PLD 1958 Dacca 1 (PLP)

The prosecution case is that the "pedant is a homoeo pathic doctor and the complainant with his family consisting of his wife and daughter, the decreased Anwara Begum. lived with him. It is stated that the complainant quarrelled with the appellant and left his house leaving behind his daughter Anwara Begum who continued to stay with the appellant. It is stated that on the night following Monday, the 18th Sraban, 1360 B. S., corresponding to 3rd August 1953, the complainant, while staying at his shophouse at Radhagobinda Bazar, was informed that his daughter was attacked with cholera at the appellant's house. " The complainant went there on the following morning and found Anwara Begum dead. The Police were informed and a U.D. case was recorded and the Police came to the house of the appellant rid an inquest on the dead body was held and they forwarded' the same to Mitford Hospital for post mortem examination which was held by Dr. A. Ahad, a teacher of Medical Jurisprudence, on 5th August 1953. In course of the post mortem examination, no marks of injury were seen on the body. The viscera was, therefore, preserved and forwarded to the Chemical Examiner, Government of East Pakistan, on 31st August 1953, in two sealed glass jars. The doctor reserved his opinion pending result of the chemical analysis. On 30th January 1954, the Chemical Examiner's report was received to the effect that arsenic poison was found in the viscera of Anwara Begum and the Chemical Examiner's report was forwarded to the officer‑in‑charge of Raipura. Then the police, on receipt of e Chemical Examiner's report, drew up a suo moto F. I. R. OR 14th February 1954 on the basis of the ejahar lodged by the complainant Momtaz Khan in the U. D. case and started a case under section 302, P. P. C., but the officer‑in‑charge, M. R. Hossain, who investigated the case, submitted final report on 16th October 1954. It is said that the complainant tiled a naraji petition before the Sub‑Divisional Officer, Narayanganj, against the final report and the Sub‑Divisional officer called for the case diary and by an order, dated 22nd January 1955, the Sub‑Divisional Officer issued warrant of arrest against the accused persons. After an inquiry by a competent Magistrate, the accused persons were sent up to the Court of Sessions to stand trial. On these allegations, a charge under section 302 was framed against the appellant for having committed murder of Anwara Begum by inten tionlly causing her death by administering poison. The defence denied these allegations made and contended that the appellant took Anwara Begum for fostering and looked on her as his own child and it was, therefore, impossible for him to poison her. On his return from the bazar, he was informed by his wife that Anwara Begum was purging and vomiting and, therefore, he sent for a doctor the same night but Anwara Begum died at mid‑night. This appeal was argued by Mr. Bose and he has raised certain legal objections before us. His first objection is that as the jury was not properly constituted, the whole trial is illegal and the conviction and sentence passed on the appel lant cannot be upheld. This objection is found on three grounds, the first being that‑ it is not shown that it was not practicable to hold a‑trial with the aid of nine jurors; secondly the deficiency contemplated by clause (2) of section 276 means a deficiency of a great number of jurors making the holding of a trial impracticable and, thirdly, the deficiency should have been in the present case ‑made up by choosing special jurors and not ordinary jurors. On all these grounds, it is contended, that the trial is ab initio illegal and void. So far as the first branch of the objection is concerned, on a reference to the order sheet in the case, it would appear that out of 18 special jurors summoned, only 4 were present and the deficiency was made up by getting 3 jurors from elsewhere. It is recorded in the order‑sheet that to make up the deficiency, 3 gentlemen present in Court premises and who were found fit to sit as jurors were taken in without any objection from any side and, as all attempts failed to secure the maximum number of 9 jurors, the constitution of the Court was completed with 7 jurors. It thus appears that the trial was held with the aid of 7 jurors as all attempts failed to secure the maximum number of 9 jurors. This branch of the argument, therefore, fails. As regards the second branch, namely, the deficiency of persons summoned as stated in clause (2) of section 276, that clause is to be read in conjunction with the 4th ‑clause of that section. The deficiency there contemplated is any deficiency whether it be of one juror, or more than one juror and the clauses does not say that in case of a deficiency of a great number of jurors the trial should not be held. Mr. Bose, when B asked to give us any cited authority to uphold his contention that in case of deficiency of a large number of jurors, the trial should not be held, could not cite any authority. As already stated, the deficiency in the present case was made up by 3 other jurors and the trial was held with the aid of 7 jurors out of whom 4 were special jurors from those summoned. Mr. Bose was also unable to show any authority for the pro position that, in a case of murder, the deficiency in the number of jurors must be made up by special jurors and not by ordinary jurors. Wt may in this connection refer to the case of Amir Khan and others v. The King‑Emperor (33 C W N 1053). It was held therein that when the charge is of an offence punishable with death, the number of jurors required" within the meaning of section 326, Criminal P. C., for its trial is twine and at least double that number, i.e., eighteen persons should be summoned ; of these, nine must be chosen unless, that is impracticable. It would appear that in that case 14 persons were summoned and 7 chosen and the jury was held not to have been properly constituted and the trial was held to be bad. The facts in that case Ire different and are not similar to the facts in the present case. In the case before us, 18 jttroy s were summoned which was not done to the case cited. In Shahe6 Ali Sheikh and others v. Emperor (35 C W N 711), it was held, inter alia, that the second proviso to section 276 of the Criminal P. C., which provides for the making up of deficiency in jurors from among persons other than those summoned, present in C Court, applies to special juries as much ‑is to common juries This authority is a complete answer to the third branch of the argument of Mr. Bose. Having regard to what is stated Above, this legal objection fails. It was next contended that the learned Judge did not give proper directions when explaining the law of circumstantial evidence by reason whereof the jurors were misled and did not understand the full implications of circumstantial evidence. This argument is wholly erroneous. At page 27 of the charge to the jury, the learned judge has observed as follows: "Gentlemen, you should remember that circumstantial evidence to be conclusive must incriminate the accused and shall be incompatible with the innocence of the accused and shall be of such a nature that there can be no other reasonable hypothesis by which the circumstances taken as a whole can be explained away except the guilt of the accused persons. In a word, circumstantial evidence to be conclusive in the present case must be of such a nature that it leads to the only possible conclusion that it is this accused Dr. Momtazuddin Khan and Bone else who caused the death of Anwara Begum by arsenic poison and thereby committed the murder . . . . . .' We find nothing wrong in that passage and it cannot be said that the charge is vitiated by any misdirection in this behalf. It was next contended that on 5th August 1953, the post mortem examination on the dead body of Anwara Begum was held and the viscera preserved. On 31st September 1953, the viscera was sent to the Chemical Examiner and on 1st Febuary 1954, the Chemical Examiner's report was received. Mr. Bose has contended that there is no evidence to show that the viscera was in proper custody and that the Chemical Exa miner's report refers to the viscera of Anwara Begum. Here again Mr. Bose is not correct. In this connection, the evidence of P. W. 9, Dr. A Ahad, a lecturer of Medical Juris prudence, iormerly of Dacca Medical School, is relevant. He has explained the stages through which the viscera passed, and how the samples were sealed and sent through a special messenger to the Superintendent of the Medical School, who in his turn, sent the same to the Government Chemical Examiner through a special messenger. A perusal of his evidence makes it clear that there could be no doubt about the custody of the viscera and as to whether the viscera was that of Anwara Begum. There is no substance in this objection. It was next contended that the non‑examination of the investigating officer has vitiated the trial and prejudiced the defence by depriving it of its valuable right of showing the contradictions in the evidence of witnesses in Court with their statements before the police. Mr. Bose has argued that if the investigating officer S. I. M. R. Hussain had been examined, the defence could have elicited from him statements made by the various witnesses in the course of investigation. It is contended that the denial of the right of the appellant to elicit such statements from him and cross‑examine him has caused prejudice to the appellant. The learned Deputy Legal Remembrancer has placed before us the order‑sheet of the trial Court and under date 31st March 1956 it is recorded that the learned Public Prosecutor files a petition that he will not examine the investigating officer, though he is present in Court, on the ground set forth in the petition. The petition was ordered to be kept with the records. That petition is also before us and it is stated therein that the I. O. M. R. Hussain is present but he submitted a final report in this case and the complainant had to file a petition against him with certain allegations. In these circumstances, the Public Prosecutor did not like to examine him as a prosecution witness. He, however, was brought to Court and is present in Court, and, if the defence wants to examine him, they may utilise him for that purpose. It will be seen that this officer was not deliberately kept away from Court and deliberately not examined. Doubts arose as regards his leanings towards the accused in the case for which reason the prosecution did not examine him, though lie was available for examination by the accused‑party. Having regard to these facts, we cannot say that his non examination has been deliberate causing prejudice to the accused. It was next contended that cognisance of the case was not legally taken by the S. D' O. and all subsequent proceed ings including the present trial is void and, as such, there has been miscarriage of justice. As already stated, a final report was filed in this case and Mr. Bose has argued that there is nothing on record to show that a naraji petition was filed against that report and the complainant was examined after the filing of the naraji petition on oath ; and, consequently, all proceedings held thereafter are bad in law. The facts that emerge in this case are that the Magistrate called for the police diary and summoned the accused thereatter. In these circumstances, it is argued that the Magistrate did not take cognizance of the case as contemplated by law and till tile subsequent proceedings are bad. Tile learned Deputy Legal Remembrancer tried to justify the action of the Magistrate and submitted that this objection was not raised at tile trial stage and the necessary papers were not brought on the record and it is possible that the naraji petition is available and would have been on the record if an objection had been raised in time. As we are ordering a retrial, it is directed that all the available papers in the case be brought on tile record, so that a similar objection may not be taken after the retrial is held. As regards the merits of the case, Mr. Bose has contended that it was never the defence case or the suggestion that Anwara Begum had died of cholera and the learned Judge caused harm to the defence by stating incorrectly that such was the defence of the appellant. It was a serious misdirection causing failure of justice. The learned Judge, while setting out the defence case at page 5, has stated this fact and also at page

22. The argument of Mr. Bose is that when this was not the defence case and when the jury were told that such was the defence case, the fact of the appellant was sealed if the jury found that it was not a case of cholera. Two persons namely Saijudin and Sona Mia, relations of the appellant, are said to have told the complainant that the appellant stated that Anwara Begum was attacked with cholera. These tow person have not been examined in the case and , therefore, the statements made by them cannot be admissible in evidence. If that evidence is ruled out then there is noting to show that the appellant stated that Anwara Begum was attacked with cholera. When examined under section 342, Criminal P.C. the appellant stated that on the date of occurrence, he went to Raipura Bazar at about 3 p.m. and returned home in the night at about 8 or 8-30 p.m. and heard from his wife that Anwara Begumwas haying purging and vomiting. He sent two men for the doctor and Anwara s father but Anwara Begum died at about 11 or 12 p.m. before the arrival of the doctor and Anwara s father. This is what he stated under section 342 but it does not appear that in cross-examination of any of the prosecution witnesses it was suggested to any of them that it was the defence version that Anwara Begum was suffering from cholera. These facts are mentioned so that when the case is retried the learned Judge will very carefully consider what the defence case is and to state the same in unmistakable words giving no scope for a grievance that the defence has been misunderstood. The last point urged by Mr. Bose is regarding the non examination of the Chemical Examiner. He has contended that in a murder case the Chemical Examiner's report should not have been accepted without examining the Chemical Exa miner himself in Court. So far as the reception of the Chemical Examiner's report in criminal cases is concerned, that is cover ed by section 510 of the Criminal P. C., which provides that ally 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 that Code, may be used as evidence in any inquiry, trial or other proceeding under that Code. According to the Chemical Examiner's report the viscera showed that there was arsenic poison in the same. Two witnesses, namely, P. Ws. 3 and 5, were examined to show that some whitish powder was administered to the unfortunate girl and soon after the girl started vomiting and purging. There is no evidence what that stuff was. The presence of arsenic is to be found only in the Chemical Examiner's report. There is no other evidence that the appellant or anybody else on his behalf administered arsenic poison. Thus the prosecution in this case, in order to bring home a charge of murder by poisoning must rely and rely solely on the Chemical Examiner's report. The Chemical Examiner has not been examined and Mr. Bose has rightly contended that, had he been examined, perhaps, in course of cross‑examination, certain facts could have been elicited from him to the advantage of the accused. In Happu v. Emperor (35 Cr. L J 280) it was held that the rule of law that the evidence of one party should not be received as evidence against another party without the latter having an opportunity of testing it by cross examination applies with great force to a criminal case where death has been the result. This rule of law should be strictly enforced if any weight is sought to be attached to a report on D the chemical examination of suspect material. No person, therefore, ought to be put in peril of capital or any punish ment on a written report not given on oath and untested by cross‑examination. To accept such a report, whatever it may contain, as proof of death by arsenic poisoning, or of anything is an impossible proposition in law. As, in the present case, there is no other evidence except the Chemical Examiner's report that the viscera contained arsenic poison and no evidence that the appellant administered arsenic poison to Anwara Begum, we think that it was incumbent on the, pro secution to examine the Chemical Examiner to afford an opportunity to the defence to cross‑examine him. This not having been done, the case of the appellant has been prejudiced. In these circumstances, there must be a re‑trial. The result, therefore, is that this appeal is allowed, the conviction and sentence passed on the appellant under section 302 are set aside and it is directed that the appellant be retried udder the said section according to law. ASIR, J.‑I agree. M. S. . Retrial ordered.