C.C. Ghose, J.
1. This is a reference under Section 307, Criminal P. C, in a case where the accused Mabajjan Bibi was tried before the learned Additional Sessions Judge of Rangpur and a jury on a charge under Section 302, I. P. C. The jury by a majority of 7 to 2 has given the accused the benefit of the doubt. The learned Judge disagreeing with the verdict of the majority of the jury has referred this case to this Court for final order.
2. In view of the order which we propose to make it will not be necessary to go at length into the evidence adduced on behalf of the prosecution. But shortly stated the case against the accused is as follows: The accused Mabajjan had been married to one Chika Sheikh about six or seven years and had by him two daughters, one aged about 3 named Mafijan, and the other Durgati Bibi, aged about five or six months. On the day of the occurrence, which was the 17th April 1931, at about Jumma Namaj, time about 2 or 2-30 p. m. it is alleged that the accused killed her infant daughter by cutting her throat by means of a katari or dao. The accused lived in the west facing ghar in the map. This ghar is only seven cubits from another ghar in the same bari in which one Jhalu lived with his wife Faijan. Jhalu is not related to Chika, the husband of the accused, but Chika calls him chacha by village courtesy. On the day of the occurrence at about the time mentioned above, Jhalu was engaged in thatching his ghar and Chika was away as he had gone to work as a labourer in the house of one Rajendra Ghose. Jhalu heard loud cries of Mafijan inside Chika's ghar. He asked his wife to inquire. Faijan went into Chika's ghar and found Durgati lying dead on a bed spread on the floor with a bleeding injury in her neck and the accused sitting near the bed with a katari. Faijan thereupon asked her husband to come in and Jhalu immediately came down and entered Chika's ghar. He found the dead child on the bed which was stained with blood and the accused standing inside the ghar in front of the door with a katari in hand. He seized the sharp end of the katari and snatched it and in so doing got a cut at the root of the index finger. He threw down the katari under a macha inside the ghar and tied the accused to a post of the ghar outside it with a rope as from what appeared he had reasons to apprehend that the woman would commit suicide. He next ran to Rajendra Ghose's bari and called Chika.
3. The evidence is more or less circumstantial, but Jhalu has spoken to what happened, spoken to the fact that his attention was drawn to the cries of Mafijan, spoken to the fact that he asked Faijan to find out for herself what had been happening. He stated also what he discovered after coming down from the roof of his hut and concluded by saying that, having regard to the circumstances he found himself in, he thought it was necessary to tie up the accused. Faijan gives evidence which supports the evidence of her husband. Chika who was absent at the time, he having gone to work as a labourer to the house of Rajendra Ghose, gives evidence as to what he found on returning home. He states however that ho lived by working as a labourer, that he could not give any food to his wife for two or three days before the date of occurrence as he could not find any work to do, and he was unaware that she got any food anywhere else to eat. Then there is the evidence of the Deputy Magistrate, Mr. D. S. P. Mukherji, before whom the accused was produced and before whom the accused made a confession. That confession has been proved before the learned Judge by the Deputy Magistrate and will be found at pp. 45 and 46 of the paper book. From that confession there can be no doubt that it was the accused who killed the infant daughter Durgati and that the reason which impelled her to perpetrate the crime in question was that she had been starving being unable to got any food of any description and in the circumstances she found it was impossible to nourish the baby. It is true that that confession was retracted in the Sessions Court and that in her statement in the Sessions Court under Section 342, Criminal P. C, the accused simply said that she was not guilty. (Here the judgment considered evidence and then proceeded.) Now on this evidence the learned Judge charged the jury, but the jury apparently, for no reason as far as one can discover on the record before us, came to the conclusion that the case was not free from doubt and brought in a verdict of not guilty by a majority of 7 to 2. The learned Judge in his letter of reference points out the salient features of the case and the circumstances which in his opinion rendered it necessary that the matter should be placed before this Court in order that the entire record may be considered and final orders passed. The learned Deputy Legal Remembrancer who appears for the Crown has taken us through the evidence and on a consideration of the evidence there can be no doubt whatsoever that the verdict of the majority of the jury in this case is one which cannot be accepted. We must therefore set aside the verdict of the jury and find the accused guilty under Section 302, I. P. C.
4. The only question that now remains to consider is the question of sentence. There is no doubt whatsoever on the evidence on the record that the accused was driven to desperation on account of starvation and that as a result she committed the deed in question, There is no evidence which can lead us to the conclusion that at the time when she committed the deed in question she was insane. She was, no doubt, in a state of desperation, but that is very different from saying that she was insane at the time when she committed the deed in question. In our opinion this is not a case for the infliction of capital sentence, and we think that the ends of justice will be sufficiently met by our convicting the accused under Section 302, I. P. C, and sentencing her to undergo transportation for life. If the accused is so advised she can move the Local Government for the exercise of their clemency, but that is a matter with which we are not concerned. In our opinion the proper sentence which we can pass judicially is the one which we have indicated above and we accordingly sentence her to transportation for life.
5. I agree.
6. I agree.