Emperor vs Hardwar Sah

James, J.—The appellant, Hardwar Sah, has been sentenced to death for the murder of his mistress Musammat Zainab, the daughter of a woman named Musammat Killia. The mother, Killia, is a prostitute by profession who more recently, being advanced in years, has lived mainly on the earnings of her daughter, Zainab, During 1933 Musammat Zainab was kept by a Brahman named Ramautar Tewari, who describes himself as a seller of ornaments for sonars, but who also appears to work as a purohit. After that she was kept by the appellant, Hardwar Sah a bania of Chapra. He at first kept her at her mother's house, paying the mother Rs. 20 monthly for Zainab and Rs. 6 for the rent of the house. At some time early in 1935 Hardwar Sah took Musammat Zainab to his own house, where he lived with his wife, undertaking to pay Rs. 10 monthly to Musammat Killia. She says that he paid her for two or three months, and then ceased to make payments; and that when she went to his house to demand payment of the arrears she was rudely rebuffed. However that may be, at about the end of the third week of last September Musammat Zainab left Hardwar Sah's house and returned to her mother's house at Chapra, saying that she had quarrelled with the wife of Hardwar Sah and that Hardwar Sah had beaten her and his wife as well. The former lover Ramautar Tewari then appeared and advised Musammat Killia to take Zainab to a house which she had in the country at Chaumukha, saying that otherwise Hardwar Sah would do Zainab some injury ; so in the afternoon Musammat Killia went to Chaumukha taking with her Zainab together with her granddaughter Tuntun, her grandson Tota and her servant. Rangi. It is said that on that night Kamautar Tewari came out to Chaumukha, where he slept with Zainab, and that on the next day Hardwar Sah came to Chaumukha endeavouring to persuade Zainab to return with him to Chapra.

According to some of the witnesses who gave evidence at the trial, Hardwar Sah on this occasion said that if Musammat Zainab would not return he would take her life and his own. She refused to return with him ; and on that night there was a quarrel between them which attracted some attention from outsiders. Hardwar Sah returned to Chapra alone on the following morning. On September 29 or 30, Hardwar Sah again went to Chaumukha, where he is said to have come across Zainab in the bazaar and to have attempted to take her away by force, which was prevented by the people about the bazaar. It is said that on this occasion again he said that if Musammat Zainab did not come with him he would take her life and end his own. If we accept the evidence of Sarju Prasad, a poison-vendor who gave evidence at the trial, Hardwar Sah before he went to Chaumukha on this occasion bad purchased 8 annas weight of arsenic which should be 99 grains. Hardwar Sah stayed at Chaumukha for three or four days, and it was agreed in the end that Musammat Zainab should live at Killia's house in Bhagwan Bazaar at Chapra, and that Hardwar should visit her there and pay a certain amount to Killia. The party then returned from Chaumukha to the house in Bhagwan Bazaar which Hardwar Sah visited every night. On the night of October 3, Hardwar Sah and Ramautar Tewari met near the Bhagwan Bazaar liquor shop in Chapra where they quarrelled and fought. The fight was stopped by the Assistant Sub-Inspector Bhubaneshwar Singh who is said to have subsequently accompanied Ramautar Tewari in search of Zainab to the house of Musammat Killia and to that of Sheikh Nazir who is married to Zainab's sister.

We now come to the occurrences of October 10 and 11. According to the poison-vendor, Sarju Prasad, Hardwar Sah on October 10, purchased another 99 grains of white arsenic. The account of the events which followed rests upon the evidence of Musammat Killia and of the members of her family. Hardwar Sah is said to have slept on the night of the 10th with Zainab. It appears that when he left her on the morning of the 11th she was suffering from some pain in her stomach which was attributed to flatulence. Musammat Killia says that in the morning she purchased sweetmeats for a pice which Zainab ate, and that at midday Hardwar Sah came back. Hardwar Bah gave two annas to Tota, Killia's grandson, whom he sent out for some rasgoolla and kachauri which Hardwar Sah offered to "Zainab. Zainab would not eat it, apparently because she was feeling unwell; and Hardwar Sah then gave Zainab some "white powder to lick saying that it was medicine. Tota Nut when he was examined by the Deputy Superintendent of Police said that Hardwar Sah when he arrived brought with him a yellow packet of paper which he. said contained medicine for relieving stomach-ache which may possibly be true. Killia says that Zainab was attacked by severe vomiting while Hardwar Sah was with her and that he then went away saying that he would bring her medicine. Zainab's condition rapidly be-came worse, so that Musammat Killia, '' at some time in the afternoon, sent Tota to Nazir Mian, telling him to call Dr. Haridhan Bose. Tota and Nazir went to the house of Dr. Haridhan Bose, but he could not be found. At about 10 o'clock "that night Tota was again sent to Nazir Mian, who came to the house; and then set out to bring any doctor whom he could find. He brought Dr. N.R. Bose who arrived at the house at about 11-30 p. m. The doctor diagnosed the case as one of poisoning, and said that Musammat Zainab must be taken to the hospital. He took her to the hospital in the car which had brought him to the house, taking up a constable who happened to be outside and sending another constable to the thana to give information of this case of suspected poisoning. Dr. Bose made over Zainab to the dresser of the hospital.

It appears that by that time she was dead though the point is not clear. She was dead when the Assistant Sub-Inspector arrived at the hospital at 1-15 a. m., when an inquest report was drawn, and the statement of Musammat Killia was recorded. The post mortem examination was held on the following day by Dr. S.N. Santra, Assistant Surgeon of Chapra, who was assisted by Dr. N. N. Roy, medical officer to the jail. The Assistant Surgeon set aside the viscera of Musammat Zainab to be for warded to the Chemical Examiner, reserving his opinion as to the cause of death until the Chemical Examiner's report should be received. The Sub-Inspector Maulvi Aminul Haq. who at once took over the investigation on the assumption that the case was one of poisoning, forwarded also to the Chemical Examiner a bed-sheet which contained purged matter of Zainab, together with some other faecal matter and vomited matter. Arsenic was detected by the Chemical Examiner in the viscera; and also in the faecal matter which had been taken from the ground and in the stains in the bed-sheet, as well in the earth on which Zainab had vomited. Other articles found in the house and forwarded to the Chemical Examiner were two paper purias containing white powder, one of which was found to contain calomel, while of the other the Chemical Examiner reported that it contained no poison, without telling us what it did contain. Another officer who has not been examined as a witness searched the house of Hardwar Sah. The investigating officer gives us to understand that a packet of white powder was discovered at that search which was found to be of boric acid, and that some other substance was found which on examination proved to be alum.

Mr. Manuk on behalf of the appellant argues in the first, place that the witnesses have varied their story so much in essential details that their evidence ought not to be acted, upon; and further that the evidence of the poison-vendor should be regarded as untrustworthy ; and that in any event there is nothing to indicate that Hardwar Sah administered the poison with homicidal intent. Mr. Manuk draws attention to the variations in the witnesses'' accounts of what happened on the morning of October 11. (His Lordship discussed the evidence and proceeded.) It is possible that the witnesses, having decided in their own mind that the poison which killed Zainab was contained in the white powder which she said had been administered to her by Hardwar Sah at mid-day, made contradictory statements in points of detail lest the admission that Zainab already had pain in her stomach when Hardwar Sah came to the house at noon should be taken to imply that the poison had been taken in some other way independently of Hardwar Sah. This concerted prevarication on most important points of detail does without doubt make the case difficult ; but Zainab did die of arsenic poisoning, and for practical purposes it matters little whether the arsenic was contained in the white powder which was administered at noon, or whether it was administered in some other way. When Hardwar Sah was with Zainab, it was noticed that there was a pandan there which Hardwar Sah took away with him when he left. The evidence of Tota Nut and Rangi, that they saw a yellow puria of medicine in Hard-war Sah's hand when he arrived at noon may possibly be true; but the puria may merely have been the calomel of which what was left was afterwards found in Musammat Killia's house.

All the witnesses of Killia's family say that Hardwar Sah had been saying that if Zainab would not come to him he would take her life and his own. Mr. Manuk. suggests that Hardwar Sah could have no motive for killing Zainab, because she evidently preferred his company to that of Ramautar Tewari though she may have been unwilling to go to his house. It would appear to be Musammat Killia who was preventing Zainab from going to Hardwar Sah's house, the reason being that Hardwar Sah had fallen into arrears in his payments to Killia. It appears from Musammat Killia's evidence that even after the return from Chaumukha, Hardwar Sah had paid nothing and that she was pressing for payment ; but this would not in itself give Hardwar Sah any motive for murdering Zainab. The former lover was persistent in his attentions; and he may have been favoured by Killia, but Hard-war Sah was evidently preferred by Zainab. Killia had apparently some influence over her daughter but, long before these events the daughter had endeavoured to free herself by a petition to the Sub-Divisional Magistrate. The discarded lover had for some time been saying that Hardwar Sah must not be permitted to approach Zainab, because he would murder her, with some justification if the evidence regarding Hardwar Sah's threats were accepted, but bearing a very different significance if that evidence is treated as untrue.

It is said that Hardwar Sah at Chaumukha persistently threatened to end Zainab's life and his own, if she would not return to his house. On this matter we have the evidence of members of Killia's family, and of Ganesh Kalwar of Chaumukha, who says that Hardwar Sah used these words on two occasions when there was a disturbance in Chaumukha at night which brought the people of the Mohalla out during Hardwar Sah's first visit to Chaumukha, and afterwards in the bazaar when Hardwar Sah seized Zainab and attempted to take her away. Mr. Manuk criticises the evidence of Ganesh Kalwar, because under cross-examination he did not remember any other remark of Hard-war Sah than this threat to end her life and his own. This would not necessarily cast doubt on the truth of his evidence, because he was cross-examined five months after the occurrence. Other witnesses who were present on these occasions were either not examined at all, or were merely tendered for cross-examination. The learned Sessions Judge does not believe the account of these threats because nothing was told to the Police of them in the earlier stages of the investigation. Killia stated in her first information that Hardwar Sah had made a threat of this kind on the evening of October 10, but if he had begun to talk in this manner at Chaumukha a fortnight earlier, so significant a fact would not have been omitted in the statements of members of the family who were there. (His Lordship then dealt with the evidence of Sarju Prasad, the poison-vendor, and proceeded.) If evidence to the effect that Hardwar Sah had been uttering threats to end Zainab's life and his own had been accepted by the learned Sessions Judge and the assessors, this account of purchase of arsenic by Hardwar Sah would have borne a different aspect. If Hardwar Sah, immediately before going to Chaumukha and uttering these threats, had provided himself with 99 grains of white arsenic, the threats and the purchase of arsenic taken together would have rendered further search for motive, or consideration of grounds for inferring intention unnecessary, even if we applied to the fullest extent the rule laid down in Woolmington v. Director of Public Prosecutions (1935) AC 462 : 104 LJKB 433 : 153 LT 232 : 51 TLR 446. I think that it would have been better if the learned Sessions Judge had insisted upon the examination of these witnesses to the threats who were merely tendered in the Sessions Court; and he might well have gone further, and have called the witness who was not even tendered. Witnesses to a point of such vital importance, ought not be merely "tendered," as it is called, for cross-examination. As the matter stands, the evidence of the poison-vendor does not convince us; it may be true, but we are not sufficiently sure.

If a trap was laid for the appellant, it must be said that he walked thoroughly into it; and that whether he is innocent or guilty, his behaviour on October 11, was such as to justify the utmost suspicion, Mr. Manuk argues rightly that poisoners do not present their poison direct to the victim in the form of a powder to be swallowed as medicine; the poison is ordinarily administered cunningly and disguised ; and indeed it may be regarded as probable that the white powder administered at mid-day was innocuous. But the administration of an innocuous white powder in this fashion, leaving the calomel lying about to be discovered by the Police, would be in accordance with the manner of poisoners. If Hardwar Sah had given arsenic in some other manner, he overreached himself in his cunning; because if the white powder had not been given, the case might have been regarded as one of cholera, whereas after the administration of the white powder, although the medical officer waited for the report of the Chemical Examiner, the Police naturally assumed at once that the case was one of arsenic poisoning. It would not be proper for us to discuss the alternative explanation of this matter suggested by learned Counsel for the defence. It is sufficient to say that the circumstantial evidence, as it was presented to the Court, was not such as to make it clear beyond possible doubt that Hardwar Sah murdered Zainab. His conduct, as described by the witnesses, on October 11, was such as to give rise to suspicion ; but motive is found to be lacking when the evidence of the threats is discarded, and unless the evidence of the poison-vendor is accepted, there is not even actually a weak link in each chain ; and there is ground for doubt, of which the benefit must go to the appellant. The reference is discharged ; the appeal is allowed; and the appellant is acquitted, and will be discharged from custody.

Varma, J.

I agree.