Anant Chintaman Lagu V. The State Of Bombay (11)

 

Variava said that he took her to task for diagnosing the case as diabetic coma without having tested the urine for acetone, which she told him she had not 551 that acetone had been found on the first examination of urine was not there when he saw it at about 11 a.m. The second lie which Dr. Anija said was that she put through a telephone call to Dr. Variava about 7 a.m. and told him about the symptoms she had found and that she had been giving insulin. She said that Dr. Variava agreed with her diagnosis and asked her to continue the treatment she had started. That this is untrue, will appear from the fact that Dr. Variava denied that this talk had taken place. Dr.

Variava's recollection is supported by the fact that on arrival at the hospital he doubted if the case was of diabetic coma and the treatment given was the correct one.

Further, there is a call book in the hospital on which telephone calls made by the house physicians are entered.

There is no entry there showing a call having been made by Dr. Anija on Dr.Variava. The third lie that she said was that it was Dr. Saify who told her outside Dr. Mouskar's office to make the alteration in the case paper. It has been clearly established that Dr. Saify was not on November 13 in Bombay at all. He was then on leave and in Indore.

I come now to Dr. Mouskar. No' art of his evidence has been directly found to be false. The Courts below have disbelieved him on improbabilities. The first improbability they found was in Dr. Mouskar's explanation that he did not arrange for the postmortem examination immediately as he considered the permission of the Coroner and the relatives of the deceased necessary before holding the postmortem examination and that this was the invariable practice in non-medico-legal cases. I do not know why it should be said that this practice is improbable. The prosecution did not lead any evidence to show that there was no such practice as spoken to by 'Dr. Mouskar. That the Coroner's permission had to be taken would be borne out by the fact as appearing in the correspondence, that the police asked the Coroner to hold an inquest as the cause of death was not known. The Courts below referred to the telegram that Dr. Mouskar sent to the appellant at about 2 p.m. on November 13 and observed that if Dr. Mouskar had delayed the postmortem examination only in order to obtain the 552 consent of the relatives, then the telegram would not have asked the appellant to arrange for the removal of the dead body. Dr. Mouskar said that he had intended to ask for the permission to hold the postmortem examination when the appellant appeared on receipt of his telegram. The Courts below have not accepted this explanation. It does not seem to me that this explanation is so absurd that it must be rejected. No other view would fit in with the circumstances of the case. This I will explain now.

It has to be remembered that the finding of the Courts below is that Dr. Mouskar was not in any sense a conspirator with the appellant in the crime. The learned Advocate General of Bombay, who appeared for the respondent, also made it clear that he did not suggest that Dr. Mouskar was in any conspiracy. On the evidence on the record it would be impossible to hold that Dr. Mouskar was in any conspiracy with the appellant. There is no reason whatever for him to have done that. There is no evidence of such friendship between the appellant and Dr. Mouskar from which it can possibly be inferred that Dr. Mouskar would have become a party to secreting a diabolical crime committed by the appellant. The trial Court expressly held, “I do not think that at that time Dr. Mouskar realised that there was anything suspicious about the death of Laxmibai, nor do I think that he was aiding or abetting the suppression of truth by cancelling the postmortem examination. ” The High Court also took the same view. We then come to this that if Dr. Mouskar had procured the cancellation of the direction for postmortem examination, he had done so without thinking that there was anything suspicious about the death of Laxmibai, and only to oblige his friend, the appellant, by saving the family of the; deceased from humiliation by cutting up her body. Now that being so, when Dr. Mouskar got the direction cancelled at the appellant's request, he would naturally expect the appellant to take charge of the body and to remove it for cremation. Evidently, the appellant had disappeared for otherwise Dr. Mouskar would not have sent him a telegram to Poona. What would.have been the normal reactions then of an 553 innocent man in Dr. Mouskar's position? He would have been very much surprised. He would have thought that he had been let down. It is not too much to think that he would have grown suspicious. As an innocent man, as he has been found to be, the only thing he could then possibly have done was to have restored the direction for postmortem examination and to proceed to take steps to have it held. I cannot imagine that an innocent man in such circumstances would have acted otherwise. It will be remembered that the appellant's reply to the telegram was not received for over two days and in the meantime Dr. Mouskar did nothing in the matter. I find it impossible to hold that Dr. Mouskar, innocent as he was, would have waited all this time and done nothing about the postmortem examination at all. It would have been impossible for him then to have asked if the doctors in charge of the case still wanted a postmortem examination as he actually did. If he was not a party to any conspiracy with the appellant, I cannot think it possible for him to have sent the telegram to Poona asking the appellant to remove the body after he had been innocently made to obtain a cancellation of the direction and found that the appellant had disappeared. I may also add that if the appellant had duped Dr. Mouskar and procured him to obtain a cancellation of the direction for postmortem examination, it would be extremely unlikely for him to have taken the risk of disappearing from the hospital without making any arrangement for the disposal of the body for then he could not be sure ,whether the postmortem would be held or not. It would have been more natural for him to have taken over the body and cremated it. That would not have affected his design, as alleged by the prosecution, to have evidence of the natural death of Laxmibai created and to have kept back the know]-edge of her death from her relatives. I therefore think that the telegram instead of showing that Dr. Mouskar had already obtained a cancellation of the direction for postmortem examination rather indicates that that direction had not till then been cancelled as is Dr. Mouskar's own evidence. This makes the explanation 554 of Dr. Mouskar as to why he sent the telegram a very probable explanation.

Now, there are other things which would support Dr.

Mouskar's evidence. On November 14, about 4 p.m. he wrote to the police intimating them that a Hindu female named Indumati Panshe who had been admitted into the hospital on November 13 at 5-45 a.m. for treatment of hysterical fits had died the same day at 11-30 a.m.' He further stated in that letter that a telegram had been sent to the address given at the time of the admission of the patient but without a response and requested that the dead body might be removed to the J. J. Hospital morgue. This would indicate two things. First, that Dr. Mouskar was surprised at having received no answer from the appellant to his telegram and that being so, if he had been innocently induced to get the case paper altered, he would not have permitted the alteration to remain there. The second thing it shows is that Dr. Mouskar even in the afternoon of November 14 referred to hysterical fits as the illness of the patient.

This would be impossible if the prosecution case is true, namely, that at about 1 p.m. on November 13, Dr. Mouskar had procured Dr. Anija to state in the case paper that the cause of death was diabetic coma.

The next thing that the Courts below have found against Dr.

Mouskar is that his story of having received a telephone call from the Coroner's office on the morning of November 15 asking for the final diagnosis of the case was unbelievable.

I find no reason to disbelieve Dr. Mouskar. His evidence is strongly supported by the death certificate which he issued on that date stating diabetic coma as the cause of death.

There is no reason to think that Dr. Mouskar would have issued this certificate on the 15th unless he had been asked about the cause of death. Furthermore, the police on that date had actually wanted to know the cause of death as will appear from their letter of November 15. If the police could ask, I do not see why the Coroner's office could not.

In that letter the police asked Dr. Mouskar to send per bearer the cause of death to enable them to dispose of the dead body. I have earlier referred to this letter. It is on a copy 555 of this that the endorsement ” Diabetic coma, Dr. N. S.

Variava, G. T. Hospital” had been made. There is no other explanation as to why Dr. Mouskar sent the death certificate on this date and not on any other date. Indeed, if he was under the impression that the appellant or a relative of the deceased would come and take charge of the-body for cremation, as the prosecution case must be, then he would not have issued the death certificate for that was wanted only to enable the police to dispose of the dead body.

Therefore it seems to me likely that Dr. Mouskar had been asked by the Coroner about the cause of death. Now if he was so asked, it does not strike me as wholly improbable that he asked the physicians in charge whether they were then in a position to state the cause of death or still insisted on a postmortem examination. It has to be remembered that till then no suspicion attached to the case. Dr. Mouskar said that he had seen the physicians change their opinion in such matters and had therefore asked whether a postmortem examination was still required. It has also to be remembered that Dr. Mouskar had no knowledge that the direction for postmortem examination had been given by Dr. Variava. All that he knew was that such a direction appeared over the signature of Dr. Anija. It does not seem to me improbable that Dr. Mouskar on being asked by the Coroner to state the cause of death would have enquired of the physicians in charge about it. If this version is not true, then the only other probable theory would be that the alteration in the case paper had been made at 1 p.m. on November 13, which as I have earlier said, cannot be accepted in view of the telegram and the other records in this case. It was also said that Dr. Mouskar's version cannot be accepted for it was not possible for him to make enquiries about the cause of death through a ward boy. I think this would be too insignificant a ground for disbelieving Dr. Mouskar.

I may now deal with the letter of the police dated November 15 to Dr. Mouskar asking for the cause of the death. It will be remembered that this letter was sent along with a copy of it and on the copy the endorsement ” Diabetic coma, Dr. W. S. Variava.

556 G. T. Hospital ” had been made. Dr. Mouskar denied that these letters ever came to him. The Courts below have been unable to accept his denial. Their view is that it is Dr.

Mouskar who got the endorsement set out above, to be made and is falsely denying it. I am unable to appreciate why Dr. Mouskar should falsely deny it. He was innocent. He had on that date issued the death certificate. He could easily have admitted the fact, if he had made the endorsement or got it made. Now it seems to me that there is no evidence that the letter was produced before Dr.

Mouskar. In normal course, as spoken to by police Inspector Kantak, who had written this letter, the original would have been retained at the office of Dr. Mouskar and only the copy would have come back to the police with an acknowledgment of the receipt of the original endorsed on it. That did not happen. Both the copy and the original were received back by Kantak. The bearer who was sent to deliver the letter was not called. There is therefore no evidence whatever that the letters were actually delivered or what had actually happened. On the contrary, the return of both copies to the police would show that they had not been delivered to Dr. Mouskar for if the letter had been delivered, then there is no reason why Dr. Mouskar would not have given a formal reply to it stating that diabetic coma was the cause of death. He would have had no difficulty in doing so because on the same day he sent the death certificate mentioning diabetic coma as the cause of death.

He had no reason to take to subterfuge and to get the words ” Diabetic coma. Dr. N. S. Variava. G T. Hospital ” written on the copy by somebody. It would therefore appear that there is no reason to disbelieve Dr. Mouskar when he said that he bad not received the letters and had nothing to do with the endorsement made on the copy of the letter.

What might have happened was that the death certificate having been earlier issued, some clerk in the office returned these letters and by way of an informal communication of the cause of death made the endorse. ment on the copy. It may be stated here that Dr. Anija admitted to the police that the words ” Diabetic coma ” in the endorsement had been written by her 557 but in court she denied that she had written them. This is another instance which makes me greatly doubt her veracity.

It may be that she had written the words ” Diabetic coma ” and got some one else to write out the rest of the endorsement.

I come now to the last fact which the Courts below have thought fit to disbelieve, in the evidence of Dr. Mouskar.

I have earlier mentioned that when Laxmibai was lying unconscious in Ward No. 12, Dr. Anija had sent for the Registrar. Dr. Anija stated that the Registrar whom she sent for was Dr. Saify. This is untrue for, as I have already said, it has been proved clearly that Dr. Saify was not in Bombay at all on that day. Now it appears that the hospital kept a call book in which a House Physician wanting to call the Registrar would make an entry and send it to the Registrar. This call book was produced on September 2, 1958, and it showed that Dr. Anija had herself written down the name of Dr. Shah as the Registrar whom she was calling.

What therefore had happened was that Dr. Saify being away on leave to the knowledge of Dr. Anija, she had sent the call to Dr. Shah. This call book conclusively proves that Dr.

Anija's statement that she had been told by Dr. Saify, the Registrar, to make the alteration in the case paper is false. Dr. Mouskar had said in his evidence that he could not trace this call book. The Courts below have thought that he was lying and was deliberately preventing this call book from coming to light so that Dr. Anija might not be contradicted by her own writing that it was Dr. Shah whom she had sent for which in its turn would show that her story that it was Dr. Saify who had asked her to make the alteration in the case paper was false. Now Dr. Mouskar's evidence was concluded on August 25, 1958, and he had retired from the office of the Resident Medical Officer on August 14 preceding. Dr. Anija's evidence was taken down on August 18 and August 19, 1958. 1 do not see why if the call book was considered to be of that importance, the police could not produce it after Dr. Mouskar had left office. It was actually produced from the hospital and must have been lying there all the time. The next thing to be noticed is that there is 558 nothing on the record to show that Dr. Mouskar was interested in establishing that Dr. Saify was on duty on November 13 and therefore prevented the call book from being produced. In fact, Dr. Mouskar in his evidence about Dr.

Saify stated that ” he was not working in the hospital on the 13, 14 and 15 November., I think also that he was not staying in his quarters during that period and I did not see Dr. Saify on these days at all.” Therefore, there is no basis for suggesting that Dr. Mouskar deliberately prevented the production of the call book. I may here state that there is nothing in the evidence of Dr. Mouskar which goes to show that he was supporting Dr. Anija in any of her lies.

The Courts below have excused the lies of Dr. Anija in the view that she had told them as she dared not estrange Dr.

Mouskar. Again, there seems to me to be no basis for this finding. There is nothing on the record to show that Dr.

Anija expected anything from Dr. Mouskar or would have been in any difficulty if she had told the truth even at the risk of putting Dr. Mouskar in a difficult situation. There is no evidence that Dr. Anija had any talk directly with Dr.

Mouskar concerning the case of the unconscious Laxmibai and therefore she could not and did not directly contradict anything that Dr. Mouskar said. Again, it is clear from the evidence that Dr. Anija had left the hospital on January 31, 1957. She had worked there without any remuneration. There is no evidence that she had anything to do with the hospital or its Resident Medical Officer, after she had left the hospital. Again, on the date that Dr. Anija gave evidence, Dr. Mouskar had already retired from his office at the hospital. In these circumstances, I find no justification for the conclusion that Dr. Anija had lied only out of fear of Dr. Mouskar. I might also point out that the only lie in Dr. Anija's evidence which the Courts below thought she said out of fear or at the persuasion of Dr. Mouskar was her statement that it was Dr. Saify who had told her that Dr.

Mouskar had wanted the direction as to postmortem examination crossed out and diabetic coma written as the cause of death. I have earlier stated that dr. Mouskar has gone against this part of 559 Dr. Anija's evidence by saying that Dr. Saify was not in Bombay on the day in question. It is clear therefore that it was not Dr. Mouskar who had wanted that Dr. Anija should interpose Dr. Saify between him and her in the matter of the direction for altering the case paper. Further, if Dr.

Mouskar really wanted that Dr. Anija should put the blame for the alteration on somebody else, then Dr. Anija would not have mentioned that Dr. Saify told her that Dr. Mouskar, had wanted the alteration. She would simply have said that it was at Dr. Saify's order only that she made the alteration or put the responsibility on Dr. Shah. The Courts below have been unable to explain why Dr. Anija brought in Dr. Saify at all. I think this is capable of an explanation as I will show later. The net position therefore is that Dr. Anija was clearly lying; there is no clear proof that Dr. Mouskar had lied at all. On the contrary, his evidence and conduct would seem to be consistent with the contemporaneous record and there is no material on which it can be found that Dr. Anija told the lies as she was afraid of Dr. Mouskar.

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