1. This is an appeal by Dinabandhu Uriya who has been convicted of murder under Section 302, I.P.C. by the Additional Sessions Judge of the 24 Parganas in agreement with the unanimous verdict of nine gentlemen of the jury for causing the death of a Brahmin youth named Kartik Chunder Mukerjee, aged about 25/26 years. He has also been convicted under Section 326, I.P.C. of causing grievous hurt by a sharp cutting weapon on one Rajabala a woman of the suburbs of Behala. The learned Additional Sessions Judge has passed the sentence of death on -him on the charge under Section 302. He has further sentenced him to rigorous imprisonment for a period of four years under Section 326 which is to be operative until the sentence of death passed by him is confirmed by this Court. The-matter has also come before us by way of reference by the Additional Sessions; Judge under Section 374, Criminal P.C.
2. On behalf of the prisoner it does not appear that any very serious criticizm has been made of the summing up by the learned Sessions Judge. The only criticism which is made is that the learned Judge should have put to the jury the fact that during the course of the investigation by one of the police officers it was disclosed that the accused was at the shop of one Sindhu Pashi at Barisa during the day on the date of the occurrence before coming to the place where he was arrested and it is said that the learned Sessions Judge ought to have directed the jury to draw an unfavourable inference against the case for the Crown from this very important circumstance. It seems to me that it was not the duty of the Crown to put this witness before the Court seeing that the witness could, really have proved the alibi of the accused. It was really for the accused person to call him as a witness for the defence in support of plea of any alibi which he might have taken but has not taken. It seems to me after considering and reading the summing up by the Sessions Judge, that the summing up was a most careful one. Every point was put before the jury with great lucidity and there was really ample evidence upon which the jury could come to the conclusion at which they arrived with reference to the two defences which were suggested during the course of the argument before the lower Court. One theory put forward was that the deceased Kartic Mukherjee himself cut a sindh and effected an entrance into Rajabla'a ghar and eventually engaged himself in a scuffle with her and that these two persons managed to fight with a cutting weapon and cut each other and in the course of the fight Kartic got the worse of it and met with his death. It must be said, in fairness to the learned advocate for the appellant, that he has not put forward or pressed this theory before this Court.
3. The other theory put forward by the defence in the course of cross-examination of the prosecution witnesses was that there was no light in Rajabala's gharator about the time of the occurrence and that it was probable that while Kartic, the deceased, and Rajabala engaged themselves in sexual intercourse the light might have been put out and eventually they might have fallen asleep and that while they were so asleep some unknown enemy might have effected an entrance into the room through the sindh and injured both the man and the woman. It is said that the woman Rajabala having failed to recognise the actual assailant who escaped on her cries took it into her head to mention the name of the accused out of sheer grudge. It is further suggested that the name of Dinabandhu occurred to Rajabala not immediately after the time of the occurrence but after she had held a consultation with the other unfortunate woman living in the same house and other persons friendly to her in the locality. No evidence has been put forward in support of this defence and the learned Judge did mention to the jury this possible defence which was suggested in the cross-examination of the prosecution witnesses and I shall show presently from the examination of the evidence that this defence is baseless.
4. Although the matter has come before us as an appeal from the unanimous verdict of the jury and from a judgment accepting that verdict, as the sentence in this case is one of death, it has always been the practice in this and in the other High Courts in India to deal with the case as a whole, that is, to look into the evidence and consider whether the verdict has been rightly arrived at. It becomes necessary, therefore, to examine the evidence in this case and to determine whether the verdict of the jury can be sustained on such evidence.
5. The short story, so far as it is necessary to state, is that the woman Rajabala, who is an unfortunate woman in the suburbs of Behala was in terms on her own showing, of great intimacy with the accused for about a year or a year and a half, and it was this woman, who out of affection for the accused, enabled him to make his living by starting at her own expense a chat shop in the locality. The accused used to live at night with this woman and the evidence discloses that he used to come at about 10 p. m. in the night and after that ordinarily no other visitor was allowed access into the room of this woman. It seems that the chat shop was carried on under circumstances which left very little profit of late to the accused person and the accused accordingly stopped the small sum of Rs. 8 or Rs. 9 which he used to pay for the food which he would take at the place of the woman. This sort of strained relationship continued indeed for a very short time when it appears that on 18th May last the day immediately preceding the date of the occurrence the woman was found with another person in her room at a late hour of the night. At that time the prisoner came. Evidently he resented the intrusion of the stranger. He entered into the room of Rajabala, assaulted the stranger and took away his cloth and the coat which he was wearing. This resulted in a quarrel between Rajabala and the prisoner. Rajabala had to appeal to some of the neighbours to induce the prisoner to give the clothes back to the stranger who had come to pay her a visit. As a matter of fact, evidence is given by one of the witnesses who happens to be the carter of a neighbour of the name of Mohim Chandra Pramanik that he did actually beat the prisoner in order to induce him to deliver the clothes to the stranger. It is said that while the accused returned the clothes he uttered threats to the effect that if he was a man he would teach a lesson to the woman. The exact statement which was made is differently stated by different witnesses, but this much is clear that the prisoner did hold out a threat of teaching the woman a lesson or of taking his revenge on her. This was on 8th May.
6. On the 9th, which is the date of the occurrence, at about 10 p.m. the deceased paid a visit to this woman and the evidence is that after the preliminary settlement of the fee she would charge for entertaining this visitor they entered into Rajabala's room and it is said that while this unfortunate young man was in the act of sexual intercourse with the woman the prisoner came from the direction in which Rajabala was lying with her head and inflicted wounds on the deceased while he was in this act. On the first blow being struck it is said that the deceased and Rajabala rose from the floor where they were lying when another blow is said to have been struck which had the effect of causing this young man to fall on a wooden bedstead or takhtaposh which was lying nearby. After this it is said the prisoner inflicted injuries on Rajabala, Rajabala is said to have snatched the weapon which is said either to be a hausa or a katari or dao from the hand of the prisoner but it was again snatched back by the accused and several wounds were inflicted on the woman. The woman managed to open the door of the room in which the murdered man lay and she cried that it was Dinabandhu, the prisoner, who had committed the murder. This apparently attracted the attention of another unfortunate woman Giribala who was living in the next room and was at that time taking her night meal. The occupant of the next room Hari Dasi another unfortunate woman was also roused from sleep and to her also it was stated that it was the prisoner who had committed the murder. The prisoner in the meantime, after the door of the room had been opened, escaped into the land and garden towards the west by an opening or sindh which had been cut in the western matwall. A sketch map of the huts of Rajabala and the other women has been made an exhibit in this case and is to be found at the end of the paper book. Prom that it appears quite likely that the prisoner made his escape through the sindh in the western wall. A short time after the occurrence, the case for the Crown is, a neighbour who had a tea shop which these women frequented, namely, Atul Krishna Das, was called. He heard a report of the occurrence from Rajabala, Giribala and others and immediately went to the thana to lodge the first information report. That information is to be found at p. 5 of the paper book and it is necessary to reproduce portions of it in order to show that the first information report agrees in its broad details with the case, now made for the Crown. Atul Krishna said that at about 10 O'clock in the night of 9th May ho, Nani Babu and Bhutnath Shaha were working in his shop at the Gholsapur Bazar when a woman of Gholsapur, whom he would be able to recognize if seen, cried out exclaiming being killed' at which he responded saying what the matter was and she said that the paramour of Rajabala Peshakar had cut her with a katari and murdered another and that the accused who was said to have cut the woman was an Uriya Baman called Dinabandhu. Then the first information proceeds as follows:
Then I ran up to Rajabala Peshakar and found her lying on her verandah and saw serious bleeding cut wounds on her back and hands and her whole body was soiled with blood. Before I came here I did not notice whether she had any other wounds. At that time a person, whose name I do not know, said that a man was lying murdered inside the room. I have heard from wounded Rajabala that the paramour Uriya Baman Dinabandhu entered the room by cutting sindh and wounded her with a katari, and murdered a man who came to her room. Before coming here, I have not enquired to know why he had been murdered, nor have I heard, what persons have seen the occurrence. I did not see accused Dinabandhu Uriya there, nor before coming here have I enquired at what part of the ghar the sindh had been cut. This is my ejahar.
7. In respect of the actual occurrence the whole case for the prosecution really rests on the testimony of the woman Rajabala because she is the only eyewitness to the occurrence. (His Lordship after considering the evidence on merits, concluded). As I have stated at the outset, the case made for the Crown and the evidence given by Rajabala in Court tally in main particulars with that was stated in the first information report.
8. Some argument has been advanced in this Court that Rajabala's evidence must be discredited because the medical evidence shows that her statement that the deceased fell on receiving the first blow or another blow after that is inconsistent with the medical evidence which shows a number of injuries on the person of the deceased. It is difficult to gather in what condition Rajabala was at the time when she found a man with a sharp weapon inflicting wounds on a person who was visiting her at the time and who was having sexual intercourse with her. The attack indeed was very very sudden so far as they were concerned and no wonder that in that confusion Rajabala would not have a clear impression of what actually happened in the room, namely, as to whether there was one injury or several injuries on the person of the deceased. Having regard to the circumstances in which the injuries were inflicted, not much importance can be attached to the medical evidence as to the number of the injuries.
9. In connexion with Rajabala's evidence it has to be remembered that both the Judge and the nine gentlemen of the jury had an opportunity of observing the demeanour of that witness. That is an advantage which the Judge and the jury in the Court below had over the Court of appeal and, as has been said on the highest authority, a Court of appeal would not be justified in disturbing the finding of a Judge or of a jury on a simple issue of fact unless the verdict arrived at seems to be opposed to the entire weight of evidence. I think, therefore, that the occurrence took place in the manner alleged by Rajabala and that the wounds which caused the death of Kartic were inflicted by the prisoner in the manner in which she deposes.
10. It has next been argued that there are discrepancies with regard to the occurrence of 8th May and that if the incidents had not taken place in the manner alleged, there would be no motive in the prisoner in committing the crime on the 9th. We have listened to the learned advocate for the appellant on this part of the case at great length and I do not consider that the discrepancies are such as would entitle us to hold that the incidents of the 8th did not take place in the manner in which most of the witnesses state. The learned Judge did put before the jury the slight discrepancies between the different witnesses. It appears, however, from the evidence of Mohim Chandra Pramanik, one of the principal shop-keepers of the locality who took an active part in the incidents of the 8th, that he called the prisoner and that on his orders his cartman Dabiraddi Sheik (P.W. 12) appeared and slapped Dinabandu and snatched the clothes from him. The cartman corroborates his master in the main details. As I have already stated, the evidence leaves no doubt that a threat was held' out by the prisoner to Rajabala that ho would teach her a lesson. The question as to whether he actually used the words that if he was to give her up he would cut her to pieces rests on the testimony of the carter Dabiraddi. Be that as it may, the entire evidence supports the threat. There may be some discrepancies with regard to the actual words used.
11. It has next been argued on behalf of the prisoner that it seems singular that if he was the man who committed this crime there would be no trace of blood on his clothes when he was arrested in the shop at about one O'clock in the morning of the 10th. It seems to me that a possible explanation of this is that as it was a premeditated plan the accused person might have thought beforehand of the means of removing all traces of the crime from his person, he might have thrown the hasua or the katari either in some tank or in some out of the way place, he might have removed either the gurensey or the coat or the jama which he was wearing, and after removing all traces of the crime he might have gone to the shop where he used to work and rested there at that time of the night. It is a very significant circumstance that at 1-30 in the morning when he was arrested by the Sub-Inspector he seemed not to be asleep but was rather awake, and it is quite possible that he had been to that shop shortly before the time when be was arrested. This interval between the actual commission of the murder and the time when ho went to the shop might have been utilized for the purpose of removing all traces of the crime. This of course seems to me to be a possible explanation. It is also said that there was no trace of blood in his hands. Of course the evidence of the Sub-Inspector is that he could not, with his naked eyes, discover any blood, but scrappings of the finger nails were taken several days after the occurrence and the result of the chemical examination shows existence of human blood in the finger nails of the accused. I do not lay much stress on this circumstance. This is after all a very weak evidence.
12. Considering therefore all the circumstances, I think that the jury arrived at a correct verdict and that their verdict is justified on the evidence.
13. It remains now to consider the question as to whether the extreme penalty of the law should be inflicted on the prisoner. The rule which is generally followed in this case is that unless there are extenuating circumstances the person who is found to be guilty of murder should receive the extreme penalty of the law. I do not find any extenuating circumstance in this case to induce me to inflict the less severer punishment of transportation for life. The attack seems to be a deliberately planned one. The sindh must have been cut at sometime of the night by the accused who was secretly there, possibly in the closed verandah, watching for an opportunity to wreak his vengeance either on Rajabala or on the person whom she might entertain at that time of the night. There was a considerable amount of premeditation and it cannot be said in this case, as has been sought to be argued by the learned advocate for the appellant, that there was a sufficient provocation which would justify us in not passing the extreme penalty of the law. The learned advocate for the appellant has sought to put this case, if not on the same footing, on a somewhat analogous footing as in the case of a husband murdering his wife caught in the act of adultery or murdering the adulterer. The two cases can bear no possible analogy. It is well established law that if a husband discovers his wife in the act of adultery and thereupon; kills her he is guilty of man-slaughter only and not of murder. But that rule has no application where the relation; ship between the parties is not that of husband and wife. There can be no question in this case that the relationship between the prisoner and Rajabala. was that of husband and wife, nor can it be regarded as a case of two unmarried persons living together as husband and wife. The evidence clearly establishes that Rajabala was a public woman and that all persons willing to visit her at any rate before 10 O'clock at night were entitled to be entertained by her. This rule as has been pointed out in a recent case which applies to the case of a husband discovering his wife in the act of adultery, cannot even be extended to the case of a person who kills one with whom he has been engaged to marry. I may just refer in this connexion to the case of the Bex v. Palmer (1). where Channel, J., points out:
It is well established law that if a husband discovers his wife in the act of adultery and thereupon kills her he is guilty of manslaughtar only and not of murder. That has been extended in Reg. v. Rathwell  12 Cox. C.C. 145 and Rex. v. Jones  3 K.B. 1116 to a sudden confession by a wife of past adultery, an extension which no doubt creates an exception to the general rule that provocation by words is not enough, The reason for that exception is that a sudden confession is treated as equivalent to a discovery of the act itself. But here the relation between the parties was not that of husband and wife, nor was it a case of unmarried persons living together as husband and wife. They were simply persons who were in position of being engaged to be married. Under those circumstances if the effect of the summing up was to leave the jury under the impression that they could not properly find a verdict of man slaughter we think that it was right.
14. It has next been sought to be argued, on behalf of the prisoner in connexion with the mitigation of sentence that if the prisoner was an illiterate man, a man with a defective mental balance what we have to consider is whether the provocation was not sufficient in the case of such a person to deprive him of his self control; and, if this was so, it is argued that there is an extenuating circumstance and the extreme penalty of the law should not be passed upon him. The answer to this argument is furnished in a very instructive judgment of Lord Beading C.J., in the case of the Rex v. Lesbini  109 L.T. 745, where the question arose whether the conviction should be altered from one of murder to one of man-slaughter and the sentence consequentially altered. It is useful in the present controversy to quote in extenso what was said by the Lord Chief Justice with regard to an argument of this kind-
It is now said before us that we as a Court of appeal might come to the conclusion that the tests laid down in the wall known authorities as to the provocation necessary to constitute a defence of man slaughter are too narrow and that we could extend it, and it we come to the conclusion that that it ought to be extended we could enter a verdict of manslaughter and alter the sentence. It is sufficient to say that we say no reason to dissent from what was said by Darling J, in giving judgment in Rex. Alexander  109 L.T. 745. A similar argument was placed before the Court in that case. It substantially amounts to this, that the Court ought to take into account different degree of mental ability in the prisoners who come before it, and if one man's mental ability is less than another's it ought to be taken as a sufficient defence if the provocation given to that parson in fact causes him to lose his self control, although, it would not otherwise be a sufficient defence because it would not be provocation which ought to affect the mind of a reasonable man. We agree with the judgment of Darling. J., in Rex v. Alexander  109 L.T. 745. and with the principles enunciated in Reg. v. Welsh  11 Cox. C.C. 336, where it is said that 'there must exist such an amount of provocation as would be excited by the circumstances in the mind of a reasonable man, and so as to lead the jury to ascribe the act to the influence of that passion.' 'We see no reason, therefore, to dissent in any way from the principle of law on which this case was tried. On the contrary we think it is perfectly right. This Court is certainly not inclined to go in a direction of weakening in any degree the law that a person who is not insane is responsible in law for the ordinary consequences of his acts.'
15. Applying this test to the present case it appears to me that the act of the accused was one which is shocking to the ordinary sense of humanity. This Brahmin youth Mookerjee in a moment of weakness was led to the vicious atmosphere of a brothel and while he was in the act of sexual intercourse he was attacked with almost dramatic suddenness by the accused with a weapon which caused his death. In my opinion, this is a case where the extreme penalty of the law should be passed upon him. I would accordingly confirm the sentence of death passed on the prisoner by the Additional Sessions Judge and dismiss the appeal.
S.K. Ghose, J.
16. The accused was tried on charges under Sections 302 and 326, I.P.C., before the learned Additional Sessions Judge of Alipore sitting with a jury of nine persons. The jury unanimously found the accused guilty on both the charges. The learned Judge agreeing with the jury has convicted the accused on both the charges. On the charge under Section 302 he has sentenced the accused to death and under Section 374, Criminal P.C., he has referred the case to this Court for confirmation of the death sentence. The prisoner has also appealed to this Court. So the case is open to us both on facts and law. (His Lordship after stating facts and considering the evidence in support of it and objections thereto, concluded). It comes to this then that Rajabala actually recognised the accused as the person who assaulted her and the deceased. At the time of the assault she cried out mentioning the name of the accused and this is deposed to by the neighbours who came immediately afterwards. There is evidence as to circumstances going to show that the accused had a strong motive to commit the assault. In fact, on the previous day he had assaulted another person who was being entertained by Rajabala and he had gone away threatening to do further harm. At the time of the occurrence there was no chance of making a mistake, as there was a lamp burning in the room. The evidence is of witnesses who bear no special grudge against the accused.
17. The learned Judge in his charge to the jury pointed out that, according to the doctor, the injuries inflicted on Kartik were 'not necessarily of immediate dangerousness' and he went on to say:
The question is whether the jury will find that the act was done with the intention of causing the death of Kartic Mukherji. In this connection jury will notice the nature of the injuries on Rajabala on whom fatal injuries were not inflicted.
18. It seems to me that in saying this the learned Judge put the matter as much in favour of the accused as was possible.
19. It has been argued by the learned advocate for the appellant that the learned Judge should not have drawn the attention of the Jury merely to the first part of Section 304, I.P.C., but that he should have gone on and drawn their attention to the second part of that section. But the jury did not even accept the view that the offence would come under the first part of Section 304, I.P.C.; evidently they took the common sense view that the intention of the accused was to cause death. The learned advocate for the appellant has also argued that there was room for provocation. But this argument is futile in view of the fact that the assailant had already entered the room by cutting a sindh and being armed with a cutting weapon. He was evidently lying in ambush, waiting for an opportunity, and he did enter at the paychological moment when the woman and the other man were engaged in sexual intercourse. It seems to me, therefore, that the plea of provocation cannot possibly be sustained.
20. The case is a quite simple one and the facts are clear. The learned Judge has delivered an admirable charge in the course of which he has drawn the attention of the jury to all the salient features of the case. The charge is a fair one and the learned Judge has laid due stress on the points that are in favour of the prisoner. The evidence, is, however, sufficient and convincing. Upon this evidence the Judge and the jury could come to no other conclusion than that the accused is guilty order Section 302, I.P.C. in respect of the injuries caused on the deceased and under Section 326, I.P.C. in respect of the injuries caused to Rajabala. In passing sentence the learned Judge has carefully considered the question as to whether there is any extenuating circumstance. He has found none, and I agree with him. The appeal of the prisoner must, therefore, be dismissed and the reference must be accepted. The conviction under Section 302, I.P.C. and the sentence of death passed thereunder must be confirmed. I therefore agree with my learned brother in the order that he has made.