Punjab-Haryana High Court
Naresh Kumar And Others vs State (Ut Of Chandigarh) on 1 May, 2013
Author: M.M.S. Bedi
Bench: M.M.S. Bedi
CRR 1407 of 2013 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CRR No. 1407 of 2013 (O&M)
Date of Decision: May 1, 2013
Naresh Kumar and others
.....Petitioners
Vs.
State (UT of Chandigarh)
.....Respondent
CORAM: HON'BLE MR. JUSTICE M.M.S. BEDI.
-.-
Present:- Mr. Saurav Verma, Advocate
for the petitioners.
-.-
M.M.S. BEDI, J.(ORAL)
Petitioners have filed this revision petition questioning the legality and propriety of order dated March 30, 2013 dismissing the application of the petitioners for summoning Forensic Science expert as defence witness. In the application filed by the petitioner, it was claimed that the medical/ forensic science evidence placed on the record by the prosecution is uncertain and is of suspicious nature and that after consultation with experienced Forensic Science experts, the petitioners CRR 1407 of 2013 [2] wanted to establish that the deceased did not die of Aluminum Phosphide. The said application has been dismissed by the trial Court observing that the prosecution has examined PW4 Dr.Mandeep Singh, EMO, Department of Causalities, GMHS Sector 16, Chandigarh. He has proved on record post mortem report of deceased Sangeeta and he also stated that at the time of post mortem examination the body was examined by Dr.Manvinder Singh and Dr.Amarjit Kaur. The sealed wooden boxes containing heart and lungs were sent for examination purposes and that as per CFSL report, "phosphide" was detected in the stomach. He has stated that the cause of death in the above said case was cardio respiratory arrest as a result of phosphide poisoning which was sufficient to cause death in ordinary course of nature. The Court had also taken into consideration the statement of Dr.Amarjit Singh, Medical Officer, General Hospital, Sector 16, Chandigarh as well as statement of Dr.M.L. Meena, working as Senior Scientific Officer, Forensic Science Laboratory, Government of NCT, Delhi.
Learned counsel for the petitioners has submitted that the petitioners want to produce an expert witness Dr.Vishal Garg, Associate Professor, Forensic Medicine, Medical College, Bathinda to establish that a sale of "phosphide" alone cannot constitute to be a poison as per the principles of toxicology in Forensic Science as in case of poisoning by a "phosphide" it may be either be Zinc Phosphide, Aluminum Phosphide or Calcium Phosphide. He has argued that the petitioners want to establish that unless and until there is a garlicky odour mentioned in the post mortem CRR 1407 of 2013 [3] report, it cannot be said that the death had been caused due to "phosphide". It has been argued that it is not the "phosphide" rather Phosphine gas which should have been found in the contents of the viscera to establish the medical evidence that death in the case has been caused on account of poisoning. Learned counsel for the petitioners has submitted that the petitioners had earlier approached this Court for issuance of a direction to consider the representation of the petitioner for re-analysis of viscera but the said petition was withdrawn with permission to raise all the pleas at an appropriate stage. Thereafter another petition was filed challenging the charge under Section 304 B IPC but it was disposed of observing that the petitioner was entitled to raise all the pleas at an appropriate time to seek acquittal or amendment of charge, if so warranted by the circumstances.
Counsel for the petitioners was again given a fair opportunity to show this Court as to what purpose will be served by producing a forensic expert.
Counsel for the petitioners has referred to the proposed report to submit that the expert would establish that unless and until phosphine gas which should be liberated from Aluminum Phosphide in the stomach was found or garlicy odour from the contents of stomach or other viscera in the examination was reported and phosphine is detected, it cannot be considered to be a case of Aluminum Phosphide poison. The proposed report which is sought to be proved on the record reads as follows:-
CRR 1407 of 2013 [4] "It has been observed in the postmortem report of the deceased Sangeeta w/o Naresh Kumar vide No. PMR/MDS/06/GMSH-16 that:- There was about 100 ml of light brown semi-digested food material in the stomach.
It has also been observed in the examination report of the viscera of the deceased vide no. CFSL/414/2010 that :-- Phosphide had been detected in the exhibit 1, 2, 3, and 4 i.e. in stomach & its contents, small intestine & its contents, portion of liver, spleen & half of each kidney and blood respectively.
The final opinion by the board of doctors who conducted the postmortem examination regarding cause of death of the deceased was given as cardio-respiratory arrest as a result of PHOPHIDE poisoning which was sufficient to cause death in ordinary course of nature.
As per the standard books of Forensic Medicine and Toxicology, Phosphide is available in the form of Aluminum Phosphide (Celphos or Quickphos) and it has a strong garlicky odour and as such Aluminum Phosphide is not poisonous when ingested 'PHOSPHINE' gas is liberated from Aluminum Phosphide in the stomach. This phosphine gas binds CRR 1407 of 2013 [5] with an enzyme 'cytochrome-oxidase' resulting in cellular hypoxia thus causing widespread organ damage and toxicity.
In the PMR there was no garlicky odour from the contents of the stomach and also in the viscera examination report 'Phosphine' was not detected.
In my professional career till date I have never seen in such like cases where phosphide is detected in place of phosphine."
I have heard learned counsel for the petitioners at length and carefully examined the evidence of the Medical experts which has already been brought on the record in the shape of statement of PW4 Dr.Mandeep Singh, EMO, Department of Causalities, GMHS Sector 16, Chandigarh, PW11 Dr.M.L. Meena, working as Senior Scientific Officer, Forensic Science Laboratory, Government of NCT, Delhi and the statement of DW1 Dr.Amarjit Singh, Medical Officer, General Hospital, Sector 16, Chandigarh, produced during the course of its evidence by prosecution and the petitioner accused. The relevant portion of statement of PW4 in examination-in-chief regarding cause of death is reproduced as under:-
"Hence, the cause of death in the above said case was cardio respiratory arrest as a result of phosphide poisoning which was sufficient to cause of death in ordinary course of nature. On the said report Ex.PJ I CRR 1407 of 2013 [6] identify my handwriting & signatures and also identify the signatures of Dr.Manvinder Singh."
The questions put to him regarding the toxicity effect of "Phosphide" / Phosphine reads as follows:-
"I cannot say in which manner the effected person consumed the same. I cannot say in what form the phosphide is available in the market. I did not seek any further clarification from CFSL after receiving the report. Postmortem symptoms such as bilateral lung congestion, liver spleen kidney congested, are terminal events of any kinds of fatal insult to the body were found to be the signs. Fatal insult means any kind of poisoning, toxin, disease etc. Q. Whether by the above mentioned answer you meant that the deceased could have died because of poisoning (sic.) or even otherwise?
A. These signs are terminal events of any fatal insult which includes poisoning/ toxicity.
Q. Whether in the present case there is also possibility that the deceased died because of reasons other than poisoning (sic.) /toxicity? A. It is highly unlikely in the present case.
CRR 1407 of 2013 [7]
Q. Whether there are different types of postmortem
appearances symptoms and signs of the internal organs if a person dies because of poisoning by aluminium phosphide or on the other hand if a person dies because of reasons other than poisoning?
A. Symptoms to be commented upon the concerned physician who examined the said person antimortem or before death and for clarity of exact type of poisoning chemical viscera as a routine is sent to CFSL.
In postmortem appearance exact type of chemical poisoning cannot he ascertained.
Q. Whether there are different types of postmortem appearances for a person dying of phosphite poisoning on the one hand and aluminum phosphide on the other hand? A. Aluminum phosphide is a part of big phosphide group of chemicals which provide a general antimortem as well as postmortem appearance.
We have read my course books including the medical jurisprudence of Parikh on forensic science as prescribed by graduating institute. I have not read the book written by Moth or Cox as the same were not prescribed by graduating institute.
CRR 1407 of 2013 [8]
Q. Do you know that in the hook by Parikh it is
mentioned that in phosphorus poisoning postmortem symptoms including inflamation of mucous membrane or erosion of the pharaynx, oesophagus, stomach and intestines with cloudy swelling of lever and kidneys, the contents of both stomach bowel may he luminous in the dark and the body may smell of garlic?
A. Yes.
Q. Do you think whether any of these postmortem
appearances were found in the postmortem examination of the deceased in this case?
A. None as the original report is already with the counsel and the dead body of the deceased had been examined by a board of doctors which unanimously wrote these findings in this report.
Q. Whether the postmortem appearances in the body resulting from phosphorus poisoning on the one hand and phosphide poisoning on the other hand would he different or similar?
A. They may be similar that is why the board of doctors had sent the chemical viscera for chemical examination because different poisons may have similar signs as I have already mentioned although poisoning as CRR 1407 of 2013 [9] a general diagnosis may present with a similar spectrum of features.
It is correct that the final opinion regarding cause of death was primarily given on the basis of the chemical examination report. It is incorrect to suggest that earlier I had not given the report as I have no knowledge of forensic science."
The relevant portion of cross-examination of PW11 Sh.M.L. Meena pertaining to poisoning of Aluminum Phosphide reads as follows:-
"Phosphide is used for preserving grains. It is also used as rodenticide and fumigant etc. I cannot say whether phosphide is available in the market in the name of phosphide. It is mostly available in the brand name of Celphos. It is also available in the brand name of quickphos. I do not remember any other names. The composition of celphos can be aluminum phosphide or zinc phosphide or calcium phosphide. We only detected the presence of phosphide but we could not distinguish as to whether it was in the form of aluminum phosphide, zinc phosphide or calcium phosphide. It is correct that in the various authoritative books of forensic medicines, the postmortem appearances relating to aluminum phosphide and zinc phosphide are extensively available.
CRR 1407 of 2013 [10]
Q. I put it to you that in the various books of
forensic medicines, there is no reference to the postmortem appearances in the dead body relating to phosphide, although there is references to the postmortem appearances relating to aluminum phosphide and zinc phosphide?
A. I am the chemical examiner and we can detect only the chemical compound in the organs etc. given to us for examination, therefore, I mentioned only phosphide which is the name of chemical.
Phosphide is a poison. Phosphide is a common insecticide.
Q. What is the difference between phosphide and phosphine?
A. I cannot say.
Q. What is the difference between phosphide and
aluminum phosphide?
A. There is no basic difference between phosphide
and aluminum phosphide. However both are chemical compounds. I cannot say as to whether aluminum phosphide is one of the types of phosphides.
I am not aware as to whether there is a fatal dose of the poison and there is also a non fatal dose of poison. I CRR 1407 of 2013 [11] have read the books of forensic medicines. I do not know the concept of fatal/non fatal dose and the said question relates to medico legal expert. I do not consider myself a medico legal expert, I am only a chemical examiner. It is incorrect to suggest that chemical examiner is the most appropriate expert who can tell about the fatal/non fatal dose of the poison in the organs sent for analysis. We did not conduct any analysis regarding the measure of the poison phosphide detected in the organs/blood sent to me for analysis.
I had handed over all organs/blood sent to me for examination. I conducted the analysis from 17.8.2010 to 27.8.2010. It is incorrect to suggest that I conducted very inadequate analysis of the organs/blood sent to me. It is further incorrect to suggest that I am unaware of the basics of the chemical examination. It is incorrect to suggest that I have given a wrong report in connivance with the complainant party."
Cross-examination conducted by prosecution agency on DW1 Dr. Amarjit Singh produced in defence regarding symptoms of poisoning is reproduced hereunder:-
"I have no knowledge as to whether poison was detected by the CFSL, Chandigarh from the contents of CRR 1407 of 2013 [12] viscera. I did not find any symptom of poison, therefore, I did not treat the patient for the same. Since the patient died within half an hour and was irritable which is unnatural in cases of acute gastroenteritis with shock and accused was young lady, so I got suspicious of the patient having given or taken some poison. I informed the police post, General Hospital Sector 16, Chandigarh for conducting the post mortem examination on the person of Sangeeta on account of this suspicion. It is wrong to suggest that that there is negligence on my part in treating the patient and in case she would have been treated with regard to poisoning then her life could have been saved.
(At this stage the counsel for the accused has made a request for re-examination of the witness DW-1 as he has introduced in the cross-examination a new version by stating that he had got suspicious because of certain symptoms which gave rise to his suspicion of taking or being given poison to the patient and therefore, he had informed the Police also for the purpose of post mortem examination. This new version is neither mentioned in his examination in chief nor in the Ex.D.1 which he has CRR 1407 of 2013 [13] brought, therefore regarding that aspect the permission for re-examination may kindly be given."
I have considered the contentions of learned counsel for the petitioners to appreciate whether examination of another forensic science expert to prove a scientific fact whether the deceased in the present case could have died on account of toxicity of Aluminum Phosphide, is necessary for the just decision of the case. As per Section 45 of the Evidence Act, when a Court has to form an opinion on a point of science, a person especially skilled in said subject is considered to be relevant fact and the opinion of an expert is relevant. Whenever an opinion of an expert is relevant, the ground on which such opinion is based is also relevant as per Section 51of the Evidence Act. There are admittedly certain scientific facts pertaining to Aluminum Phosphide which are elementary to a student of Chemistry and to the Doctors dealing with the subject. It is not out of place to observe here that Aluminum Phosphide is available in the shape of Celphos. The toxicity of Aluminum Phosphide (AlP) is attributed to the liberalization of phosphine gas, a cytotoxic compound that causes free radical mediated injury inhibits vital cellular enzymes and is directly corrosive to the tissues. The toxicity of Aluminum Phosphide is that when Aluminum Phosphide reacts with water, it releases Aluminum Hydroxide and Phosphine gas. Similarly, when Aluminum Phosphide reacts with acid of the stomach i.e. HCL, it produces Aluminum Chloride and Phosphine in the stomach. It is the said reaction of Aluminum Phosphide with water or CRR 1407 of 2013 [14] acid that results in release of Phosphine. It is Phosphine gas which results in circulatory collapse and effects cardio myocytes. It results in fluid loss and effect the adrenal gland damage.
Counsel for the petitioners has vehemently urged that since Phosphine gas liberated from Aluminum Phosphide which has got toxic effect, was not detected, it cannot be said that the deceased had died on account of Aluminum Phosphide.
In nutshell, what the accused petitioners seek to establish is that absence of Phosphine and absence of garlicy odour is sufficient enough to establish that the deceased had not died on account of Aluminum Phosphide. The petitioners have already cross-examined PW4 as well as PW11 and produced DW1 Dr.Amarjit Singh to establish their defence. The cross-examination of the PWs and the cross-examination of the prosecutor on DW1 indicate that sufficient material regarding non-existence of Phosphine gas (claimed to be only poisonous) has been brought on the record by sufficient evidence. It is for the trial Court at the time of final adjudication to appreciate the said evidence and arrive at a conclusion whether in the present case death could be on account of consumption of Aluminum Phosphide. Since sufficient medical evidence required for determination of controversy is already on the record, the trial Court has rightly arrived at a conclusion that the application is nothing but an attempt to delay the proceedings. It is not out of place to observe here that learned counsel for the petitioners has made a reference to the judgment of Angadh CRR 1407 of 2013 [15] son of Rohidas Kadam and others Vs. State of Maharashtra and another, 2007 (5) RCR (Crl.) 641 to contend that as per provisions of Section 233 (3) Cr.P.C., there cannot be any ground by trial Court to refuse production of defence evidence except where the Court arrives at a conclusion that the application had been made for purpose of vexation or delay or for defeating the ends of justice. The trial Court appears to have considered the principles of Section 233 Cr.P.C. while declining the application for production of defence evidence.
After hearing learned counsel for the petitioners and taking into consideration the proposed report which is sought to be produced on record by the expert witness and various scientific facts mentioned hereinabove, no ground is made out for interfering in the order passed by the trial Court dismissing the application for production of Forensic expert in defence.
Dismissed.
May 1, 2013 (M.M.S.BEDI) sanjay JUDGE