RAM BHAROSEY Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal by Ram Bharosey who has been convicted by the learned Sessions Judge of Fatehgarh under Section 302, Indian Penal Code, for causing the death of Brij Nandan by administering arsenic poison on 6 June 1935. He has also been convicted of an offence under Section 328, Indian Penal Code, that is, administering poison for the purpose of committing theft. He has been sentenced to transportation for life under Section 302 and to 10 years rigorous imprisonment under Section 328.

(2.) The deceased was distantly related to the appellant and was a petty hawker going about with a bundle of cloth to various villages. He was resident of a village called Barauli in the District of Aligarh. The case for the prosecution is that he left his home several days before he was found dead on the morning of 7 June 1935 at a little distance from the road leading from Fatehgarh to the Ganges. He is said to have had on his person two gold rings and 60 or 70 rupees in currency notes when he left his house. He first went to village Behta where he stayed with a relation. Thence he went to village Sahawar where he had to purchase some cloth. According to the evidence he was at Sahawar on 4 June 1935 and left it on the morning of the 5th. He was seen in the company of the accused in Ganj Dhundwara on the evening of 5 June 1935. According to the evidence of a witness for the prosecution they slept on the roof of a lorry that was waiting outside the railway station of Ganj Dhundwara. They purchased two railway tickets at that station for another railway station Rudain which lies between Ganj Dhundwara and Fatehgarh. They did not, however, alight at Rudain, but elsewhere and somehow reached Fatehgarh in the afternoon. The appellant is related to Bhabhuti Ram who has a parchun shop in partnership with Ram Lal at Fatehgarh. He and the deceased reached the shop of Bhabhuti Ram at 5 p. m. on the 6th. According to the evidence of Bhabhuti Ram and Ram Lal the appellant who had only one lota with him asked for the loan of another from Bhabhuti and took out two pills from a packet in his pocket and prepared what appeared to the witnesses as bhang. The appellant and the deceased partook of the bhang and left for a bath in the Ganges. The accused told Bhabhuti that they would return in the evening and have their meals at his place. The appellant returned to Bhabhuti's house at 11 p. m. but the deceased was not with him. The appellant was offered food but refused to take any. Early in the morning of 7 June 1935 he left Bhabhuti's place. At about 7 o clock that morning a constable Nasir Mohammad Khan was informed that a dead body was lying at some distance from the road near the Math of a devi. Accordingly he went to the place and saw the dead body which aroused suspicion of foul play in his mind. He informed the Sub-Inspector who drew up an inquest report and took possession of what appeared to him to be vomit and the clothes of the deceased. He found a railway ticket No. 63264 in one of the coat pockets of the deceased.

(3.) No one was able to identify the dead body which was sent to the Civil Surgeon for post mortem examination. A photograph of the body was preserved. The vomit and the viscera of the deceased were sent to the Chemical Examiner who found arsenic in both of them. According to the medical evidence death was due to arsenic poison which was found in a fairly large quantity (about 5 grains) in the viscera of the deceased. The police investigation which followed did not lead to the arrest of the appellant till 17 July 1935. The evidence which was produced at the trial was purely circumstantial. The appellant pleaded not guilty and did not admit that he was with the deceased at Fatehgarh on the afternoon of 6 June 1935. The evidence on which the learned Sessions Judge has based his conclusion consists of the testimony of Bhabhuti and Ram Lal who prove that the appellant produced two pills supposed to be bhang and prepared two separate lotas of the refreshment each taken from his own lota. They also prove that the two were last seen together at about 5 p. m. The learned Judge also relies upon the evidence of one Munshi who stated that the appellant was in possession of a 50 rupee note for which he received cash. The learned Judge disbelieved the statement of the accused who denied being with the deceased at Fatehgarh. In summarising his conclusions the learned Judge has observed as follows: The post mortem examination was performed on 7 June 1935 at 3 p.m. and according to medical opinion the probable time since death was about 12 hours and so the deceased died sometime about 3 a. m. The accused had taken the deceased with him to the Ganges. The accused had therefore to explain what happened to the deceased after that. This was a fact within the special knowledge of the accused and the latter only could explain it. The guilty conscience of the accused can offer no explanation. In fact the accused says that he was not in Fatehgarh that day but in village Rampur.