1. Happu, caste Nat, as charged under Section 302, Penal Code, in the Court of the Sessions Judge of Bereilly the murdering one Babu Singh by administering arsenic to him. The learned Sessions Judge found Happu guilty and sentenced him to death. Happu appeals to this Court and e have before us an application for confirmation of the death sentence.
2. On 21st November 1932, Babu Singh ate his evening meal and thereafter at the invitation of Happu went to his house. Happu gave Babu Singh a chatak of broken pera to eat telling him it as the parshad of Ganga and that he had kept it for him. Babu Singh ate the pera and returned home. He felt ill, and hen he reached his o n house he as attacked by vomiting and purging. He as taken to the hospital and died t o days later. These facts are proved. In a charge of murder by arsenic poisoning it sessential for the prosecution to prove: (a) That the person alleged to have been murdered died of arsenic poisoning (b) That the accused person administered arsenic to the deceased the intent to murder. The Civil Surgeon as called by the prosecution. He made the post mortem examination of the stomach and intestines of Babu Singh. He said:
From the history and the post mortem appearance of the stomach and intestines I am of opinion that death as due to an irritant poison of the nature of arsenic.
3. This evidence is insufficient to prove death by arsenic poisoning. From an examination of the authorities on Medical Jurisprudence and the medical evidence in arsenic poisoning cases tried in England, t o facts are apparent; firstly, that the simptoms of arsenic poisoning before death are indistinguishable from the simptoms of some natural diseases, such as Cholera and acute Dysentery. Both diseases are common in India and both can cause sudden death. Secondly, it is not possible to be certain by a naked eye post mortem examination of the stomach and intestines that death as due to arsenic poisoning. Post mortem appearances similar to those observed in undoubted cases of arsenic poisoning are also similar to those produced by certain natural diseases, and other irritant poisons. It is just possible too that under certain conditions they might be produced by the action of the digestive gastric juices of the stomach upon the tissues after death.
4. There as also before the lower Court a report by the Chemical Examiner, in which it as said that arsenic as 'detected' in the viscera of the deceased. This again is not enough to prove death by arsenic poisoning. Traces of arsenic might legimately be present in the viscera of a large number of dead bodies. Arsenic is present in some food substances such as glucose. This substance is largely used in the preparation of preserves, and also in the manufacture of beer. Arsenic may be obtained in any bazar in India and is used in both Indian and European medicines. It is also frequently used as an aphrodisiac. In the trial Court there as no evidence that a lethal does of arsenic that is t o grains or more had been administered; there as therefore no evidence that death as due to arsenic poisoning. In this Court a quantitative analysis report as produced at the Court's request. The Chemical Examiner reported that he had found Order 182 of a grain of arsenic in those portions of the viscera of Babu Singh submitted to him.
5. The Chemical Examiner employed the ell-known Marsh Berzelius process to estimate the quantity of arsenic in the material for examination. In this process mirrors are used on which minute quantities (about 1/5Oth of a mille-gramme) of arsenic are deposited. 1/50th of a millegramme is 1/3200 of a grain. Standard mirrors are prepared on which the different minute amounts of arsenic deposited are kno n. The mirror prepared from the material examined is then compared the density and shade of the standard mirrors and a standard mirror is selected which gives the amount of arsenic. Only a small portion of the material to be examined is used. The result thus obtained has therefore to be multiplied by the figure representing the remainder of the material. hen this has been done the figure arrived at is in millegrammes and has to be converted into grains. This final calculation, as is seen from the above, is reached by using a large multiplication figure. It is therefore clear that unless the skill, experience, and eye-sight of the Chemical Examiner are beyond criticism there might easily be an error in his selection of the right standard mirror which might make, in the final estimate, all the difference between a lethal and a harmless dose. On the correct estimation and calculation of these infinitesimal quantities life or death often depends.
6. A very important question of la arises in this case, namely: hat is the eight, as evidence, to be attached to the written report of the Chemical Examiner? In my opinion, it has no weight. It has long been held as a general rule both in England and in India, that evidence which cannot be-adequately tested must be rejected. There are t o methods of testing evidence. The first is by the administration. of an oath, the second by cross-examination. This is the reason by Courts reject hearsay evidence; it is not on oath, and cannot be tested by cross-examination. Even evidence on oath is of little or no value unless sifted by cross-examination. Lord Lopez, J;, in Allen v. Allen (l894) P 248, said:
It appears to us contrary to all rules of evidence, and opposed to natural justice, that the evidence of one party should be received as evidence against another party without the latter having an opportunity of testing its truthfulness by cross-examination. In the case of prisoners jointly charged the an offence, the jury-are always most carefully warned that hat one may say inculpating the other is not evidence against that other. The reason is because one prisoner cannot cross-examine another, and therefore, their statements condemnatory of each other, unassailable by cross- be valueless.
7. In another part of the judgment he says:
In our judgment, no evidence given by one party affecting another party in the same litigation can be made admissible against that other party, unless there is a right to cross-examine...we are clearly of opinion that if the Judge refuses to allow a co-respondent to cross-examine the respondent, as he did in this case, the jury should be distinctly directed to disregard the respondent's evidence hen considering the case of the co-respondent.
8. If this be the la as it undoubtedly is in civil actions of ho ever trivial nature, it applies much more forcibly to a criminal case here death may be the result. It has undoubtedly been the practice in India to rely upon such a report, even here there is no quantitative analysis, to prove death by arsenic poison, and on this evidence many persons have been convicted. The origin of this dangerous practice is found in Section 510, Criminal P.C. This section reads as follows:
Any document purporting to be a report under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government upon any matter or thing duly submitted to...him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.
9. It is to be noted that under this remarkable provision of la the document need only 'purport' to be that of the Chemical Examiner. No proof that it is in truth is apparently necessary, and in practice the signatures on reports are not proved. Courts have construed this section to mean that Chemical Examiners need not be called aswitnesses in practice they never are in this Province and further, that hatever the report says must be taken at its face value and given all the eight of evidence on oath subject to the test ofcross-examination hatever may be said of the wisdom of this enactment contrary as it is to the accumulated legal experience of centuries of hat is necessary for the protection of accused persons nothing is more certain than that Section 510, fortunately for accused persons, says nothing as to the : eight to be attached to the report. There is no reason therefore by the ordinary rule of la should not be strictly enforced if any eight is sought to be attached to a report on the chemical examination of suspect material.
10. It is notorious in this country that any document may be forged or substituted by a forged document. Substitution has been known even after the document has come into the custody of a Court. The Chemical Examiner and his Assistant, both being human, are liable to err, especially in such a delicate operation as the Marsh-Berzelius process. There is not in this case the slighest allegation against the Chemical Examiner but it is equally possible that these privileged persons might be half blind, incompetent, or even corrupt. I take judicial notice of the fact that an enquiry is no taking place in India as to hether a Chemical Examiner has made a false report. No person therefore ought to be put in peril of capital, or any punishment on awritten report not given on oath and untested by cross-examination. To accept such a report hatever it may contain as proof of death by arsenic poisoning, or of anything, appears to me to be an impossible proposition in la could certainly in this case have shed to sec both the Chemical Examiner and his report subjected to a searching examination on oath before I could have agreed to confirm the sentence of death.
11. In this case could have called the Chemical Examiner to give evidence in this Court if it had beennecessary. In vie of our finding that there is no evidence that Happu administered arsenic to Babu Singh such a course as unnecessary. To sum up therefore: In any trial for murder by arsenic poisoning the prosecution must prove: (a) That the deceased died of arsenic poisoning, (b) That the accused administered arsenic to the deceased the intent to murder.
12. If the prosecution is has to establish (a) by means of the Chemical Examiner, and eight is to be attached to his evidence, he must be called, form, and -offered for cross-examination. By his evidence he must prove that at least t o grains of arsenic ere administered to the deceased before death. He can do this by proving the discovery of this amount in the body of the deceased, or by accounting for its. absence in part. He may attribute the-loss to vomitting, purging, or the natural elimination of the poison from the-body before death taking into consideration the lapse of time between the; hour the arsenic had been taken and the hour of death.
13. It is to be noted that under Section 509,. Criminal P.C, a Civil Surgeon, or other medical it ness, is to be examined on oath in the presence of the accused and therefore subjected to cross-examination. This is a curious contrast to the privilege given to the Chemical Examiner or his Assistant under Section 510. There is also no such privilegeallowed to the Examiner of questioned documents. In arsenic trials in England, Chemists of the eminence of Sir illiam illcox are called to prove that at least t o grains of arsenic must have been administered, and they are subjected to the severest cross-examination before their evidence isaccepted.
14. With regard to the second point, namely, hether poison as in fact administered to the deceased by Happu,. there is not sufficient evidence. Babu Singh had taken a heavy meal just before hent to Happu's house. The time hen the symptoms of illness appeared is consistent both th poison having been administered either in his o n house or in the house of Happu. There is no evidence that Happu as in possession of arsenic, and there is no-adequate motive alleged by the prosecution for the murder of Babu Singh The Only motive alleged as that Babu Singh had refused to give Happu a. small sum of money for the purposes of his expenses at a Ganges mela. Apparently Babu Singh had also been, having sexual intercourse it the daughter of a coman no as kept by Happu, but this had been proceeding for some time and no one seems to have objected to it. The appeal ought to be allowed.
15. I agree the conclusions of my learned brother.. The charge of murder has not been proved in this case and Happu's appeal must be allowed. As regards Section 510, Criminal P C,the anomaly of its provisions has probably struck every Judge who has had a murder case to try. The reason for the special dispensation which is thus granted to the Chemical Examiner presumably is the expense, delay and inconvenience which would be entailed if he had to travel round the province giving evidence at every murder trial. But here a man's life is in the balance and here the hole case depends on the decision of the question he there a fatal dose of poison as or as not administered to the deceased, it is a matter of consideration of he there the Sessions Court should not have ever it is of opinion that such action is necessary for the ends of justice, exercise its right to call the Chemical Examiner so that he may be examined on oath and be subjected to cross-examination. Section 510 uses the lord may not shall; so it is clear that the Court has a discretion in the matter.
16. I also think that hen a report is received from the Chemical Examiner containing a quantitative analysis, it should be shown to the medical officer ho conducted the post mortem examination so that he ill be in a position to state before the Committing Magistrate hat are the medicolegal inferences to be drawn from the report.