Not Proving 'Viscera Report' In Suspected Cases Of Murder By Poison, Is Misconduct By Investigating Agency: Orissa High Court

The Orissa High Court has reiterated that the investigating agencies are duty bound to send 'viscera sample' for chemical examination in all suspected cases of murder due to 'poisoning' and must place the viscera report before the trial Court after obtaining the same from Forensic Laboratory.

While terming the omission on the part of police to obtain viscera report a 'misconduct', the Division Bench of Justice Sangam Kumar Sahoo and Justice Chittaranjan Dash observed:

“Therefore, in view of the directions of the Hon'ble Supreme Court, omission on the part of the investigating agency in sending the viscera for examination and collecting the viscera report after the same is prepared by the Forensic Science Laboratory tantamounts to dereliction in obeying the order of the Hon'ble Highest Court, which is nothing less than a misconduct.”

The Court was hearing an appeal against the judgment of the trial Court which had found the appellant guilty under Section 302 of the IPC for murder of the deceased by administering poison to him through milk. Being aggrieved by the order of conviction, the appellant approached the High Court challenging the same.

Court's Observation

At the outset, the Court delved to examine as to whether the deceased met with a homicidal death. For the said purpose, the Court went through the evidence of the doctor who conducted a post-mortem examination of the dead body of the deceased.

The said doctor could not state the definite cause of the death and therefore, he had preserved a viscera sample for chemical examination. However, he had opined that the death occurred 'probably' due to consumption of endosulfan insecticidal poison.

The Court noted that though the viscera was said to have been sent for chemical examination to the State Forensic Science Laboratory (SFSL) the viscera report was not proved before the trial Court.

The Court further noted that there is no evidence that the investigating officer obtained the viscera report from the SFSL nor the doctor expressed any opinion as to the particular cause of death of the deceased.

The Court then went on to highlight the importance of the viscera report in every suspected case of death due to poisoning. It relied upon the judgment of the Supreme Court in Chhotan Sao v. State of Bihar (2013), wherein it stressed the role of Public Prosecutors and trial Courts to ensure the production of viscera reports and had observed:

“The investigating officer who submitted the charge-sheet ought not to have done it without securing the viscera report from the forensic lab and placing it before the Court. Having regard to the nature of the crime, it is a very vital document more particularly in the absence of any direct evidence regarding the consumption of poison by the deceased Babita Devi. Equally the Public Prosecutor failed in his responsibility to guide the investigating officer in that regard.”

The Bench further placed reliance on the judgment in Joshinder Yadav v. State of Bihar, wherein the Apex Court had noted frequent derelictions on the part of investigating agencies to obtain viscera report and prove the same as evidence during the trial. The top Court had accordingly passed certain directions to ensure its production and had observed:

“We direct that in cases where poisoning is suspected, immediately after the post-mortem, the viscera should be sent to the FSL. The prosecuting agencies should ensure that the viscera is, in fact, sent to the FSL for examination and the FSL should ensure that the viscera is examined immediately and report is sent to the investigating agencies/courts post-haste.”

Having regard for the aforesaid precedents, the Court held that omission on the part of the police to send a viscera sample for chemical examination and placing the report before the trial Court is a serious lapse in the investigation and a violation of the directions issued by the Supreme Court, which is nothing less than a 'misconduct'.

“Similarly, the concerned Scientific Officer is also accountable if he fails to provide the viscera report in time even after the viscera is provided to him for necessary chemical examination. In the present case, failure on the part of the investigating officer to procure the viscera report from the S.F.S.L. is a serious lapse in the investigation,” the Court added.

The Court also relied upon the recent judgment of the Supreme Court in Hariprasad alias Kishan Sahu v. State of Chhattisgarh (2023), wherein certain circumstances were laid down which need to be proved in all suspected cases of murder by poison.

The Court, after taking into consideration other circumstances, was of the view that the prosecution could not prove that the appellant procured poison or contaminated the milk with it to cause the death of the deceased.

Further, it was of the view that the oral dying declaration, given by the deceased immediately before his death, does not implicate the appellant as the perpetrator of the crime. Therefore, taking into account all the surrounding circumstances, the Court deemed it proper to give benefit of doubt to the appellant and acquitted him of the charge of murder.

Case Title: Prasanta Kumar Moharana v. State of Odisha

Case No: JCRLA No. 45 of 2008

Date of Judgment: December 07, 2023

Counsel for the Appellant: Mr. Sougat Das, Amicus Curiae

Counsel for the State: Mr. Arupananda Das, Addl. Govt. Advocate

Citation: 2023 LiveLaw (Ori) 118

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