Anant Chintaman Lagu V. The State Of Bombay (6)

 

To a sheriff 's officer he stated that his partner had gone to see a doctor. He also asked a lady to send him some sham registered letters and forged other documents. Lord Chief Justice Goddard stated the law to be that in a trial for murder, the fact of death could be proved by circumstantial evidence alone, provided the jury were warned that the evidence must lead to one conclusion only, and that even though there was no body or even trace of a body or any direct evidence as to (1) [1955] 1.Q.B 388. 505 the manner of the death of a victim, the corpus delicti could be held to be proved by a number of facts, which rendered the commission of the crime certain. pertinent to remember that Lord Goddard observer during the course of argument that there was no virtue in the words ” direct evidence “, and added:

“It would be going a long way, especially these days when we know what can be done with acid, to say that there cannot be a conviction without some proof of a body. If you are right you have to admit that a successful disposal of the body could prevent a conviction.” It is obvious that Lord Goddard had in mind the case of John George Haigh (1) who, as is notorious, disposed of bodies by steeping them in acid bath, destroying all traces. It is, in this context, instructive to read a case from Now Zealand to which Lord Goddard also referred, where the body of the victim was never found, The King v. Horry (2 ). The statement of the law as to proof of corpus delicti laid down by Gresson,J. (concurred in by Fair, A.C.J., Stanton, J. and Hay, J.) was approved by Lord Goddard with one slight change. The statement of the law (head-note) is as follows :

” At the trial of a person charged with murder, the fact of death is provable by circumstantial evidence, notwithstanding that neither the body nor any trace of the body has been found, and that the accused has made no confession of any participation in the crime. Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt: the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for.” Lord Goddard did not agree with the words ” morally certain ” and stated that he would have preferred to say ” such circumstances as render the commission of the crime certain.” (1) Notable Trials Series.

(2) [1952) N.Z.L.R. 111. 506 The same test has been applied by Wills in his Book on Circumstantial Evidence, and the author has quoted the case of Donellan (1), where the conduct of Donellan in rinsing out a bottle in spite of the wife of the victim asking him not to touch those bottles, was treated as a very significant evidence of guilt. Butler, J., charged the jury that:

” if there was a doubt upon the evidence of the physical witnesses they must take into their consideration all the other circumstances either to show that there was poison administered or that there was not, and that every part of the prisoner's conduct was material to be considered.” Similarly, in Donnall's case (2 ), Abbot, J., according to Wills, in summing up, said to the jury that: “there were two important questions: first did the deceased die of poison? and if they should be of opinion that she did, then whether they were satisfied from the evidence that the poison was administered by the prisoner or by his means. There were some parts of the evidence which appeared to him equally applicable to both questions, and those parts were what related to the conduct of the prisoner during the time of the opening and inspection of the body; his recommendation of a shell and the early burial; to which might be added the circumstances, not much to be relied upon, relative to his endeavours to evade his apprehension. His Lordship also said, as to the question whether the deceased died by poison, I in considering what the medical men have said upon the one side and the other, you must take into account the conduct of the prisoner in urging a hasty funeral and his conduct in throwing away the contents of the jug into the chamber utensil'.” In Rex v. Horry (3), where the entire case law in England was presented for the consideration of the Court, it was pointed out by the Court that there was no rule in England that corpus delicti must be proved by direct evidence establishing the death of the person (1) Gurneys Rep. (1781) (2) (1817) 2 C. & K 308n.

(3) [1952] N.Z.L.R. 111. 507 and further, the cause of that death. Reference was made to Evans v. Evans(1), where it was ruled that that corpus delicti might be proved by direct evidence or by ” irresistible grounds of presumption “. In the same case, it has been pointed out that in New Zealand the Court upheld numerous convictions, where the body of the victim was never found.

The rule of law stated by Sir Matthew Hale in Pleas of the Crown Vol. 2, p. 290 that ” I would never convict any person of murder or manslaughter, unless the fact were proved to be done, or at least the body found dead ” was not accepted in this and other bases. Lord Goddard also rejected the statement as one of universal application, in the case to which we have already referred.

The case of Mary Ann Nash(2) is illustrative of the proposition that even though the cause of death may not appear to be established by direct evidence, the circumstances of the case may be sufficient to infer that a murder has been committed. In that case, the prisoner had an illegitmate son, 5 years old. There was evidence to show that the mother desired to put the child out of her way.

One day in June, 1907, the mother left the house and returned without the child. She made several statements as to what had happened to the child, which were found to be untrue. As late as April 1908, the body of a child was discovered in a well. Decomposition had so far advanced that even the sex of the child could not be determined.

There was nothing therefore to show whether death was natural or violent, or whether it had occurred before or after the body was put into the well. The case was left to the jury. On appeal, it was contended that there being no proof how death took place, the judge should not have left the case to the Jury but ought to have withdrawn it. Lord Chief Justice delivering the judgment of the Court of Appeal referred to the untrue statements of the prisoner about the wherebouts of the child, and observed as follows:

” All these statements were untrue. She bad an object in getting rid of the child, and if it had been (1) 161 E.R. 466, 491. (2) (1911) 6 Cr. App. R. 225. 508 lost or met with an accidental death, she had every interest in saying so at once. It is said there is no evidence of violent death, but we cannot accept that Mr. Goddard cannot have meant that there must be proof from the body itself of a violent death. . . . In view of the facts that the child left home well and was afterwards found dead, that the appellant was last seen with it, and made untrue statements about it, this is not a case which could have been withdrawn from the jury.” There is no difference between a trial with the help of the jury and a trial by a Judge in so far as the appraisement of evidence is concerned. The value of the evidence in each case must necessarily be the same. If the case of Mary Ann Nash (1) could be left to the jury, here too the case has been decided by the two Courts below concurrently against the appellant on evidence on which theY could legitimately reach the conclusion whether an offence of murder had been established or not.

A case of murder by administration of poison is almost always one of secrecy. The poisoner seldom takes another into his confidence, and his preparations to the commission of the offence are also secret. He watches his opportunity and administers the poison in a manner calculated to avoid its detection. The greater his knowledge of poisons, the greater the secrecy, and consequently the greater the difficulty of proving the case agaisnt him. What assistance a man of science can give he gives; but it is too much to say that the guilt of the accused must, in all cases, be demonstrated by the isolation of the poison, though in a case where there is nothing else such a course would be incumbent upon the prosecution. There are various factors which militate against a successsful isolation of the poison and its recognition. The discovery of the poison can only take place either through a postmortem examination of the internal organs or by chemical analysis. Often enough, the diagnosis of a poison is aided by the information which may be furnished by relatives and friends as to the symptoms 1 161 E R. 466 491 509 found on the victim, if the course of poison has taken long and others have had an opportunity of watching its effect.

Where, however, the poision is administered in secrecy and the victim is rendered unconscious effectively, there is nothing to show how the deterioration in the condition of the victim took place and if not poison but disease is suspected, the diagnosis of poisoning may be rendered difficult. In Chapman's case(1), the victim (Maud Marsh) was sent to Guy's Hospital, where the doctors diagnosed her condition to be due to various- maladies including cancer umatism and acute dyspepsiaIt is clear that doctors can be deceived by thesymptoms of poison into believing tHat they have a genuine case of sickness on hand. In Dr.

Palmer's case (2), two medical witnesses for the defence diagnosed the case from the symptoms as being due to Angina Pectoris or epilepsy with tetanic complications.

The reason for all this is obvious. Lambert in his book “The Medico-Legal Post-Mortem in India (pp. 96,99.100) has stated that the pathologist's part in the diagnosis of poisoning is secondary, and has further observed that several poisons particularly of the synthetic hypnotics and vegetable alkaloids groups do not leave any characteristic signs which can be noticed on postmortem examination. See Modi's Medical Jurisprudence and Toxicology, 13th Edn., pp.

450-451 and Taylor's Principles and Practice of Medical Jurisprudence, Vol. ll,p. 229. The same is stated by Otto Saphir in his book ” Autopsy ” at pp. 71 and 72. In Dreisbach's Handbook of Poisons. 1955, it is stated that pathological findings in deaths from narcotic analgesics are not characteristic. He goes further and says that even the laboratory findings are non-contributory. The position of the pathologist who conducts a postmortem examination has been summed up by Modi in Medical Jurisprudence and Toxicology, 13th edn., p. 447 as follows:

” In order to make a probable guess of the poison and to look for its characteristic postmortem appearances, it is advisable that a medical officer, before (1) Notable Trials Series.

(2) Notable Trials Series.

65 510 commencing a postmortem examination on the body of a suspected case of poisoning, should read the police report and endeavour to get as much information as possible from the relatives of the deceased regarding the quality and quantity of the poison administered, the character of the symptoms with reference to their onset and the time that elapsed between the taking of the poison and the development of the first symptoms, the duration of the illness, nature of the treatment adopted, and the time of death. He will find that in most cases the account supplied by the police and the relatives is very meagre, or incorrect and misleading. His task is, therefore, very difficult, especialy when many of the poisons except corrosives and irritants do not show any characteristic postmortem signs and when bodies are in an advanced state of decomposition . . . “.

Similarly, Gonzales in Legal Medicine and Toxicology states at p. 629:

” The question of whether or not a negative toxicologic examination is consistent with death by poison can be answered affirmatively, as may persons overcome by carbon monoxide die after twenty-four hours, at which time the gas cannot be determined in the blood by chemical tests.

Likewise, the organs of individuals who have been poisoned by phosphorus may not contain the toxic substance responsible for death if they have managed to survive its effects for several days.

Many conditions seriously interfere with the toxicologic examination, such as postmortem decomposition . . . . “.

We need not multiply authorities, because every book on toxicology begins with a statement of such a fact. Of course, there is a chemical test for almost every poison, but it is impossible to expect a search for every poison.

Even in chemical analysis, the chemical analyser may be unsuccessful for various reasons. Taylor in his Principles and Practice of Medical Jurisprudence, Vol. 11, p. 228 gives -three possible explanations for negative findings, viz., (1) the case 511 may have been of disease only; (2) the poison may have been eliminated by vomitting or other means or neutralised or metabolised; and (3) the analysis may have been faultily performed. Svensson Wendel in Crime Detection has stated at p. 281 that:

” Hypnotics are decomposed and disappear very quickly-some even in the time which elapses between the administration and the occurrence of death.

Circumstantial evidence in this context means a combination of facts creating a net-work through which there is no escape for the accused, because the facts taken as a whole do not admit of any inference but of his guilt. To rely upon the findings of the medical man who conducted the postmortem and of the chemical analyser as decisive of the matter is to render the other evidence entirely fruitless.

While the circumstances often speak with unerring certainty, the autopsy and the chemical analysis taken by themselves may be most misleading. No doubt, due weight must be given to the negative findings at such examinations. But, bearing in mind the difficult task which the man. of medicine performs and the limitations under which he works, his failure should not be taken as the end of the case, for on good and probative circumstances, an irresistible inference of guilt can be drawn.

In the present case, the effort of the appellant has been to persuade the Court that the death of Laxmibai was possibly the result of disease rather than by poison. During the course of the case and the appeal, various theories have been advanced and conflicting diagnoses have been mooted.

The case of the appellant has wavered between death by diabetic coma and by hypoglycemia, though relying upon the condition of the arteries and the aorta and the rigidity of the neck-, suggestions of coronary complications and renal failure have also been made. We have shown above that this was not a case of diabetic coma, because of the absence of the cardinal symptoms of diabetic coma. This also is the opinion of Dr. Variava and Dr. Mehta, though Dr. Jliala, for reasons which we have indicated, accepted it. The appellant argued again the case 512 from the angle of diabetic coma, but later veered in favour of hypoglycemia. This change noticeable not only in the arguments before us but also throughout the conduct of the case is merely to confuse the issue, and create, if possible, a doubt, which would take the mind away from the surrounding circumstances, and focus it only upon the medical aspect of the case. Full advantage has been taken of the findings of Dr. Ugale and Dr. Miss Aneeja, which suggest partly an onset of diabetic coma, partly of hypoglycemia, and partly of renal failure. There is no true picture of any one disease. The rigidity of the neck was not reflected in the chemical analysis of the cerebro-spinal fluid and was negatived, in so far as renal failure is concerned, by the negative findings about albumin. Diabetic coma stood ruled out by the presence of the Babinsky sign and the suddenness of the onset, the negative aspect of acetone breath and the rather remarkable failure of the specific treatment given for it to have worked any change. Driven from these considerations to -such doubtful suggestions as coronary complications of which no physical evidence was found by Dr.

Jhala, the appellant put his case 'on hypoglycemia, and relied upon the fact that at the hospital 40 units of insulin intravenously and another 40 units subcutaneously were administered. Medical text-books were quoted to show that in the case of hypoglycemic coma the introduction of even a small quantity of insulin sometimes proves fatal.

The learned AdvocateGeneral stoutly resisted this move, which was at variance with the case as set out before the High Court, because it is obvious enough that if one accepted the theory of hypoglycemic coma, the only injections of insulin causing such shook would be proved to have been given at the hospital and not by the appellant. Here, the position, however, is not so difficult for the State, because Laxmibai was found to have 4 oz. of pasty meal in her stomach, and with food inside her, the possibility of hypoglycemia taking place naturally was extremely remote. If it was hypoglycemic coma due to excessive administration of insulin, then it must have been administered prior to its onset, and who could have 513 given it but the appellant ? Even though coma supervenes suddenly, the patient passes through symptoms of discomfort, and Laxmibai would have told the appellant about it in the train. The appellant mentioned nothing of this to Dr.

Ugale. If an excessive dose of insulin was given by the appellant, the question of intent would arise, and the conduct shows the intention. There were no pronounced symptoms of hypoglycemia either. Laxmibai just passed from unconsciousness to death without the manifestation of any of the signs associated with the syndrome of hypoglycemic death. It is also to be remembered that hypoglycemic coma is generally overcome by the administration of a very small quantity of glucose (5 or10 grams of glucose orally):

Treatment of Diabetes Mellitus by Joslin, Root and White, p.

350. The 40 units given intravenously were mixed with 20 C.

C. of glucose and carried the palliative with them. Even otherwise, Laxmibai was receiving glucose by intragastric drip, and during the three and a half hours, there should have been an improvement. The surprising part is that the administration of the insulin and glucose brought about no visible symptoms in the patient either for better or for worse. She passed into death, and the inference can only be that she did not die of these diseases of which she was either suspected or for which she was treated but of something else, which could not answer to the treatment given to her. Dreisbach in his Handbook on Poisons at p. 27 has stated that coma also results from the action of several poisons.

Depressants, sedatives and hypnoties all cause death by coma (ibid. p. 201). The symptoms, according to the author, are sleepiness, mental confusion, unsteadiness rapidly followed by coma with slow shallow respiration, flaccid muscles and absent deep reflexes. The difference between coma due to disease and coma as the result of poisons is stated by him in the following words:

Coma from poisoning presumably results from some interference with brain cell metabolism. In attempting to combat the effects of drugs which induce coma, remember that no agents are known 514 which will specifically overcome the metabolic derangements of drug-induced coma. The mechanism of action of cerebral stimulant drugs is also unknown, but these drugs presumably act by depressing some inhibiting function in the cell.

There is no evidence that any stimulants specifically oppose the cellular metabolic depression induced by the depressant drugs such as the barbiturates.” No specific antidote is known for the sedative and hypnotic drugs. (Ibid. p. 202).

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