Emperor vs Ramsidh Rai and Another

Varma, J.—This is a reference by the Additional Sessions Judge of Shahabad, u/s 374, Criminal P.C. in the case of one Ramsidh Rai of village Kudari, police station Barhara in the distridt of Shahabad, who has been convicted under Sections 302 and 328, I.P.C. for murdering one Chan, drika Singh of the village by administering arsenic poison with bhang on 5th October 1937. He has been sentenced to death u/s 302 but no separate sentence has been passed on him u/s 328. Along with the reference has been heard the appeal (No. 31 of 1938) of the accused Ramsidh Rai. Along with the appeal of Ramsidh Rai, there is also an appeal on behalf of Jagdish Rai. He is the appellant in Criminal Appeal No. 52 of 1938 and is a son of the deceased Chandrika Singh, who has been convicted under Sections 302/109, 302/34, 328/109 and 328/34, I.P.C. u/s 302/34 he has been sentenced to transportation for life, but no separate sentence has been awarded on him under the other sections. One Sakaldip Rai was also tried along with these persons but he has been acquitted.

Sir Manmatha Nath Mukharji, appearing on behalf of the appellants, has questioned the legality of the trial under the following circumstances: It appears that on 8th January 1938 eight assessors were summoned by the Additional Sessions Judge for the date of the trial but on that day only three happened to be present in Court. The learned Judge requisitioned the services of one Madan Mohan Sahay as the fourth assessor. The objection raised is that this contravened the provisions of Sections 326, 327 and 284, Criminal P.C., inasmuch as Madan Mohan Sahay who served as an assessor was not summoned in the first instance by the Additional Sessions Judge.

In view of the objection we made inquiries from the Additional Sessions Judge as to the circumstances under which the assessor''s services were requisitioned. In reply thereto the Additional Sessions Judge says as follows:

Babu Madan Mohan Sahay was a gentleman whose name was entered in the list of jurors and assessors. They are summoned here by lot u/s 327 separately for every case and the said assessor had not been summoned for any other case for the date fixed for the hearing of the case in question. The practice here being to hold trials with the aid of four assessors and the number of assessors appearing on that date being only three, the deficit was made good by calling the said assessor as he happened to be present in the Court compound.

If I did not take the view that I take of the matter in this case, I would certainly have held that a mere practice so much relied on by the Additional Sessions Judge cannot take the place of an explicit provision of law. Sir Manmatha Nath Mukharji has drawn our attention to a number of cases in which it was held that under certain circumstances the absence of the requisite number of assessors has vitiated the trial.

He refers to the case reported in Emperor v. Man Singh (1913) 35 All. 570 in which one of the two assessors who assisted the Judge in the trial did not happen to be a person whose name was included in the list of assessors. In that case it was held that the trial was illegal and a new trial was ordered. This case was referred to in our own High Court in a case reported in Balak Singh Vs. Emperor, where, of the two assessors summoned one was absent and another person who was not on the official list of assessors was asked to act as an assessor. This Court relying upon the case reported in Emperor v. Man Singh (1913) 35 All. 570 held that the trial was illegal. Reference has also been made to two cases of the Calcutta High Court, Serajul Islam and Others Vs. Emperor, and Amir Khan v. Emperor (1929) 122 I.C. 557; but those were cases in which the trial was held by jury and the requisite number of jurors were not originally summoned. In the present case we have to remember that the requisite minimum number of assessors viz. three persons, were present out of the persons summoned by lot. The assessor whose services were requisitioned on the date of the trial was a person whose name was included in the list of assessors, distinguishing the present case from the case reported in Balak Singh Vs. Emperor, . These being the facts of the case, I am inclined to hold that this case is governed by the decision of a Division Bench of this Court in Ram Babu Jadav v. Emperor A.I.R.1938. Pat. 60, where in the absence of the requisite number of assessors an assessor who was summoned in another case was asked to act as an assessor and it was held that it did not amount to an illegality, and the case reported in Balak Singh Vs. Emperor, was distinguished. That being the position, I am of opinion that this point that the trial was illegal cannot succeed. I may mention here in passing for what it is worth that the assessor Mr. Madan Mohan Sahay gave an opinion in favour of the accused.

Now the case for prosecution is that Sakaldip aged 56 and Ramsidh aged 23 had unnatural connections with Jagdish aged 14. The mother of Jagdish, Mt. Patia (P. W. l) protested to the association of Ramsidh and Sakaldip with her son Jagdish without any effect, and she wrote a letter about it to the father of Jagdish, the deceased Chandrika who was serving at Calcutta, requesting him to take away Jagdish to Calcutta. The letter, it appears, did not reach Chandrika, but he came home at the end of his employment in Bhado when Mt. Patia complained to him about Jagdish''s conduct in association with Ramsidh. Chandrika scolded both of them and gave out his intention to take away Jagdish to Calcutta after the Dussehra. Thereupon, Ramsidh and Sakaldip persuaded Jagdish to request his mother to induce Chandrika to let Jagdish remain at home for a month more, but Mt. Patia did not agree to the proposal. Chandrika Singh was in the habit of taking bhang and for some time before the date of the occurrence it was Ramsidh who used to serve him with it every day.

On Monday, 4th October 1937, all the three accused persons went to Arrah under the pretext of purchasing some medicine for Jagdish''s ringworm, and there from the shop of one Dinanath they purchased some poison. They returned on 5th October, Sakaldip went to his house and the other two accused when they came to Chandrika''s house were scolded for having stayed at Arrah. That very evening about two gharis before sunset, Ramsidh again served the usual gola (big pill) of bhang to Chandrika while he was in his dalan, with some water obtained from Mt. Patia, in the presence of accused Jagdish, Chand rika''s younger son named Manorama (P.W. 2) and a distant cousin Chander Singh (P.W. 6). Chandrika soon after complained of burning sensation and twisting of his tongue, and is alleged to have said that the three accused had mixed poison in his bhang. He had a motion then and Sakaldip Rai, who happens to be a village baid (physician) was called in. He gave Chandrika the juice of the bark of Barhar tree and two medicine pills, but Chandrika never improved and became unconscious. Chandrika''s neigh, bours including Harpal Singh (P.W. 7), Mohan Singh (P.W. 8), Nanhi Singh (P.W. 15) and Rajabali Singh (P.W. 16) came and some of them, including Chander (P.W. 6) brought Chandrika in a palki to the Ghaziapur Hospital at 7.30 P.M. The Doctor at the hospital (P.W. 5) gave some injection to Chandrika but the latter died immediately.

A report was sent by the Doctor to the Sub-Inspector (P.W. 21) who received it on the following day at 8 A.M. The Sub-Inspector came to the hospital at about 11 A.M. the same day, took charge of the blanket (Ex. 2) and dhoti (Ex. l) of Chan, drika, which had faecal matters, and despatched the dead body for post mortem examination through a constable with the inquest report (Ex. 5) to the Civil Surgeon of Arrah (P.W. 22). The Civil Surgeon noticed symptoms suggesting it to be a case of poisoning, but be reserved his opinion pending the receipt of the Chemical Examiner''s report to whom the viscera with the faeces and bark of the Barhar tree were sent. The report (Ex. 7) of the Chemical Examiner pointed out that there was arsenic in the viscera, but no poison was detected in the bark of the Barhar or in the faeces.

On 6th October 1937, (Wednesday) the Sub-Inspector reached Kudaria at 4-45 P.M. and the first information was recorded at 5 P.M. on the statement of Mt. Patia. On 7th October a map (Ex. 6) was prepared by the Sub-Inspector and on 10th October all the poison shops at Arrah were visited and sale registers were examined, particularly of Dinanath. Ramsidh was arrested on 21st October and Jagdish on 23rd October 1937. Ex. 2 alleged to be the confession of Jagdish, was recorded by Mr. N.K. Banerji, Deputy Magistrate (P.W. 3) on 25th October 1937. Some witnesses were examined to prove that the accused were seen together at different places between the date of occurrence and the date of arrest. The statement of Manorama (P.W. 2) was taken u/s 164, Criminal P.C. by a Deputy Magistrate. Ramsidh and Jagdish were committed to the Court of Session by one order of com. mitment, and Sakaldip (the vaidya) who has been acquitted, was committed by another order because he surrendered in Court on 11th December 1937. The accused denied complicity with the occurrence. Jagdish says that he does not know why he has been implicated, and says that he made his confession at the instance of the Sub-Inspector (P.W. 21) and Rampiriti Rai. Ramsidh has ascribed his implication to his quarrel with Chander Singh (P.W. 6) on account of some land, and Sakaldip also says that Chander Singh implicated him falsely and has alleged that he was at Chapra for two or three months from the 1st of Kuar last for finding out a groom for his daughter and that on his return home surrendered in Court on learning that he had been implicated. No witnesses were examined on behalf of defence. As the confession of Jagdish is of some importance I propose to quote it in extenso. (After quoting it, his Lordship proceeded.) Two questions arise in this case firstly as to whether the deceased died of arsenic poisoning, and secondly who was the person responsible for administering poison.

On the first point, in view of the evidence of the Civil Surgeon and the report of the Chemical Examiner there is no doubt in my mind that death was due to arsenic poisoning. After receiving the Chemical Examiner''s report the Civil Surgeon was of opinion that death was due to arsenic poisoning. He found spots of congestion in the mucous membrane of the stomach and small intestines, congestion in the liver, spleen and kidneys, dilation of pupils and congestion of the conjunctiva of the eyes, blueness of the face and nails, deep congestion of the brain, congestion and sudden condition of the lungs, appearance of a little dark fluid blood in the heart and appearance of liquid faeces in the large intestines. He says that usually about one-half hour after the administering of arsenic by the mouth burning sensation in stomach and throat, great thirst, reeling of the head, purging, tingling sensation throughout the body, burning sensation in the anus at the time of passing stool, difficulty at speech, heaviness of the tongue and vomiting appear. In some cases vomiting does not appear and the other symptoms appear later than half an hour. I need not dilate upon this point because there is no doubt that death was due to arsenic poisoning.

Now comes the second question as to who was responsible for this act. On this part of the case the important witnesses are Mt. Patia, (P.W. 1), her son Manorama Ear (P.W. 2), Chander Singh (P.W. 6) and Harpal Singh (P.W. 7). Before I deal with the evidence of these witnesses I would dispose of the so-called confession of Jagdish. I agree with the Court below that it cannot be used against the co-accused because it is of an exculpatory nature and subsequently retracted. On the evidence of the witnesses whom I have mentioned, it appears that at first Chandrika took bhang and he began to show certain symptoms described in the first information report and in the statements of Mt. Patia and Manorama. In the first information report Chandrika is said to have complained that his tongue was being twisted. In her statement before the committing Magistrate on 6th December 1937 he is said to have mentioned to Mt. Patia that he was feeling a burning sensation inside his system, and Manorama says that he began to complain that he was experiencing sensation in the stomach and tingling sensation in the legs and began to find fault with the bhang given to him by Ramsidh. Chander does not describe any of these symptoms.

The symptoms produced by taking bhang are mentioned at p. 756 of Modi''s Medical Jurisprudence. Modi says about the patient:

He feels giddy after the first stage of excitement complains of tingling and numbness of the skin, begins drowsy, and then passes into the second stage of narcosis with dilated pupils.

After that the evidence is that he took a glass of water brought by Ramsidh which he had got from Mt. Patia. Then it is said that Chander brought Sakaldip, the village baidya who besides administering ghee and bark of Barhar tree gave him two pills which Chandrika took, and it was after taking of the pills that he lost his consciousness from which he never recovered. In the first information report the statement is that ghee was administered under Sakaldip''s advice but later on it is said that he stopped the administration of ghee. There is one curious incident of which it is difficult to get an explanation from the records of the case, and that is that after he returned from the field after easing himself Chandrika gave out that "his head was reeling as he had been given something brought from Arrah by those three persons" (evidently those three persons were Ramsidh, Jagdish and Sakaldip.) It is difficult to understand that if Chandrika suspected that poison was administered to him as a result of some conspiracy amongst the three persons, how was it that he took medicine from the hands of Sakaldip who according to the deceased, was supposed to be one of the conspirators.

In any case no importance can be attached to the alleged statement of Chandrika brought on the record through the witnesses. The probabilities are that after he complained of the burning sensation some medicine must have been administered to him. It is unfortunate that the sample of the bhang, which was prepared for Chandrika, or the utensils in which it was pounded are not before us. On the statement of the evidence I am doubtful if it could be held positively that the arsenic which proved fatal in the case of Chandrika was all contained in the bhang and not in the things which he took subsequently and before he lost his consciousness.

Of the two accused before us, the evidence about Jagdish Rai''s complicity in the matter is extremely meagre. Except the hazy background of an unnatural connexion amongst the three persons there is nothing to indicate that he took any part in the administration of the arsenic which is said to have caused the death of Chandrika. Therefore Jagdish is entitled to an acquittal. I have already dealt with the question that it is doubtful as to the stage at which arsenic got into the system of Chandrika and unless it is positively proved that it was the bhang that contained the arsenic Ramsidh cannot be held to be responsible for the death of Chandrika.

Under these circumstances, I would allow the appeals of Ramsidh and Jagdish, discharge the reference about Ramsidh, set aside their convictions and sentences and direct that they be set at liberty.

Mohamad Noor J.

I entirely agree. I would however like to add a few remarks of my own. As my learned brother has stated, Sir Manmatha Nath Mukharji questioned the legality of the trial on the ground that the fourth assessor was chosen by the learned Additional Sessions Judge to aid him in this trial in a manner not warranted by law. In my opinion, the case is covered by a decision of this Court referred to by my learned brother, viz. Ram Babu Jadav and Others Vs. Emperor, . The only difference between the facts of that case and the present one is that in that case a gentleman whose name was in the list of assessors and who was present in Court was chosen as the fourth assessor after a summons was served upon him under the orders of the learned Judge, while in this case the gentleman was chosen without any formal summons having been served upon him. This in my opinion makes no difference whatsoever, because the order of the learned Judge to requisition the services of a gentleman whose name was in the assessors'' list tantamounts to summoning him. Therefore the trial is not illegal.

I must however express my disapproval of disregarding the provisions of law for no reason whatsoever. In this particular case, we find that out of those who were summoned to serve as assessors three gentlemen were actually present. The minimum number of assessors as laid down in Section 284 is three. Therefore there was absolutely no necessity for the learned Judge to take a fourth assessor in a manner which though not illegal is not provided in law. There is a great risk in choosing assessors in the manner resorted to by the learned Judge in this case. Suppose for instance, a case in which either the prosecution or the defence arranges to keep in readiness some persons whose names are in the assessors'' list in the hope that in case of there being a deficiency the Judge will choose some of them to complete the requisite number of assessors, and the Judge does so. The result will be that the tribunal will be packed up by members who may be partial to one party or the other. The Legislature has provided that the assessors should be summoned by drawing a lot in open Court, and once the summons in this manner has been issued and the assessors are present they are to be chosen in the discretion of the Judge and no lot is to be drawn at that stage. While in the case o� jurors they are summoned after a lot is drawn in open Court and then at the time of choosing for the purpose of a particular case a lot is drawn again. Therefore the Legislature has left the choosing of the assessors after they are summoned by lot in the discretion of the Judge.

The object of drawing a lot is that as far as practicable the assessors should be independent and there should be no question of packing up the tribunal. This object is defeated if the Judge chooses the assessors from among those who are present in Court either intentionally with some design or accidentally. The Legislature must be supposed to have been cognizant of the fact that there may be cases in which the requisite number of assessors may not be present but in spite of it they have made no provision for the assessors being chosen from among the persons present in Court, though they have made provision for this contingency in the case of jurors.

The difference is obvious; in the case of choosing of jurors from such persons who may be present without summons, there is no risk as they are chosen for taking part in the trial after a lot has been, drawn and both the prosecution and the defence have a right to object to any particular juror being chosen; but there is no such right in a case of assessors the selection of which has been left entirely in the discretion of the Judge. When the Legislature made provision to complete the deficiency in the number of jurors by taking men who are present in Court and made no such provision in the case of assessors, it must be taken that the omission is deliberate. The assessors are an integral part of the tribunal, and though their opinion is not binding upon the Judge nor upon this Court, they are nevertheless of very great value to the Court and especially to the Court of Appeal which has to decide purely on matters recorded without having the advantage of seeing the demeanour of the witnesses and the manner in which they depose. When the question is whether a particular set of witnesses are to be believed or not, the opinion formed by the gentlemen who come from the very society from which the witnesses come is a great asset for any Court which is anxious to come to correct conclusions about facts, and it is necessary that any chance of their being packed up should be avoided. However, as I have said, after all, this is an irregularity and in this particular case the fourth assessor who was chosen from among the persons present gave an opinion in favour of the accused who has not been prejudiced. I do not wish to pursue this matter.

The next objection of Sir Manmatha was about the admissibility of the confession of Jagdish. In view of the fact that the confession does not incriminate him and is not admissible against the remaining accused, the question is more or less academical. I am however of opinion that the confession has been rightly admitted against Jagdish. As to its value my learned brother has dealt with it. What however looks to me surprising is that in spite of the fact that the Code of Criminal Procedure was amended in 1923 and its Section 164, in its present form, has been in force for the last 14 years, still there are sometimes omissions of vital matters in recording the confession of an accused. In recording the confession in this case the learned Magistrate omitted to put any question to the accused whether he was confessing voluntarily.

No doubt the learned Magistrate gave him a warning; but, as has been laid down in Bakhshan v. Emperor 23 AIR 1936 Lah. 247 it is not enough for a Magistrate recording the confession of an accused to give him a warning, but it is essential that he should put questions to satisfy himself that the confession was in fact voluntary, and the question with its answer must be recorded. It is not enough that the Magistrate was satisfied as to the confession being voluntary, but the Courts before whom the confession is used must have materials on which they can be satisfied that the confession was in fact voluntary.

In the present case the record does not show that any question was asked by the Magistrate in order to ascertain that the confession was made voluntarily. It appears however that in giving answer to the warning of the Magistrate, Jagdish himself stated that he was making the statement voluntarily; and the Magistrate has in his evidence stated that he was satisfied that the confession was voluntary. Then the learned Magistrate did not fill up column 7 of the form for recording confession, which is a column for recording a brief statement of the Magistrate''s reason for believing that the statement was voluntarily made. The form has been prescribed so that the requirement of law should be complied with and there may not be any accidental omission. It is to be regretted that though the column was before him the learned Magistrate did not think it necessary to fill it. These omissions necessitate the prolongation of the trial in which in order to cure the defect the Magistrate has to be examined and the time of this Court instead of being engaged in deciding the truth or otherwise of the case is taken in solving the propositions of law which with a little care on the part of the Magistrates can be avoided. It is always advantageous that the Magistrates who record confessions should consult the law before they proceed to do so, so that there may be a strict compliance with the requirement of law. Even if only the columns of the form be carefully read and filled up, objections to the admissibility of a confession can be avoided. Strict compliance with the procedure is essential, as was pointed out by their Lordships of the Judicial Committee in AIR 1936 253 (Privy Council) . A better form has been introduced since 1929 and it should be used in preference to the old form.

Coming to the merits of the case, my learned brother has dealt with it very elaborately. (His Lordship then considered the case of each accused and agreed with the conclusions arrived at by Varma J.)