Norman, J.@mdashThe prisoner has been convicted by the Judge of Gya of the murder of one Bahuri Tewari, and sentenced to transportation for life. While passing this sentence, the Judge suggested that the papers-should be sent to the Lieutenant-Governor of Bengal, in order that the sentence might be reduced if his Honor should think fit to exercise the powers of mitigating the sentence, u/s 54 of the Criminal Code of Procedure. On a perusal of the abstract statement of the cases tried before the Sessions Judge, we sent for the record u/s 403.
2. The facts are shortly as follows:--
The prisoner is a ryot, and he and his wife appear to be servants of one Durgaprasad. He, suffering from partial blindness, sent for the deceased Baburi Tewari, Brahmin, who practised as a baido or native physician.
3. Bahuri represented that he must perform certain incantations for which the presence of a young woman was necessary. The wife of Durgaprasad assisted by two female servants, and her brother, Narayan Sing. forcibly took the prisoner''s wife, Chunya, to Bahuri to do some Puja. They fastened the door and went away, leaving her with Bahuri. This was on Wednesday night. On the following day she complained to her husband, the prisoner. The prisoner says that she told him she had been ravished by Bahuri, and that she would not survive the disgrace. Chunya in her evidence says that she did not tell her husband that she had been ravished on Wednesday night, but that she told him all that had occurred, which was that after she had been left with Bahuri, he told her to prepare a Chula in the corner to light a fire and place incense on it; that there was then a noise at the door; that Bahuri asked if there was any one outside, and then let her go.
4. The prisoner borrowed a phulsi, or sword, and on the following night placed himself on the roof of the cow-house, in which Bahuri and his nephew lodged, to watch what went on.
5. The prisoner''s wife was again taken to Bahuri. After some pretence at incantations, Bahuri threw her on a charpoy, and attempted to have connection with her by force. The prisoner jumped down from the roof, and rushed into the room; his wife escaping by the door saw the prisoner strike Bahuri with the sword in several places. From the effects of the wounds so received, Bahuri died the next day from loss of blood. It appears to me that the prisoners should not have been convicted of murder. I think the story of the wife that she had not been ravished, and did not complain to her husband that she had been ravished on the Wednesday night, is evidently true. The prisoner, no doubt found himself helpless, unable to resist the united influence of Durgaprasad, who stood in the relation to him of both master and zamindar of his master''s wife and family and of the Brahmin Baido. Practically be probably could not have prevented his wife from being left with the Baido for the purpose of his incantations. All he could do was to watch and protect her if she should be assailed during the night. The deceased is described as a robust middle aged man, and he had a nephew with him. It seems not unreasonable that the prisoner should have provided himself with a weapon of offence on such an occasion. When the prisoner found that his wife was actually being violated by the deceased, it seems to me that he received the gravest of all possible provocations, and that be may, and ought to be presumed to have been deprived of the power of self-control by such provocation. The wounds were just what a man under the impulse of sudden passion on a sudden emergency would inflict. Having struck three or four blows, the prisoner went away without waiting to see the effect of them, without staying to see that he had killed the deceased out-right. There was no mutilation and no wanton cruelty on the prisoner''s part. The offence of which the prisoner should have been found guilty is culpable homicide not amounting to murder. I think a sentence of eight months'' imprisonment to be computed from the date of his sentence by the Sessions Court will be amply sufficient to meet the ends of justice.
E. Jackson, J.
I quite concur.
