1. This is a reference under Section 307, Criminal Procedure Code, made by the Sessions Judge of Rajshahye.
2. The accused Sabar Ali Sarkar was charged under Section 304, Indian Penal Code, together with two others, Baroda Sundari and Mohir Khan, the two latter having been charged under Section 364/109, Indian Penal Code. They were tried by a Jury and the Jury having found that Baroda and Mohir were not guilty and the Judge having accepted their verdict, they were acquitted. So far as Saber Ali is concerned, the Jury found him guilty under Section 323 but the learned Judge, disagreeing with them on the point and being of opinion that the case o Saber Ali same under Section 325, Indian Penal Code, has referred the case to this Court.
3. The substance of the prosecution case appears to be as follows:
Baroda was the kept mistress of the accused Saber Ali and the deceased. Ohir Sonar, a co villager, was found in the house of Baroda, it being alleged that he was there for the purpose of having sexual intercourse with the woman. Whether he went there of his own accord, or was called by the woman, is immaterial. He was looked up in a room and Saber Ali sent for Mohir, the elder brother of the deceased, asked him why his brother visited his mistress and told him that he would teach his brother a lesson. So saying, he took the deceased, who was a young man of 22 years of age, to his own house. There he tied him to a post by a rope and gave him a good beating. Mohir followed the accused and called some villagers. When they arrived, the accused was still beating the deceased and when it was pointed out by some of the villagers that the young man was going to die, the accused stated that he was merely pretending and gave him a few strokes with a cane. It was then found that the young man had expired. This is substantially the story set up by the prosecution. There is evidence in support of it, that, evidence has been placed before us and we think that so far as the main occurrence is concerned, the case has been proved by the evidence.
4. It has been contended before us on behalf of the accused that the evidence ought not to be believed and some discrepancies were pointed out.
5. These discrepancies, however, relate to the statements of witnesses as to the particular persons who are said to be present on the different occasions and we do not think, on the whole, they affect the main story. So the evidence proves that the deceased was tied to a post with a rope and was beaten by the accused.
6. The Jury evidently accepted the evidence as to the occurrence because they unanimously found the accused guilty. The only difference between the Judge and the Jury was that while the Jury found him guilty under Section 323, the Judge thought that the accused was guilty under Section 325.
7. It is contended before us on behalf of the accused that two matters were not placed before the Jury by the learned Judge. The first is that in the first information laid at the Thana by Mohir, the brother of the deceased, there was no mention of kicks and blows having been administered by the deceased (sic) it being only mentioned that the deceased was beaten with a cane. Secondly, in the first information it was stated that the hut in which the beating took place had no lamp, whereas in the evidence it was stated that there was a lamp and it is urged that these two important facts ought to have been laid before the Jury.
8. It is for this reason that we have had the evidence placed before us and have considered the case upon the whole evidence. In the first information it was stated that death was caused by the beating administered by the accused, but it was not mentioned that he gave kicks and blows, only the caning being mentioned. The explanation that is offered by the learned Pleader for the Crown is that the information was laid at the Thana after the President of the Panohayet had come to the village and that it was under his advice that the information was laid. There were no external marks of violence other than the marks of caning and it might be that the President of the Panohayet advised Mohir to state what was apparent on the body of the deceased. This might be a possible explanation of the first matter, and as to the second, namely, as to the discrepancy on the question of there having been a lamp in the hut, it seems to us that, although there might not be a lamp inside the but, there is evidence to show that there was light outside the hut. In any case, there were many villagers present there and it does not appear that it was so dark that these witnesses could not see the accused striking the deceased.
9. We accordingly agree with the Jury and the Judge in holding that there was an occurrence as alleged on behalf of the prosecution.
10. Then the question is whether the accused is guilty under Section 323 or under Section 325. As stated above, the Jury was of opinion that he was guilty under the former section. Thereupon the learned Sessions Judge asked them, whether the injuries as described by the Civil Surgeon found at the post mortem on the body of the deceased were caused by the kicks and blows of Saber Ali, accused. The answer was 'Our belief is that as he was a weak man he died as the result of small force.' The learned Judge repeated the question saying that that was not the answer to his question. The Jury then gave the answer as follows: 'We find that the wounds found on the body of Ohir by the doctor at the post mortem were caused by the blows or kicks of Saber Ali.'
11. Now, the medical examination shows that there was rupture of the spleen, the sixth rib was broken and there were several other kicks and blows given on the abdominal region and buttocks and if the injuries found on the body of the deceased by the doctor were caused by the blows and kicks of the accused and if the hurt which the accused intended to cause or knew himself to be likely to cause was grievous hurt, the Judge was right in coming to the conclusion that the case comes under Section 325. The learned Judge says, and we entirely agree with him, that the accused did not intend to cause the death of the deceased. Whether he knew it to be likely that grievous hurt would be caused is the question for our consideration.
12. Now, on the one hand, it may be said that the fact that the injuries were, on the medical evidence, caused by hard blows would indicate knowledge on the part of the accused that the blows were likely to cause grievous hurt. On the other hand, the fact that when the co villagers told the accused that the young man was about to die he evidently did not believe that there was anything serious and he observed that the deceased was merely pretending and in fact gave certain strokes with a cane, would rather indicate that he, at any rate, did not think that the kicks and blows had caused any severe injury to the young man. It appears to us that the accused, having found that this young man Ohir had approached his kept mistress, thought that be would be justified in teaching him a lesson by giving him a good thrashing. He accordingly sent for the brother of the deceased and in the presence of the villagers gave the deceased a thrashing.
13. The deceased was of a weak constitution and had an enlarged spleen, and it does not appear that the accused had shoes on, when he gave the kicks. Although the Jury were of opinion that the injuries on the body of the deceased found on post mortem examination were caused by the kicks and blows given by the accused, they unanimously found the accused guilty only under Section 323 and not under Section 325.
14. In all the circumstances of the case, we are not quite satisfied that the accused had either intended or knew it to be likely that he would cause grievous hurt. The case seems to be on the border line and we think the accused may be given the benefit of the doubt on this point. At the same time, we must take into consideration the severe injury caused to the deceased and while convicting the accused under Section 323, Indian Penal Code, we sentence him to one year's rigorous imprisonment.