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It is surmised that his wife and Mula have-brought about his death by administering to him some poisonous drug.

6. It is somewhat remarkable that from the facts which he knew Phul Khan should have made this report and he was not asked whether he knew anything more than he embodied in the report or stated in his evidence. However the point is that the police started with a report which suggested that murder had been committed by poison. Steps were taken by the Najibabad police on messages from Laksar and the accused were detained, and at midnight the Sub-Inspector of Najibabad took into possession the clothes which had been discarded in the dust bin, and scaled them up. This officer is a second officer M. Moaziz Ali. He states that he recovered the clothes from a rubbish cart and from the kurakhana and he prepared a list. He identified the dhoti (Ex. 11) with a black border as one of the garments recovered. That night Sub-Inspector Thakur Ram-pal Singh of the Government Railway Police stationed at Laksar arrived in Najibabad and took over the' investigation on the morning of 31st March. He has not stated whether lie inquired from Dr. Parmanand Joshi, but it appears extremely probable that lie did inquire from the doctor, and it is also probable that the doctor explained as he has stated in evidence that the simptoms of cholera, arsenic poisoning and ptomaine poisoning are similar even in late stages, and that it was quite possible that the deceased died from arsenic poisoning. The Sub-Inspector therefore on 31st March had a medical opinion that the symptons observed by the medical witness would be consistent with the administration of arsenic to the deceased. The Sub-Inspector therefore knew which poison to look for. 7. We may also note' that arsenic is the most common poison in use in India, and it is stated in Lyon's Medical Jurisprudence, Edn. 1928, that out of 1,541 cases of poisoning investigated by Col. Owens 688 were cases in which, arsenic was detected that is about 45 per cent. The Sub-Inspector in his evidence states that he took the two accused under arrest on 31st and went to Laksar and handed over the accused Mula to a constable and took the accused Mt. Gajrani to Hardwar. He did this because he says that the woman had made a clean confession to hum on the evening of 31st at Najiba-bad. On the morning of 1st April at 9 or 9-15 a. m. B. Karam Cliand, a special Magistrate of Hardwar, states that the Sub-Inspector came to him at his house at Hardwar. This honorary Magistrate is shown by the civil list to be aged 31 years and he had been an honorary Magistrate since 1927. He was not therefore of very great 'experience. He states that the woman was with the Sub-Inspector, and they went from Hardwar to the neighbouring town of Jwalapur, and that the woman advanced ahead of them and passed through many galis, streets and bazaars and took them to the shop of a person licensed to sell arsenic, and stated that it was from that place that she purchased the arsenic. One Sitaram was present at that time in the shop, and the license was in the name of Murlidbar, the brother of Sitaram. The Sub-Inspector prepared a note. Ex. 9, which the Magistrate signed. We do not consider that the pointing out of the shop in this statement can be held to amount to the discovery of a fact, and consequently we do not consider that this evidence is admissible under Section 27, Evidence Act. Section 26 states that no confession made by any person in the custody of a police officer shall be proved against that per-son unless it be made in the immediate presence of a Magistrate.

The contents were duly examined by me with the result that arsenic was detected in the stains of (lb), bat not in the remaining articles. The Reinsch's test was used. Items (8a) and (3b) were tartaric acid and potassium permanganate respectively.

9. It will be noted that the words used are "arsenic was detected." There is no quantitative analysis or indication of the' quantity of arsenic. So we are not able to say whether it was' a mere trace of arsenic or any substantial quantity. The prosecution apparently argued in the following manner. The deceased died of symptoms which may be of arsenic poisoning. Arsenic has been detected in the dhoti of the deceased. Therefore the deceased died of arsenic poisoning. This is a proposi-with which we cannot agree for a number of reasons. In the first place the dhoti in question, as we have already mentioned, lay for some eleven hours in a dust bin (a kurakhana). There may have been any number of articles in that dust bin and the dhoti may have1 been subject to contamination from other articles. The stains being wet would absorb such contamination. For instance, medicines may have been thrown into that dust bin and contamination may have arisen from this cause. And arsenic is a very widely distributed poison, and we find in Lyon's Medical Jurisprudence, p. 541, that even in the chemical laboratory special precautions are necessary to enable the analytical chemist to see that arsenic is not in any of the things which he uses. Arsenic in India is supplied from the Persian Gulf where it is found in mines, and it is brought in large quantities and is easily obtained. It is extremely difficult to be certain that arsenic has not come into contact with objects such as cloth. When we come deal with the human body we are on surer grounds, and arsenic is not as a rule noticed in the human body except when administered intentionally or taken accidentally. But besides being administered as a poison arsenic may be administered as a medicine.

10. In the present case there is the evidence of Daya Shankar to the effect that his brother suffered for a number of years from impotency and that his brother had brought medicine from Dr. Munna Lal for this purpose Daya Shankar was learning the work of a compounder at the shop of Dr. Munna Lal. He also produced letters in Court which had been written on the subject, and he says that Girja Shankar wrote to him many a time to send him some better medicine. Girja Shankar was therefore extremely anxious to have a trial of various kinds of medicines for impotency. Now we find in Lyon's Medical Jurisprudence on pp. 521 and 522 that in the Punjab there is a custom of arsenic being eaten as an aphrodisiac, and arsenic is also taken medicinally as a cure for fever, 'syphilis and other diseases. Under the circumstances of this case we consider that it was incumbent on the' prosecution to have proved what were the medicines which the deceased had been receiving from Dr. Munna Lal through his brother, and it was the duty of the prosecution to satisfy the Court that arsenic was not among the ingredients which the deceased had been taking as a medicine. Another line of criticism of the report of the Chemical Examiner is that it is far too brief, it merely states, that the Reinsch test was used and that arsenic was detected. Now, on; p. 541 of Lyon's Medical Jurisprudence there is an account given of the Reinsch process, and this account states that: particular precautions must be taken to be certain that the strip of copper used is free from arsenic. The next step is, that the suspected mixture is allowed to fall on the strip of copper and. the acid is washed off in running water and the water at once used for the-test. If arsenic is present, a steel grey or black stain--an alloy of arsenic and copper--forms on the surface. If the test stops at this, stage it is not certain that arsenic is present because the staining of the copper may be due to the action of organic matter only or the formation of sulphide of copper, or else to the depositing on the copper of metals other than arsenic such as mercury, antimony, silver and. bismuth. A further stage in the test is made by heating the stained pieces of copper, and a sublimate of arsenic oxide is obtained, which under a microscope is found to consist of minute crystals of an eight-sided form.

11. We consider that the Chemical Examiner in making a report in the present case should have told us first of all that he did use the precautions, which are required. In the second placehe should have told us the result of his test, whether he did obtain not merely the stain but also the minute crystals which were found to be eight-sided under the microscope. It is not enough for the Cheminal Examiner to merely state his opinion that arsenic was detected. He must state the grounds on which he arrives at that opinion. In this connexion we would refer to the provisions of the Evidence Act. Section 51 states that whenever the opinion of an expert is relevant, the grounds on which such opinion is based are also relevant, and that an expert may give an account of experiments performed by him for the purpose of forming his opinion. In India the Chemical Examiner merely tenders a report and he does not appear and give evidence. It is extremely desirable that his report should be full and complete and take the place of evidence which he would give if he were called to Court as a witness. In connexion with this question of expert evidence we would also point out that the lower Court did not have any evidence before it on the subject of what should be deduced from the symptoms said to have been exhibited by the deceased. The question as to whether those symptoms point to arsenical poison or to cholera is a highly technical one, and we consider that the Sessions Court would have been well advised to examine the Civil Surgeon as a witness and to have his expert opinion as to what should be deduced from those symptoms. Such an opinion is relevant under Section 45, Evidence Act, Illus. (a), which says that where 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. Now we find in Lyon's Medical Jurisprudence on pp. 513 and 514 that there is a summary of the chief points which distinguish arsenical poisoning from cholera. We note that a comparison of this summary with the evidence of the prosecution witnesses who saw the deceased when ill shows that these witnesses do not allege any of the symptoms which distinguish arsenic poisoning from cholera. We do not think it desirable to set forth in our judgment what the summary in question is, but we have invited the attention of the learned government Advocate to the summary in question and he had an opportunity to address us on the subject.