1. This is a reference by the Additional Sessions Judge of Hooghly, at Howrah, under the provisions of Section 307 of the Code of Criminal Procedure, against an acquittal of the accused Sashi Bhusan Maity by an unaminous verdict of the Jury on a charge under Section 304 of the Indian Penal Code.
2. The case for the prosecution is that, as the result of a quarrel between Sashi Bhusan Maity, the accused, and his wife, Jnanoda, Jnanoda left her husband's house to go to her father's house; that the accused overtook Jnanoda on her way there; that high words passed between them, and that the accused seized a half burnt bamboo and with this inflicted severe injuries upon the head of Jnanoda, as the result of which she died immediately. It is suggested on behalf of the accused that Jnanoda met her death not as the result of any blows inflicted by her husband as the prosecution allege, but that she was the victim of a robbery and that, in the course of being robbed, she met with the violence which caused her death. It is necessary to examine the evidence which has been given by the pro-section to sea if the evidence is sufficient or us to accept the reference that has been made to us.
3. Now, the material evidence consists of the evidence of a witness named Narain Dasi; she states, that she knows Sashi and his wife and that in Aughrayan last, about 11 or 12 A.M., she was picking up cow dung on some open land and that she saw Sashi's wife come there and stand there; that than Sashi came and said something to her which she could not hear; that Shasi then began to beat her with a piece of charred bamboo, and that then she fell down. The witness said that she told Sashi not to beat her but that he continued to do so saying, 'I will kill her and I will die with her.'
4. The next witness is Kiron, a child, whose age is not stated. The learned Judge states that the witness appears too young to take an oath or give affirmation. She understands that she has to say what she saw and nothing else. She was neither affirmed nor was the oath administered, She states as follows:-- I saw Sashi beat his wife with a bimboo like this, Exhibit 1, Then from fear I ran away I went there to piok up cowdung. I told my mother what had happened Then many people ran towards the plane. I know Saila, accused's daughter, She was also poking up cowdung at the time. Her mother told her to go and fetch a piece of cloth and to come back to her. Sashi then came and asked his wife whether she was going to come back or to remain away. She said she would not come back till he was dead. There upon Sashi struck her and she fell down.
5. Then there is the evidence of Jnanoda Dasi. She says that in last Agrahan, about midday, she was fishing. She heard cries and, leaving her net, she went to see what the matter was and she saw Sashi standing there and Jnanoda lying on the ground. Then Sashi went away and she was dead. In cross-examination she states that she did not see who struck Jnanoda. The evidence of the other witnesses, I do not think, needs any comment. But it will appear from the medical evidence that the blows struck were numerous and very severe. This is the evidence on which Sashi has to be convicted, if conviction there is to be. He made two confessions, in fact one extra-judicial, and a subsequent confession. This subsequent confession he withdrew; and, moreover, it is urged on his behalf that there was a Polite Officer in the verandah inside at the time the confession was made. Then it is said that, so far as the eye-witnesses are concerned, the evidence of the child cannot be taken into account inasmuch as she was neither affirmed nor was an oath administered, and, it is said, having regard to the provisions of the Oaths Act to which we hare been referred, that she is not a witness whose testimony san be taken into account. We have been referred to various cases on the subject. In Queen v. Sewa Bhogta 14 B.L.R. (F.B.) 294 : 23 W.R. Cr. 12, a Full Bench case, it appears that the learned Chief justice and the other learned Judges who formed the Full Bench, with the exception of Mr. justice Jackson, considered that, having regard to the provisions of Section 13 of the Oaths Act, the omission to administer an oath or affirmation, even if intentional, would be cured by the provisions of that section. We have been referred to the Criticisms of that case made by Sir Francis Maclean in Nando Lal Bote v. Nistarini Dasi 27 C. 428 at p. 440 : 4 C.W.N. 169 : 14 Ind. Dec. (N.S.) 282 and to the remarks made with regard to it in Nafar Sheikh v. Emperor 20 Ind. Cas. 741 : 41 C. 406 : 18 C.L.J. 582 : 18 C.W.N. 147 : 14 Cr. L.J. 485.
6. It would appear that the decision of the Full Bench in the Bengal Law Reports which is, of course, binding on us would cover the case and make the evidence of this child admissible, but we think that, even apart from the evidence of this child, there is sufficient evidence on the record by which it is abundantly established that Sashi has been guilty of an offense under Section 304 of the Indian Penal Code. Accordingly, in deciding this reference we can ignore the evidence of the child.
7. Then criticism is made against the evidence of the other witness, Narain Dasi, on the ground that there are discrepancies in her statements as to the place where she was at the time of the occurrence and we are referred to the fact that in one place in her deposition she stated that she was on the east of the Khal and in another place she stated that she saw the occurrence from Bidhu's home which is on the west of the cremation ground, and we are asked to infer from that, that she could not have seen the occurrence.
8. We do not think these criticisms really have any weight and we think the evidence of Narain Dasi and the evidence of Jnanoda abundantly establish the guilt of Sashi and it is not necessary for us, as I have already stated, to rely either on the evidence of the child or the extra judicial confession in this case.
9. We accept the reference and sentence the accused to rigorous imprisonment for a term of (7) seven years.
10. I agree.