EMPEROR Vs. SADHU CHARAN DAS

JUDGEMENT

(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 13 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 15 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/s. 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.