Anant Chintaman Lagu V. The State Of Bombay (9)

 

On the withdrawal slip he inserted the date November 19, 1956, and on November 20, presented it to the Bank and drew out a sum of Rs. 5,000 from Laxmibai's account. He subsequently put in to the credit of her account diverse cheques and by April 1957, bad drawn out by forging her signature practically the whole amount in her credit totalling about Rs. 10,000 including the sum of Rs. 5,000 withdrawn on November 20, 1956. The appellant also embarked on a systematic course of forgeries of the signature of Laxmibai on various fabricated documents, including share transfer deeds, as a result of which, before the end of 1957, he misappropriated a large part of the liquid assets belonging to Laxmibai's estate. When some of the forged signatures of Laxmibai had been doubted by the authorities to whom they had been presented with the object of being acted upon, the appellant even went to the length of getting a woman to falsely impersonate Laxmibai before a Magistrate and thereby procured the latter to certify forged signatures of Laxmibai as genuine signatures. He also clandestinely denuded Laxmibai's flat of its entire contents. None of her ornaments has been recovered after her death. In the meantime, he had been falsely representing to various persons, including all friends and relatives of Laxmibai, that he had met her on several dates after November 13, when she was already 533 dead. He manufactured various letters purported to be written by her from distant places in India and addressed to her relatives in Poona stating that she was going round on a pilgrimage. Eventually, he fabricated letters purported to have been written by her to her relatives in which it was stated that she had married one Joshi and bad settled down in a place called Rathodi near Jaipur -and did not intend to return to Poona. There is in fact no place of the name of Rathodi. His idea in manufacturing these letters was to create a false impression in the minds of Laxmibai's friends and relatives that she was still alive and this he did with the object of gaining time to misappropriate her properties.

It is not necessary to go into the details of this part of the conduct. The substance of it is that he made full use of the situation arising out of Laxmibai's death to misappropriate by all kinds of dishonest means most of her properties and to facilitate the misappropriation assiduously spread the story that she was alive. It may be stated that the appellant was put on -his trial on charges of misappropriation and other allied charges and found guilty and sentenced to imprisonment for life.

The long absence of Laxmibai had gradually made her relatives grow suspicious about her fate and they approached the police but no trace of Laxmibai could be found. Several petitions were sent to the higher police officers and also to the Chief Minister of Bombay. In the end, the matter was entrusted to Mr. Dhonde, Deputy Superintendent of Police, C.

I. D., Poona, for enquiry. Mr. Dhonde made various investigations and eventually on March 13, 1958, interrogated the appellant. The appellant then told him that be had taken Laxmibai to the G. T. Hospital, Bombay, and admitted her there, and that she died there on November 13, 1956. The police made enquiries at the G. T. Hospital and was able to find the clothes which Laxmibai wore when she died. These were identified by Laxmibai's relations.

The photograph of the dead body of Laxmibai also helped to prove her identity. After certain further enquiries, the police sent up the 68 534 appellant for trial on a charge of murder of Laxmibai with the result I have earlier mentioned.

The prosecution case is that the appellant caused the death of Laxmibai by administering to her a poison which was undetectable. On the evidence in this case it has to be held, as the Courts below have done, that there are poisons which cause death but are undetectable. I do not wish to be understood as saying that death by poisoning cannot be proved without proof of detection of poison in the deceased person's system after his death. I quite agree that the circumstances may be such that the only reasonable conclusion that can be drawn is that death was an unnatural death. In this view of the matter, I do not consider it necessary to discuss the cases cited at the bar and in the judgments of the Courts below. They are all illustrative of the proposition that a crime can be proved by circumstantial evidence, a proposition which I fully accept. In one of them, namely, Regina v. Onufrejczyk(1) guilt was held proved from the circumstances of the case notwithstanding that there was no body or trace of a body, or any direct evidence as to the manner of death of a victim. The legal proposition that arises in the present case may be put in the words of Wills in his treatise on Circumstantial Evidence which has been quoted in the judgment of the High Court:

It would be most unreasonable and lead to the grossest injustice, and in some circumstances to impunity for the worst of crimes, to require, as an imperative rule of law, that the fact of poisoning shall be established by any special and exclusive medium of proof, when that kind of proof is unattainable, and specially if it has been rendered so by the act of the offender himself. No universal and invariable rule, therefore, can be laid down; and every case must depend upon its own particular circumstances; and the corpus delicti must, like anything else, be proved by the best evidence reasonably capable of being adduced, and by such an amount and combination of relevant facts, whether direct or circumstantial, as to establish the factum probandum (1) [1955] 1 Q. B. 388. 535 to the exclusion of every other reasonable hypothesis. (7th Ed., p.,385) “.

In the present case, therefore, the circumstances must be such that no other conclusion than that Laxmibai died of poisoning and that the poison was administered by the appellant, can reasonably be drawn. The Courts below have found that the circumstances of this case fully establish this. I have come to a different conclusion. In my view, the circumstances are not such that from them the only reasonable conclusion to be drawn is that Laxmibai died of poisoning. If that conclusion cannot be drawn, of course no question of the appellant having poisoned her arises. I may also say that if Laxmibai could be said to have died of poisoning, I would have no reason to disagree with the view of the Courts below that it was the appellant who had administered the poison.

I proceed now to consider the question whether Laxmibai had died of poisoning. I do not suggest that poison had to be found in her system. In my view, if it could be established in this case that Laxmibai had died an unnatural death the conclusion would be inevitable that that unnatural death had been brought about by poison; no other kind of unnatural death could be possible on the facts of this case.

The real question in this case then is whether Laxmibai had died an unnatural death. I think the Courts below also considered that to be the only question in this case. I have earlier said that no poison was detected in the postmortem examination. So far as direct evidence of the cause of death goes, which in this case is all opinion evidence, we have the evidence of three doctors. All that Dr. Variava said was that death was not due to diabetic coma. The Courts below have accepted this evidence and I find no reason to take a different view. Then there is Dr.

Jhala, who conducted the postmortem examination. He had stated in the port-mortem examination report that the cause of death was diabetic coma. In his evidence in Court he said that the opinion stated in his report was not based on his pathological findings and that the proper way of describing the cause of 536 death would be by stating ” death by diabetes with complications “. He also referred to certain complications such as, atheroma of aorta with slight sclerosis of coronary. In the end he was asked by the Court, ” Would you agree with the view that the proper opinion on the pathological data available before you should have been that the cause of death was not ascertainable or could not be ascertained ?” His answer was, ” My answer is that on pathological data I would agree to the answer proposed. We have however to see the clinical data also. ” On the clinical data he would have said that death was due to diabetes with complications, but he conceded that that opinion was somewhat speculative. These two doctors therefore did not suggest that death was due to any unnatural cause. Dr. Variava did not in his evidence say that he had directed the postmortem examination to be done because he suspected any foul play. It would appear that be did not suspect any foul play for he did not require the case to be marked as a medico-legal case.

The most important direct evidence as to the cause of death and on which the prosecution has greatly relied, is the, opinion of Dr. Mehta who appears to be a medical man of some eminence. All the papers connected with the illnesses of Laxmibai and the postmortem examination report bad been given to him and he had made a thorough study of them. The net result of this study would appear from his evidence, the relevant part of which I think it right now to set out. He said:

” On a careful consideration of the entire material placed before me I am definitely of the opinion that the cause of death of Indumati Paunshe as mentioned in the case record and the Coroner's inquest, viz., diabetic coma, cannot be true. In my opinion, the cause of death may probably be due to:

(1)Administration of some unrecognisable poison, i.e., some poison for the detection of which there are no definite chemical tests.

(2)Administration of some recognisable poison for which there are chemical tests, but which tests 537 could not be obtained on account of deterioration of the poison remaining in the dead body which was kept in the morgue for considerable time after death without postmortem being performed and which was already undergoing decomposition prior to the actual postmortem examination as is clear from the absence of rigor mortis. Rigor mortis is means stiffening of muscles. The above opinion that the probable cause of death may be due to administration of poison is further fortified by the fact that the postmortem did not reveal any definite pathological lesion to account for the sudden rapid death of the deceased.

The question then arises whether she died a natural death, i.e., due to any other disease or diseased condition. The postmortem notes do not show anything abnormal beyond congestion of organ is and tubercular focus in the left lung. Congestion of organs occurs in majority of the cases after death of the person and particularly more so when so many days have elapsed between death and postmortem examination. Some decomposition is bound to be going on.

There is still possibility of death being due to poison in spite of the fact that the poison was not detected in the postmortem examination. Two reasons can be assigned for non-detection of poison: (1) There are no definite chemical tests for each and every poison. There are some poisons which cannot be detected on chemical analysis. (2) There may be a recognisable poison in the sense that there are tests for its detection. But the poison may not be detected on account of deterioration of the poison remaining in the body for a considerable time before the postmortem examination and it has undergone decom. position or oxidation…

The possibility of death being due to poisoning cannot be ruled out.” 538 I do not think that the Courts below thought that the evidence of Dr. Mehta established that death must have been due to an unnatural cause. If they did, I find myself unable to agree with them. The substance of Dr. Mehta's evidence is that death may ” probably be due to ” some poison, ” the probable cause of death maybe due to administration of some poison”, the posibility of death being due to poisoning cannot be ruled out. It will have been seen that Dr. Mehta posed a question whether Laxmibai had died a natural death. That question he did not answer beyond stating that the postmortem examination did not show anything abnormal beyond congestion of organs and a tubercular focus in the left lung and that such congestion of organs occurs in the majority of cases after death. It is clear that Mr. Mehta could not say with conviction that death had been caused by poisoning nor that death could not have been due to natural causes. The net result of the evidence of the medical experts is clearly that it cannot be said with definiteness how death was caused. In this view, nothing really turns on the fact that shortly prior to her death Laxmibai was found to have been in good health, which of course can only mean as good a health as a confirmed invalid like her could have. It cannot be definitely inferred from the fact that she was in good health that she had not died a natural death. If such an inference was possible, the doctors who gave evidence would have given a clear opinion but this they did not.

In this state of the evidence the Courts below have founded themselves on various circumstances of the case, most of which I have earlier related, in coming to the conclusion that Laxmibai bad met with an unnatural death.

These circumstances I now proceed to consider.

The first thing that I wish to discuss is the fact that after Laxmibai's death the appellant started on a systematic career of misappropriating her assets. I am unable to conclude from this that the appellant had caused her death.

It is reasonably possible to think that he made use of the opportunity that came is way on Laxmibai's death to misappropriate her 539 properties and had not caused her death. The fact that the appellant deliberately kept back the information of Laxmibai's death from her relatives and falsely created the impression in their minds that she was alive, does not advance the matter. This was clearly done with a view to give him time in which to carry out his scheme of misappropriating her properties. I quite concede however that these circumstances may take on a different colour from other circumstances, but I have found no such circumstance.

The next circumstance is the conduct of the appellant in obtaining from Laxmibai her signatures on the undated notice of withdrawal to the Bank and the withdrawal slip. The bodies of these documents are in the handwriting of the appellant. The Courts below have thought that the appellant obtained the signatures of Laxmibai on blank papers and filled them in the forms they now stand after the death of Laxmibai and utilised them to misappropriate her moneys.

They came to this conclusion from the fact that these documents were admittedly without dates and had been subsequently dishonestly utilised. It has been held from this that the appellant had during her life time a design on her moneys and therefore it becomes likely that he caused her death. I am unable to agree with this conclusion. It would be difficult to hold from the fact that the appellant had a design on Laxmibai's moneys that he had also a design on her life or that her death was, an unnatural death. But apart from that there is reason to think that when Laxmibai signed these documents their bodies had already been written up. That reason is this. It will be remembered that on November 12, 1956, the appellant had put to the credit of Laxmibai's account in the Bank a dividend warrant in her favour for Rs. 2,607-6-0. The balance to the credit of her account on November 12, 1956, became as a result of this deposit, Rs. 7,882-15. Now it is obvious that if the appellant had filled in the bodies of the notice of withdrawal and the withdrawal slip after the death of Laxmibai he would not have mentioned the amounts therein as Rs. 5,000 but would have increased it to a 540 figure nearer the balance because he undoubtedly had set about to misappropriate the moneys in that account and in fact he actually withdrew almost the entire balance in that account later by forging Laxmibai's signatures on other appropriate documents. Therefore, it seems to me that the bodies of the notice of withdrawal and the withdrawal slip had been written out before Laxmibai put her signatures on them.

Furthermore, the evidence clearly establishes that even during Laxmibai's life time the appellant used to present to the Bank cheques signed by Laxmibai for withdrawal of moneys and signed on the reverse of such cheques in acknowledgement of receipt of the moneys. He also used to deposit moneys in the Bank to the credit of her account. It is quite possible that the two documents mentioned had come into the appellant's possession in the usual course of managing Laxmibai's banking affairs. The fact that Laxmibai had not put dates on the documents would indicate that it was not intended that they would be presented to the Bank immediately for there is no reason to think that Laxmibai had not noticed that the documents did not-bear any date.

She seems to have been quite a capable woman managing her own affairs well. The Courts below have thought that there was no need for her to have wanted to withdraw such a large amount. The appellant said that she wanted to invest the money if), some fixed deposit which would have yielded a higher return but he actually lent it to a friend whom however he refused to name. The Courts below have disbelieved the appellant's case. Even so it does not seem to me possible to hold that Laxmibai did not want to withdraw any moneys and the appellant had fraudulently got her to put her signatures on blankpapers. I have earlier given my reason for this. It was not necessary for the appellant to have got her to sign blank papers and there is nothing to show that she would have done that even if the appellant had asked her.

I may here mention that no adverse inference can be drawn from the fact that the appellant put in the 541 dividend warrant to the credit of Laxmibai's account: it proves no guilt. But it is said that the appellant forged the name of Laxmibai on the back of it. The High Court thought that this forgery proves that the appellant had during the lifetime of Laxmibai entertained the intention to misappropriate her property. I am wholly unable to see how that conclusion could be reached from this or how in fact the forgery proves anything against the appellant. By the forgery, as it is called, the appellant was putting the money into the account to which it lawfully belonged; he did not ,thereby give it a different destination. Furthermore, he need not have signed her name himself. In the normal course Laxmibai would have signed it herself if asked to do so and given it to the appellant for being sent to the credit of her account. There is no reason to think that she would not have signed it if the appellant had asked her to do so. The dividend warrant was in Laxmibai's favour and had been drawn on the Bank of Maharashtra. It was being put to her credit in the same Bank. The Bank was therefore not likely to scrutinise with any care the payee's signature on the dividend warrant. That may have been nature reason why it was left to the appellant to sign Laxmibai's name on the dividend warrant for putting it into the Bank. But whatever view is taken I cannot see how it helps at all in solving any question that arises in this case. The trial Court found it a riddle and did not rely on it.

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