1. This is a reference by the learned Sessions Judge of Pabna and Bogra. The accused, Sadhu Charan Das, was put on his trial on the charge of having committed murder by causing the death of Dasi Sundari Dasya, his wife. Be was also charged w-the having; committed culpable homicide not amounting to murder, and also with having caused grievous hurt with a dangerous weapon to the said Dai Sundari Dasya. The Jury by a majority of three to two found the accused not guilty on all the charges. The learned Sessions Judge being dearly of the opinion that it was necessary for the ends of justice to submit the case to the ,High Court has forwarded the record with a recommendation that the accused should be convicted under Section 302 of the Indian Penal Code.
2. The main facts of the case are as follows: On the night of the 13th of April last the accord Sadhu Charan and his wife, Dasi Sundari, slept together in the northern room of their house. At 6 A.M., in the following morning, their servant, Kokan Chunder Das, a boy of 12 years old, came to open the jhap of the accused's sleeping room, but the-accused did not allow him to do so. After this, Kokan said, that the 'accused Sadhu was vomiting, and Dasi Sundari asked Kokantocall Sadhu's brother and mother, and Kokan went to fetch them. A short time after Kokan had gone, two sellers of charcoal cakes who were passing by heard cries from the accused's room and saw Dasi Sundari coming out of the shop with a blood-stained dao in her hand and with her throat cut. She went towards the house of Babu Adhur Chunder Das, a Pleader. Adhur Chunder Das was coming from his house and met her and 6he fell on the ground; Adhur Babu secured a dooli and sent her off to the hospital. The medical examination discloses that she had one incised wound about four inches long and one inch-and-a-half deep in front of the neck, the upper portion of the larynx and pharynx being divided. There were also two other slight incised wounds on the front of her left hand. Two constables who happened to be passing by Sadhu's shop saw a collection of people on the roadside. They entered the shop where Sadhu was seated and found blood stains on Sadhu's person and abrasions on his fingers. Sadhu. was arrested and taken to the Police-Station. The Sub-Inspector found the accused slightly dosing and sent him to the hospital for treatment where he was admitted as a suspected case of opiurn poisoning. The doctor washed out the stomach and sent the washings to the Chemical Examiner who detected opinion in the washings. At 3-45 P.M. that afternoon, Dasi Sundari made what is described as a dying declaration which was recorded by a, Sub-Deputy Magistrate. She was unable to. speaj but, in answer to the question put to her, she pointed out the accused as the person who hear inflicted the wounds on her. At 3-15 that afternoon, the accused made a. confession which was recorded by the same Sub-Deputy Magistrate. In that confession the accused stated that he had cut the throat of his wife as she was of bad character. Dasi Sundari died at about II P.M. on the following day, the 15th of April.
3. The case against the accused rests mainly on the statement of his deceased wife and on his confession, and there is also certain circumstantial evidence. On the circumstantial evidence there can be no doubt that the deceased woman, Dasi Sundari, was cut in the room where she and he husband, the accused, had slept, and that she and the accused were the only persons present at the time. The only question, therefore, is whether, as is contended by the learned Pleader on behalf of the accused, the wounds were self inflicted or whether they were inflicted by the accused. As regards this point the main evidence, as already' stated, coaststs of the woman's statement and the statement of the accused. Objections, have been taken to the admissions of both the statements. As regards the statement of the deceased, it is contended that it cannot be regarded as a statement admissible under Section 32 of the Indian Evidence Act, because it is not actually a statement, as the woman was unable to speik and could only make signs in answer to the question put to her. This point was considered by a Pull Bench of the Allahabad High Court in the case of Queen Empress v. Abdullah 7 A. 385 : A.W.N. (1875) 78 : 4 Ind. Dec. (N.S.) 692 (F.B.) . The facts of that 'case, so far as this point is concerned, cannot be distinguished from the facts of the pre-sent case. We ore in entire agreement with the majority of the pull Bench which held that the questions and the signs taken together might properly to regarded as a 'verbal statement' made by a person as to the cause of her death within the meaning of Section 32 of the Evidence Act, and were, therefore, admissible in evidence.
4. As regards the confession of the accused we see no reason why it should be rejected in to because the accused at the time of making it was under the influence of a dose of opium, prom the evidence of the Assistant Surgeon and of the Sub-Deputy Magistrate, we are satisfied that the condition of the accused was such that he could understand the questions put to him. Also the confession itself, though not very elaborate, shows that the accured was in full possession of sis serses at the time he made it. There is but noticeable point as regards the and that is that, when the statement was read over to him, he made an important correction. In the answer, 'I killed her. hearing her character was; tad' which was recorded by the Magistrate he, corrected the word 'hearing' into 'seeing' making the answer mean that he cut her throat seeing that her character was bad. There seems to be no reason to suspect that there was any undue irfluence or inducement of any kind that led the accused to make this confession, and we can see to reason why he should have stated that be had cut his wile himself Unless he had actually done to.
6. As regards the statement of the deceased, it is not quite clear what was the question put to her as there are slight variations in the different accounts. From the statement recordedat the time it would appear that three persons including the accused weft made to stand in front of the woman, and she was asked to point out which of these persons had wounded her and she pointed to the husband. We think that it is to be regretted that the question was put in a form which suggested that the injury was homicidal. But nevertheless, the fact that the injured woman, shortly after she lad received the injury, showed her husband as having caused it is a very important piece-of evidence against him. There are other minor points in the -case which support the theory that the wound was inflicted by the husband and not by the wife herself. The opinion of Medical Officer is that the wound was homicidal and not suicidal. He has given its reasons for his opinion, and, though it cannot betaken as a Conclusive proof, we think his opinion is entitled to some respect. It is true that the wound was inflicted from left to right which would be consistent with a suicidal wound. But this is not the only point that hag to be considered in determining the nature of the wound. There is evidence that the accused about a week before the occurrence purchased a dao: To this we attach no importance whatever. A dao is a common domestic implement and there is no reason for thinking that it was bought with the intention of being used in the manner in which it was actually used. The fact that the woman had a dao in her hand at the time she left her house is not Inconsistent with the case for the prosecution that the injuries were not self inflicted. The marks found on the accused's fingers appeared to the Assistant Surgeon to be such as might have been caused by biting by teeth and the marks on the woman's hand would indicate that she tried to seize the weapon at the time she was attacked. If this was so, it is not improbable that she succeeded in wresting away the dao from her husband's hand and ran away with it in the manner described. On the evidence, the whole of which has been read by us, we are satisfied that the view, taken by the learned Sessions Judge is a correct view and that the injury was caused to the woman, by her husband, the accused. Having regard to the nature of the injury there can be no other conclusion than that the person who inflicted it intended to cause death, and that the offence committed is that of murder. The murder was undoubtedly committed, as the accused said, because he believed his wife to be of bad character. From the relations between the parties on the previous that, as described by their servant Kokan, it seems probable that the murder was committed suddenly on a quarrel arising between the husband and the wife after Kokan had left the house. Possibly, the accused suspected that his vomiting was caused by some poison administered by his wife, and that led him to attack her. But this is purely a conjecture. What actually happened, the husband can alone say. But we think, that, under the circumstances of the case, the lesser punishment provided for such an offence, will be sufficient. We, there are, convict the accused, Sadhu Charan Das, under Section 30 a of the Indian Pinal Code, of having committed murder by causin the death of his wife, and sentence him under that section to transportation for life.