EMPEROR Vs. SABERALI SARKAR

JUDGEMENT

(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.