1. This is an appeal by one Sheo Baran Singh who has been sentenced to death under Section 302, I.P.C., for the murder of one Mt. Gangola on 18th October 1932 and there is a reference before us for confirmation of that sentence. The facts are very simple and it is shown by the prosecution witnesses that the accused had the deceased as his mistress for about 11 years, with the connivance of her husband Baldeo Singh, who died about a year ago. The accused was a partner with Baldeo Singh in the cultivation of about 50 or 60 bighas of land and after the death of Baldeo Singh in Asarh the son of Baldeo Singh Sheoraj who had attained the age of 20 years, told the accused that he should no longer be a partner and partnership terminated. On the occasion of the crime various witnesses for the prosecution state that they heard the woman Mt. Gangola crying out that she was being struck by the accused, and her cry came from the room of the accused. The witnesses asked the accused to open the door but he threatened them and told them to go away. Subsequently the mokhia and others were called and they found the dead body lying in the room and the accused then came along and was arrested and the chaukidar made a report in the thana. The medical evidence shows that there were eight incised wounds some of which were on the hands and arms and showed that the woman had struggled and death was caused by an injury which was a stab wound entering at the left collar bone and penetrating into the lung.
2. There was also an injury on the right collar bone which did not penetrate the lung but which caused damage to the intercostal vessels. The accused made a confession which was recorded two days after the murder, on 20th October 1932, and in that confession he had stated that he had illicit connection with the deceased for 10 or 11 years, and her husband died a year ago and he used to live at the house of the husband and give all his earnings to the husband. During the last eight days he had learnt that Mt. Gangola had illicit connection with one Thakur Hakim. Singh and he objected to this. She denied it. He the atened her and she confessed. He then saw her with Hakim Singh and he was much annoyed and believed that she had illicit connection with Hakim Singh. She then came to his house on 18th October, and he spoke to her about her going with Hakim Singh, and she replied that she would go with Hakim Singh. On this he got angry and he says that he shut her in a room and resolved to cut her nose, but the knife struck her in the chest and she lost consciousness, and he struck her two or three more blows with the knife and he then left her and locked the door and returned and was arrested. This confession was retracted before the Magistrate, but in the Sessions Court the accused admits having made this statement and he says that his intention was to cut off her nose. He denies that there was any quarrel in Asarh when he ceased to cultivate with the son of the deceased. In his petition to this Court the accused states that he found the deceased in adultery with Hakim Singh and he was very annoyed because he used to give her all his earnings, and there was an agreement between him and this woman that she will have illicit connection with no one except himself. He forbade her several times but she did not mind his remonstrances and in the dark he tried to cut her nose with a knife and he struck her at another place, and her death was only accidental. learned Counsel has argued that the medical evidence supports the allegation that the accused attempted to cut off the nose of the deceased and counsel refers to the first two injuries mentioned by the medical witness.
3. These injuries are on the right and left eyebrows and are incised wounds. It does not appear to us that these wounds indicate an intention to cut the nose. It is probable that the accused had a violent quarrel with deceased, and in this quarrel he struck her with a knife intending to cause such bodily injury as was likely to cause her death. There is no provocation shown which would reduce the offence to Section 304 I.P.C., and therefore the conviction under Section 302, I.P.C., is correct and we unhold it. The only question before us is whether the circumstances of the case are such that the sentence should be reduced from death to transportation for life. The existence of the illicit intrigue between the accused and deceased is shown by reliable witnesses for the prosecution such as Likha Singh Maghia, and there is no doubt that this intimacy had gone on for a number of years. The husband, Baldeo Singh, was a weakling and supered from asthama and he accepted the position that the accused should live with his wife practically as her husband. Technically no doubt the relations between the accused and the deceased were illicit but having regard to human nature, we consider that it is natural that after a long period of years the accused should look on deceased as his woman and as a woman who was bound to render him fidelity. Under these circumstances the commencement of an intrigue between this woman and another man is a matter which would cause provocation to the accused.
4. learned Counsel for the Crown has pointed out that the woman being a widow was within her rights in changing her lover, and he argued that the woman being entitled to change her lover, the accused was not entitled to feel provocation at such an act on the part of the woman. That may be so but we must have regard to the ordinary feelings of human nature and there is no doubt that it is natural for the male animal to be jealous of the female and these instincts are deeply rooted in human nature whether the relations between the male and the female are relations sanctioned by the law or whether those relations have not got legal sanction. Under the circumstances we consider that there was a certain amount of natural anger caused to the accused by the unfaithfulness of the deceased to him. Accordingly we consider that this is a case in which the sentence of death should not be imposed and while upholding the conviction under Section 302, I.P.C., we reduce the sentence of death to transportation for life.