JUDGMENT 1. The accused, Dina Bandhu Moitra, was tried with the aid of Assessors before the Sessions Court of Pubna on a charge of murder punishable under sec. 302 of the I.P. Code for causing the death of his wife Satadal Bashini. The learned Sessions Judge, agreeing with the Assessors, has found the accused guilty, and he has sentenced him to death; and the case has been referred to us under sec. 374 of the Code of Criminal Procedure for confirmation of sentence. There is also an appeal by the accused. 2. The questions that arise for determination upon the reference and the appeal, are, first, whether the evidence is sufficient to warrant the conviction of the accused for murder; and, second, whether, if the first question is answered in the affirmative, the sentence passed on the accused by the Sessions Judge is a proper sentence and ought to be confirmed. 3. We take up the first question first. The case for the prosecution is shortly this:--The accused who had quarrels with his wife on the night of the occurrence retired to his bed-room with his wife after they had finished their evening meal. This was about nine or half past nine o'clock in the evening. At about 2 o'clock in the night Jogesh Chandra Moitra, the brother of the accused, hearing a groan got up from his bed which was in an adjoining room, knocked against the door of the room in which the accused and his wife were sleeping, and saw the accused come out half-naked and run away. On entering the room he and his mother and his sister found the deceased dead, with many wounds on her person and blood all over the body. Jogesh Chandra then sent for some of his relations and neighbours and tenants, and sent information to the Police, which was lodged by Haran Pramauick and was recorded by the Sub-Inspector, who then started for the village where the occurrence had taken place. In the meantime Upendra Nath Ray, the brother of the deceased, arrived at the spot early the nest morning. In the meantime Upendra Nath Ray, the brother of the deceased, arrived at the spot early the nest morning. He saw the accused and his brother Jogesh in the house, and Jogesh asked him to save them, but the accused said "Mahashoy what is the use of hearing all that I have committed the murder; take me to Pubna." After staying there for a short while and having seen the dead body and noticed a knife covered with blood near the dead body, Upendra left the house. The Police then arrived, held an investigation, and arrested the accused. 4. To prove this case, there have been examined several witnesses, some of the village of Hapania, the village of the accused and some belonging to the village of Demra, where Upendra, the brother of the deceased, lives. There have also been examined the police-officers who held the local investigation and the doctor who held the post mortem examination. The first information has been put in, and also the statement of the accused. 5. The learned Sessions Judge has laid some stress upon the first information as showing that the case for the prosecution was true and as showing that the evidence given by Jogesh and the other relations and the neighbours of the accused which does not support the case for the prosecution, as being false evidence; and his view is that the friends of the accused have been induced to change the case which was the true case and was the case upon which the first information was based, by having hopes given to them by the words and conduct of Upendra, the brother of the deceased, not to take any active part in supporting the prosecution. 6. The learned Judge has also relied upon the admission of guilt by the accused and upon the evidence of guilt furnished by certain circumstances in the case, two of which are noticed in particular, namely, first, the fact of the accused appearing very nearly naked with a piece of rag barely covering his nakedness, when he returned home early in the morning after the occurrence; and, second, the fact of his fingers bearing certain cuts which have not been explained. 7. 7. The learned counsel for the accused in his argument contended that the Court below was wrong in referring to the first information as evidence in this case, when it was inadmissible in evidence for two reasons, first, because it was not really the first information, the real first information having been that lodged by the Chowkidar Nalini as the Chowkidar's evidence shows, and, secondly, because the first information at best was a reproduction by the informant Haran Pramanick of what was said to him by the witness Jogesh and stands contradicted by the evidence of Jogesh and is a statement for which the accused cannot be held to be responsible in any way, as the statement by Jogesh even according to Haran was made in the absence of the accused. In support of the first reason the cases of King-Emperor v. Bhut Nath Ghose 7 C.W.N. 345 (1902) and Emperor v. Daulat Kunjra 6 C.W.N. 921 (1902) have been cited. No doubt these cases are clear authority for the proposition that the information which is to be treated as the first information in a case is the information that is really given to the Police first in point of time, and not the information which the Police may select and record as the first information. The reason for this view is stated in the following words in the judgment in the first of the two cases referred to above : "In nearly every trial it is important that it should be known to the Judicial Officer what were the facts given out immediately after the occurrence and reported to the Police and the object of a first information is to render him so acquainted." So far as the reason of the rule goes, we do not see that it makes much real difference whether we accept the information given by Haran or that given by Nalini Chowkidar as the first information under the circumstances of this case, because both these witnesses say that they were deputed to lodge the first information and that both of them received the information they were deputed to lodge from the same person and at the same time. But it becomes unimportant to pursue this discussion much further, seeing that, for the second reason we must hold that the learned Judge below was not right in using the first information in the way he has done because it was a reproduction of Haran of the statements said to have been made to him by the witness Jogesh. 8. The learned junior Government Pleader, who appears for the Crown, contends that although the first information might not have been admissible in evidence as bearing directly either upon the fact in issue or upon any relevant fact, it might be referred to as having an indirect bearing upon certain questions arising in this case, such as the explanation of the conduct of the prosecution in not calling the other relations of the accused as witnesses besides those who have been examined, and also in contradicting the witness Jogesh. But, as has been pointed out by Mr. Roy, although Jogesh may be contradicted by Haran according to sec. 155, sub-sec. (3) of the Evidence Act by proof of former statements made by him, the contradiction must come from the person to whom Jogesh made those statements and in this particular case although Jogesh may be contradicted by the evidence of Haran he could not be contradicted by what the Police Sub-Inspector recorded as the first information of Haran. 9. Leaving out of consideration the first information, let us see what other evidence there is to support the case for the prosecution. The learned counsel for the accused contends that the remaining evidence is both unreliable and insufficient. It is said to be unreliable because so far as the witness Upendra Nath Roy is concerned, and he is considered to be the most important witness for the prosecution as it is he who deposes to the extra-judicial confession of the accused and to the circumstance of the knife being found, he did not make any mention of the facts he is now deposing to for four or five days to anyone and he made mention of these facts for the first time only when the police-officer examined him. It is further argued that Janoki Chowkidar who deposes to the accused having been found nearly naked early the next morning when he returned home and the witness Madhu Molla who also deposes to the same fact, did not make mention of the fact to the police-officer when they were examined by him. Then it is said that the evidence, even if it had been reliable, was insufficient because there were many other witnesses present according to the evidence for the prosecution who could have corroborated the witnesses examined, but who have not been called and there is no reason why they have not been called. 10. The argument no doubt requires consideration. As to the conduct of Upendra who, no doubt, is the most important witness in the case, we think it is explained by his own evidence. He says he was asked by Jogesh to save him and his brother and after remaining in Jogesh's house for a short while Upendra left the place without waiting for the arrival of the Police, and he does not seem to have taken any active part in the conduct of the prosecution, and thereby showing that he did not feel inclined to go against the accused, and it was only when called upon by the Police to state what he knew that he gave out the facts referred to above. No doubt this is only an explanation of his conduct which, it may be said, may or may not be the true explanation and then there is the fact that neither Krishendra the brother of the witness nor his cousin Jatindra who have been examined in the case says anything in support of the fact he has deposed to; on the contrary they say that they had no talk with Upendra on those matters what we have said may at first appear paradoxical. If he is not supported by his brother and his cousin, how does that go to show that his evidence is truthful ? The answer to the question is simple. The circumstance just referred to shows that there has not been any the slightest endeavour on his part to make out a case against the accused. If there have been any such endeavour some sort of support of his statement might have been forthcoming from his brother and his cousin. The answer to the question is simple. The circumstance just referred to shows that there has not been any the slightest endeavour on his part to make out a case against the accused. If there have been any such endeavour some sort of support of his statement might have been forthcoming from his brother and his cousin. The internal evidence afforded by his deposition, which has been read, out to us in full and which we have considered with some care, tends also in the same direction. There is not the slightest attempt to strain any point to overstate any fact or to show any shefling or shaffling about any matter. In that respect it stands in a very marked contrast with the deposition of Jogesh. We feel no hesitation in accepting as perfectly true and reliable the evidence of Upendra Nath Roy, and from his evidence we gather that the accused made clear confession of his guilt at a time when it was most likely that he should make such a confession; for it was only a short time after the occurrence. The listless manner in which he is said to have been walking up and down whilst other people were staying there and holding conversation on different matters, and also indicates that he was in that mood of mind in which he would be most likely to confess his guilt, Then the discovery of the knife by the side of the dead body, though the knife is not deposed to as having been seen by the Police, is an important circumstance in the case proved by the witness Upendra, We believe him in these also fully. 11. The learned counsel for the accused contended that the evidence was unreliable as it sought to prove too much. It sought to prove the extra-judicial confession. It sought to prove the finding of the bloody weapon by the side of the dead body. It sought also to prove the existence of cuts in the finger of the accused. No doubt, where a witness deposes to many facts occurring at different places and times, that may give rise to suspicion as to his truthfulnes. It sought to prove the finding of the bloody weapon by the side of the dead body. It sought also to prove the existence of cuts in the finger of the accused. No doubt, where a witness deposes to many facts occurring at different places and times, that may give rise to suspicion as to his truthfulnes. But here the three facts deposed to by the witness are facts which, if these are facts at all, must have been noticeable within the short interval of time that he was at the house of the accused and within the short compass of space which must have attracted his observation, namely, the place where the accused was and the place where the dead body was. 12. It remains now to notice the circumstance deposed to, namely, the cuts in the finger of the accused noticed on the morning after the occurrence and the fact of his returning home early in the morning in an almost nude condition. Those facts have been deposed to by the witness Janoki Chowkidar whose presence is not denied even by Jogesh In his evidence, and one of those facts, namely, that first-mentioned is further proved by Jogesh himself. 13. We leave out of consideration the witness of Madhu Molla who does not appear to have deposed to the fact of his having seen the accused returning home in a half-naked condition when giving his evidence for the first time before the Police. But leaving him out of consideration we still find sufficient reliable evidence in the testimony of the witness Janoki Chowkidar as proving the fact that the accused was in that condition when he returned. 14. But leaving him out of consideration we still find sufficient reliable evidence in the testimony of the witness Janoki Chowkidar as proving the fact that the accused was in that condition when he returned. 14. Then there are two other important circumstances which strongly support the case for the prosecution to one of which our attention has been called by the learned junior Government pleader Babu Srish Chandra Chaudhuri and the Other is noticed by the learned Sessions Judge; we mean the fact of the Kharam which according to the evidence of Jogesh, the accused put on as a rule but which on the arrival of the Police was found in the room in which the dead body was, under the bedstead, and the fact of the witness Jogesh not having sent for the accused; if indeed he did not see the accused run away, although he had been sending his people, and he was in no want of servants, to his neighbours, to his relations, to the Police and to the brother of the deceased. His only explanation was that he was satisfied when he was told, by whom he is not sure whether by his mother or his sister, that the accused had gone out that night to one of his ordinary haunts, the cremation grounds, and then when asked how far the cremation grounds were, he prevaricated and tried to evade the question by saying there were several of them, until at last he was obliged to admit that both the nearest and furthest of them were no more distant than a mile. We think the conduct of the witness Jogesh in not sending for his brother, if his story that his brother was not at home when the murder was committed be true, is absolutely unintelligible. It is clear from the evidence of Jogesh himself and the interval marks that his deposition bears that he had not been telling the truth, and that he knew more than he was inclined to disclose before the Court, and his evidence contradicting that of Upendra is entitled to no weight whatever. 15. It is clear from the evidence of Jogesh himself and the interval marks that his deposition bears that he had not been telling the truth, and that he knew more than he was inclined to disclose before the Court, and his evidence contradicting that of Upendra is entitled to no weight whatever. 15. We rely on the evidence of Upendra, upon that of Janoki Chowkidar and upon the evidence furnished by the circumstances noticed above, and we feel no hesitation in finding that the murder in this case was committed by the accused Dina Bandhu Moitra, we must say considering the circumstances under which Dina Bandhu killed his wife, his act amounts to murder. We find him guilty of murder and confirm his conviction for murder. 16. We come now to the second question, namely, the question of sentence, Upon this question, no doubt the evidence upon which the learned Judge came to the conclusion that the real motive for the crime was the suspicion of infidelity of his wife entertained by the accused, is by no means clear; but at the same time we do not discover any adequate motive. There is one circumstance noticed by the learned Sessions Judge which deserves consideration here. The deceased left her husband's house in the month of Magh last and returned back in Chaitra following, that is three months later, and she was then four months in the family way and the learned Sessions Judge remarks that this might have been a circumstance which induced the accused to entertain doubts about his wife's fidelity to him. There is some evidence to show that some signs of pregnancy had been discovered when the deceased went to her father's house but they might not have been marked signs such as the accused would have noticed, and he might have been under an impression, false though it might have been, that the pregnancy of his wife was the result of her unchastity. In saying so, we must not understand as meaning to cast the slightest doubt upon the chastity of the unfortunate girl who has been murdered. In saying so, we must not understand as meaning to cast the slightest doubt upon the chastity of the unfortunate girl who has been murdered. We notice this circumstance only with a view to see what the proper punishment of the accused ought to be, and upon the question of punishment it is not necessary to see that the suspicion the accused entertained about the fidelity of his wife was well-founded or not; if it was not well-founded, the accused was only the victim of jealousy of feeling to which human nature is unfortunately too prone. If he was the victim of any such deluded feeling, however deliberate and brutal the murder might be, that would not disentitle him to the consideration of the Court such as it can show to what is well known weakness of human nature, namely, yielding to the feeling of jealousy; and taking into consideration this circumstance we think the case is one that does not call for the extreme penalty of the law. We accordingly set aside the sentence of death passed on the accused by the Sessions Judge and sentence him to transportation for life under sec. 302 of the Indian Penal Code.