JUDGMENT
Bennet, J.
1. This is a criminal appeal by Mt. Gajrani and Mula, both of Shahjahanpur district, each of whom has been sentenced to death, under Section 302, Penal Code, in the case of Mt. Gajrani, and under Sections 302 and 109, Penal Code, in the case of Mula, by the learned Sessions Judge of Saharanpur. There is also the reference from the learned Sessions Judge for the confirmation of his sentences. The offence in the case is the alleged murder of Girja Shankar, the husband of Mt. Gajrani, by the administration by her of arsenic at Laksar railway station on 29th. March 1932, causing his death in the early hours, of the following morning at about 5-40 a. m. In a case of murder by poison there are three main points to be proved: I firstly, did the deceased die of the poison in question; secondly, had the accused got the poison in question in his or her possession; and thirdly, had the accused an opportunity to administer the poison in question to the deceased. If these three points are proved, a presumption may under certain circumstances be drawn by the Court that the accused did administer poison to the deceased and did cause the death of the deceased. It is not usual that reliable direct evidence is available to prove that the accused did actually administer poison to the deceased. The evidence of motive which is frequently given in these cases is of subsidiary importance, and the mere fact that the accused had a motive to cause the death of the deceased is not a fact which will dispense with the proof of the second and third points that the accused had the poison in his or her possession, and that the accused had an opportunity to administer the poison. In the present case the most important question is whether the prosecution has succeeded in proving that the deceased did die. of arsenic poison. The prosecution is faced with the serious difficulty at the outset that the corpse of the deceased was cremated, and therefore the body was not available for the purposes of chemical examination to see whether it contained arsenic or not. The story of the prosecution is as follows:
Girja Shankar, the deceased, was an inhabitant of a village called Jatpura, in thana Shahabad, district Hardoi and he was a Brahmin, and his wife belonged to village Barhmula, in Shahjahanpur district. The witness for the prosecution Dayashankar on p. 16 stated that for six years Mt. Gajrani had been living in a village called Chanda in Shahjahanpur district at the house of her maternal uncle, and that he and his brother Girja Shankar, deceased had gone many times to bring her away, and that Mula, accused and her maternal grandmother did not let her go with them. As Mt. Gajrani is aged 22 years, it is clear that she has not lived with her husband since she. was 16 years, if indeed she lived with him as his wife for any appreciable period at all. The case for the prosecution is that Mula, the accused, had an intrigue with Mt. Gajrani, and there is evidence for this of Hasnu, a pointsman at Kahilia railway station, and of Ganga Ram of Chanda. The accused Mula was at that time also a pointsman at Kahilia railway station in Shahjahanpur district. Girja Shankar, deceased was a pointsman further up the line at Seohara railway station. Girja Shankar came to Chanda to take away his wife, and he left Chanda accompanied by his wife and the accused Mula. They all three went by train to Seohara about 21st or 22nd March 1932, and they stayed there a few days. This station is in Moradabad district. The deceased and the two accused left Seohara about 27th or 28th, according to the statement of Chandra Sen, and they went for a few days to Hardwar, which is a famous place for Hindu pilgrims from all parts of these provinces.
2. The next date which is fixed is 28thMarch, on which Mula and Mt. Gajrani arrived at Landhaura station from Hardwar, and they proceeded to reside in the quarters assigned to Mula who had been transferred to Landhaura as a pointsman a considerable time previously but he had not joined his appointment. On the next day, 29th March, Girja, deceased arrived alone at Laksar by train from Hardwar. We should mention that Laksar is a railway junction, the line’ running to Hard-war in one direction, and to Landhaura. in another direction and to Seohara in a third direction. Girja was attempting to trace his wife and Mula and he got the assistant station master at Laksar to send a phone massage to Landhaura inquiring whether Mula had joined his appointment. The answer was in the affirmative, and a further question was then asked whether he had a woman with him, and the answer was again in the affirmative. Girja then stated to the assistant station master at Laksar, Mr. Hayde, that the woman in question was not the wife of Mula but was the wife of Girja. Girja then went to Landhaura on that evening and found his wife at the quarters of Mula, and. Mula refused to give her up and assaulted Girja causing him some injuries. Other pointsmen intervened and induced Mula to hand over the woman and Girja took her. apparently reluctantly, with him by a. train which arrived at Laksar at 8-5 p. m. We have verified these times from the railway guide of that period. Girja while at Laksar had a quarrel with his wife and is alleged to have struck her because she had run away with a man who was of a lower caste. He then, according to the evidence of various pointsmen, went off with hi? wife in the train which left at 10-37 p. m. It was necessary for him to wait for his period at Laksar because the train by which he arrived did not proceed further down the line. The witnesses state that he was in sound health when he departed. The witness Phul Khan pointsman stated that the’ woman was seated in a female compartment and the deceased was seated in a male compartment when they left by this train.
3. The train arrived at Najibabad after about an hour, the scheduled time being 11-32 p. m. Several witnesses are called from Najibahad to state that Girja was seriously ill when lie arrived. He was vomiting and passing motions and restless and moving his hands and feet. The assistant station, master Sagarmal states that the woman said that they came from Hardwar and that the man was suffering. He thought it might be a case’ of cholera; so he sent him to Najibabad civil hospital with a note. He says that the deceased was passing motions on the platform and was also vomiting. The letter in question states: “Please attend to the man suspected to be attacked by cholera got down by 10-Down of date.” The doctor in question, Dr. Parmanand Joshi, states that it was 2 a. m. (he by error said “p. m.:” it was “a. m.”) when the deceased was brought to the hospital accompanied by Mt. Gajrani; that the’ deceased was practically in a state of collapse; that Mt. Gajrani said they had gone to Hardwar to bathe and on return from Landhaura to Laksar the patient grew worse but they could not stop at Laksar as they had only one day’s leave. This story of course was not accurate, if the doctor is correctly reporting what the accused stated. The doctor proceeds:
As I had no isolation ward;? in my dispensary compound and municipal huts wore located at an uninhabitable place and the woman had lots of ornaments on her body so I did not press her to go there with her husband. I took the patient to be a case of cholera and gave the woman six doses of mixture and then the woman and others at once took away the patient with my reply to the station master.
4. The reply asked the station master to keep him in railway quarters. We consider that the doctor failed in his duty. If he considered it an infectious case he should have taken the patient to the municipal huts for infection, cases and have given him personal treatment. As it was, he sent the man back to the railway station where there was no means whatever of giving medical attendance, and the result, was that the man died at 5-40 a. m. that morning. If the doctor had carried out his duty it would have been possible for further observation to be made of the condition of the patient, and also possible for the police to obtain material evidence from vomits, etc., as to whether there was any arsenic in these vomits. As soon as the man was dead the accused Mt. Gajrani is stated by Fazlurrahman, the assistant station master, to have asked him to send a phone message to Mula at Landhaura stating that Mt. Gajrani herself was dead. He asked her why she desired to give false information, and she replied that Mula would come at once’ hearing of her death. She also asked him to phone to some of the station staff of Seohara, which was done, and some of these people also came. The next proceeding was that an inquest was held under the supposition that the deceased died of cholera, and permission being obtained, the deceased was taken to the burning ghat in the evening. The body left at 1 p. m. and his clothes were given to the sweeper, who did not desire clothes from a cholera patient, and he tells that he threw these clothes into the dust bin: two coats, two kur-tas, one blue railway uniform shirt, one lehaf and one dhoti.
5. The next preceeding was in Laksar. A report was made by Phul Khan, pointsman, at 5 p. m. on 30th March 1932,. that is, the afternoon of the day on which the deceased died. That report is of a suspected case of poisoning accompanied by murder, and it sets forth the circumstance of Mula abducting Mt. Gajrani and of Girja returning with Mt. Gajrani from Laksar and of his stating that he was beaten by Mula and showing various marks-It does not say that Phul Khan saw the! deceased beating Mt. Gajrani at Laksar. It states that the deceased and his wife went off and deceased was in good health and that it now appears that he died at Najibabad station at 4 o’clock in the morning. The report proceeds:
It is surmised that his wife and Mula have-brought about his death by administering to him some poisonous drug.
6. It is somewhat remarkable that from the facts which he knew Phul Khan should have made this report and he was not asked whether he knew anything more than he embodied in the report or stated in his evidence. However the point is that the police started with a report which suggested that murder had been committed by poison. Steps were taken by the Najibabad police on messages from Laksar and the accused were detained, and at midnight the Sub-Inspector of Najibabad took into possession the clothes which had been discarded in the dust bin, and scaled them up. This officer is a second officer M. Moaziz Ali. He states that he recovered the clothes from a rubbish cart and from the kurakhana and he prepared a list. He identified the dhoti (Ex. 11) with a black border as one of the garments recovered. That night Sub-Inspector Thakur Ram-pal Singh of the Government Railway Police stationed at Laksar arrived in Najibabad and took over the’ investigation on the morning of 31st March. He has not stated whether lie inquired from Dr. Parmanand Joshi, but it appears extremely probable that lie did inquire from the doctor, and it is also probable that the doctor explained as he has stated in evidence that the simptoms of cholera, arsenic poisoning and ptomaine poisoning are similar even in late stages, and that it was quite possible that the deceased died from arsenic poisoning. The Sub-Inspector therefore on 31st March had a medical opinion that the symptons observed by the medical witness would be consistent with the administration of arsenic to the deceased. The Sub-Inspector therefore knew which poison to look for. 7. We may also note’ that arsenic is the most common poison in use in India, and it is stated in Lyon’s Medical Jurisprudence, Edn. 1928, that out of 1,541 cases of poisoning investigated by Col. Owens 688 were cases in which, arsenic was detected that is about 45 per cent. The Sub-Inspector in his evidence states that he took the two accused under arrest on 31st and went to Laksar and handed over the accused Mula to a constable and took the accused Mt. Gajrani to Hardwar. He did this because he says that the woman had made a clean confession to hum on the evening of 31st at Najiba-bad. On the morning of 1st April at 9 or 9-15 a. m. B. Karam Cliand, a special Magistrate of Hardwar, states that the Sub-Inspector came to him at his house at Hardwar. This honorary Magistrate is shown by the civil list to be aged 31 years and he had been an honorary Magistrate since 1927. He was not therefore of very great ‘experience. He states that the woman was with the Sub-Inspector, and they went from Hardwar to the neighbouring town of Jwalapur, and that the woman advanced ahead of them and passed through many galis, streets and bazaars and took them to the shop of a person licensed to sell arsenic, and stated that it was from that place that she purchased the arsenic. One Sitaram was present at that time in the shop, and the license was in the name of Murlidbar, the brother of Sitaram. The Sub-Inspector prepared a note. Ex. 9, which the Magistrate signed. We do not consider that the pointing out of the shop in this statement can be held to amount to the discovery of a fact, and consequently we do not consider that this evidence is admissible under Section 27, Evidence Act. Section 26 states that no confession made by any person in the custody of a police officer shall be proved against that per-son unless it be made in the immediate presence of a Magistrate.
7. We do not consider that the statement in question amounts to a confession. We do not consider that the evidence of the Magistrate is admissible under Section 26. It appears to us that the statement made by the accused was made to the police officer and that the police officer took the Magistrate with him while’ the police officer was conducting his investigation. It frequently happens that evidence of such actions by accused as pointing out various places is tendered to criminal Courts, but we consider that the correct procedure is for the accused to be taken by a Magistrate and not by a police officer while these inquires are being made. It is unobjectionable if a _ Magistrate carried out such an investigation himself, but we consider that for a Magistrate merely to accompany a police officer while the police officer is making the investigation does not render the evidence of what happened admissible under the Evidence Act. (After discussing the evidence in detail, the judgment proceeded). We therefore consider that the evidence in the present case is not sufficient to prove that the accused Mt. Gajrani did have arsenic in her possession or that she had an opportunity to administer the arsenic to the deceased. The mere’ fact that she was in the company of the deceased is not the same as having an opportunity to administer arsenic to the deceased. We do not consider that it is proved that Mt. Gajrani gave dahi or any other food to the deceased at such a period of time as would produce the symptoms in question. The story put into her confession was that just before the train left Laksar the dahi was administered. That period of time being about an hour might be sufficient, as we find from Lyon’s Medical Jurisprudence that the symptoms usually manifest themselves in about an hour or half an hour. But as we have said, the witnesses who were’ present at her departure do not state that any dahi was then given by her to the deceased.
8. We now come to the question of whether the prosecution has proved that the deceased did die of arsenic poisoning. This perhaps is the main question in the case, but we have reserved it to the last in order that we should deal with the’ other points which come into the evidence tendered. The report of the Chemical Examiner is the evidence on which the prosecution rely. That report states that a large number of articles, 16 in all, were sent to the Chemical Examiner, and that all these articles were examined, with the result that arsenic was detected in the stains of the black-bordered dhoti, but not in the remaining articles. The report is very brief indeed and is as follows:
The contents were duly examined by me with the result that arsenic was detected in the stains of (lb), bat not in the remaining articles. The Reinsch’s test was used. Items (8a) and (3b) were tartaric acid and potassium permanganate respectively.
9. It will be noted that the words used are “arsenic was detected.” There is no quantitative analysis or indication of the’ quantity of arsenic. So we are not able to say whether it was’ a mere trace of arsenic or any substantial quantity. The prosecution apparently argued in the following manner. The deceased died of symptoms which may be of arsenic poisoning. Arsenic has been detected in the dhoti of the deceased. Therefore the deceased died of arsenic poisoning. This is a proposi-with which we cannot agree for a number of reasons. In the first place the dhoti in question, as we have already mentioned, lay for some eleven hours in a dust bin (a kurakhana). There may have been any number of articles in that dust bin and the dhoti may have1 been subject to contamination from other articles. The stains being wet would absorb such contamination. For instance, medicines may have been thrown into that dust bin and contamination may have arisen from this cause. And arsenic is a very widely distributed poison, and we find in Lyon’s Medical Jurisprudence, p. 541, that even in the chemical laboratory special precautions are necessary to enable the analytical chemist to see that arsenic is not in any of the things which he uses. Arsenic in India is supplied from the Persian Gulf where it is found in mines, and it is brought in large quantities and is easily obtained. It is extremely difficult to be certain that arsenic has not come into contact with objects such as cloth. When we come deal with the human body we are on surer grounds, and arsenic is not as a rule noticed in the human body except when administered intentionally or taken accidentally. But besides being administered as a poison arsenic may be administered as a medicine.
10. In the present case there is the evidence of Daya Shankar to the effect that his brother suffered for a number of years from impotency and that his brother had brought medicine from Dr. Munna Lal for this purpose Daya Shankar was learning the work of a compounder at the shop of Dr. Munna Lal. He also produced letters in Court which had been written on the subject, and he says that Girja Shankar wrote to him many a time to send him some better medicine. Girja Shankar was therefore extremely anxious to have a trial of various kinds of medicines for impotency. Now we find in Lyon’s Medical Jurisprudence on pp. 521 and 522 that in the Punjab there is a custom of arsenic being eaten as an aphrodisiac, and arsenic is also taken medicinally as a cure for fever, ‘syphilis and other diseases. Under the circumstances of this case we consider that it was incumbent on the’ prosecution to have proved what were the medicines which the deceased had been receiving from Dr. Munna Lal through his brother, and it was the duty of the prosecution to satisfy the Court that arsenic was not among the ingredients which the deceased had been taking as a medicine. Another line of criticism of the report of the Chemical Examiner is that it is far too brief, it merely states, that the Reinsch test was used and that arsenic was detected. Now, on; p. 541 of Lyon’s Medical Jurisprudence there is an account given of the Reinsch process, and this account states that: particular precautions must be taken to be certain that the strip of copper used is free from arsenic. The next step is, that the suspected mixture is allowed to fall on the strip of copper and. the acid is washed off in running water and the water at once used for the-test. If arsenic is present, a steel grey or black stain–an alloy of arsenic and copper–forms on the surface. If the test stops at this, stage it is not certain that arsenic is present because the staining of the copper may be due to the action of organic matter only or the formation of sulphide of copper, or else to the depositing on the copper of metals other than arsenic such as mercury, antimony, silver and. bismuth. A further stage in the test is made by heating the stained pieces of copper, and a sublimate of arsenic oxide is obtained, which under a microscope is found to consist of minute crystals of an eight-sided form.
11. We consider that the Chemical Examiner in making a report in the present case should have told us first of all that he did use the precautions, which are required. In the second placehe should have told us the result of his test, whether he did obtain not merely the stain but also the minute crystals which were found to be eight-sided under the microscope. It is not enough for the Cheminal Examiner to merely state his opinion that arsenic was detected. He must state the grounds on which he arrives at that opinion. In this connexion we would refer to the provisions of the Evidence Act. Section 51 states that whenever the opinion of an expert is relevant, the grounds on which such opinion is based are also relevant, and that an expert may give an account of experiments performed by him for the purpose of forming his opinion. In India the Chemical Examiner merely tenders a report and he does not appear and give evidence. It is extremely desirable that his report should be full and complete and take the place of evidence which he would give if he were called to Court as a witness. In connexion with this question of expert evidence we would also point out that the lower Court did not have any evidence before it on the subject of what should be deduced from the symptoms said to have been exhibited by the deceased. The question as to whether those symptoms point to arsenical poison or to cholera is a highly technical one, and we consider that the Sessions Court would have been well advised to examine the Civil Surgeon as a witness and to have his expert opinion as to what should be deduced from those symptoms. Such an opinion is relevant under Section 45, Evidence Act, Illus. (a), which says that where the question is whether the death of A was caused by poison, the opinions of experts as to the symptoms produced by the poison by which A is supposed to have died are relevant. Now we find in Lyon’s Medical Jurisprudence on pp. 513 and 514 that there is a summary of the chief points which distinguish arsenical poisoning from cholera. We note that a comparison of this summary with the evidence of the prosecution witnesses who saw the deceased when ill shows that these witnesses do not allege any of the symptoms which distinguish arsenic poisoning from cholera. We do not think it desirable to set forth in our judgment what the summary in question is, but we have invited the attention of the learned government Advocate to the summary in question and he had an opportunity to address us on the subject.
12. Our conclusion therefore is that in the present case the prosecution has failed to prove that the deceased died; from arsenic poisoning. For the reasons which we have given we allow these appeals and we acquit both accused and we set aside the sentences, of death imposed by the Sessions Court on Mt. Gajrani and Mula, and we direct that they be set at liberty. A copy of this judgment will go to the Legal Remembrancer, to Government with a covering letter inviting attention to the portions dealing with the inadequancy of the report of the Chemical Examiner, and with a recommendation that rules should be framed to the effect that the Chemical Examiner should make a full report of the process which he employs and the results-which he obtains and the precautions which he takes in each case where he finds poison.
