1. The three accused in this case, Abalu Das, Santiram Das, and Sakalu Das, have been tried by the Sessions Judge of Rungpur with the aid of assessors, convicted of murder under Section 302 of the Indian Penal Code, and sentenced to transportation for life.
2. The facts of the case are as follows: The deceased Hur Singh and his mother Dulai lived in the bari of the accused Abalu but it was discovered that Hur Singh had contracted an intimacy with Lakya, the wife of the accused Abalu, and so Hur Singh and his mother were turned out and went and lived elsewhere. Then on the night of the 21st May last Hur Singh, at the invitation of Lakya, went to the bari of the accused and the woman took him inside, whereupon Abalu, Sakalu, his brother, and Santiram, his uncle, seized him, carried him off to some distance, broke both his arms and one of his legs, thrust a stick up his rectum, and left him in the open not very far from his bari, where he was found next morning. Information was then given to the police and he was taken to the hospital, where he died on the 24th of May, in consequence of the injuries he had received.
3. There is no direct evidence of these facts; but they appear to be well established by the dying declaration of the deceased, who made three statements: (i) To the persons who first found him, (ii) to the Inspector of Police, and (iii) to the Fauzdari Ahilkar or Magistrate at Cooch Behar. In the first of these statements he said he had gone to a place to the west of bis house to ease himself when he was caught by the accused and treated in the manner above described. But in his subsequent statements he admitted fully that he had gone to the bari of the accused at the invitation of Lakya, because he was carrying on an intrigue with her. The night was dark, but there was no difficulty as to the identity of the accused, because the deceased had lived in the same bari with them, and was able to identify them by their voices. We think there is no doubt as to the veracity of the second and third statements of the deceased, and there is ample corroboration of these declarations in the surrounding circumstances, the evidence of previous intimacy between the deceased and Lakya and the very serious injuries on his body, which ultimately caused his death.
4. The learned Judge, disagreeing with the assessors, has found the accused guilty of murder, and there is no doubt ground for coming to this conclusion. We, however, consider that we may take a more lenient view of the case and alter the conviction from one for murder under Section 302 of the Indian Penal Code to one for culpable homicide not amounting to murder under Section 304 of the Indian Penal Code. Our reasons are these: There is no doubt that the circumstances under which the deceased was found in the bari of the accused on the night of the crime were sufficient to cause grave and sudden provocation to Abalu and his relatives. In our opinion there is no doubt also when the deceasad entered the bari of the accused he did so with an evil purpose; and this must have been the conclusion, at which the accused arrived, when they found him at night within their bari in company with the wife of Abalu.
5. Learned Counsel for the Crown has suggested that the accused laid an ambush for the deceased, and that the woman was made use of to decoy him into the house. We feel very doubtful, however, whether the woman could have been a party to such a design. It may be that the accused were watching the woman and lying in wait for the deceased, whom they know to be the lover of Lakya; and that may account for their springing on him, as they did. But however this may be in our opinion the provocation afforded by the deceased did amount to grave and sudden provocation within the meaning of exception (1) to Section 300 of the Indian Penal Code. The learned Judge does not accept this plea, because the accused took the deceased to some little distance, before they murdered him. But we think that the provocation was of a nature that would continue to influence the feeling of the accused for a considerable period after the deceased was caught in the bari in the company of Lakya; and for these reasons we are inclined to take a merciful view of the case and to alter the conviction from one under Section 302 of the Indian Penal Code to one under Section 304 of the Indian Penal Code, which we accordingly do. Further, we reduce the sentences passed upon Santiram Das and Sakalu Das to rigorous imprisonment for ten years in each case, while we reduce the sentence passed upon Abalu Das to one of rigorous imprisonment for seven years.