Gyanmati @ Sangathiya vs State Of U.P.
- Court
- Allahabad High Court
AFR
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 4257 of 2018
Gyanmati @ Sangathiya
…..Appellant(s)
Versus
State of U.P.
…..Respondent(s)
Counsel for Appellant(s) : Jawahar Lal Maurya, Mary Puncha
(Sheeba Jose), Mohd. Kalim, Ram
Naresh Singh, Ramesh Chandra
Yadav
Counsel for Respondent(s) : G.A.
with
CRIMINAL APPEAL No. - 4349 of 2016
Ashok Kumar @ Putti Lal
…..Appellant(s)
Versus
State of U.P.
…..Respondent(s)
Counsel for Appellant(s) : Anupam Maurya, Purushottam
Pandey, Vindo Kumar Kushwaha,
Vinod Kumar Kushwaha
Counsel for Respondent(s) : G.A.
Court No. - 49
HON'BLE AJAY BHANOT, J.
HON'BLE DIVESH CHANDRA SAMANT, J.
[PER : HON'BLE AJAY BHANOT, J.]
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CRLA No. - 4257 of 2018
1. The instant appeals arise out of judgement dated 27.06.2016
rendered by the learned Additional District and Sessions Judge
in Sessions Trial No. 547 of 2013 (State vs. Ashok Kumar and
Another). The FIR which culminated in the criminal trial was
registered as Case Crime No. 99 of 2013 under Sections
328/34, 302/34 IPC at P.S.-Hathgaon, District-Fatehpur.
2. The following appellants are before this Court in the
respective appeals:
I. Gyanmati @ Sangathiya in Criminal Appeal No. 4257 of
2018.
II. Ashok Kumar @ Putti Lal in Criminal Appeal No. 4349 of
2016.
3. Both these appeals are being heard together and are being
decided by a common judgment.
4. The learned trial court by the impugned judgment has found
the appellants guilty of the offences under Section 302/34 I.P.C.
and has imposed a punishment of life imprisonment along with
a fine of Rs. 10,000/-. The appellants are liable to undergo two
years additional rigorous imprisonment on default of payment
of fine. The learned trial court has also held the appellants
guilty of the offences under Sections 328/34 of the IPC and has
imposed a punishment of ten years rigorous imprisonment and
fine of Rs. 5,000/-. Upon default in payment of fine the accused
will undergo further rigorous imprisonment for one year.
F.I.R- Prosecution Case
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CRLA No. - 4257 of 2018
5. Briefly put the prosecution case set out in the F.I.R. is that
Gyanmati @ Sangathiya, wife of first informant’s son Jagdish
@ Jagdhar had developed illicit relations with Ashok Kumar.
On 20.07.2013 at about 11:00 AM, the two accused persons
administered poison to informant’s son after mixing the same in
his meal. While partaking his meal Jagdish found the Dal to be
bitter. At that time the accused poured milk in the Dal to make
it palatable and got the deceased to consume the concoction.
One hour after taking the meal the poison took its effect on his
body and the deceased began to vomit. News of the incident
soon spread. After hearing of the incident Lal Singh, Ram
Kumari wife of Lal Singh and other persons from the village
brought his son to the hospital at Hathgaon. The attending
doctor referred Jagdish @ Jagdhar to a higher facility at
Fatehpur. At that point in time, Jagdish @ Jagdhar informed his
father and mother that the two accused persons had mixed
poison in his food. The deceased died while under treatment at
Fatehpur Hospital. The doctor opined that the deceased had
consumed a poisonous substance.
Charge :
6. Pursuant to the lodgement of the F.I.R., police investigations
were set on foot. A charge sheet was filed against the appellant
on 15.10.2013. Cognizance of the offences was taken by the
learned trial court on 29.10.2013,
7. The learned trial court framed the following charges against
the accused persons on 05.05.2015:
"
आरोप
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CRLA No. - 4257 of 2018
, , , 9,
मैं आदिल आफताब अहमद अपर जिला एवं सत्र न्यायाधीश न्यायालय संख्या
फतेहपुर आप अभियुक्तगण अशोक कुमार उर्फ पुत्तीलाल एवं श्रीमती ज्ञानमती उर्फ
:-
संगठिया को निम्नलिखि त आरोप से आरोपित करता हूँ
1- 27.03.13 11
यह कि दिनांक को समय बजे स्थान मृतक की ससुराल ग्राम सिठौरा थाना
हथगांव जिला फतेहपुर में आपलोगों ने जगदीश उर्फ जगधर पुत्र लाल सिंह को उपहति
कारित करने का सामान्य आशय बनाया तथा अपने उक्त सामान्य आशय को अग्रसारित
/
करते हुए जगदीश उर्फ जगधर पुत्र लाल सिंह को बिष जहर का सेवन कराया जिससे उक्त
जगदीश उर्फ जगधर को उपहति कारित हुई। इस प्रकार आपलोगों ने ऐसा कृत्य किया जो
328/34
भारतीय दण्ड संहिता की धारा के अन्तर्गत दण्डनीय अपराध है और इस न्यायालय
के प्रसंज्ञान में है।
2- 27.03.13 11
यह कि दिनांक को समय बजे स्थान मृतक की ससुराल ग्राम सिठौरा थाना
हथगांव जिला फतेहपुर में आपलोगों ने जगदीश उर्फ जगधर पुत्र लाल सिंह की हत्या करने
का सामान्य आशय बनाया तथा अपने उक्त सामान्य आशय को अग्रसारित करते हुए
/
जगदीश उर्फ जगधर पुत्र लाल सिंह को बिष जहर का सेवन कराकर हत्या कारित की। इस
302/34
प्रकार आपलोगों ने ऐसा कृत्य किया जो भारतीय दण्ड संहिता की धारा के अन्तर्गत
दण्डनीय अपराध है और इस न्यायालय के प्रसंज्ञान में है।
अतः एतदद्वारा मैं आदेशित करता हूँ कि उक्त आरोप के अन्तर्गत आपका
"
विचारण इस न्यायालय द्वारा किया जाएगा।
8. The accused-appellant denied the charges and the case went
to trial.
Evidences :
9. Tabular charts depicting the evidences adduced by the
prosecution during the trial are as under:
Oral Evidence:- List of prosecution witnesses
Prosecution Witnesses
Sr. No. Witness No. Witness
Nature of Witness
Name
1 PW-1 Lal Singh First Informant
2 PW-2 Durga Prasad Author of Tehrir
3 PW-3 Sher Singh Witness to the Extra Judicial
Confession
4 PW-4 Dr. Sudhir
Shrivastava
Doctor who conducted the post
mortem report
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CRLA No. - 4257 of 2018
5 PW-5 Gulab Tiwari Constable Muharri/Author of
Chik
6 PW-6 Ram Autar
Singh
Ist Investigating Officer
7 PW-7 Chhavinath
Singh
Author of Inquest
8 PW-8 Lallan Singh IInd Investigating Officer
Documentary Evidences
Sr
No.
Documents Proved By Exhibit No. Date
1 Written
Report/Tehrir
PW-1 Ex Ka-01 22.07.2013
2 Inquest
Report
PW-7 Ex Ka-02 21.07.2013
3 Post Mortem
Report
PW-4 Ex Ka-03 21.07.2013
4 Fauti Soochna
of Deceased
Jagdhar
PW-4 Ex Ka-04 20.07.2013
5 F.I.R PW-5 Ex Ka-05 20.07.2013
6 Carbon Copy
of GD
PW-5 Ex Ka-06 22.07.2013
7 Site Plan PW-6 Ex Ka-07 22.07.2013
8 Challan Nash PW-7 Ex Ka-08 21.07.2013
9 Photo Nash PW-7 Ex Ka-09 21.07.2013
10 Letter to
CMO
PW-7 Ex Ka-10 21.07.2013
11 Sample Seal PW-7 Ex Ka-11 21.07.2013
12 Chargesheet PW-8 Ex Ka-12 15.10.2013
13 Viscera
sample sent
for Testing
PW-8 Ex Ka-13 16.08.2013
14 Viscera
Report
Ex Ka-14 18.09.2014
Tehrir:
10. The tehrir was submitted by Lal Singh/P.W. 1/ deceased’s
father on 22.07.2013 at 20:45 hours at the police station. P.W.1-
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CRLA No. - 4257 of 2018
Lal Singh has testified that he had dictated the tehrir to Durga
Prasad who took it down in writing. P.W.1 identified his
signatures on the tehrir and proved the same. The tehrir was
marked as Ex. Ka-1.
I. FIR:
11. The F.I.R. was lodged on 22.07.2013 at 08:40 PM at P.S.
Hathgaon, District Fatehpur, under Sections 328 and 302 IPC.
P.W.1-Lal Singh was the first informant.
12. The Chik F.I.R. was registered by Constable Muharrir
Gulab Tiwari/P.W.5. P.W.5 identified his hand writing and
signatures and signatures on the Chik F.I.R. and proved the
same which was marked as Ex. Ka-5.
13. The entry in the General Diary in respect of the F.I.R. was
made by P.W.5 on 20.07.2013 at 20:45 Hours as G.D. No. 29.
14. P.W.5 produced the original G.D. before the Court and
stated that carbon copy of the G.D. is in the trial court record
and is registered as paper No. 69. After comparing the carbon
copy of the GD P.W.5 proved the carbon copy available in the
G.D. in the records of the trial court which was then marked as
Ex. Ka-6.
II. Inquest Report
15. The inquest report was drawn up by S.I. Chhavinath
Singh/PW-7. Inquest report records that the inquest proceedings
commenced on 21.07.2013 at 12:00 AM. Information regarding
death of the deceased was sent to the police station by
Mahindra, Room Attendant, District Hospital, Fatehpur. Father
of the deceased Lal Singh, grandfather Ganga Prasad, paternal
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CRLA No. - 4257 of 2018
uncle Gulab Singh, and Gram Pradhan of the village Durga
Prasad, were witnesses to the inquest proceedings.
16. The inquest report records that in the opinion of the panchas
the death appeared to have been caused by consumption of a
poisonous substance. Recitals in inquest report disclose that no
injuries were visible on the body of the deceased.
17. PW-7 Chhavinath Singh in his testimony stated that the
inquest report was drawn up in his handwriting. The same was
proved by him and marked as Exh. Ka-2.
III. Transfer of the body for Post Mortem:
18. The inquest report records that after the inquest
proceedings, the body of the deceased was stitched wrapped
and sealed and made over to Constable 372 Amrendra Mishra
and Home Guard 549 Shiv Mohan for being carried to the
mortuary for post-mortem. The documents which were drawn
up and sent with the body to the mortuary were Photo Nash,
Challan Nash, Letter to C.M.O. and sample seal. The said
documents were proved by P.W.7 and then marked as Ex. Ka-8,
Ex. Ka-9, Ex. Ka-10 and Ex. Ka-11 respectively.
IV. Medical Opinion
19. The medical report drawn up by the Medical Officer,
District Hospital, Fatehpur, and sent to Police Station S.O.
Kotwali, depicts the condition of the deceased at the time of
admission to the hospital. As per the aforesaid document, the
deceased was admitted in Sadar District Hospital, Fatehpur on
20.07.2013 at 06:25 PM.
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CRLA No. - 4257 of 2018
20. The said medical report further records that the accused-
appellant, Gyanmati, who is the deceased’s wife had got him
admitted to the hospital. The medical report further opines that
at the time of admission the deceased was gasping and
poisoning was suspected. PW 4 testified that Dr Nalnesh
Pandey was the author of the said medical report. The medical
report dated 20.07.2013, received by Dr. Sudhir
Shrivastava/P.W. 4 identified his signatures on the document
and proved the same. The document was marked as Exh. Ka-4.
V. Cause of death and Post Mortem Report
21. Post mortem was conducted by Dr. Sudhir Srivastava/P.W.4
on 21.07.2013 from 03:30 PM to 04:00 PM. The relevant parts
of the postmortem report depicting ante mortem injuries, cause
of death and time of death are reproduced hereinunder:-
“Ante Mortem Injuries: No External Injury seen
Cause of Death : Could Not be ascertained hence viscera preserved
Time of Death: Hospital Death at 7:30 PM on 20.07.2013”
22. The post mortem report dated 21.07.2013 records that, as
per relevant documents, the deceased was admitted on 06:25
PM on 20.07.2013 at District Hospital, Fatehpur. Dr. Sudhir
Srivastava entered the witness box as P.W.4 and proved the post
mortem report and its contents. The post mortem report was
marked as Ex. Ka-3.
VI. Site Plan
23. S.I. Ramavtar Singh/I.O./P.W.6 prepared the site plan at the
pointing out of the first informant/P.W.1. The P.W.6 identified
his hand writing on the site plan and proved the same which
was then marked as Ex. Ka-7.
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VII. FSL Report
24. The post mortem report did not make any definitive opinion
on the cause of death. The preserved Viscera sample was sent to
F.S.L. for further examination. The F.S.L. report dated
18.09.2014 (Ex. Ka-14), upon examination of the Viscera
sample, opines as under:-
“
प्रदर्श का विवरण
( )
अ विसरा के अंश
1.
स्टमक एण्ड इट्स कन्टेन्ट्स । एक समुदित प्लास्टि क जार में
2.
ऑत का टुकड़ा ।
3.
लिवर का टुकड़ा । एक समुद्रित प्लास्टि क जार में
4.
दोनों किडनी के टुकड़े ।
5.
स्पलीन ।
परीक्षण परिणाम
(1-5)
विसरा के भागो में अल्युमिनियम फॉस्फाइड विष पाया गया। रासायनिक विधियाँ
प्रयोग की गई। अन्य रासायनिक विष के प्रयोग नकारात्मक रहे। प्रयोग के समय समस्त
सावधानियाँ ध्यान में रखी गई।”
25. The Viscera sample which was sent by communication
dated 13.08.2013 was marked as Ex. Ka-14.
Oral Testimonies
PW-1/ Lal Singh/ First Informant
26. Lal Singh/the first informant and father of the deceased
entered the witness box as PW-1. PW-1 while deposing before
the trial court testified that Gyanmati @ Sangathiya ,wife of his
son Jagdish had developed illicit relations with Ashok Kumar.
Gyanmati and Ashok mixed poison in his son’s meal and served
it to him on 20.07.2013 at about 11:00 A.M. P.W.1 states that
he reached his son’s residence on hearing of the deteriorating
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CRLA No. - 4257 of 2018
health of the latter. The information was given by one person
belonging to Sithaura. Jagdish @ Jagdar informed PW 1 that
the accused persons had administered poison to him. PW 1 and
his party took Jagdish to a hospital at Hathgaon which referred
him to Sadar Hospital, Fatehpur. Jagdish died at Sadar Hospital,
Fatehpur.
PW-2/ Durga Prasad
27. Durga Prasad was produced by the prosecution as PW-2.
PW-2 in his testimony stated that on 20.07.2013, he had
accompanied Lal Singh and his wife and others to Sithaura
when they learnt that the condition of deceased had
deteriorated. On reaching Sithaura at about 12 pm, they found
that Jagdish was unwell and had been vomiting. Jagdish told
them that the two accused persons had mixed poison in his
meal and that they were in an illicit relationship. Thereafter
they took Jagdish on a Bolero to Hathgaon Government
Hospital at Hathgaon, which referred them to Sadar Hospital,
Fatehpur. They reached Sadar Hospital, Fatehpur with the
deceased where he died while under treatment.
Proceedings under Section 313 Cr.P.C.
28. The accused-appellant Gyanmati in the proceedings under
Section 313 Cr.P.C. stated that her husband had left his house in
the morning. He started to vomit after returning home, and his
condition deteriorated. She informed her in-laws and her cousin
sister; but no one from her in-laws came over. Her nephew
Ashok later arrived and the two took her husband to the
Hathgaon Hospital. Thereafter they accompanied her husband
to Sadar Hospital, Fatehpur where he was admitted for further
treatment. The deceased died at Sadar hospital; and his body
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CRLA No. - 4257 of 2018
was kept there. The next day she went to the police station. Co-
accused had also reached the police station. Her father-in-law
and the Pradhan took the Sub-Inspector aside and had a
conversation with him. She and Ashok were sent to jail. She
then explained her aunt and nephew relationship with Ashok.
29. Accused-appellant Ashok stated in proceedings under
Section 313 Cr.P.C. that he is the nephew of the co-accused
Gyanmati. His mother sent him to his aunt Gyanmati’s house
when she learnt of his uncle’s condition. He and his aunt took
Jagdish to the Hathgaon hospital. Thereafter on doctor’s advice
they went to Sadar Hospital, Fatehpur. They got his uncle
Jagdish admitted at Sadar Hospial, Fatehpur for further
treatment. During the course of his treatment his uncle died.
His aunt informed her in-laws through some villagers.
However, no one came when the body was lying in the hospital.
Later they were arrested.
Submissions on behalf of the Bar
Submissions on behalf of the appellant
30. Ms. Sheeba Jose, learned counsel assisted by Shri Mohd.
Kaleem, learned counsel for the appellant has made the
following submissions:
I. The delay in lodgment of F.I.R. is fatal to the prosecution
case.
II. P.W.1 and P.W.2 are unreliable witnesses who reached the
hospital only after the accused had died.
III. The conduct of the appellant was above board inasmuch as
she promptly took her husband to the hospital.
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CRLA No. - 4257 of 2018
IV. The administration of poison by the appellants to the
deceased has not been proved.
V. There was delay in testing the viscera sample. The
prosecution failed to establish that the viscera was preserved in
safe conditions and was fit for testing at the time it was
evaluated.
VI. The F.S.L. report which depicts poison in the Viscera
sample is not backed by reasons and hence could not be read in
evidence against the appellant.
VII. The doctor conducting the post mortem was never
confronted with the FSL report.
VIII. The defence of the appellant taken in the proceedings
under Section 313 is credible and supported by the prosecution
evidences in the record.
IX. The prosecution has failed to prove its case beyond
reasonable doubt.
X. The judgment of the trial is against the weight of evidence
and contrary law is liable to be set aside.
Submissions on behalf of the State
31. Shri Rishi Chaddha, learned AGA on behalf of the State
contended as under:
I. The accused are named in the F.I.R.
II. There was no delay in lodgment of the FIR.
III. The deceased had the motive to commit the offence.
IV. The postmortem report as well as the F.S.L. report
corroborates the prosecution case.
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CRLA No. - 4257 of 2018
V. The burden of proving the safe keeping of the Viscera
sample is not on the prosecution.
VI. The presence of both accused persons at the hospital is
established.
VII. The prosecution has proved its case beyond reasonable
doubt.
VIII. The judgment of the learned trial court is in conformity
and has rightly appreciated the law and is liable to be upheld.
APPRAISAL OF EVIDENCE
32. Heard learned counsels for the parties. The evidence in the
record shall be assessed in the following sequence.
Issue arising for consideration
33. The evidence and the issues which arise for consideration
will be appraised in he following sequence:
(I) Prosecution case against the appellants
(II) FIR: Delay and Consequences
(III) Reliability and credit of P.W.1 and P.W.2:
(IV) FSL report: Admissibility
(V) Safe preservation of viscera sample: Burden of proof
(VI) Failure to confront the doctor conducting the postmortem
with the FSL report: Consequences
(VII) Cause of death
(I) Prosecution case against the appellants:
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CRLA No. - 4257 of 2018
34. The prosecution case is that the deceased died by poisoning
after consuming Aluminium phosphide, and that the poison was
administered by the accused persons.
II F.I.R. : Delay
35. The deceased died on 20.07.2013 at about 07:30 P.M. As
per the prosecution case, the first informant had reached the site
prior to the death of the deceased. The F.I.R. was lodged on
22.07.2013 at 08:45 P.M. According to the first informant, the
deceased had told him that he had been poisoned by accused
persons. No good cause of the delay in lodgment of the F.I.R.
has been shown by the prosecution during the trial. The F.I.R.
was registered belatedly and as an afterthought. The delay in
lodgment of the F.I.R. will be fatal to the prosecution case in
the cumulative view of facts and evidences in the record.
III. Credibility of P.W.1 and P.W.2
A. Hospitalization of the deceased
36. P.W.1 who is the first informant stated that he and his wife
reached the house of the deceased prior to his death. According
to PW 1 Jagdish had informed them that he had been poisoned
by the accused persons. Thereafter, P.W.1 along with others
took the deceased to Hathgaon Hospital from where he was
referred to Sadar Hospital Fatehpur.
37. However, under cross-examination P.W.1 stated that he
learnt about the death of his son at 11 AM in the village from a
person who lives in Sithora whose name he could not disclose.
38. Under further cross-examination, PW 1 admitted that he did
not go to Hathgaon Hospital. P.W.1 also stated that he reached
Sadar Hospital along with Pradhan Durga Prasad, Gaya Prasad,
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CRLA No. - 4257 of 2018
Surendra Ahir and Ram Narayan Ahir. No one else
accompanied them to Sadar Hospital. They reached Sadar
Hospital two hours before sunset. His son died half and hour
after they had reached the hospital. The said statement
contradicts the earlier version of P.W.1 that he had reached the
house of the deceased and then took the latter to hospital.
39. PW 2 stated that they reached Sithaura at 12 PM. They
found that Jagdish was vomiting. Jagdish told them that he had
been poisoned by the accused persons who were in an illicit
relationship. According to P.W.2 they had taken Jagdish on a
Bolero to Hathgaon Govt. Hospital. The doctor at Hathgaon
Hospital upon examining the deceased said that he had
consumed a poisonous substance and referred him to Sadar
Hospital Fatehpur.
40. Under cross-examination, P.W.2 stated that when he
reached Sithora, he saw both the accused persons Ashok and
Sangathiya. However, the aforesaid people did not accompany
them to the hospital at Hathgaon. P.W. 2 deposed that his party
left Hathgaon Hospital within half an hour at about 2 PM and
they reached Sadar Hospital/District Hospital, Fatehpur at 4.00-
4.30 PM. The deceased died at Sadar Hospital/District Hospital,
Fatehpur within half an hour to 45 minutes.
41. The deposition of PW 2 regarding hospitalisation of the
deceased at Hathgaon Hospital contradicts the testimony of PW
1 on material aspects. The said inconsistencies in the
testimonies of PW 1 and PW 2 impeaches the reliability of the
prosecution case.
42. The medical report marked as Ex. Ka-4 records that
deceased was brought to the District Hospital Fatehpur at about
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CRLA No. - 4257 of 2018
6.25 PM by his wife Gyanmati alias Sangathiya. Further the
post mortem report also contains recitals to the effect that the
deceased was admitted at District Hospital, Fatehpur at 6.25
PM.
43. The deposition of P.W.4 affirms the contents of Ex. Ka-4.
Document pertaining to hospitalization of the deceased which
is marked as Ex. Ka-4 was drawn up by government doctors in
the discharge of official duties. There is a presumption of
correctness in favour of the aforesaid document. The said
presumption was reinforced after the document was proved and
its contents reiterated by P.W. 4. There was no challenge to the
same.
44. Exh. Ka 4 and P.W. 4 contradict the testimonies of P.W. 1
and P.W. 2 that they had brought the deceased to the hospital. In
this wake, the depositions of P.W.1 and P.W.2 regarding the
hospitalization of deceased are found to be entirely false and
are accordingly discarded.
Veracity of P.W.1 and P.W.2 regarding the deceased B.
informing the P.W.1-his wife and P.W.2 about poisoning by
the accused persons and motive of accused persons.
45. P.W.1 in his testimony before the trial court has stated that
he left for Sithaura after he was informed about the death of the
deceased. In these circumstances the testimony of P.W.1 that
the deceased informed him and others about the fact of his
poisoning by accused persons is evidently false.
46. On the other hand, PW 2 has stated that deceased had
informed them of being poisoned by accused and about the
illicit relations between the two, when they reached Sithaura at
12:00 pm.
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CRLA No. - 4257 of 2018
47. The illicit relationship between the accused persons as the
motive was introduced by PW 1 and PW 2 as an afterthought.
Save the bald statements regarding the extra relationship there
is no evidence regarding the same. The statements of PW 1 and
PW 2 in regard to the extra marital affair between the two
accused also do not inspire confidence and are disbelieved. The
motive of the accused -appellant to commit the offence has not
been established.
48. There are material inconsistencies on critical issues in the
testimonies of P.W.1 and P.W.2 which self destruct the
prosecution case. The credit of P.W.1 and P.W.2 was impeached
and they are held to be unreliable witnesses insofar as they state
that the deceased had informed them of poisoning by the
accused persons before his death, and that they had taken the
deceased to the hospital are liable to be entirely disbelieved.
IV. FSL Report
A. FSL Report : Admissibility and Reliability
49. The mainstay of the prosecution case is the FSL report
dated 18.09.2014/Exh Ka-14 which records the presence of
Aluminium Phosphide in the viscera sample. The FSL report is
in the nature of expert evidence. The presence of Government
scientific expert who has drawn up the report to prove the
report is exempted with under Section 293 CrPC. The provision
is extracted hereunder:
“ S.293 (1) Any document purporting to be a report under the hand of a
Government scientific expert to whom this section applies, 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.
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(2). The Court may, if it thinks fit, summon and examine any such expert as to
the subject-matter of his report.
(3). Where any such expert is summoned by a Court and he is unable to attend
personally, he may unless the Court has expressly directed him to appear
personally, depute any responsible officer working with him to attend the
Court, if such officer is conversant with the facts of the case and can
satisfactorily depose in Court on his behalf.
(4). This section applies to the following Government scientific experts,
namely;
(a). any Chemical Examiner or Assistant Chemical Examiner to Government;
(b). the Chief Inspector of Explosives; the Director of the Finger Print Bureau;
(c). the Director, Haffkeine Institute, Bombay;
(d). the Director or Deputy Director or Assistant Director of a Central Forensic
Science Laboratory or a State forensic Science Laboratory;
(e). the Serologist to the Government. any other Government scientific Expert
specified by notification by the Central Government for this purpose.”
50. It is undisputed that the FSL, Lucknow which had drawn up
the said report comes within the ambit of Section 293 CrPC.
Hence no expert was required to prove the aforesaid report. The
said report was accordingly marked as Exhibit Ka-14 without
having been proved by the expert who had drawn the report.
51. Expert reports are made admissible under Section 45 of the
Evidence Act. The provision is extracted hereunder:
“ 45. Opinions of experts .—When the Court has to form an opinion upon a
point of foreign law, or of science, or art, or as to identity of handwriting or
finger impressions, the opinions upon that point of persons specially skilled in
such foreign law, science or art, or in questions as to identity of handwriting or
finger impressions are relevant facts.
Such persons are called experts.
Illustrations
(a) 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.
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(b) The question is, whether A, at the time of doing a certain act, was, by
reason of unsoundness of mind, incapable of knowing the nature of the act, or
that he was doing what was either wrong or contrary to law.
The opinions of experts upon the question whether the symptoms exhibited by
A commonly show unsoundness of mind, and whether such unsoundness of
mind usually renders persons incapable of knowing the nature of the acts
which they do, or of knowing that what they do is either wrong or contrary to
law, are relevant.
(c) The question is, whether a certain document was written by A. Another
document is produced which is proved or admitted to have been written by A.
The opinions of experts on the question whether the two documents were
written by the same person or by different persons, are relevant.”
52. Cases in point consistently hold that the sole purpose of an
expert report is to assist the Court to form an opinion in a field
which belongs to the domain of experts. After the expert report
is upheld by a Court, the same becomes the report and the
opinion of the Court. The tests of admissibility of an expert
report point are as under:
(A) The credibility and the standing of the expert in the field.
(B) The reasons on which the expert raises his conclusions.
(C) Conclusions
53. The opinion of the expert which is bereft of reasons or does
not disclose the basic scientific criteria which has guided the
expert to reach the conclusion is of no avail. The purpose of
reasons in an expert report is not far to seek. The reasons stated
by the expert in support of the conclusions will enable the
Court to independently test the correctness of such opinion. For
that purpose the Court may also rely on established authorities
and protocols in the concerned field and examine the expert
report in the perspective offered in such literature. In absence of
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reasons the Court will not be able to independently come to the
conclusion regarding the correctness or otherwise of the experts
opinion.
54. The observations made above are supported by long
standing authorities in point. The Supreme Court in Madan
Gopal Kakkar Vs. Naval Dubey: 1992 (3) SCC 204 while
examining the scope and admissibility of a medical expert
report held as under:
“34. A medical witness called in as an expert to assist the Court is not a
witness of fact and the evidence given by the medical officer is really of an
advisory character given on the basis of the symptoms found on examination.
The expert witness is expected to put before the Court all materials inclusive
of the data which induced him to come to the conclusion and enlighten the
Court on the technical aspect of the case by explaining the terms of science so
that the Court although, not an expert may form its own judgment on those
materials after giving due regard to the expert's opinion because once the
expert's opinion is accepted, it is not the opinion of the medical officer but of
the Court.”
55. The issue pertaining to expert opinion also arose for
consideration before the Supreme Court in Ramesh Chandra
Agrawal Vs. Regency Hospital Ltd and Others ((2009) 9 SCC
709) . The well established principles of admissibility of expert
evidence were reiterated by the Supreme Court in Ramesh
Chandra Agrawal(Supra) by holding thus:
“16. The law of evidence is designed to ensure that the court considers only
that evidence which will enable it to reach a reliable conclusion. The first and
foremost requirement for an expert evidence to be admissible is that it is
necessary to hear the expert evidence. The test is that the matter is outside the
knowledge and experience of the layperson. Thus, there is a need to hear an
expert opinion where there is a medical issue to be settled. The scientific
question involved is assumed to be not within the court's knowledge. Thus
cases where the science involved, is highly specialised and perhaps even
esoteric, the central role of an expert cannot be disputed. The other
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requirements for the admissibility of expert evidence are: (i) that the expert
must be within a recognised field of expertise, (ii) that the evidence must be
based on reliable principles, and (iii) that the expert must be qualified in that
discipline. (See Errors, Medicine and the Law, Alan Merry and Alexander
McCall Smith, 2001 Edn., Cambridge University Press, p. 178.)
19. It is not the province of the expert to act as Judge or Jury. It is stated in
Titli v. Alfred Robert Jones [AIR 1934 All 273] that the real function of the
expert is to put before the court all the materials, together with reasons which
induce him to come to the conclusion, so that the court, although not an
expert, may form its own judgment by its own observation of those materials.
20. An expert is not a witness of fact and his evidence is really of an advisory
character. The duty of an expert witness is to furnish the Judge with the
necessary scientific criteria for testing the accuracy of the conclusions so as to
enable the Judge to form his independent judgment by the application of these
criteria to the facts proved by the evidence of the case. The scientific opinion
evidence, if intelligible, convincing and tested becomes a factor and often an
important factor for consideration along with other evidence of the case. The
credibility of such a witness depends on the reasons stated in support of his
conclusions and the data and material furnished which form the basis of his
conclusions. (See Malay Kumar Ganguly v. Dr. Sukumar Mukherjee [(2009) 9
SCC 221 : (2009) 10 Scale 675] , SCC p. 249, para 34.)
Credentials of an expert:
18. The importance of the provision has been explained in State of H.P. v. Jai
Lal [(1999) 7 SCC 280 : 1999 SCC (Cri) 1184] . It is held, that, Section 45 of
the Evidence Act which makes opinion of experts admissible lays down, that,
when the court has to form an opinion upon a point of foreign law, or of
science, or art, or as to identity of handwriting or finger impressions, the
opinions upon that point of persons specially skilled in such foreign law,
science or art, or in questions as to identity of handwriting, or finger
impressions are relevant facts. Therefore, in order to bring the evidence of a
witness as that of an expert it has to be shown that he has made a special study
of the subject or acquired a special experience therein or in other words that he
is skilled and has adequate knowledge of the subject.
21. In State of Maharashtra v. Damu [(2000) 6 SCC 269 : 2000 SCC (Cri)
1088 : AIR 2000 SC 1691], it has been laid down that without examining the
expert as a witness in court, no reliance can be placed on an opinion alone. In
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this regard, it has been observed in State (Delhi Admn.) v. Pali Ram [(1979) 2
SCC 158 : 1979 SCC (Cri) 389 : AIR 1979 SC 14] that “no expert would
claim today that he could be absolutely sure that his opinion was correct,
expert depends to a great extent upon the materials put before him and the
nature of question put to him”. ”
56. In the case at hand, the expert report submitted by the FSL
dated 18.09.2014/Exh Ka-14 simply records the ipse dixit or its
conclusion that the Aluminium Phosphide was present in the
viscera sample. The report does not disclose any data, tests
conducted, scientific criteria or materials which guided the
expert to record the aforesaid conclusion. The FSL report dated
18.09.2014/Exh Ka-14 is in the teeth of the law laid down in
Ramesh Chandra Agrawal (supra) and Madan Gopal Kakkar
(supra). In absence of such relevant data, the expert report is
inadmissible in evidence, and the opinion rendered therein is
discarded.
IV B. FSL Report- Possibility of consumption of Aluminium
Phosphide:
57. The veracity of the prosecution case regarding partaking of
milk and food served by the accused person which contained
Aluminium Phosphide will now be determined.
58. The attributes of Aluminium Phosphide and the possibility
of its voluntary consumption have to be examined in the light
of various scientific authorities in point. For the aforesaid
purpose, the Court had summoned scientific experts to assist in
the determination of the chemical and other attributes of
Aluminium Phosphide.
Credentials of the Expert before the Court
59. Dr. Sapna Sharma, Associate Professor and Dean, School of
Forensic Science, U.P. State Institute of Forensic Science,
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Lucknow appeared before this Court and submitted an affidavit
bringing in the record the respected authorities and books
holding the field which are used for academic purposes and
also cited widely.
60. Dr. Sapna Sharma apart from holding the said post is an
academician of high repute. Dr. Sapna Sharma has done her
Ph.D. from CSIR, Indian Institute of Toxicology Research,
Lucknow. The deponent has worked in the field of Toxicology
in various institutes including University of Chicago, United
States of America, University of Gothenberg, Sweden, Jawahar
Lal University, New Delhi, SRN University, Barabanki, U.P. By
virtue of her academic qualifications, experience in the field
and her current assignment, this Court finds that Dr. Sapna
Sharma is a respected expert in the field of Toxicology. The
opinion of Dr. Sapna Sharma regarding authorities and well
known books in the field of Toxicology is a reliable opinion
which this Court has adopted.
61. According to Dr. Sapna Sharma ‘Essentials of Forensic
Medicine and Toxicology’ by Dr. KS Narayan Reddy is a well
known authority in the field of Toxicology. The academic
excellence of Dr. KS Narayan Reddy are extracted hereunder:
“KS Narayan Reddy MD DCP PhD has been Professor of Forensic
Medicine (1965–2017). He was awarded the Degree of Doctor of
Philosophy in Medicine, by the International University of
Contemporary Studies, Washington, DC, USA, in 1998. He has
contributed 31 articles to professional journals, and published 10 books
in Forensic Medicine. His name is listed in Reference Asia, Vol. III
(1989); Biography International, Vol. III (1990–1991); Learned Asia,
Vol. I (1992); Indo-Arab Who’s Who, Vol. I (1996); Five Hundred
Leaders of Influence, IV Edition (1996), published by American
Biographical Institute; Asia-Pacific Who’s Who, Vol. II, 1999,
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Asian/American Who’s Who, Vol. I, 1999; Twentieth Century
Admirable Achievers (Distinguished) Who’s Who 1999; Indo-Asean
Who’s Who, Vol. I, 2000, Man of Achievement, 2000; and Indo-
American Who is Who, Vol. III, 2002. He was awarded Fellowship of
Academy of Medical Sciences (India) in 1984. He is also a Fellow of
Academy of Forensic Sciences; Fellow of Indian Academy of Medical
Specialities, Fellow of United Writers Association, Fellow of Academy
of Forensic Medicine and Fellow of International Medical Sciences
Academy. He is the recipient of Dr. B.C. Roy National Award (1986),
in the category of development of medical specialities, and of Vijaya
Shree Award (1989), by India International Friendship Society, in the
category of authors, Man of Millennium in Forensic Medicine and
Toxicology (2001) by the Medicolegal Society, Delhi and Man of
Achievement (2006), by Indian Academy of Forensic Medicine.”
62. Dr. Sapna Sharma also cited Forensic Medicine and
Toxicology for Police Investigation by Dr. SN Tiwari as a
respected work in the field. Relevant parts of the same are
extracted hereunder :
“Metal phosphides of Aluminium, Zinc, magnesium and calcium are
highly effective insecticides and rodenticides. Aluminium phosphide is
abailable as Alphos. Celphos and quick phos in the form of 3 gm tablets
or of 0.6 gm pellets of grayish to dark brown in colour and composed
of aluminium phosphide (ALP) and aluminium carbonate in the ratio of
56:44. Celphos is frequently used as a grain preservative in stores and
during transportation. It is highly poisonous and its effects are due to
the liberation of phosphine (PH ) gas which is toxic to pests, insects ₃
and rodents. Its easy availability has led to an epidemic of deaths due to
sucides, and accidental ingestion. Many cases even of homicide have
been reported in British Journal Lancet, 1988, I : (2598) : 1333, that the
number of deaths by ALP. So far exceeded the number of deaths in the
Bhopal Gas Tragedy. In fact, it is the most common cause of poisoning
in sub urban and rural parts of Northern India.
Exposure to phosphine gas generally occurs by way of accidental or
suicidal ingestion. Dermal absorption of aluminium phosphide is rare
but it may be absorbed through the lacerated and injured skin causing
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toxicity. Following the injection of aluminium phosphide, phosphine
gas is liberated which is absorbed throughout the gastro intestinal tract,
reaches the blood stream, apart of it goes to the liver by portal vein. It is
also rapidly absorbed through lungs. Most of the phosphine is excreted
unchanged in expired air. while the residue quantity is oxidized to
phosphite and hypo-phosphite ions which are excreted in urine [P.
Wexler. second ed., Encyclopedia of toxicol- ogy. Vol I and 2.
Academic Press, 2005]. Small amounts of zinc phosphide reach liver
and kidneys after ingestion and hydrolyse slowly in the tissues to
phosphine and zinc salts. It also gets distributed to the brain. [S. Saleki.
F.A. Ardslan. A. Javidan-Negad., Liver Histopathology of fatal
phosphine poisoning. Forensic sci. Int., 166 (2007). 190 - 193].
Properties of commonly available metal phosphides along with the
physical forms and lethal doze (LD 50) of [aluminium ALP- yellow or
dark grey crystals; 20 mg/kg); Magnesium Mg P – yellow-green ₃ ₂
crystals; 10.4 mg/kg: Calcium – Ca P – Red brown crystalline powder ₃ ₂
or gray lumps – 8.7 mg/kg and of Zinc – Zn P Gray tetragpma; ₃ ₂
crusta;s grau n;acl [pwder; 4-5 g (toxic dose)] as reported by G.S.
Bumbrah etal phosphide poisoning: A review in forensic sci Int.
214/2012).
After ingestion of aluminium phosphide, phosphine gas having garlicky
or decaying fish odour is released by the action of dilute hydrochloric
acid (gastric juice) content of the stomach. The gas phosphine acts as
the respiratory poison. Even 20:100,000 parts of phosphine in air is
reported to be fatal. [W. Popp et.al, phosphine poisoning in a German
office, Lancet, 359, (2002): 1574] Phosphine is excreted through breath
and urine. Phosphine causes wide spread organ damage due to cellular
hypoxia as a consequence of non-competitive inhibition of the enzyme
cytochrome oxidose of the mitochondria.
The exposure limits of phosphine gas have been defined as:
Permissible exposure limit (PET): 0.3 ppm ans an 8 hour shift.
●
Short term exposure limit (STEEL): 1
●
ppm.
Immediately dangerous to life and health: 200 ppm.
●
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Lethal in 30 min: 400 - 600 ppm.
●
[A. wahals, M.S Zaheer, S. wahab, R.A Khan. Acute aluminium
phosphide poisoning: Hongkong Journal of Emergency Medicine: Vol.,
15(3), July: 2008].
Clinical Signs and Symptoms
The symptoms depend on the route of administration. Poisoning by
inhalation produces nausea, restlessness abdominal pain, palpitation,
pulmonary edema, cyanoses, hypotension, shock and cardiac
arrhythemia, diarrhoea, tremors, convulsions, delirium, coma and death
from respiratory and cardiac arrest.
Nausea, vomiting and abdominal pain are the earliest symptoms that
appear after ingestion. Gastro intestinal symptoms which present in
moderate to severe poisoning are excessive thirst, abdominal pain and
epigastric tenderness while cardiovascular abnormalities seen are
profound hypotension.
Nervous system main manifestations include headache, dizziness,
altered mental status, convulsions and coma. Some rare findings in
aluminium phosphide poisoning are muscular weakness, wasting
tenderness in proximal lower limb muscles, bleeding diathesis due to
capillary damage, acute adrenocortical insufficiency and pseudo-shock
syndrome due to impaired fluid distribution which results in micro-
circulatory failure.
Detection of Phosphine in poisoning cases
1. Viscevial tissues or fluid either self or after addition of 2 ml of
dilute hydrochloric acid emit a garlicky or fishy putrid
characteristic odour of phosphine gas Limit of sensitivity: 0.1 to
5.0 ppm.
2. Gutzeit Test:- Small quantity of tissues (10g) or 10 ml of body
fluids (stomach contents) are taken in a gutzeit apparatus. Two
pellets of pure zinc metal are added over the contents followed
by 5 ml of dilute sulphuric acid. The evolved gas is purified by
passing over lead acetate papers (to absorb sulphide gas) and
passed through silver nitrate impregnated papers. A black stain
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indicates the presence of phosphine gas due to the formation of
silver-phosphide.
3. Ammonium Molybdate method
[Manual of Analytical Toxicology - S.N. Tewari, BP.R & D.
Publication, Govt. of Indi. New Delhi 1976. pp 59-60]
Minced tissues (10g) or other biological material suspected to contain
phosphine or phosphides are taken into a steam distillation flask mixed
with an equal amount of water and then acidified with dilute sulphuric
acid followed by steam distillation. The distillate is collected in an ice
cold receiver containing 5 ml of 1% silver nitrate solution by dipping
the adopter into the silver nitrate solution. In the presence of phosphide,
the silver nitrate solution turns black forming silver phosphide
precipitate. To this black precipitated material is added 5ml of
concentrated nitric acid and boiled till the solution becomes practically
colourless. Add 5ml of ammonium molybdate solution and heat for one
minute. Appearance of canary yellow precipitate confirms the presence
of phosphine (phosphide).
Autopsy tissues examination – findings
Post mortem examination in cases of suspected aluminium phosphide
poisoning reveal a distinct garlic odour from mouth and close to the
body. Face shows a lividity with distinct bluish - colouration and blood
mixed with froth from and around nostrils. Internal examination
reaveals froth in trachia and adematons lungs with haemorrhages in the
interlobular areas and at the Treatment
To reduce the absorption of phosphine, gastric lavage with potassium
per manganate (1:10,000) is done to oxidize phosphine to form non-
toxic phosphate. This is followed by a slurry of activated charcoal (1
gm charcoal per kg body weight) given through mesogastric tube.
Metabolic acidoses must be treated by administrating sodium
becarbonate and shock should be treated with appropriate vasopressors.
Milk, fat and saline emetics should not be given orally.
No known specific antidote is however, available for metal phosphide
poisoning.
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The average time interval between intake of poison and death is 3
hours with a range of 1 – 48 hours. 95% of the patients die within 24
hours and the commonest cause of death in this group is arrhythmia
(any disturbance in the rhythm of the heart beat). Death after 24 hours
is due to shock acedosis. ARDS (acute respiratory distress syndrome
and arrhythmia. The mortality rate is highly variable, ranging from 37%
– 100% and can reach more than 60% even in experienced and well
equipped centres.
Autopsy tissues examination – findings
Post mortem examination in cases of suspected aluminium phosphide
poisoning reveal a distinct garlic odour from mouth and close to the
body. Face shows a lividity with distinct bluish - colouration and blood
mixed with froth from and around nostrils. Internal examination
reaveals froth in trachia and adematons lungs with haemorrhages in the
interlobular areas and at the margins of the lungs. Stomach usually
contains grayish brown fluid or pasty material. Gastric mucosa
becomes slugged and the stomach wall appears thinned out. Lungs,
trachia, myocardium, gastric mucosa, kidneys, liver, spleen and brain
are congested. Infact almost all the vital organs become clogged in
cases of alumunium phosphide poisoning. Heart is fall of dark blood.
Tongue, Mouth and Esophagus are adematous and corroded. The
mucous membrane of stomach is reudered corrugated, loosened or
hardened and enflamed along with intestines. Coagulative necrosis and
congestion was observed in brain.
margins of the lungs. Stomach usually contains grayish brown fluid or
pasty material. Gastric mucosa becomes slugged and the stomach wall
appears thinned out. Lungs, trachia, myocardium, gastric mucosa,
kidneys, liver, spleen and brain are congested. Infact almost all the vital
organs become clogged in cases of alumunium phosphide poisoning.
Heart is fall of dark blood. Tongue, Mouth and Esophagus are
adematous and corroded. The mucous membrane of stomach is
reudered corrugated, loosened or hardened and enflamed along with
intestines. Coagulative necrosis and congestion was observed in brain.”
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63. Extracts from “Essentials of Forensic Medicine &
Toxicology” by Dr K.S Narayan Reddy on Aluminium
Phosphide including its symptoms. Method of chemical tests
are extracted hereunder:
“ Aluminum phosphide (ALP) is a solid fumigant pesticide, insecticide
androdenticide. In India it is available as white tablets of Celphos,
Alphos, Quickphos, Phostoxin, Phosphotex, etc., each weighing 3 g.
and has the capacity to liberate one gram of phosphine (PH₃). On
coming in contact with moisture ALP liberates phosphine. Phosphine is
a systemic poison and affects all organs of the body. The chemical
reaction is accelerated by the presence of HCL in the stomach. ALP has
garlicky odour. It is widely used as grain preservative. Phosphite and
hypophosphite of aluminium which are non-toxic residues are left in the
grains.
Absorption and Excretion: Phosphine is rapidly absorbed from the GI
tract by simple diffusion and causes damage to the internal organs. It is
also rapidly absorbed from the lungs after inhalation. After ingestion,
some ALP is also absorbed and is metabolised in the liver, where
phosphine is slowly released accounting for the prolongation of
symptoms. Phosphine is oxidised slowly to oxyacids and excreted in the
urine as hypophosphite. It is also excreted in unchanged form through
the lungs.
Action: Phosphine inhibits respiratory chain enzymes and has cytotoxic
action. It acts by inhibiting the electron transport resulting from
preferential inhibition of cytochrome oxidase.
Fatal Dose: 1 tablet.
Fatal Period: One hour to four days. Majority die within 24 hours.
Inhalation of phosphine at a concentration of 400 to 600 ppm is fatal
within one hour.
Signs and Symptoms: They depend on the dose and severity of
poisoning.
Inhalation: Mild inhalation exposure produces irritation of mucous
membranes and acute respiratory distress. Other symptoms are
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dizziness, easy fatigue, tightness in the chest, nausea, vomiting,
diarrhoea and headache. Moderate toxicity produces ataxia, numbness,
paraesthesia, tremors, diplopia, jaundice, muscular weakness,
incoordination and paralysis. Concentration of PH₃ in air higher than
0.3 ppm cause severe illness. Severe toxicity produces adult respiratory
distress syndrome, cardiac arrhythmias, congestive heart failure,
pulmonary oedema, convulsions, and coma.
Ingestion: Mild intoxication produces nausea, vomiting, headache and
abdominal pain, and the patients usually recover.
In moderate and severe poisoning, systemic manifestations are early
and progressive and mostly fatal. G.I.T.: Nausea, vomiting, diarrhoea,
retrosternal pain. C.V.S.: Hypotension, shock, arrhythmias,
myocarditis, pericarditis, acute congestive heart failure. R.S. : Cough,
dyspnoea, cyanosis, pulmonary oedema, respiratory failure. Hepatic :
Jaundice, hepatitis, hepatomegaly. Renal: Renal failure. C.N.S. :
Headache, dizziness, altered mental state, restlessness, convulsions,
acute hypoxic encephalopathy, coma. Rare : Muscle wasting and
tenderness and bleeding diathesis, due to widespread capillary
damage. Cardiogenic shock is the most common cause of death.
Complications include pericarditis, actue congestive cardiac failure
acute massive gastrointestinal bleeding and ARDS. Mortality is high 35
to 100%.
Post-mortem Appearances : Garlic-like odour is present at the mouth
and nostrils and in the gastric contents. Blood-stained froth is found in
the mouth and nostrils. Mucous membrane of the lower part of
oesophagus, stomach and duodenum are congested. Decreasing
congestion of the G.I. tract is seen in the small intestine. The lungs,
liver, spleen, kidneys, adrenals and brain are congested. Centrizonal
haemorrhagic necrosis of the liver may be seen.
Histopathology : (1) Stomach : Congestion, oedema, leucocytic
infiltration, sloughing of gastric mucosa. (2) Lungs : Congestion,
oedema, desquamation of respiratory epithelium, thickened alveoli,
lymphocytic infiltration. Kidneys : Congestion, necrosis, tubular
degeneration and regeneration. Adrenals : Congestion, haemorrhage,
necrosis, area of lipid depletion in cortex. Heart : Congestion, oedema,
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fragmentation of fibres, focal necrosis, leucocytic infiltration. Brain :
Congestion, oedema.
Chemical Test: 5 ml. of gastric aspirate and 15 ml. of water are put in a
flask and the mouth is covered with a filter paper impregnated with
silver nitrate (0.1N). The flask is heated at 50°C for 15 to 20 minutes. If
phosphine is present, the filter paper truns black. (2) A piece of filter
paper impregnated with 0.1 N silver nitrate solution is used in the form
of a mask through which the patient breathes for 5 to 10 minutes. The
filter paper turns black, if phosphine is present. (3) The filter paper
impregnated with AgNO₃ (0.1N) is used in the form of face mask and
the patient is asked to breathe in and out of this filter paper for 15 to 20
minutes. Presence of PH₃ is indicated by the blackening of filter paper.
In breath, the test is positive only in patients who have ingested more
than six gm. of ALP.
Treatment: (1) Gastric lavage with potassium permanganate is done
and repeated 2 or 3 times to oxidise the poison. (2) Give activated
charcoal 100 g. orally to adsorb phosphine. (3) Antacids reduce
symptoms pertaining to the stomach and reduce absorption of
phosphine. (4) Liquid paraffin is given for excretion of ALP and
phosphine from the gut. (5) There is no specific antidote. (6)
Magnesium sulphate reduces organ toxicity, corrects hypomagnesaemia
and arrhythmias. The usual dose is one g. repeated for the next two
hours, and then 1 to 1.5 g. every 6 hours for 5 to 7 days in the form of
continuous i.v. infusion. (7) To treat shock 4 to 6 litres of fluids are to be
administered during the first 3 to 6 hours; of this 50% must be normal
saline. (8) Low dose dopamine infusion, 4 to 6 microgram/kg/min is
useful (9) I.V. hydrocortisone, 400 mg. every 4 to 6 hours is highly
effective. It reduces the dose of dopamine. (10) Hypoxia is treated with
oxygen. (11) Shock should be treated with fluids and hydrocortisone.
(12) Metabolic acidosis should be corrected with i.v. sodium carbonate.
Peritoneal or haemodialysis is useful.
Poisoning is usually suicidal, occasionally accidental and rarely
homicidal.”
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64. It is evident that the tests for determining the presence of
Aluminium Phosphide as cited in the aforesaid authorities are
not depicted in the FSL Report/Exh Ka 14. Further, a notable
characteristic of the poison as opined in “Essentials of Forensic
Medicine & Toxicology” by Dr. KS Narayan Reddy is that
death by consumption of Aluminium Phosphide is mostly
suicidal. Consumption of Aluminium Phosphide by accident is
a remote possibility in view of the pungent nature of the
substance.
65. The discussion also has the benefit of good judicial
authorities in point.
66. While discussing the nature of aluminium phosphide the
Supreme Court in Jaipal vs. State of Haryana reported at
2003 1 SCC 169 held as under:
“18. Our attention was invited, as was done in the High Court and the
trial court, to a paper entitled “Toxicology — Acute Aluminium
Phosphide Poisoning in Northern India” written by Dr Mitra Basu and
Prof. S.B. Siwach, Head, Department of Medicine, Postgraduate
Institute of Medical Sciences, Rohtak and published in Current Medical
Journal, Vol. I, No. 5, July 1995. The authenticity of this article has not
been doubted by the High Court nor questioned either in the High
Court or in this Court. The learned authors have noticed the aluminium
phosphide having emerged as a major health problem in northern India
when these cases first started coming in 1984 and hardly any literature
being available earlier on this malady. In Postgraduate Institute of
Medical Sciences, Rohtak about 2000 cases were reported which were
all suicidal.
19. We may briefly sum up the opinion of the learned authors from their
published paper. Phosphine gas (active ingredient of ALP) causes
sudden cardiovascular collapse; most patients die of shock, cardiac
arrhythmia, acidosis and adult respiratory distress syndrome (ARDS).
Aluminium phosphide is available in the form of chalky-white tablets.
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When these tablets are taken out of the sealed container, they come in
contact with atmospheric moisture and the chemical reaction takes
place liberating Phosphine gas (PH3) which is the active ingredient of
ALP. This gas is highly toxic and effectively kills all insects and thus
preserves the stored grains. When these tablets are swallowed, the
chemical reaction is accelerated by the presence of hydrochloric acid in
the stomach and within minutes phosphine gas dissipates and spreads
into the whole body. The gas is highly toxic and damages almost every
organ but maximal damage is caused to heart and lungs. Sudden
cardiovascular collapse is the hallmark of acute poisoning. Patients
come with fast, thready or impalpable arterial pulses, unrecordable or
low blood pressure and icy-cold skin. Somehow these patients remain
conscious till the end and continue to pass urine despite unrecordable
blood pressure. Vomiting is a prominent feature associated with
epigastric burning sensation. The patients will be smelling foul (garlic-
like) from their breath and vomitus. Many of them will die within a few
hours. Those who survive for some time will show elevated jugular
venous pressure, may develop tender hepatomegaly and still later adult
respiratory distress syndrome (ARDS), renal shutdown and in a very
few cases, toxic hepatic jaundice. The active ingredient of ALP is
phosphine gas which causes extensive tissue damage. A spot clinical
diagnosis is possible in majority of cases of ALP poisoning. However,
ALP on account of its very pungent smell (which can drive out all
inmates from the house if left open) cannot be taken a ccidentally.”
67. The aforesaid holding in Jaipal as regards aluminium
phosphide was reiterated in Darshan Singh vs. State of
Punjab reported at 2024 (3) SCC 164 .
68. The post mortem report records that the body of the
deceased did not bear any marks of physical injuries. There is
merit in submission on behalf of the appellants that the
aluminium phosphide was not administered forcibly. Further in
view of above stated authorities there is little likelihood of the
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same being consumed accidentally. The aforesaid fact gravely
dents the prosecution case .
V. Confrontation of the Doctor with FSL
69. The doctor who had conducted the postmortem was never
confronted with the F.S.L. report which opines that the Viscera
sample contained Aluminium Phosphide. It was incumbent
upon the prosecution to confront PW-4 with the F.S.L.
report/Exh Ka-14 and verify whether symptoms or effects of
poisoning by Aluminium Phosphide were present in the body or
not and whether the same were reflected in the Post Mortem
report.
70. In the facts and circumstances of this case the Viscera report
cannot be treated as conclusive evidence of poisoning by
aluminium phosphide. The reliability of FSL report depicting
poison is strengthened after the doctor who conducted the post
mortem is confronted with the same. During the aforesaid
confrontation the doctor will be alerted to the findings in the
post mortem report in light of the FSL report. Responses of the
doctor will be elicited on whether the post mortem report
independently corroborates the opinion of poisoning in the FSL
report.
71. P.W.4 has only mentioned in general terms that there was a
possibility of the deceased having been poisoned.
VI. Cause of Death
72. The postmortem report opines that the cause of death could
not be ascertained. P.W. 4 in his testimony also stated that no
conclusion on the cause of death could be derived after the
postmortem. The FSL report has been found to be inadmissible
in evidence and has been discarded. P.W. 4 was never
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confronted with the FSL report. Moreover P.W. 4 under cross-
examination has testified that there were symptoms of food
poisoning. Prosecution evidence with regard to cause of death
lacks certainty and is unreliable. The prosecution has failed to
establish the cause of death of the deceased by poisoning.
VII. Burden of prosecution regarding safe keeping of
viscera sample
73. Viscera sample was preserved at the time of the post
mortem on 21.07.2013, and the said Viscera sample was
received by the F.S.L. on 16.08.2013. The viscera sample was
examined at the FSL on 18.09.2014. There is no evidence in the
record regarding the manner of preservation of the aforesaid
sample after it was drawn at the time of post mortem. Evidence
in the record does not disclose as to whether the Viscera sample
was kept under controlled lab conditions so as to render it fit
for examination at a later date by the F.S.L.
74. Furthermore, even the F.S.L. report does not disclose the
state of the sample at the time of receipt. The lab conditions in
which the sample were kept in the F.S.L. are also absent in the
prosecution evidence. This fact assumes significance since the
Viscera sample was examined after more than one year after it
was receipt. The possibility of degradation of viscera sample
during this long gap so as to render it unfit for laboratory
testing/evaluation is a real one.
75. The F.S.L. was under an obligation of law to record the
state of sample at the time of receipt and its fitness for purposes
of testing. The laboratory conditions which are conducive for
safety and fitness of the sample for future testing should have
been certified by the F.S.L. expert. Inappropriate conditions
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which are unsafe for the viscera sample may render it unfit for
future testing.
76. The burden is on the prosecution to prove that storage
conditions were safe and appropriate for preservation of the
viscera sample for future testing. The prosecution has failed to
discharge the said burden. In these circumstances, it cannot be
held that the sample was kept in safe and proper lab conditions
which were conducive to protecting the sample for the purposes
of lab testing at a later date.
VI. Defence 313 Cr.P.C.: Credibility
77. The accused when alerted to the incriminating
circumstances in proceedings under Section 313 Cr.P.C. gave
satisfactory responses. The accused persons have successfully
established that they had rushed the deceased to the hospital
and ensured that prompt medical attention was given to him.
These facts have been corroborated in the prosecution evidence.
Further contrary statements made by the PW 1 and PW 2 have
already been disbelieved.
Judgement of the trial court
78. The learned trial court erred in law by believing the
testimonies of P.W.1 and P.W.2 who were in fact unreliable
witnesses. The trial court also acted contrary to law by relying
on the FSL report which as seen earlier was inadmissible in
evidence. The learned also neglected to consider the responses
of the accused in the proceedings under section 313 CrPC in
proper perspective.
79. The judgment rendered by the learned trial court is perverse
and contrary to the evidences in the record. The impugned
judgment is in teeth of established principles of criminal law.
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The impugned order dated 27.06.2016 in Sessions Trial No.
547 of 2013 (State Vs. Ashok Kumar and Another) is liable to
be set aside and is set aside.
Conclusions:
80. In the wake of the preceding discussion this Court finds that
the prosecution has failed to prove the charges under Sections
328/34 IPC and 302/34 I.P.C. against the appellants, namely,
Gyanmati @ Sangathiya and Ashok Kumar @ Putti Lal beyond
reasonable doubt. The appellants, namely, Gyanmati @
Sangathiya and Ashok Kumar @ Putti Lal are honourably
acquitted of the charges which were laid against them by the
trial court and which are the subject matter of these appeals.
81. The Criminal Appeals are allowed.
82. The appellants in the respective appeals, namely, Gyanmati
@ Sangathiya and Ashok Kumar @ Putti Lal shall be forthwith
released from prison and set forth at liberty unless required in
any other criminal case.
83. A copy of this judgment translated in Hindi to be served
upon the appellant by the Secretary, District Legal Services
Authority.
Suggestions:
84. The conduct of investigations and prosecution in the instant
case has exposed some of the faultlines in the criminal justice
system. Some suggestions are made accordingly to strengthen
the process of investigations and conduct of prosecutions and
the criminal justice system. The suggestions are as under:
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I. Conclusions in the FSL report expert report have to be
supported with specific reasons. The reasons include the
scientific criteria adopted, laboratory tests, and other material
and scientific protocols followed in testing the sample and
which form the basis of the conclusions in the FSL/ Expert
Report.
II. The credentials/qualifications and experience of the expert
who has authored the FSL Report/ expert report will be
disclosed in the FSL/expert report.
III. The details of safe preservation of the samples (in the
instant case, it was the viscera report) and the fitness of sample
for testing shall also be recorded in the expert report.
IV. Strict SOPs for receipt and transfer of samples to be attested
by the laboratories/ experts shall be laid down and revealed in
the prosecution evidence. The aforesaid procedures shall
contain appropriate safeguards against tampering or
degradation of the samples.
V. The doctors who have conducted the post mortems shall also
be confronted with the findings of the FSL.
VI. The competent authorities including Director General of
Police, Directors of Forensic Science Laboratory shall ensure
proper training of officials and experts for implementation of
the above said safeguards in order to uphold the law and
prevent the miscarriage of justice.
(Divesh Chandra Samant,J.) (Ajay Bhanot,J.)
July 17, 2026
Ashish/Dhananjai/Vandit
Digitally signed by :-
VANDIT AGRAWAL
High Court of Judicature at Allahabad