Bullu Singh vs Emperor

Jwala Prasad, J.—The accused Bullu Singh has been sentenced to death u/s 302, Indian Penal Code, by the Sessions Judge of Gaya, by his decision, dated 21st December, 1928. The Sessions Judge has referred the case to this Court u/s 374, Criminal Procedure Code, for confirmation of the sentence of death. The accused has also filed an appeal against the conviction and sentence passed upon him. The Sessions Judge also framed a charge u/s 328, Indian Penal Code, but he did not pass any order in respect thereto.

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There is no doubt that the deceased met his death by aconite poisoning. The conviction of the accused as being the agent in administering aconite poison to the deceased rests upon the evidence of the Assistant Surgeon of Tekari Hospital, Mr. Samarjit Kumar Ghosh (P. W. No. 10), the compounder Badrul Hasan of the said hospital (P. W. No. 7), the mother of the deceased Musammat Sheorani Kuer (P. W. No. 11), and the wife of the deceased Musammat Deorani Kuer (P. W. No.12). Upon the testimony of these witnesses the definite case of the prosecution is that accused mixed up aconite with bhang and administered the same to deceased, The direct evidence of bhang having been given to the deceased by the accused is that of the mother and the wife of the deceased. I have already quoted from the evidence of Musammat Deorani Kuer where she said that the accused proclaimed to the mother of the deceased that he intended to give the bhang ball in his hand to the deceased to eat and that he had the ball of bhang in his hand quite visible to the mother and the wife. The mother says:

Bullu Singh had in his hand the ball of bhang when he came to our house that noon. I did not enquire of him as to what he wanted to do with the ball of bhang. I did not ask Jhakhuri not to swallow the ball of bhang

Now if the ball of bhang contained aconite poison and the accused intended to kill the deceased Jhakhuri Singh by means of that poison, it is most unlikely that he would expose the ball of the bhang to the mother and wife of the deceased and in fact would openly enter the bed-room of the deceased and make him take the bhang within the sight of his mother and the wife. The story as related by these two women is either untrue, or if true, the bhang which the accused gave to the deceased to eat did not contain the aconite poison. Great suspicion is cast upon the statement of these witnesses by the fact that they did not tell Lalji Dusadh, when he reported to them of the bad condition of the deceased in the hospital in the afternoon of the day of occurrence, that the accused had given bhang to the deceased just before he left the house and went towards the hospital. On the other hand, Lalji Dusadh says that he did enquire of the mother as to what had happened to the deceased meaning thereby that he wanted to know what the deceased had taken that made his condition so bad as he found in his hospital. The mother to this query definitely stated that she did not know anything. Now Lalji Dusadh states that he had come to know from the Doctor that the deceased had told him that he had taken bhang, and in the course of conversation with the mother Lalji Dusadh must have communicated this to her. Still the mother did not say that the accused had given the deceased bhang just before he left home for the hospital.

Again, to the doctor the deceased is said to have stated that Bullu Singh asked him to drink some bhang with him and he took a good quantity of it. The Doctor has put it in the bed head ticket (Ex. 5-a), where he has recorded what purports to be the translation of the very words, used by the deceased as he puts them within inverted commas. There is no suggestion in the statement made to the Assistant Surgeon that the deceased was given a ball of bhang to eat. On the other hand he definitely said that he was asked to drink some bhang with the accused. The statement of the deceased as recorded by the Assistant Surgeon conflicts with the story told by the mother and the wife of the deceased that the accused gave a ball of bhang to the deceased to eat. As I have observed above, the story told by the mother and the wife of the deceased seems to be untrue. On the other hand, if as a matter of fact the deceased had been given bhang by the accused, that bhang did not contain any poison, for then the accused would not have so openly given it to the deceased to eat in the presence of his mother and wife and would not have proclaimed to them that he was going to give bhang to the deceased. Therefore, upon the testimony of the mother and the wife of the deceased it cannot be held that bhang was given by the accused to the deceased or that the bhang if in fact given by the accused to the deceased did contain any poison. The case against the accused then rests entirely upon the statement made by the deceased in the hospital. The first statement made by him in the hospital was to the Assistant Surgeon; and then it is said that soon after it was made to the com-pounder also. The Assistant Surgeon does not corroborate the compounder as to the latter statement made by the deceased at the hospital. The compounder (P. W. No. 7) says:

About an hour afterwards the man regained consciousness and on our query told us that Bullu Singh had made him take a quantity of ''bhang'' and that thus his condition became very bad.

The Doctor came to the hospital soon after the deceased came there from the residence of the Doctor and he remained with the deceased throughout until he expired. His condition was getting worse, and he ultimately succumbed at 5 p. M. The statement made by the compounder is, therefore, not corroborated in any way by the Doctor or other persons said to be present there. Be that as it may, it does not stand on a higher footing than that made by the deceased to the Doctor himself. The question is whether upon that statement the accused can be convicted. All that he is supposed to have told the Doctor is that Bulu Singh called him and asked him to drink some bhang and he took a good quantity of bhang with him and after that he began to feel some peculiar sensation. The mother and wife of the deceased said that he was not used to take bhang and, therefore, a good quantity of bhang taken by him would no doubt produce peculiar sensation and he would undoubtedly be intoxicated and would be under great hallucination, as the medical jurists put it. He would feet great depression at times and would be apprehensive of his life. That would be the effect of a good quantity of bhang taken by, a person not used to it. No bhang was detected in the vomit and other contents of the stomach or in the viscera sent to the Chemical Examiner for analysis and report. To the Chemical Examiner it was intimated in the letter of the Assistant Surgeon, Mr Samarjit Kumar Ghosh (P. W. No. 10), addressed to the Civil Surgeon which was forwarded to the Chemical Examiner that the case was one of suspected poisoning. No doubt, the Chemical Examiner was not asked to look for bhang, and it would have been certainly staisfactory had he been asked to do so, for to the Assistant Surgeon, the deceased had said that he had taken bhang. The Chemical Examiner would then perhaps have applied physiological tests to find out if there was bhang or not. The fact, however, remains that no bhang was detected. There were bhang leaves found in the house of the accused which is not extraordinary, for on a Holi day such bhang is not an unusual thing to be found in the house of a Hindu. The statement made by the deceased to the Doctor is admissible in evidence as a dying declaration u/s 32, Evidence Act, but that statement re quires corroboration in order to convict the accused of the serious charge of murder. That statement has not been tested by cross-examination and facts have not been elicited to show that the deceased had not taken any other thing, say sweetmeat etc, containing aconite poison and that his suspicion as regards the bhang, though it might be reasonable, might be without any foundation, If that was the bhang which was given to him in the presence of the wife and mother of the deceased, then certainly it could not be expected to contain poison for the reasons already stated above. If the bhang referred to by him was taken by him at some other place, and not in his own house, in the company of Bullu Singh, the question remains whether he had taken any other thing or not. His statement is inconclusive on the most material point that the bhang which he drank was given by the accused. He says:

One Bullu Singh called him and asked him to drink some bhang with him, and he took a good quantity of bhang with him.

Both of them, therefore, participated in the drinking of bhang. It had no effect on the accused. It remains to be explained how it could have its effect on the deceased. Therefore, the statement made by the deceased to the Assistant Surgeon at the hospital is not conclusive and is not sufficient, without any independent corroboration of facts and circumstances pointing exclusively to the accused being the person who administered the aconite poison of which the deceased died.

I would, therefore, in disagreement with the view taken by the learned Sessions Judge, acquit the accused of the charge of murder and set him at liberty.

James, J.

I agree.