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Criminal Reference No. 5 of 1967 and Appeal No, 291 of X967; decided on 15th August 1967.
, S. 300, Exception l-Grave and sudden provocation-Provocation, even though grave, caused 2/3 days prior to occurrence-Cannot be regarded as sudden-Case held not covered by Exception I to S. 300-Circumstances, however, extenuating-Sentence of death altered to one of transportation for life.
Deceased, elder brother of accused scolded deceased's wife whereupon she left for another place two or three days before the murder. It was contented that the murder of his elder brother by accused on this account was protected under Exception 1 to S. 300, P. P. C.
Held, that if any provocation was caused by taking to task the wife of the accused 2/3 days before, there was sufficient time for cooling off. Although the accused could lose all self-control after such incident leading to his only remaining wife also leaving him and the provocation no doubt was also grave to a degree and the incident of the elder brother's reprimanding the wife of the accused may have caused her to desert the accused but it could not be held to be sudden enough as contemplated by the Exception 1 to section 300 of the Penal Code as the provocation took place 2/3 days before.
The circumstances, however, of the accused' s smarting because of separation from the joint family for which he was harbouring a grievance, added together with the incident of taking his wife to task 2/3 days before the murder, were held sufficient extenuating circumstances for the lesser sentence of transportation for life.
A. Salam Khan with Nurul Islam for the Condemned Prisoner.
A.. T. M. Masud, Deputy Legal Remembrancer with Sultan Ahmed for the State.
Dates of hearing : 2nd and 3rd August 1967.
This is a reference under section 374 of, the Code of Criminal Procedure for confirmation of the death sentence as passed against Ansar Ali Biswas, the condemned prisoner by the learned Sessions Judge, Kushtia. The condemned prisoner has also appealed and has been represented before us by Mr. Salam Khan. The learned Deputy Legal Remembrancer has appeared in support of the reference. Both the reference and the appeal have been heard together and will be governed by this one judgment.
The prosecution case in short was that on the morning of 25th of December 1966, at about 10-30 a.m., the appellant Ansar Ali committed murder by intentionally causing the death of his elder brother Munsur Ali Biras at Khoksha Bazar within the Police Station of Khokaha.
It is alleged that on this fateful day at about 10-30 a.m. Munsur Ali, the deceased who was the Chairman of the Khoksha Union Council with his son Akmal Hossain P. W. 2 , went to the shop of cobbler Sasadhar P. W. 4 in Khoksha Bazar for preparing shoes of Akmal Hossain. At that time P. W. 4 Sasadhar and his grand son-in-law Dulal P. W. 5 were working in the shop. Aittiq on a chair the deceased, was chosing the sample of shoes.
At that time appellant Ansar Ali entered into the shop with drawn sword and in a matter of seconds attacked Munsur Ali with a blow on his neck. The latter fell down on the floor where upon the appellant dealt another blow on the left side of his head and fled away towards the east. The occurrence was witnessed not only by the inmates of the shop, namely, P. Ws. 4 and 5, but also by P. W. 1 Sher Ali and P. W. 3 Maizuddin Biswas who were on the adjoining road. P. W. 3 cried out whereupon witnesses P. W. 6 Abu Baksh, P. W. 7 Azizur Rahman, P. W. 8 Yusuf Ali and several others came and they also saw the appellant Ansar Ali running away with a sword. P. W. 1 Sher Ali took Munsur All on his lap, poured water on his head but he was found dead.
It was alleged further that within 15 minutes of the occurrence, the appellant came back with blood-stained shirt still on him sod gave out that he caused the murder and tried to justify it. He was soon after arrested by the O/C. of Khoksba Police Station which was located within a few yards. Meantime P. W. 1 Sher Ali went to the Police Station to lodge the First Information Report. He was waiting for the O/C. who soon after came to the Police station with the appellant under arrest. Then at about 11 A. M. P. W. 1 Sher Ali lodged the F. I. R.
Police took up investigation, visited the shop and the dead body of Munsur Ali was found lying in a pool of blood with injuries. The chair, some skins of the shop -were found stained with blood and those were seized,
The appellant made some statement and in pursuance of that statement, a sword was recovered the next morning from the tank of P. W. 16 Abdur Rahman within a few yards from the shop of P. W. 4 Sasadhar which is the place of occurrence.
After the completion of investigation, the appellant was charged under section 302 of the Pakistan Penal Code and after preliminary inquiry by a competent Magistrate he was committed to the Court of Sessions for trial on a charge under section 302, Pakistan Penal Code for intentionally causing the murder of Munsur Ali.
As a motive for the crime, it has been alleged that the appellant was separated from the family by his father and the appellant was under the impression that he was .so separated at the instance of his elder brother Munsur Ali and so he caused the murder.
The defence was a plea of not guilty. According to him the appellant went to the bazar on rumour of the murder and then he was arrested at the instance of Akamuddin and others who did not like Munsur Ali and caused his murder by setting up some unknown persons.
The prosecution examined 19 witnesses; the defence did not examine any witness.
The trial was held with the aid of four Assessors---all of whom unanimously found the appellant guilty under section 302 of the Penal Code.
The learned Sessions Judge in agreement with the unanimous opinion of the Assessors, convicted the appellant as above.
Mr. Salam Khan, the learned Advocate appearing for the appellant has taken us through the judgment and the evidence as well as the records of the case. His contention is firstly that three injuries as found on the person .of the deceased gave the lie to the prosecution case, having regard to the fact that according to the P. Ws. only two blows were given. Secondly, he has argued though faintly that the appellant was insane and lastly he argued that at any rate the circumstances disclosed make it a case of Exception 1 to section 300 of the Penal Code. We will advert to those grounds after a brief discussion of the evidence.
P. W. 1 Sher Ali, P. W. 2 Akmal Hossain, P. W. 3 Maizuddin Biswas, P. W. 4 Sasadar and P. W. 5 Dulal seem to be the actual eye-witnesses of the occurrence. P. W. 1 who is the informant stated that on the 9th of Potash 1373 B. S., at about 10 a.m. he went to Khoksha Bazar about a mile away from his house to see Munsur Ali who was his Behai, his son having married the daughter of Munsur Ali. It was a Ramdan day and he came to the bazar to enquire of Munsur Ali, whether he would allow his daughter to go to his house as she had not been to his house since marriage in previous Aswin. He went to his Arat in the bazar but could not find him there. He learnt that Munsur Ali had gone to P. W. 4 Sasadhar' s shop to make shoes for his son. So he made for the shop and on reaching there he found Munsur Ali sitting on a chair. He also saw with his own eyes the attack made by Ansar Ali with sword on the neck of Munsur Ali. On Munsur Ali having fallen down, the appellant gave another blow at the left side of the bead and ran out with the sword east wards. The witness clasped his Bebai and in doing so his clothes were spoiled with blood. Munsur Ali died at once. P. W. 3 who just came, cried that Ansar Ali had killed the Chairman. Inside the shop were P. W. 4 and P. W. 5. The witness also stated that P. Ws. 6, 7 and 8 and others came in soon after and they stated that they saw Ansar Ali going with a sword. The witness next went to the Police Station Khoksha t(. lodge F. I. R., but he could not find the O./C. Soon after he found the O./C. coming with the appellant under arrest when he lodged the F. I. R. The witness went on to say that appellant Ansar Ali and deceased Munsur Ali were full brothers and their f4ther Dukbi Biswas was alive. They lived as members of the same family. Ansar Ali was separated from the joint family about a year back by their father for his squandering habits. The witness identified the sword. In cross-examination the witness seesped to state that he saw the occurrence from 10/12 cubits south of the shop and he also stated that he did not notice from which side Ansar Ali came nor did he notice the sword. The witness denied the suggestion that Ansar Ali was going to see his dead brother whpp be was arrested on suspicion.
From the cross-examination it appears that the witness was not right inside the shop at the time of the first stroke but in any event he was within the seeing distance. The witnesses also in cross-examination stated that Ansar Ali had built a separate house and that he had divorced his first wife and that he had five children by her. The witness denied that after divorce she was staying with the elder brother Munsur Ali. The witnesses admitted that Ansar Ali married second time before the divorce of the first one and he had a daughter by her and that be divorced the second wife too before he divorced the first wife. He also stated in cross-examination that Ansar Ali married the third wife at Kushtia and denied the suggestion that Munsur Ali was a debauch and that he was in illicit connection with the first two wives of Ansar Ali and that is why the latter divorced them. The witness also denied that 2/3 days before the occurrence Munsur Ali touched the third wife of Ansar Ali. He also denied knowledge of the fact that out of this incident the third wife picked up quarrel with Ansar Ali and left him. There was also a suggestion to this witness that to suppress family sandal the parents of Ansar Eli had been withheld which the witness denied.
It appears that several suggestions were made to this witness to the effect that the elder brother was not very respectful to his younger brother's wives, and that he was a man of bad character but those suggestions having been' stoutly denied and there being no other evidence and the accused himself not having said anything like that in his section 342 examination, we place no importance to these suggestions.
P. W. 2
is Akmal Hossain son of the deceased Munsur Ali who accompanied the father to the shop on that fateful day. He is a young lad of ten years and seems to be sufficiently intellegent. He has supported all that P. W. 1 Sher Ali had said. Over and above that he introduced a new element in his evidence, which was not stated by P. W. 1, namely, that within 10/15 minutes his uncle appeared in front of the shop and proclaimed that he killed his father (meaning witnesses' father). The witness also said that his shirt and Paijama was spoiled by his father's blood. In cross examination he stated that they had not yet selected the shoes for which they went to the shop when the assault came. 11e did not see the first assault but saw the second assault.
It seems the witness was very much preoccupied with his shoes being a young fellow and thus could not see the first blow. The witness also stated that his two sisters, grandfather and grandmother and others came with his mother and Ansar Ali was laughing when he reappeared and it seemed to him that he was insane.
This part of his evidence has come in for some comment from Mr. Salam Khan. He wants to say that the sisters, grand father, grand mother and others who came should have been examined in the case.
There is, no evidence as to how long after they game to the place of occurrence.
Mr. Salam Khan also commented that the fact that Ansar Ali was laughing when he reappeared shows that he was a lunatic. He has pointed out that P. W. 2 has clearly stated "that to him it seemed that he was insane."
This part of the evidence of P. W. 2 about insanity has not been supported by any other witness.
At any rate this evidence even if- accepted does not show that Ansar Ali was insane at the time of the attack.
P. W. 3
is Maizuddin Biswas. He has also supported what P. Ws. 1 and 2 have stated. He also supported P. W. 2 on the point that 10/15 minutes after the appellant returned with blood stained clothes but without sword and disclosed that he committed the murder and tried to justify it. The witness also stated that he found bloodstains on the clothes of Sher Ali and Akmal and that P. W. 8 Yusuf Ali's shop was open and that the tea stalls in front of the shop P. W. 4 were closed as it was a Ramdan day. They grocery shop on one side and a saloon on the side of P. W. 4 Sasadhar's shop were also closed on that morning-
The witness happened to be there on that day as he went to Khoksha Union Council Office in connection with a case for Barga crop and having not found the Chairman he went towards his Gadi Ghar and on the way he found him in the shop of P. W. A sitting on a chair with his son.
It may be mentioned here that the plaint of this witness was seized by the police thus proving that the witnesses was definitely there.
In cross-examination there was a suggestion to this witness that with Akammuddin P. W. 9 they formed a gang, which the witness denied.
It will appear from the above that this witness could not in any way be shaken in cross-examination. .
P. W. 4 is the cobbler himself in whose shop the incident took place. His version of the occurrence is substantially on the same lines as told by the other eye-witnesses. This witness also it may be mentioned, stated that 10/15 minutes after the occurrence, Ansar Ali came and delivered a lecture justifying the murder committed by him and that he was still wearing blood stained clothes.
The witness in cross-examination stated that Abu Baksh P. W. 6 became Chairman after the death of Munsur Ali and that he was a neighbour of one Alimuddin who was friendly with Abu Baksh P. W. 6. The witness denied any knowledge of P. W. 6's having contested for the Chairmanship with Munsur Ali. He also denied the suggestion that Akamuddin P. W. 9 and Abu Baksh P. W. 6 placed a man in his shop to kill the Chairman. He also denied the suggestion that any unknown man committed the murder.
Suggestions as above were thrown to the witness without success. There is nothing to discredit the witness.
P. W. 5 is Dulal Chandra Das the grandson-in-law of P. W.4 Sasadhar. He has supported his grandfather-in-law in all that he had said. He was showing the sample shoes. He also stated that P. Ws. 6, 7 and 8 came and heard the occurrence and the reported that they saw the appellant running away with swore in hand. The witness also stated that Ansar Ali returned within 10/I5 minutes and disclosed that he committed the murder and his clothing were still bearing bloodstains. He also saw the clothes of Sher Ali and Akmal were blood-stained.
Several suggestions were directed to this witness also in cross examination to prowl; that he did not see the occurrence but with out success.
P. W. 6
is Abu Baksh. He is the acting Chairman of the Khoksha Union Council and it seems he is the successor of deceas ed Munsur Ali. The witness stated that he had joined business with Munsur Ali. Unlike P. Ws. 1 to 5 this witness does not claim to be an eye-witness. He only found the appellant coming out of the shop of Sasadhar with a sword and running east, wards. On going to the shop he found P. Ws. 4 and 5 and P. Ws. 2, 1 and three others in the shop and they reported to him that Ansar Ali gave two sword blows in quick succession. The witness stated that he saw Ansar Ali running away with the sword.
The witness further went on to state that within 10/15 minutes Ansar Ali returned and tried to justify the murder. His clothes were found stained with blood and he had then no sword in his hand. The witness also stated that the accused made some statements and that on his pointing out, the sword was recovered from the tank of Abdur Rahman P. W. 16 which was three Rashis east of Sasadhar's shop. There was a suggestion to this witness in cross-examination that there was dispute between P. W. 9 Akamuddin and Munsur Ali which the witness denied. The witness also denied the suggestion that he in the company of P. W. 9 and others committed the murder by placing an unknown person in the shop of P. W. 4 Sasadhar.
The witness also stated that for about two minutes, Ansar Ali tried to justify the murder and that about 100 people. Assembled there and heard him.
This witness also could not be discredited in any way.
P. W. 7 is Azizur Rahman who saw Ansar Ali coming out of the shop of P. W. 4 Sasadhar with a blood-stained sword and running east wards. He identified the sword. On going inside the shop, he found P. W. 6, P. W. 3, P. W. 4, P. W. 5 and P. W. 2 who all reported that Ansar Ali entered and dealt sword blows and left in a moment. This witness also stated that soon after Ansar Ali came back without the sword and justified his murder.
In cross-examination the witness admitted that he was the younger brother of P. W. 16 Abdur Rahman who was a member of Akamuddin's Board. He also admitted that they were weavers by caste but he denied the suggestion of any quarrel between Akamuddin and Munsur Ali. He also admitted that Ansar Ali and Munsur Ali belonged to the agricultural class. He dented the suggestion that the weavers community did not like the influence of agriculturists and so had go Munsur Ali murdered by some unknown man.
This witness also could not be shaken in any way and what was elicited in cross-examination from him is not sufficient for holding that it was the conspiracy of the weavers that led to the diabolical assault by some unknown man.
P. W. 8 is Yusuf Ali who has a Pan Biri shop north of P. W. 4's shop intervened by a grocery shop. He also saw Ansar Ali coming out of the shop with sword stained with blood and going away east wards. On going into the shop he found P. Ws. 3, I, 4, 2 and 7 who all told him that the appellant committed the murder. The witness also reported what be saw. The witness also stated that soon after Ansar Ali returned but without sword and that he tried to justify the murder.
This witness could not be broken in any way in cross examination.
P. W. 9 is Akamuddin Chairman of Jaripur Union Council. This witness stated that on the 25th of December 1966, at about 10-45 a. m., Ansar Ali came to his gadi and wanted his help disclosing that he killed his brother and that at that time Ansar Ali was wearing a carolin shirt which was stained with blood, Meantime the O./C. came and arrested Ansar Ali just outside the gate of his gadi. The witness also stated that following morning at about 7-30 a. m., this sword was recovered from the tank of Abdur Rahman on being pointed out by the accused himself and that Etem Ali P. W. 11 actually brought it out from the tank.
So from this witness we get a sort of extra judicial confession and this is over and above all that the other corroborating witnesses have said. Several suggestions were made to this witness also to prove that he bore grudge against Munsur Ali but those were stoutly denied. He said that he was not liking the influence of Munsur Ali and so removed him from the world in collision with P. W. 6 and others. There was also a suggestion to this witness that he owed Rs. 15,000 to appellant Ansar Ali which the witness stoutly denied.
Suggestions have been made galore and at random but those could not be substantiated.
P. W. 10 is Robati. He went to the shop after the hearing of rumour about the murder. P. Ws. 4, 5, 1, 3 and others told him that Ansar Ali committed the murder with a sword. He also heard from P. Ws. 6, 7 and 8 about their having seen Ansar Ali going east wards with drawn sword stained with blood. This witness also said that soon after Ansar Ali came back to the shop and he was trying to justify the murder. There was a suggestion to this witness in cross-examination that Ansar Ali did not tell any thing before the crowd of over one hundred people to justify the murder which the witness denied.
P.W. 11 is Etem Ali. He stated that on the 10th of Pouth monday morning, that is, next day, at the request of the crowd b; dived into the tank and recovered the sword from the water on the showing of a place by the appellant himself. The witness also stated that the O./C. was in the company.
So far we have been getting the evidence of those who saw the actual attack and those who saw the running away with drawn sword and of those who saw the recovery of that sword and also of the person who actually recovered the sword by diving.
P. W. 12 is the blacksmith who claims to have made the sword at the order of Ansar Ali. He stated that -he made the sword in last Bhadra on orders placed by Ansar Ali who supplied the iron and the handle. He also stated that on the following day of the murder the sword was recovered from the tank of Abdur Rahman and that he then stated that he made the sword on order placed by Ansar Ali. In cross-examination, of course, the witness admitted that no one saw the supply of iron by Ansar Ali nor did any one see his making the sword. The witness also admitted that it took him one and half week to make the sword but there was no record that Ansar Ali gave order for the sword.
Having regard to the fact that all the witnesses have seen the actual attack with the sword and of the appellant running away with the sword, the question as to whether this blacksmith actually made the sword or not is not so material.
P. W. 13 is a formal witness.
P. W. 14 is Afzal Sheikh rather an important witness: - He stated that he was a neighbor of Chairman Munsur Ali (deceased). Dukhi Biswas (father of Munsur Ali, deceased) has a rank which the witness and others used.
The witness went on to state that this was objected to by the present Behari wife of appellant Ansar Ali and they complained to the Chairman Munsur Ali who took her to task.
-In cross-examination the witness denied that Munsur Ali spoiled the first two wives of Ansar Ali and so Ansar Ali divorced them. He admitted, however, that the next wife of Ansar Ali left for Kushtia after a quarrel within 2 or 3 days before the murder although the witness denied that the quarrel arose over a complaint of the lady-that Munsur Ali touched her. The witness also admitted in cross-examination that .the tank was a new one and Dukhi Biswas's family used it for drinking purpose. . .
This evidence shows two important facts-one is that the third wife of accused Ansar Ali who was his present wife and Behari objected to the use of the tank by others which led to Munsur Ali taking her to task-whatever is meant by that. We also get it from him that this wife left for Kushtia after a quarrel 2 or 3 days before the murder.
This evidence will call for a little mote discussion is the light of the arguments later:
P. W. 1.5 is a formal witness who was tendered but cross examination declined.
P. W. 16 Abdur Rahman is the owner of the tank. This Witness also stated that at about 10-30 a. m. on the 9th of Poush accused Ansar Ali saw him in his house and reported to him that he murdered his brother Munsur Ali.
So we get two extra-judicial confessions-one made to P. W. 9 and one to this witness.
The witness P. W. 16 stated that on the following morning O./C. Khoksha Police Station came to his house with appellant Ansar Ali and on the latter's pointing out, Etem Ali P. W. 11 brought out the sword from the tank. Of course, this witness stands a little discredited by reason of his saying that to the L/O. he did not say that Ansar Ali justified his murder whereas it appears that he did say so to the L/S. We have not laid much importance to the evidence of this witness except as to the fact of recovery of the sword from the tank.
P. W. 17 is Dewlar Hossain, another formal witness whose cross-examination was declined.
P. W. 18 is Muhammad Danesh Ali the O./C. He stated that at about 10-50 a. m., he was returning to the Police Station and that he then heard a row of murder. On the way he found appellant Ansar Ali whom he arrested. He stated he held inquest on the dead body, seized blood and blood-stained chair from the shop of P. W. 4 and blood-stained clothes of the deceased. He stated that Ansar Ali had shop in the bazar, which is 15/16 cubits south of P. W. 4 Sasadhar. The witness also stated that he took the accused the following morning to the tank of Abdur Rahman and on the showing of the appellant, P. W. 11 Etem Ali recovered the sword from the tank.
It was only with regard to P. W. 16 Abdur Rahman's previous statement mainly that there was any cross-examination of the I./O.
P. W. 19 is the doctor who held the post-mortem examination on 26-12-1966 at 11-30 a. m., and found the following injuries on the person of the deceased:-
"(1) One incised wound 9"x 2 x 3" transverse situated on the back of the head above the occipital protuberance. The following structures were cut from outside inward skin, subculenear tissues, membrane portion of both parietal, portion of occipital and portion of spheniodal bone and brain up to medulla-obloungata.
(2) One incised wound 4 x 1" x 1" transverse situate 1" blow injury No. 1 have also skull and brain were cut.
(3) One incised wound 7 x 2 x2' situated transversely on the left side of the face commencing from the middle of the left maxillary bone passed over the upper 1/3rd of the left ear which was divided completely on to the left parietal bone cutting. Maxillary bone left side left mastoid, left parieta, membrane and brone 2" in depth, clotted blood was found in the injuries."
Death, according to him, was due to haemorrhage and shock as a result of the injuries described above which was anti-mortem and homicidal in nature caused by sharp cutting weapon. Each of the injuries, according to him,, was fatal and individually capable of causing death.
Confronted with sword, he said that this sword could cause the injuries. The doctor was not cross-examined.
In those circumstances, there is no doubt about the injuries being homicidal in nature and each one of those could well have caused the death. The only question would be what should be the sentence in the circumstances disclosed. There is no doubt about the murder having been committed by the appellant P. Ws. 1, 2, 3, 4 and 5 having witnessed the occurrence with their own eyes. P. Ws. 6, 7 and 8 not only heard the occurrence but also saw the accused running away with blood-stained sword. There is again the evidence of P. Ws. 9 and 16 about the appellant having confessed committing the murder. There is. again overwhelming evidence of the accused having returned after the murder and trying to justify the murder.
Now adverting to the argument first as to the three injuries found while there were only two blows, it appears as rightly found by the learned Sessions Judge, that injury No. 2 is practic ally a continuation of injury No. 3. The- doctor was not cross examined on this point. The evidence is that the first stroke was given when Munsur Ali was sitting on the chair and the second blow was given on the head after he fell. In that position the extra injury is quite explanable. It cannot at any rate be said that the three injuries could not be caused by the two strokes.
The next argument that he was insane has only been supported by P. W. 2. None else has spoken about the appellant having been insane. Even P. W. 2's evidence indicates that insanity, if any, was after the incident when he returned. There is no evidence from any other witness about any sign of insanity present in the appellant at the time of the commission of the murder. 4n the other hand, the fact to his concealing the sword in the tank would tend to indicate that he was sound in mind. The very attempt at justification which has been indicated by several witnesses also shows that he was not insane.
His conduct however after the incident as mentioned by P. Ws. 2, 4, 5 and 6 and P. Ws.. 10 and 16 shows that he was highly abnormal after the occurrence. The very fact of his trying to justify the murder indicates that something really serious was done by the elder brother. He definitely lost all self-control and became highly imbalanced after committing the murder. All these however do not indicate in any way that he was insane at the time of the murder. There is, therefore, no substance in this plea of insanity.
Adverting now to the argument that exception 1 to section 300 of the Penal Code was attracted in this case, we find it a difficult job for Mr. Khan to establish the same.
So far as P. W. 1 Sher Ali goes, suggestion was made to him only about the bad character of the deceased eider brother which was stoutly denied.
The evidence of P. W. 14, however, shows that the third Behari wife of appellant Ansar Ali was taken to task by the deceased elder brother though no date has been given.
The fact remains that this wife of Ansar Ali left for Kushtia after a quarrel 2/3 days before the murder. The tank being a new one, the reprimand or chastisement was recent but it seems not more recent than 2/3 days before the occurrence as the Behari wife left 2/3 days before if any provocation was caused by the taking to task of the last wife of the appellant 2/3 days before, there was sufficient time for cooling off: There is no doubt that the appellant might lose all self-control after such incident leading to his remaining only wife also leaving him.
The provocation no doubt was also grave to a degree as the incident of the elder brother's reprimanding this wife of the appellant may have caused her to desert the appellant but it could not be held to be sudden enough as contemplated by the excep tion 1 to section 300 of the Penal Code as the provocation took place 2/3 days before. Such being the position, the offence could not come under section 300, part 1 of the Penal Code.
The circumstances disclosed however, namely, that of the appellant's smarting because of separation from the joint family for which he was harbouring a grievance, added together with the recent incident of 2/3 days before are we feel sufficient extenuating circumstances for the lesser sentence of transportation for life.
The reference, therefore, for confirmation of the death sentence is rejected and the appeal is also dismissed with the modification of the sentence to one of transportation for life.
ABDUL HAKIM, J.-I agree.
Appeal dismissed,
Sentence reduced.
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