Sharma, J. - (1.) THIS is an appeal by Mst. Javitri alias Shanti against her conviction u/s 328 I. P. C. and sentence to three years' R. I. by the learned Sess. Judge, Alwar.
(2.) ACCORDING to the prosecution, the appellant was purchased by Chiranji Brahaman of village Salvedi for a sum of Rs. 2000/- about a couple of months before the occurrence to live with him as his wife. In the evening preceding the 21st September, 1954, the appellant had cooked food and served it to Chiranji. After taking that food Chiranji felt giddy but on some treatment he got well. In the evening of the 21st of September, 1954, at about 6 p. m. Chiranji took rice prepared by the appellant along with sugar and thereafter he lay down. Then be asked the appellant to bring hukka for his smoke. She brought the hukka and Chiranji smoked it. Soon after Chiranji began to feel giddy and become unconscious. He was taken to Kherli Ganj Dispensary where Dr. H. Chakarvati, Medical Officer suspecting that it was the case of dhatura poisoning thrust a tube into the throat of Chiranji and made him vomit. The contents of this vomit are said to have been taken in a bottle and after sealing it, it is said it was sent for the chemical examination. The chemical examiner's report shows that the liquid inside the sealed bottle, which was sent for chemical examination, contained atropine, an ingredient of dhatura. Mst. Javitri, the appellant was arrested. It is said that some dhatura seeds were recovered tied in a red cloth from a trunk at the instance of the appellant, who had stated that she had dhatura seeds with her and would get them recovered After investigation the case was challaned against the appellant u/s 328 I. P. C. in the court of the 2nd Extra Magistrate, Alwar who after inquiry committed the appellant to take her trial before the court of sessions at Alwar u/s 328 IPC. There was no direct evidence to prove that Mst. Javitri had mixed up dhatura seeds in the food which was served to Chiranji. However the lower court relied upon the following circumstantial evidence in order to convict the accused u/s 328 IPC. (1) It was the accused and the accused alone who used to cook food for Chiranji and the food complained of was cooked by her and served before Chiranji who took it. (2) Soon after taking that food Chiranji felt giddy and became unconscious, (3) The contents of the vomit of Chiranji were found by chemical examiner to contain atropine, an ingredient of dhatura, and (4) dhatura seeds were recovered from the possession of the appellant at her instance. In this appeal it has been argued by Mr. D. K. Soral on behalf of appellant that it has not been satisfactorily established that the same vomit which was obtained by thrusting a tube in the throat of Chiranji was examined by the chemical examiner. It was argued that according to the statement of Manoharlal P. W. 7 who made investigation in the case, the sealed bottle containing the vomit of Chiranji was sent to Jaipur for chemical examination through Parbhati but Parbhati has not been examined to say that it was the same bottle which was handed over to him by Manoharlal and which was handed over to the chemical examiner by him. The evidence of Dr. H. Chakarvati does not disclose how he formed an opinion that the condition of Chiranji disclosed a case of dhatura poisioning. The so called dhatura seeds are not satisfactorily proved to have been taken from the possession of Mst. Javitri, the appellant. There is no convincing evidence that the seeds which are said to have been recovered from the possession of Mst. Javitri were dhatura seeds. According to the prosecution evidence Chiranji had smoked the hukka before he is said to have become unconscious and felt giddy. It cannot, therefore, be said that it was on account of the food cooked by Mst. Javitri that he felt giddy and unconscious. It it not proved satisfactorily that Mst. Javitri used to cook food for Chiranji and that the food which is complained of was cooked by her. On behalf of the State it was argued by Mr. B. C. Chatterji that it was proved by the evidence of Manoharlal P. W. 7 that the bottle containing the vomit of Chiranji was sealed and handed over to him by Dr. H. Chakarvati, Medical Officer, Kherli Ganj Dispensary and that it was sent to Jaipur for chemical examination with Parbhati constable. It is argued that the chemical examiner's report Ex. P. 5 shows that the sealed bottle was received by him and it was chemically examined. There was therefore satisfactory proof of the fact that contents of the same bottle were examined by the chemical examiner which was sent by Dr. H. Chakarvati. Further it was argued that so far as the dhatura seeds are concerned, the investigating officer Ghanshyam Singh and two motbirs have stated that they were dhatura seeds and recovered from the possession of the appellant at her instance. Further it was argued that the fact that the appellant used to cook food for Chiranji and the food complained of was also cooked by her is proved by evidence of Chiranji P. W. 1. Further it was argued that Dr. H. Chakarvati has given his definite opinion that the symptoms of Chiranji when he was medically examined were of dhatura poisoning and that it was for the defence to have shaken the value of this statement by cross-examination but no cross-examination was directed against this statement of Dr. H. Chakravati. It was therefore fully proved that Chiranji was administered dhatura poisoning. Further it was argued that the evidence clearly shows that symptoms of dhatura poisoning resulted from the food cooked by the appellant and not by smoking of hukka but even if it be taken that they were the result of hukka smoking, the evidence of Chiranji proved that the hukka itself was brought to him for his smoke by the appellant. I have considered the arguments of both the learned counsel. So far as the question whether the food complained of was cooked by the appellant is concerned, I am perfectly satisfied that it was she who had cooked that food. Chiranji had spent a couple of thousand rupees for keeping the appellant as his wife and it is his clear statement that it was she who used to cook food for him and that the food complained of was also cooked by her. His statement on this point is most natural and there is no reason to disbelieve it. I take it as fully proved that the food complained of was prepared by the appellant. The next question however crises whether it was that food which was responsible for the ailment from which Chiranji suffered soon after taking it. If nothing else had intervened after taking of food, it could have been possible to hold without doubt that the symptoms of Chiranji arose form that food. However there is evidence of Chrianji himself that he had smoked a hukka after the taking of the said food and that it was after that he felt giddy and became unconscious. There is therefore some scope for reasonable doubt that the symptoms might be the result of the smoking of hukka and not of the food cooked by the appellant. It is true that Chiranji stated that he had asked the appellant to bring the hukka for him and it was brought by her. There is however nothing to show satisfactorily that the appellant had mixed up anything with the tobacco or other necessaries of the hukka. On this evidence therefore I am unable to hold without any reasonable doubt that the appellant administered any intoxicating or dangerous drug like dhatura to Chiranji. There is also another lacuna in the prosecution case which creates some reasonable doubt. Parbhati who is said to have taken the sealed bottle containing the vomit of Chiranji, has not been produced in this case, The evidence only shows that the vomit of Chiranji was kept in a sealed bottle and that the said bottle was handed over by Dr. H. Chakarvati to Sri Manoharlal P. W. 7 and that Sri Manoharlal handed it over to Parbhati. But there is no evidence on the record to show that Parbhati handed ever the said bottle in the same sealed condition in which it was given to Manoharlal by Dr. H. Chakarvati. The chemical examiner's report only shows that he received a sealed bottle containing brownish liquid purporting to be the vomit of Chiranji. It however does not show that there was any seal or any other mark on the bottle which could show that it was sent by Dr. H. Chakarvati from Kherli Ganj Dispensary. There is scope for argument in this case that it is possible that Prabhati might have been made to tamper with the bottle handed over by Dr. H. Chakarvati. It was held by a Division Bench of this court in the case of State vs. Motia (l) that prosecution should produce evidence that the articles sent to the chemical examiner were the same which were recovered from the accused and that similarly it is necessary that the officer recovering the articles should immediately take steps to seal them and evidence should be produced that the scals were not tampered with till the identification is over or till the articles are sent to the chemical examiner for analysis. In the absence of such precautions it would always be open to the accused to say that the police later put human blood on the articles in order to implicate the accused. This ruling clearly supports my view so far as the proof as to whether the vomit as Chiranji contained any principle of dhatura is concerned. There is yet another argument of the learned Counsel for the appellant which possesses some force. He has argued that the evidence of Dr. Chakarvati does not satisfactorily establish that Chiranji was administered dhatura poisoning. It was argued that so far as report Ex. P-4 of Dr. Chakarvati is concerned, all that he has said is that he found the case to be that of suspected Poisoning by dhatura. It was argue that this only shows that the doctor suspected the case to be of dhatura poisoning and mere suspicion could not take the place of evidence. Further it was argued that so for as the statement Ex. P-8 of Dr. Chakarvati before the committing court which was read into evidence at the trial u/s 509 Cr. P. C. is concerned all that he has said is that Chiranji was unconscious with peculiar movements of dhatura poisoning. It was not stated as to what were those movements from which Dr. Chakarvati concluded that the case was one of dhatura poisoning. Mr. Modi in his Medical Jurisprudence and Toxicology, 1940 (6th edition) gives the symptoms of dhatura at page 734 which are as follows - "symptoms - The symptoms usually appear within half an hour after swallowing the poision. Vomiting often occurs immediately after taking the seed, especially when crushed, as they produce gastric irritation. A bitter taste, dryness of the mouth and throat, burning pain in the stomach and dysphagia are the first symptoms that are complained of. These are followed by giddness, staggering gait, incoordination of the muscles, peculiar flushed appearance of the face, dry, hot skin diplopia, dilated pupils, red and injected conjunctivae and drowsiness. Sometimes, the temperature of the body is raised very high, In three cases of poisoning in the district of Hissar the temperatures were noted 105. 4, 107. 4 and 108 F. respectively. In three cases which came under my observation in King George's Hospital, Lucknow, during 1932 the temperatures were found to be 102, 104 and 105 F. respectively. The pulse is full and bounding but, latter becomes weak, restless and delirious. Delirium is of a peculiar character. He is silent or mutters indistinct and inaudible words but, usually he is noisy, tries to run away from his bed, picks at the bed, clothes, tries to pull imaginary threads from the tips of this fingers, and is subject to dreadful hallucinations of sight and hearing" None of these symptoms have been given by the doctor either in his report or in his examination or in his evidence before the committing court. It is not enough for an expert to say that his opinion is this or that. He ought to give facts on which that opinion is based. Dr. Chakarvati has not given in either of the two documents any facts observed by him from which he concluded that the case was one of dhatura poisoning. I am, therefore not satisfied that the guilt was brought home to the appellant without reasonable doubt. In a case of circumstantial evidence, every link in the chain has to be proved by clear and convincing evidence and if any link is missing, it is not possible for the court to find the alleged offender guilty of the offence with which he is charged on circumstantial evidence alone. In view of my above finding, it is not necessary for me to say whether the alleged seeds of dhatura were recovered from the possession of the appellant at her instance and whether they were proved to be seeds of dhatura because even if it is proved, it would not be established in the circumstances of this case that dhautra was administered by the appellant to Chiranji. The appeal succeeds and the conviction and sentence of the appellant are set aside and she is acquitted. She is in jail and will be released atonce if not required in connection with other case. . ;