Young, J.:— Sikandar was charged under S. 302, I.P.C, before the Sessions Judge of Aligarh with having poisoned one Mb. Tufania by administering arsenic to her. The learned Sessions Judge acquitted the accused, and the Government has appealed.
2. The case for the prosecution was that the accused, who had illicit relations with the deceased woman, and also was in the habit of committing sodomy with her son, because the woman refused to leave the place in which she was then living and go and live with him, administered arsenic to her in gur on 22nd June 1929, and thereafter, within some twenty-four hours, she died as a result of arsenic poisoning.
3. The prosecution called three eyewitnesses who deposed that they had ??? the accused giving the decease ???. The witnesses also gave evidence lat shortly after wards the woman ??? very ill and vomited and purged, here was also on the record the statement of Mt. Tufania herself made to ??? police, which was admitted in ??? as a dying declaration. In that ??? the woman said that the a ??? had illicit intimacy with her and so with her son; that she refused to ??? to Aligarh with him, and that after wards he gave her gur to ??? saying that was a “parshad” from a Pir; that ??? after wards she began to feel ??? and thirsty and drank water from jar and that the water was bitter, lie also said that the gur tasted bitter, id that she charged Sikandar with ??? ministering poison to her mixed with ??? gur. As regards the evidence of ??? three eyewitnesses, the learned ??? Judge discards it on the ground lat he was not satisfied that they were ??? the truth. We have carefully ??? their evidence, and we have ??? reason to disagree with the finding: the learned Sessions Judge on this Dint. There remains, then, the ??? of the deceased woman herself as even in her dying statement. As rewards the statement, the learned ??? Judge came to the conclusion, from ??? internal evidence in the statement self, that the statement was not given ??? the woman's own words but that it ??? merely a note of the substance of that she told the police. The learned ??? Judge came to the conclusion lat it would not be safe to convict the soused merely on the statement. We a in agreement with the learned ??? Judge in the finding to which he ??? and we see no reason to upset ??? finding and to convict the accused. While we agree with the Sessions judge we think we ought to put it on ??? that there are several other more ??? reasons than have been given ??? the learned Sessions Judge, or even discussed by him, for acquitting Sikankar. There is, in our opinion, no evidence on the record worthy of the name ??? prove that Mt. Tufania died of ??? poisoning. In a case of arsenic ??? two things must be proved: ??? that the person alleged to have been murdered did the of arsenic poisoning; and, secondly, that the arsenic was administered by the accused person. The only evidence in this case of arsenic poisoning is the evidence of the Civil Surgeon who says in his original report that the cause of death was “probably some irritant poison.” Later on the Civil Surgeon was more definite. He said: “Death was due to some irritant poison.” But he did not say that death was due to arsenic. Nor was he questioned either by counsel for the defence or by the Judge as to whether the condition of the stomach and the intestines which he found in the post-mortem examination was not consistent with Castro enteritis, cholera, or some similar complaint. Further, some of the vomit and the matter purged was collected from the ground and sent to the Chemical Examiner for report; also the jar which had contained the water which she had drunk and in which, as was alleged by the prosecution, she had washed the gur, was sent to the Chemical Examiner. The Chemical Examiner reported, after using the Reinsh test, that arsenic “was detected” in the vomit of Mt. Tufania and also in the night-soil, but arsenic was not detected in the mud jug. The report of the Chemical Examiner is wholly insufficient to prove that the cause of the woman's death was arsenic poisoning. A very small and harmless quantity of arsenic can be “detected” by the Reinsh or Marsh test. It is of the utmost importance in a case of arsenic poisoning that the prosecution should prove that a lethal does of arsenic that is, two grains or upwards, had been administered. The authorities, such as Taylor, are agreed that there must be unequivocal proof:
“that soma rational quantity of arsenic was found in the viscera, or good evidence of such a lapse of time after the administration of the last does as to give a satisfactory explanation of its possible absence.”
4. In this case there is no lapse of time. In other words, there ought to be a careful examination of the viscera of the body and an analysis by a competent analyzer showing from the amount of arsenic found in the viscera that at least a lethal does must have been administered. Mere examination of vomit or night-soil is totally insufficient and it would be extremely dangerous to rely upon some traces of arsenic found in either of these two things. Arsenic might have been put in the vomit or night-soil after death. Arsenic on the other hand may be legitimately in the body through various causes. Arsenic in some forms is obtained from earth, and as in this case the vomit and night-soil was taken from the earth, it is not beyond the bounds of reasonable possibility that traces of arsenic might have been detected in these two substances from that cause. It is usual where the matter to be examined has been contaminated with earth to send a sample of the earth from a neighbouring spot to be analysed in order to show whether there is arsenic in the earth or not. In India arsenic is used as a medicine in all manner of diseases, and it is also used as an aphrodisiac. It is, therefore, impossible to take the mere evidence that arsenic was detected as sufficient to prove conclusively death from arsenic poisoning. It is of the utmost importance, before a Court could find any individual guilty of murder by the administration of arsenic, that a very much more complete chemical analysis should be made than in this case. There are several methods of analysing the viscera of a dead body and of making a quantitative analysis. Reference to any of the books on this subject can easily be made. That such analysis has been made in India in the past is clear from a reference to Dr. Cheyer's Medical Jurisprudence, published in 1870, where he observes at p. 116: “Dr. Macnamara discovered considerable quantities of arsenic in both stomachs.” Given the necessary knowledge and the necessary instruments, modern science has no difficulty in coming to a conclusion as to the approximate quantity administered.
5. There is one other point to which we would like to allude as regards this particular case. Prom the evidence on the record it is not impossible that the gur taken by the deceased did not contain arsenic.
6. The woman said that the gur tasted bitter. The authorities are unanimous on the point that arsenic is tasteless, and at p. 507 of Taylor's Medical Jurisprudence it is said:
“Sit T. Stevenson has known an ounce of arsenic homicidally put into a pint of rice pudding. The pudding was eaten without suspicion.”
7. It seems to be a common error to consider that arsenic tastes bitter at the moment of eating, and, therefore, it is suspicious, when the fact is otherwise, to see in the statement of this woman that the gur was bitter when she are it. The most that can be said is that later it produces a burning sensation in the throat. In every murder case in Britain, where arsenic poisoning is alleged, the contest always is over the evidence as to the amount of arsenic found in the body. We are told that quantitative analyses have been for some years unknown in this country in arsenic cases. It is our opinion that without such evidence as can be obtained from a proper scientific enquiry it would in most cases be very unsafe to convict any person of murder by arsenic, especially in view of the common diseases in this country whose symptoms are almost indistinguishable from that of arsenic poisoning.
8. The appeal is dismissed. If Sikandar is under arrest he will be set at liberty immediately if he is not wanted on any other charge.
V.B/R.K
9. Appeal dismissed.