Anant Chintaman Lagu V. The State Of Bombay (5)

 

Saify, the Registrar, who was summoned but Dr. Shah, who had also signed the call book in token of having received the call. Dr. Mouskar's conduct as the Resident Medical Officer in having the postmortem examination cancelled was a great lapse, and it is quite obvious to us that the finding by the two Courts below that this was done at the request of the appellant is the only inference possible in the case. The alternative suggestion in the argument of the appellant's counsel that Dr. Mouskar thought that Dr. Variava was making ” a mountain out of a mole hill ” and that ” the reputation of the hospital was involved ” does not appeal to us, because if that had been the motive, Dr. Mouskar would have talked to Dr. Variava and asked him to revise his own opinion. The cancellation of the requisition for postmortem examination came to Dr. Variava as a surprise, because he stated that he had heard nothing about it.

496 From the above analysis of the evidence, we accept the following facts: The appellant was present in the hospital till the death of Laxmibai, and in his presence, Dr. Variava examined Laxmibai and questioned the diagnosis of Dr.

Miss Aneeja and gave the instructions for the postmortem examination. Dr. Variava's stay was only for 15 minutes, and at the end of it, Laxmibai expired. The statement of the appellant that he caught the 10-30 train from Bombay to Poona because he was asked by the Matron to leave the female ward, and that he was going back to get a female attendant from Poona, is entirely false. He took no action about a female attendant either in Bombay or in Poona, and he could not have left by the 10-30 train if he was present in the hospital till 11-30 a.m. We are also satisfied that Dr. Miss Aneeja did not cancel the endorsement about the postmortem examination on her own responsibility. She was ordered to do so. We are also satisfied that it was not Dr. Saify who had given this order, but it must have been Dr. Mouskar, who did so. We are also satisfied that Dr. Mouskar did not induce Dr. Miss Aneeja to cancel the postmortem by sending the case papers through the call-boy of her Ward, but she was summoned to the office, to the door of which she admits she had gone. We are, therefore, in agreement with the two Courts below that Dr. Mouskar caused these changes to be made, and that Dr. Miss Aneeja did not have the courage to name the Resident Medical Officer, and lied by introducing the name of Dr. Saify. We are also satisfied that Dr.

Mouskar and the appellant were acquainted with each other not only when they were in College together but they must have known each other, when Dr. Mouskar was residing at Poona. The cancellation of the postmortem examination was caused by the appellant, because Dr. Mouskar's explanation on this part of the case is extremely unsatisfactory, and his failure to consult Dr. Variava, if it was only a hospital matter, is extremely significant. The appellant's immediate exit from the hospital and the telegram to him at Poona show that Dr. Mouskar knew where the appellant was to be 497 found. The telegram conveyed to the appellant that the postmortem was not to be held, because it said that the body should be immediately removed.

Now, the appellant, as we have said, took no action about Laxmibai's death and kept this information to himself. He did not also arrange for the removal of the body. He sent an inland letter which, he knew would take a day or two to reach the hospital. He knew that the body would be lying unclaimed at the hospital, and that the hospital could not hold the body for ever without taking some action. The appellant is a doctor. He has studied in medical institutions where bodies are brought for dissection purposes, and he must be aware that there is an Anatomy Act, under which unclaimed bodies are handed over to Colleges after 48 hours for dissection. He also knew that the cause of death would become more and more difficult to determine as time passed on, and it is quite clear that the appellant was banking on these two circumstances for the avoidance of any detection into the cause of death. He had also seen to it that the postmortem examination would not be made, and he knew that if the body remained unclaimed, then it would be disposed of in accordance with the Anatomy Act. He wrote a letter which he knew would reach the hospital authorities, and he named a fictitious brother who, he said, could not arrive before the 16th from Calcutta. This delay would have gained him three valuable days between the death and any likely examination, and if the body remained unclaimed, then it was likely to be disposed of in the manner laid down in the Anatomy Act. The anticipations of the appellant were so accurate that the body followed the identical course which he had planned for it, and it is an accident that ten days later a postmortem examination was made, because an observant peon noticed some mark on the neck which he thought, was suspicious. But for this, it would have been impossible to trace what happened to Laxmibai, because the hospital papers would have been filed, the body dissected by medical students and disposed of and the relatives and friends kept in the dark about the whereabouts of Laxmibai by spurious letters.

498 This brings us to another piece of conduct which we have to view. When Laxmibai boarded the train, she had a bedding and a bag with her, which she was seen carrying at the Par by Patil (P. W. 60) on the night she left Poona. There is a mass of evidence that Laxmibai was in affluent circumstances, and always wore on her person gold and pearl ornaments. There is also evidence that she had taken Rs. 50 from -Virkar the night she travelled, and presumbly she was carrying some more money with her, because she had to consult a specialist in Bombay and money would be required to pay him. When she reached the hospital in the company of the appellant, she had no ornaments on her person, no money in her possession and her bag and bedding had also disappeared. As a matter of fact, there was nothing to identify her or to distinguish her from any other indigent woman in the street. There is no explanation which any reasonable person can accept as to what happened to her belongings. It is possible that the bag and the bedding might have been forgotten in the hurry to take her to the hospital, but her gold ornaments on her person could not so disappear. The appellant stated that he noticed for the first time in the taxi that she had no ornaments on her person; but there would be no need for him to notice this fact if Laxmibai started without any ornaments whatever. In view of the fact that Laxmibai's entire property soon passed into the hands of the appellant, it is reasonable to hold that he would not overlook the valuable gold and pearl ornaments in this context. Further, the absence of the ornaments and other things to identify Laxmibai rendered her anonymity complete, in so far as the hospital was concerned, unless information to that end was furnished by the appellant only. In the event of Laxmibai's death in the hospital, no complication would arise if she did not possess any property and the body would be treated as unclaimed, if none appeared to claim it.

In addition to the stripping of the lady of her belongings, the appellant took measures to keep her 499 identity a close secret. No doubt, he gave her name as ” Indumati “, but he added to it her maiden surname in a garbled form. According to Dr. Ugale, the name given was ” Paunshe “. – In every one of the other papers, the name appears to have been corrected by the addition of some letter resembling Ilk ” but not in the case papers. Dr.

Ugale swore that he had not heard the name ” Paunshe ” before, though his mother-tongue is Marathi, and he is himself a Maharashtrian. He, therefore, asked the appellant to spell the name, and he was definite that -the name was written as spelt by the appellant. There is, however, other evidence coming from the appellant himself to show that he did not give the correct maiden surname of -Laxmibai, because in the letter he wrote to the hospital he only stated that there was an extra ” u ” in the name as entered in the papers but did not mention anything about ” k “. His solicitude about the name and its spelling in the case papers clearly shows that his mind even under the stress of these circumstances was upon one fact only that the name should remain either ” Paunshe ” or ” Panshe ” and not become ” Ponkshe “. Indeed, one would expect the appellant to have given the name ” Laxmibai Karve ” or ” Indumati Karve ” instead of ” Indumati Ponkshe “, and much less, ” Indumati Paunshe “. There must be some reason for the appellant choosing the maiden surname, even if he gave the correct maiden name. The reason appears to be this: Either he had to say at the hospital that he did not know the name, or he had to give some name. If he said that he did not know the name, it would have caused some suspicion, and the matter would then have been entered in the emergency police case register. This is deposed to by the doctors in the hospital. By giving the name, he avoided this contingency.

By giving a garbled name, he avoided the identity, if by chance that name came to the notice of some one who knew Laxmibai. His intention can only be interpreted in the light of his subsequent conduct and the use to which be put this altered name. We have already seen that he did the fact of death from every 500 one and wrote to people that the woman was alive. He had two opportunities of correcting this name which he had noticed very carefully on the case papers. The first was when he wrote the letter to the hospital in which he insisted that ” u ” should be omitted but did not add ” k “. The other was when on the 16th the police questioned him and he stated that he did not know who the woman was. He also gave the age of the woman wrongly, and perhaps, deliberately :-see the correction and overwritings in the inland letter he wrote on November 14, 1956. Immediately after the death of Laxmibai, he misappropriated a sum of Rs. 5,000 by presenting two documents, Exs. 285 and 286, without disclosing to the Bank that the person who had issued the cheque was no more. All this subsequent conduct gets tied to his conduct in giving the name as ” Indumati Paunshe ” or ” Panshe “; and it shows a foreknowledge of what was to happen to Indumati at the hospital. It also shows a preparation for keeping the fact of her death hidden from others to facilitate the misappropriation of her property, which as we know, eventually took place starting from November 15, that is to say, two days following her death.

No explanation worth considering exists why this name was given, and the effort of the counsel for the appellant that he was probably on intimate terms with Laxmibai and chose to call her by her maiden name rather than her married name is belied by the fact that in every document in which the name has been mentioned by the appellant, he has adderssed her as Laxmibai Karve and not as Indumati Ponkshe. There is no evidence that this elderly lady was anything more than a foolishly trusting friend of this man who took advantage of her in every way.

Then, there is the conduct of the appellant in not disclosing to the hospital authorities the entire case history of Laxmibai and the treatment which he had been giving her as her medical attendant. Instead of telling the doctor all the circumstances of her health, he told him that the woman was suffering from hysterical fits, which fits, according to the 501 evidence in the case, did not recur after 1948. He also did not give any particulars of the onset of unconsciousness in the train. Even the fact that Laxmibai had suffered from diabetes for some years was not mentioned, and this shows that he was intent upon the medical attendants in the hospital treating the case from a scratch and fumbling it, if possible. To him, it appears to us, it was a matter of utter indifference what treatment was given to her, an attitude which he continued to observe even after his patient had died. In our opinion, therefore, the conduct at the hospital appears significantly enough to suggest that he anticipated that Laxmibai was doomed, and he was intent upon seeing to it that no one but himself should know of her death and that a quiet disposal of her body should take place.

We may mention here one other fact, and that is that the G.T. Hospital, is situatted at a distance of 5 or 6 furlongs from the Victoria Terminus Station, whereas the St. George's Hospital is said to be only 50 feet away from the main entrance. Why an unconscious woman was carried first on a stretcher and then in a taxi to this distant hospital when she could have been carried straight to the hospital on the stretcher itself, is not explained. There is of course, this significant fact that at the St. George's Hospital he would not have been able to pull his weight with the medical authorities, which he was able to do with Dr. Mouskar because of his acquaintance with him. This choosing of the hospital is of a piece with the choosing of an inconvenient train which would make detection difficult, arrival at the hospital when it would be closed except for emergency cases, and the patient likely to be waited upon by a raw and inexperienced doctor in the early hours of the morning. We, however, cannot say this too strongly, because it is likely that Laxmibai herself chose to travel by a night train. But the whole of the conduct of the appellant prior to the death of Laxmibai appears to be of a piece with his conduct after her death, and we are satisfied that even before her entry into the hospital, the appellant had planned this line of conduct.

64 502 Our findings thus substantially accord on all the relevant facts with those of the two Courts below, though the arrangement and consideration of the relevant evidence on record is somewhat different. It is now necessary to consider the arguments which have been advanced on behalf of the appellant. The first contention is that the essential ingredients required to be proved in all cases of murder by poisoning were not proved by the prosecution in this case.

Reference in this connection. is made to a decision of the Allahabad High Court in Mst. Gujrani v. Emperor (1) and two unreported decisions of this Court in Chandrakant Nyalchand Seth v. The, State of Bombay(2) decided on February 19, 1958, and Dharambir Singh v. The State of Punjab (3) decided on November 4, 1958. In these cases, the Court referred to three propositions which the prosecution must establish in a case of poisoning: (a) that death took place by poisoning;

(b) that the accused had the poison in his possession ; and (c) that the accused had an opportunity to administer the poison to the deceased. The case in Dharambir Singh V. The State of Punjab (3) turned upon these three propositions.

There, the deceased had died as a result of poisoning by potassium cyanide, which poison was also found in the autopsy. The High Court had disbelieved the evidence which sought to establish that the accused had obtained potassium cyanide, but held, nevertheless, that the circumstantial evidence was sufficient to convict the accused in that case.

This Court did not, however, accept the circumstantial evidence as complete. It is to be observed that the three propositions were laid down not as the invariable criteria of proof by direct evidence in a case of murder by poisoning, because evidently if after poisonidgthevictim, the accused destroyed all traces of the body, the first proposition would be incapable of being proved except by circumstantial evidence. Similarly, if the accused gave a victim something: to eat and the victim died immediately on the ingestion of that food with symptoms of poisoning and (1) A.I.R. 1933 All. 394. (2) Cr. A. No. 120 Of 1957. (3) Cr. k. No. 98 of 1958. 503 poison, in fact, was found in the viscera, the requirement of proving that the accused was possessed of the poison would follow from the circumstance that accused gave the victim something to eat and need not be separately proved.

There have been cases in which conviction was maintained, even though the body of the victim had completely disappeared, and it was impossible to say, except on circumstantial evidence, whether that person was the victim of foul play, including poisoning. Recently, this Court in Mohan v. State of U. P. (1) decided on November 5, 1959, held that the proof of the fact of possession of the poison was rendered unnecessary, because the victim died soon after eating pedas given by the accused in that case, and he had not partaken any other food likely to contain poison. In Dr. Palmer's case (2) , strychnine was not detected, and the accused was convicted by the jury after Lord Chief Justice Campbell (Cresswell, J. and Mr. Baron Alderson-, concurring) charged the jury that the discovery of the poison on autopsy, was not obligatory, if they were satisfied on the evidence of symptoms that death had been caused by the ministration of the strychnine. The conduct of Palmer, which was also significant, was stressed inasmuch as he had attempted to thwart a successful chemical analysis of the viscera, and had done suspicious acts to achieve that end.

In Dr. Crippen's case (3), the conduct of the accusedafter the death of Mrs. Crippen in making the friends and relatives believe that Mrs. Crippen was alive was considered an incriminatory circumstance pointing to his guilt. No doubt, in Dr. Crippen's case (3), the body was found and poison was detected, but there was no proof that Dr. Crippen had administered the poison to her, that being inferred from his subsequent conduct in running away with Miss Le Neve.

In the second case of this Court, the poison was availiable to the victim, and it was possible that she had taken it to end an unhappy life.

The cases of this Court which were decided, proceeded upon their own facts, and though the three (1) Cr. A. No. 108 of 1959. (2) Notable Trials Series.

(3) Notable Trials Series.

504 propositions must be kept in mind always, the sufficiency of the evidence, direct or circumstantial, to establish murder by poisoning will depend on the facts of each case. If the evidence in a particular case does of not justify the inference that death is the result of poisoning because of the failure of the prosecution to prove the fact satisfactorily, either directly or by circumstantial evidence, then the benefit of the doubt will have to be given to the accused person. But if circumstantial evidence, in the absence of direct proof of the three elements, is so decisive that the Court can unhesitatingly hold that death was a result of administration of poison (though not detected) and that the poison must have been administered by the accused person, then the conviction can be rested on it.

In a recent case decided in England in the Court of Criminal Appeal (Regina v. Onufrejczyk- (1), the body of the victim was not found at all. And, indeed, there was no evidence that he had died, much less was murdered. The accused's conduct in that case which was held decisive, was very similar to the conduct of the present appellant. He was in monetary difficulties, and the victim was his partner, whom he wished to buy out but did not have the money to do so.

One fine day, the partner disappeared, and his body was not found, and it was not known what had happened to him. The activities of the accused after the disappearance of his partner were very -remarkable. To people who enquired from him about his partner, he told all manner of lies as -to how a large and dark car had arrived in the night and that three men bad carried off his partner at the point of a revolver.

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