1. This case has been referred to us under the provisions of Section 374 for confirmation of the sentence of death passed on the accused by the Additional Sessions Judge of the 24-Pergunnahs.
2. The accused is said to have pleaded guilty, and he has been sentenced (not convicted) by the Judge on that plea. There is no finding on the record.
3. The accused has also appealed to this Court.
4. In the Sessions Court the accused made the following statement as recorded by the Sessions Judge: 'I did kill my wife. I did not kill her willingly. Finding her in the act of adultery with another person, and being wholly unable to restrain myself, I killed her. I intended to kill her; my caste was gone; I resolved to kill her and then commit suicide. I detected her in adultery on Friday. I did not kill her then. On Saturday, I took her into Madun Roy's garden and there killed her. On Friday, after seeing the adultery, I was in fever and did not eat. I vowed that I would not eat until I had killed her. I told Goberdhone what I intended to do; he advised me to desist. I said I could never desist because I was disgraced, and it was better to die than submit to such disgrace. I murdered the woman with this haswa. I concealed it in a tank and showed it to the Police afterwards. Goberdhone got it out of the water. I am glad I killed my wife. I bathed myself in her blood. I confessed what I had done with pleasure.'
5. This statement no doubt contains an admission that the accused killed his wife; but this admission is coupled with an explanatory statement which is in effect a plea that he killed her under grave and sudden provocation. We think the whole statement must be taken together; and being so taken it certainly is not equivalent to a plea of guilty upon the charge of murder under Section 302 of the Penal Code. The explanation to the first exception in Section 300 of the Indian Penal Code states that the question 'whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact;' and by Section 299 of the Code of Criminal Procedure 'it is the duty of the jury to decide all questions which, according to law, are to be deemed questions of fact.' We think, then, that this case should have been tried out, and the verdict of the jury taken on the plea raised by the accused. We accordingly set aside the sentence passed by the Sessions Judge, and direct that the accused Netai Luskar be tried on the charges on which he was committed to the Court of Sessions.