellant, being assisted by the pursuers who were on his heels. The appellant is then stated to have repeatedly and loudly proclaimed that he was neither a thief nor a dacoit but had taken revenge for the Prophet". Ilam Din was ran to the deceased's shop, the Police were notified and took over the appellant and the investigation.
6. A very brief report was made by Kidar Nath who said nothing of the assertion made by Ilam Din when he was captured, and did not mention the name of his fellow servant.
7. On the following day as a result of a statement made by Ilam Din to the Police the shop of Atma Ram was discovered, ancon the 9th: this Atma Ram picked out the appellant at an identification parade held under the supervision of a Magistrate as the man to whom he had sold the knife found in Rajpal's shop.
8. There can be no doubt that Atma Ram could have sold the knife as he had several of identically the same make and pattern two of which have been produced as exhibits. He stated that he bought these knives at an auction sale of Medical Stores.
9. Mr: Jinnah has attacked the prosecution story on various grounds. He urged that Kidar Nath was not a reliable witness because (1) he was an employee of the deceased and, therefore, "interested",
(2) he had not stated in the First Information Report (a) that Bhagat Ram was with him, and (b) that the appellant had stated that he had avenged the prophet. As to Bhagat Ram it was contended he, as an employee, was interested, and as to the rest that there were variations in some of the details. .
10. Objection was taken to the admissibility of the statements made to the Police which led to the discovery of Atma Ram, and Atma Ram's identification of Ham Din and his testimony regarding the sale of the knife to Ilam Din were characterised as untrue and improbable.
11. While I consider the statements made to the Police by the appellant which led to the discovery of Atma Ram's shop were rightly admitted at the trial I am quite prepared to eliminate them from consideration.
12. That Atma Ram possessed a number of knives of the identical pattern as that which was used on the deceased is beyond any serious doubt. His story is that the appellant come to his shop on the morning of the 6th: April, bargained for the knife in question, agreed to give Re. 1/- for it and asked the witness to put it on one side till he returned with the money. Ilam Din returned an hour later, paid the rupee and .Took the knife. In these circumstances there is nothing improbable in the witness being able to identify the purchaser of the knife. The identification parade was carried out at about 5 p.m. On the 9th April in the Police Lines under the supervision of Lala Mulk Raj, Magistrate lst Class (P.W. 12), and his account of what occurred shows that the identification was a genuine one.
13. In his statement at the trial the appellant accused Jawahir Lai Inspector (P.W.20) of having shown him to Atma Ram before the parade look place. It is significant that not a single question was put to the inspector suggestive of such an occurrence having taken place and the Magistrate is positive that Ilam Din never made such a complaint to him.
14. In these circumstances I am unable to see any reason to doubt the veracity and accuracy of the testimony of Atma Ram. It is true that Kidar Nath's report is brief and lacking in detail. His failure to mention Bhagat Ram's name as one of those present and concerned in the pursuit and capture is to my mind of no importance. His failure to mention Ilam Din's statement that he had "revenged the Prophet" would be material but for the fact that there is ample evidence to support the fact that this statement was attributed to the appellant as soon as the enquiry commenced and before there could have been any collaboration on the point.
15. A reference to' the statement of Vidya Rattan (P.W.6) will suffice as an illustration. This witness is certainly not in any way "interested"(except on the broad ground that he is a Hindu). That he afforded very, material assistance in capturing the appellant is evident and has not been challenged. He says that the appellant when seized by him said: "Let me go" "I have done nothing but "taken revenge for the Prophet". In cross-examination he says: "I do not remember the actual words used by the "accused, but what I have stated above is the gist of what "he said." The record shows that he was being cross examined on the statement made by him to the Police (a copy of which had been given to the accused's counsel) and from a note by the Sessions Judge it is clear that this witness did attribute this statement to the appellant from the outset.
16. All the witnesses are agreed in making this statement and in the circumstances there is nothing improbable of strange in the appellant having made the assertion. That Rajpal was killed because of his having written "Rangila Rasul" is abundantly clear. The appellant was a stranger to him and had no other motive for the assault. I would, therefore, hold that this part of the story given by the witnesses is correct.
17. Again, I am unable to see that there is any reason to doubt the story of kidar Nath and Bhagat Ram. They have sworn that they pursued Rajpal's assailant from the shop to the woodyard and were practically on his heels the whole time never losing sight of him for a moment. In this they are supported by Nanak Chand and Parma Nand while Wazir Chand (P.W.7) has stated that he saw no one in the road other than Ilam Din and his pursuers. There can thus be no. Doubt as to the identity of the appellant with the assailant of the deceased. Reference was made to certain blood marks on the appellant's clothes. I can see no reason for thinking that the learned Sessions Judge is wrong in assuming that these blood marks are due to bleeding from-the deceased, for the medical evidence shows that Rajpal tried to ward of the blows aimed at him, but the point seems to be. Of no real importance in face of the overwhelming evidence against the appellant. Nor does it seem material when, where and how the tip of the knife was broken- the piece that has broken of and is missing is too small to be of any moment.
18. I have no hesitation in agreeing with the learned Sessions Judge in holding that Ilam Din's guilt has been established.
19. Mr: Jinnah finally contended that the sentence of death was not called for and urged as extenuating circumstances, that the appellant is only 19 or 20 years of age, and that his act was prompted by feelings of veneration for the Founder of his religion and anger at on who had scurrilously attacked him.
20. As was pointed out in Amir v. Crown (No. 954 of 1926) "the mere fact that the murdered is 19 or 20 years "of age, * * is a wholly insufficient reason for "not imposing the appropriate sentence provided by law".
21. The fact that Ilam Din is 19-or 20 years of age is not therefore, a sufficient reason for not imposing the extreme penalty and Ilam unable to see that the other reasons advanced by Mr: Jinnah can be regarded as affording any excuse for a deliberate and cold-blooded murder of this type.
22. I would, therefore, dismiss the appeal and confirm the sentence of death.