Gokul Chamar vs Emperor

Ross, J.

The appellant Gokul Chamar has been sentenced to death on conviction of the murder of a boy Sibcharan Chamar by poisoning him with arsenic.

The case in the first information, which was laid the day after the boy''s death by his father Gahana Chamar, was that his son Sibcharan, aged three and a half years was playing with his cousin''s daughter Sukri and his cousin Jaglal, both young children, when a boy Anupa, aged eight years came and asked Sibcharan and Jaglal to come to his house, saying that he would give them gur. They went to his house and Anupa gave both the children small quantities of gur. Gokul; the appellant was sleeping in the house at the time. The children returned and Sibcharan was taken violently ill and died shortly after in spite of the efforts of Gahana Chamar to save him by giving juice of the plantain tree and other remedies. The doctor who made the postmortem examination reserved his opinion as to the cause of death until the viscera were examined; but on receipt of the report of the chemical examiner who found arsenic both in the vomited matter and in the contents of the stomach, he expressed the opinion that the cause of death was arsenic poisoning.

The learned Government advocate concedes that the conviction, so far as it rests on the oral evidence apart from the statement made by the accused himself to the police to which I shall presently refer, cannot be maintained, for this sufficient reason: that Gahana, in his evidence in Court, has completely changed the case from what it was in the original statement. It is clear that in the first information there is no case against Gokul Chamar. These persons are all relations. Gokul, the appellant, is married to a daughter of one Ramdhan whose son is the boy Anupa. Ramdhan has a brother Biswanath and a cousin Barhan whose children are Sukri and Jaglal, already referred to. It appears that Biswanath and Barhan both lost sons recently, in Chait and Sawan, and the case for the prosecution is that they suspected Gahana''s mother to be a witch, and on account of this enmity the death of Gahana''s son was brought about. Gahana is also a relation of this family and they are close neighbours.

Now the case in the first information is that it was Anupa who gave the gur to the deceased as well as to the other little boy Jaglal and that Gokul was sleeping; but at the trial the case was changed. Anupa is said to have called the boys to the house and Gokul is said then to have given them gur to eat. The treatment of the boy after the illness developed is now attributed to Gokul and not to the complainant. It is impossible to rely on this evidence in view of the first information. But for the statement made by the appellant himself to the police which the learned Sessions Judge has limited and relied upon, the case would be at an end. This statement, as appears from the evidence of the Sub-Inspector, Baidyanath Banerji, was as follows:

Gokul stated that he had given gur and that with the gur he had administered some drug which he had with him and that with the same drug he had made an application for putting on a sore on the leg of Siban Hajam of Adra.

Prima facie this statement is inadmissible, but the learned Sessions Judge has admitted it, applying the provisions of Section 27, Evidence Act, because it appears that in pursuance of the statement the Sub-Inspector went to Siban Hajam and asked him for the medicine which Gokul had given him. That medicine was produced and was sent to the chemical examiner and was found to contain arsenic. Now it seems to me that the fact deposed to as discovered in consequence of the information received from a person accused of an offence, with which Section 27 Evidence Act, deals, must be a fact relevant to the case in which the evidence is sought to be given. The fact that at some previous date the appellant had treated one Siban Hajam with arsenic for a bad leg is not relevant in any way to the present charge; and the discovery of that fact in consequence of a statement made by the appellant to the police cannot make this statement admissible. The learned Government advocate expressed his own doubts about the admissibility of this statement; and if this statement goes out, it is conceded on behalf of the Crown that the charge must fail.

In this view the reference must be discharged and the appeal must be allowed and the conviction and sentence set aside and the appellant acquitted and set at liberty.

Wort, J.

I agree.