Ramsumiran Pande vs Emperor

Harries, J.—The appellant Ramsumiran Pande together with one Awadhram were tried by the learned Sessions Judge of Saran assisted by four assessors upon a charge u/s 328, Penal Code. All the assessors were of opinion that Awadhram was guilty of an offence under that section, whereas three assessors were of opinion that Ramsumiran Pande was also guilty under that section, the fourth assessor being of opinion that Ramsumiran Pande was not guilty. The learned Sessions Judge, agreeing with the four and three assessors, convicted both the accused persons and sentenced each of them to undergo a term of five years'' rigorous imprisonment, the sentences to commence on the expiry of other sentences of imprisonment which the accused were then undergoing. Awadhram has not filed an appeal from his conviction, and this appeal is confined solely to the case of Ramsumiran.

The two accused persons were charged with having administered dhatura to two persons named Bansi Chamar and Mangru Chamar with intent to rob them, and the facts upon which the prosecution was based can be shortly stated as follows:

Bansi Chamar is a resident of the Gorakhpur District, whereas Mangru comes from Basti in the United Provinces. Both had been working in Calcutta and left Calcutta for their homes on 12th May 1938. They purchased two third-class tickets from Howrah to Gorakhpur and entrained at Howrah between 8 and 9 P.M., that night and reached Mokamah on the following morning. Here they detrained as they had to cross from Mokamah Ghat to the north side of the Ganges in order to catch a train to Barauni and Sonepur. At Mokamah Ghat it is said that the two accused Ramsumiran and Awadhram accosted Bansi Chamar and Mangru Chamar and entered into conversation with them. They told these two men that they were going to a place to the north of Gorakhpur, and they suggested that they should all travel together. On reaching the north bank of the Ganges the two Chamars and the two accused persons entered the same compartment at Semaria Ghat and travelled to Barauni. According to the prosecution, Awadhram made a few inquiries from which he obtained information that both Bansi and Mangru had money in their possession. When the train reached Barauni, it is said that the accused suggested that they all might detrain there, take their meal and resume their journey later. Bansi and Mangru did not agree to this proposal and said that they would continue their journey as they had food with them. Thereupon the two accused persons gave up any intention of leaving the train at Barauni and continued their journey with Bansi and Mangru until they reached Sonepur between 8 and 9 P.M. in the evening. At Sonepur Awadhram again suggested that the party should break its journey to enable them to obtain freshly cooked food. Apparently an Express train would take them to Gorakhpur some three hours later. Bansi and Mangru agreed to this proposal, and all four left the station and went to a well nearby. The accused obtained two annas from Bansi for the purpose of buying flour, potatoes and fuel, and having purchased these articles the accused persons prepared a meal consisting of Litti (atta cakes) and Chokha (potato paste). Bansi and Mangru began eating the Litti and Chokha, and according to them the Chokha tasted somewhat bitter. They mentioned it, but the accused made light of the matter and urged them not to leave any of the Chokha uneaten aa it had been offered as bhog to Shankarji. Bansi and Mangru had a good meal of the Litti and Chokha, and as soon as they had finished, they became thirsty and restless and discovered that their tongues were swollen. Later, they felt giddy, and Awadhram suggested that they might, rest a little. Mangru and Bansi lay down, and shortly afterwards they overheard the two accused persons talking and suggesting that the time had come to relieve the two Chamars of their belongings as they appeared to be intoxicated. On hearing this, Bansi and Mangru picked up their belongings and went off towards the station. After that they became unconscious. They were found on the Sonepur platform behaving in a somewhat strange manner, and a constable reported the fact to the thana. The Assistant Sub-Inspector went to the station and found Bansi and Mangru in a strange condition with their baggage beside them. Their clothing was searched, and it was found that each had a considerable sum of money on his person. The two men were sent to the railway hospital for medical attention, and the doctor in charge who examined them found that they had symptoms of dhatura poisoning. Samples were taken of the washings from their stomachs, and both were sent to the Chapra hospital for further treatment. The stomach washings were sent to the Chemical Examiner at Calcutta, and his report shows that the washings contained atropine which is the active principle of dhatura and Belladonna poisoning. On the following day, these two men recovered consciousness and investigation began. Later the two accused persons were arrested and were put up for identification at Gonda Jail. It is to be observed, however, that whereas Bansi identified Awadhram only Mangru could identify neither. It follows, therefore, that at the test identification the present appellant was not identified by either of the two persons concerned. As I have stated, the incident occurred on 13th May 1938, and the identification parade took place on 20th August 1938, three months afterwards. It will be important to remember that within three months of the incident neither Bansi nor Mangru could identify Ramsumiran.

On 15th July 1938, shortly before the test identification the house of Ramsumiran was searched and two dibias containing some powder were recovered. These dibias and powder were sent to the Chemical Examiner who reported that dhatura was present in the powder which was in each of the dibias.

The two accused were committed for trial, and in due course stood their trial before the learned Sessions Judge at Chapra. It is to be observed that both Bansi and Mangru identified the appellant Ramsumiran and Awadhram in Court as the two persons who had cooked and given them food at Sonepur which had resulted in their becoming unconscious.

The case for the prosecution rested in the main on the evidence of Bansi and Mangru, and there can be no doubt that the evidence of Bansi made out a strong ease against Awadhram. Bansi, however, failed to identify the appellant Ramsumiran at the test identification, and his identification of the appellant in Court is worthless. Mangru also failed to identify the appellant in Jail, and his identification of the appellant in Court is equally worthless. There is no other evidence connecting Ramsumiran with this incident at Sonepur, though there is evidence that he had dhatura in his possession in July 1938 at his house. As I have stated, a search resulted in the finding of two dibias containing powder, and the powder, in the dibias undoubtedly contained dhatura. The finding of this powder, however, in no way connects Ramsumiran, the appellant, with the incident at Sonepur.

The learned Sessions Judge realised this, but he appears to have thought that the fact that Ramsumiran was connected with two other poisoning incidents for which he as convicted at Benares and Darbhanga entitled him to find that Ramsumiran must have been with Awadhram at Sonepur.

Evidence may be led in a case against an accused that the accused had committed other acts of a criminal nature on previous occasions, but such evidence can only be admissible rarely and in a very limited type of case. An example of the admission of that evidence is to be found in the well-known case in Makin v. The Attorney-General for New South Wales 1894 A.C. 57 , in which it was held that evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment is not admissible unless upon the issue whether the acts charged against the accused were designed or accidental, or unless to rebut a defence otherwise open to him. Where prisoners had been convicted of the wilful murder of an infant child which the evidence showed they had received from its mother on certain representations as to their willingness to adopt it, and upon payment of a sum inadequate for its support for more than a very limited period, and whose body the evidence showed had been found buried in the garden of a house occupied by them, their Lordships of the Privy Council held that evidence that several other infants had been received by the prisoners from their mothers on like representations and on like terms, and that bodies of infants had been found buried in a similar manner in the gardens of several houses occupied by the prisoners, was relevant to the issue which had been tried by the jury.

Had it been established that the appellant, Ramsumiran was concerned in the Sonepur incident, evidence of other incidents might have been admissible with a view to rebutting any defence that the administration of dhatura at Sonepur was accidental; but it is unnecessary further to consider that matter. Before such evidence could be admissible, the presence of Ramsumiran at Sonepur would have to be established, whereas in the present case there is no evidence at all to show that he was there. The fact that he had dhatura in his possession months afterwards in no way helps the prosecution, because it cannot possibly be inferred from the fact that he was in possession of dhatura that he was at Sonepur on 13th May 1938. What the learned Judge has done is to convict Ramsumiran of this offence, because he had already been found guilty of two earlier offences in which he and Awadhram were connected. In my view, the case, as presented by the prosecution, may create a suspicion in our minds that Ramsumiran was concerned with this incident at Sonepur, but there is no legal evidence whatsoever which establishes that he was there. All that the evidence amounts to, once the identification in Court is eliminated, is that Awadhram and an associate cooked food in which dhatura had been mixed and gave it to these two men. Who Awadhram''s companion was is not established by any evidence. Had the identification in Court been worth anything at all, the case for the prosecution would be on much firmer ground but even the learned Sessions Judge attaches no importance to such identification and in my view rightly. The prosecution having failed to prove that the appellant Ramsumiran was with Awadhram at Sonepur, the case against Ramsumiran was bound to fail and he, in my view, should have been acquitted.

For these reasons I would allow this appeal, set aside the conviction u/s 328, Penal Code, and the sentence of five years'' rigorous imprisonment and acquit the appellant upon this charge. The appellant, of course, is in prison undergoing other sentences.

Manohar Lall, J.

I agree.