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Palaniswamy Vaiyapuri Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberConfirmation Case No. 19 of 1965 With Criminal Appeal No. 1401 of 1965
Judge
Reported inAIR1968Bom127; (1966)68BOMLR941; 1968CriLJ453
ActsEvidence Act, 1872 - Ss 3, 9 and 45; Indian Penal Code (IPC), 1860 - Sections 302; Code of Criminal Procedure (CrPC), 1898 - Sections 162, 172, 174, 367, 367(3) and 537
AppellantPalaniswamy Vaiyapuri
RespondentState
Appellant AdvocateD. B. Kode and ;P.K. Nair, Advs.
Respondent AdvocateM.A. Rane, Asst. Govt. Pleader, for State
Excerpt:
criminal - conviction and sentence - sections 3, 9 and 45 of indian evidence act, 1872, section 302 of indian penal code, 1860 and sections 162, 172, 174, 367, 367 (3) and 537 of criminal procedure code, 1898 - accused convicted and sentenced under section 379 and 302 - taking perspective view of case and considering all circumstances together important for deciding whether death of deceased was unnatural - conduct of accused also important to decide guilt - considering investigation conducted under section 174 court concluded that chain of circumstances are consistent with guilt of accused - they are inconsistent and incompatible with innocence of accused and only sentence which would meet ends of justice is supreme penalty of law - held, conviction and sentence of accused confirmed. .....naik, j.1. these two cases arise out of the same judgment and therefore can be disposed of by a common judgment. the case for the prosecution may be briefly outlined as follows : in the village of minnakkal in salem district in madras state there lived an old poor widow called perumai. she had five daughters and in the present case we are concerned with the third daughter by name palaniammal alias panniakkal alias pappal, whose sudden death under mysterious circumstances has led to the instant prosecution. palaniammal was married to one kuppanna gounder of minnakkal about seven years back. about three years prior to the incident, she had separated from her husband and had come to stay with her mother perumai. it appears that some arrangement was arrived at between palaniammal and her.....
Judgment:

Naik, J.

1. These two cases arise out of the same judgment and therefore can be disposed of by a common judgment. The case for the prosecution may be briefly outlined as follows : In the village of Minnakkal in Salem district in Madras State there lived an old poor widow called Perumai. She had five daughters and in the present case we are concerned with the third daughter by name Palaniammal alias Panniakkal alias Pappal, whose sudden death under mysterious circumstances has led to the instant prosecution. Palaniammal was married to one Kuppanna gounder of Minnakkal about seven years back. About three years prior to the incident, she had separated from her husband and had come to stay with her mother Perumai. It appears that some arrangement was arrived at between Palaniammal and her husband Kuppanna in which the latter had agreed to pay her maintenance. Kuppanna had married a second wife, presumably after giving divorce to Palaniammal. It further appears that Kuppanna had stopped paying the amount of maintenance to Palaniammal as per the agreement with the result that Palaniammal was driven to file a suit in the Court of the District Munsiff at Salem for maintenance. One Arumugam of Namakkal, who was the President of the Village Panchayat Board of Kurgupuram a place which is ten miles from Minakkal, was helping Palaniammal in prosecuting this litigation. Arumugum is a man of status. Perumai had about four acres of land in Minakkal. Two years prior to the incident she had sole all her lands to Namba gounder, one of her sons-in-laws, for a sum of Rupees 5,000. Perumai put on ornaments on the person of Palaniammal at the time of her marriage with Kuppanna and Palaniammal continued to retain those ornaments after she had come to stay in the house of he other. After the sale of the lands neither Palaniammal nor Perumai had any source of maintenance. They, therefore, used to go out to work as labourers in the field of others. Palaniammal occasionally worked in the field of the accused on hire. The accused. M. V. Palaniswamy, is a man of status having lands at Minakkal. His income from the lands was to the tune of Rupees 5,000 a year. He was a member of the Panchayat Board of Minnakal. He used to take contracts or supervise the work construction of roads Palanisammal occasionally used to work on this road construction project carried under the supervision of the accused. the accused was also a social worker.

(2) 13th August 1964 was the day for the holding of Mariamman festival at Attiyampatti, a place which is three miles away from Minnakkal. On that day, Perumai along with her daughter, Palaniammal and one of her grand-sons, Palaniappan, the son of Namba gounder, started going to Attiyampatti to attend the festival. On their way they passed through the fields of the village Sappayapuram. One Subbaraya Gounder, who is Perumai's husband's sister's son, was working in his field. Hemet palaniammal while she was going to wards Attiyampatti. He had a talk with her. She told him that she was going to Namakkal to meet Arumugam since she had received a letter from him in regard to the suit. Subbaraya Gounder noticed that the deceased Palaniammal was wearing certain ornaments on her person. Perumai has deposed that in the course of the festival she had occasion to meet the accused. the movements of the deceased Palaniammal at movements of the deceased Palaniammal at Attiyampatti are not known except the fact that at about 5 p.m. she had gone to Vaidyalingam a tailor at Attiyampatti, with a view to get a blouse stitched for her. She sat in the shop, got the blouse stitched and then left the place. There is no evidence regarding the movements of the deceased till she actually boarded the train at Madras on the night of the 14th August 1964.

(3) It is the case for the prosecution that on the 14th August 1964 the accused went to Vellore and met Natesan, who is a cloth merchant at that place. Natesan is a friend of the accused and the accused had lent a sum of Rs. 5,000 to him. Natesan was repaying the loan by making small payments from time to time. It is not disputed that some balance remained to be paid to the accused. There is, however, dispute as to the exact amount of the balance, Natesan contending that the balance was to the extent of about Rs. 1,000, whereas the accused has assented in his statement that the balance was to the tune of Rs. 4,000. On 14th August 1964 the accused obtained a sum of Rs. 230 from Natesan. Natesan made an entry in regard to this item in his ledger (Exhibit 36) and obtained the signature of the accused. it is suggested for the prosecution that originally the entry bore the date 14th August 1964. It is further suggested that the accused took a bus at about 12.35 noon from Vellore and went to Madras. He reached that place at about 4 p.m. it is also suggested that the accused reserved two seats in the bus in the name of M.A. Kandaswamy. The bus reached Madras at about 4 p.m. At about 5 p.m. the prosecution case runs, the accused reserved two seats in the first class compartment in the names of M. A. Kandaswamy and Laxmi Kandaswamy in 10 UP Madras - Bombay Mail for that purpose, he submitted an application (Exhibit 6). It is the prosecution case that against Item No. 4 of Exhibit 6, the accused put the letters 'M.A. Kandaswamy'. Against item No. 2 viz., Number of sleeper berths required (in words). The following contents appear;

'Two - Preferably coupe.'

As against the Item No. 3 under the title 'Name and full postal address of each of the passenger for whom reservation is required'. The following contents appears:

'(i) M. A. Kandaswamy,

(ii) Mrs. Laxmi Kandaswamy.'

The address is mentioned as ;

'Subramanya Koil Street,

Vellore. N. A. '

As against the item No. 5 which is entitled 'Relationship of the applicant to passengers and why he preferred the application on their behalf'. The following words have been 'Self and family'.

The 10 UP Madras-Bombay Mail left Madras Station at 9-10 p.m. on 14th August 1964. It is the case for the prosecution that a number of witness such as car attendants, train conductor guards and Ticket collectors, had occasion to see the passengers who were travelling under the names Mr. And Mrs. M. A. Kandaswamy during their journey from Madras to Dadar. The couple was occupying cabin 'A' in bogie No. 2985. At about 5-30 a.m. on 16th August 1964 when hammals entered the bogie at Dadar Railway Station, they noticed that a woman was lying below the berth in an unconscious condition. The male passenger was not in the bogie at that time. It is suggested for the prosecution that the accused crossed the platform by the over bridge towards the Western Railway station and boarded a taxi. V.P. Kullkarni, train conductor guard, informed head constable, Janardhan Bhalerao about the fact that a female passenger was lying in an unconscious condition in cabin 'A' in bogie No. 2985. He submitted a report (Exhibit 94) to the Railway Police Sub-Inspector, Dadar. With the aid of some hammals including hammals Ramu Thorat, Hospital. She was admitted in the K. E. M. Hospital at 6-20 a.m. Bogie No. 2985 was detached from the train and kept in the railway yard in the siding. The woman who was later on identified as Palaniammal was treated in the hospital by Dr. Miss Acharya. Dr. Miss Acharya noted down the symptoms on a sheet of paper known as Surgical Medical History Sheet (Exhibit 119). In the column entitled 'House Officer's Notes' we find the following entries:

'An unknown patient found in a state of drowsiness in a train and brought by the police. History of frothing at the mouth.

On examination : Patient drowsy muttering unintelligibly and at times rowdy.

Pupils pin-point.

Not reacting to light.

Pulse?

Respiration-20 p.m.

B. P. - 68 mm

Breath does not smell of anything.

Respiratory system - Ravels all over secretions on the mouth and in the throat.

Cardio-Vascular system (C. V. S) -Pulse? Heart sound not heard.

Alimentary system (AS) and Central Nervous System - Detailed examination could not be done'.

Reference is than made to the treatment viz., that Coramine injections were given. Atropine also injected and intravenous glucose drip stated the notes further states that Ryle's tube was passed and brownish aspirate taken out which was later sent to the Chemical Analyser. At 7 a.m. intravenous drip was continued as also cording and coramine injections. Oxygen was also continued. But the patient expired at 7 a.m.

(4) Turning now to the movements of the accused, it is the case for the prosecution that the accused went back to Vellore by train. In this connection, it is pointed out that it is possible for the accused to catch Bombay -Madras Janata Express. Which leaves V. T. Station at 8-20 a.m. It reaches Dadar at 8-32 a.m. and Kalyan at 9-15 a.m. The same train reaches Renigunta at 10-5 a.m. on accused to reach Renigunta at 10-5 a.m. on 17th August 1964. From Renigunta there is a meter gauge train. It was possible for the accused to catch the first train which starts at 10-35 a.m. and reaches katpadi at 3-20 p.m. The second train leaves Renigunta at 3-30 p.m. and reaches Katpadi at 8-50 p.m. There is a bus service from Katpadi to Vellore, the distance being only four miles. IT is therefore the prosecution case that the accused after having administered some drug causing deleterious effects on his companion viz., Palaniammal, must have hurried back by the first available train and must have reached Vellore before 9-45 p.m. on 17th august 1964. At 9-45 p.m. the same day the accused went to Minerva caf at Vellore and lived there till the next day i.e., 18th August 1964. The manager of the Caf had made entries in the hotels register to show that the accused had entered the hotels at 9-45 p.m. on the 17th August and left it on the 18th August. On 18th August 1964 the accused went Netesan's shop in the morning and requested him that the date of the entry which was 14th August 1964 should be changed to 17th August 1964. It is suggested that the instance of the accused, Natesan rubbed the figure '14' and wrote the figure '17' on that rubbed portion. Half an hour later the accused went back to Natesan and offered to sell the gold ornaments, which he had brought with him. Guruswamy Mudaliar, who is a relation of Natesan and who working as a clerk in Natesan's shop was asked by Natesan to find out a goldsmith who would agree to purchase the ornaments. IT appears that Guruswamy did not himself know any goldsmith. He therefore went to one Rajagopal a tailor who has a shop near the shop of a goldsmith known as Munuswamy called Mjurugesan, who is a gold polisher. One Swaminathan was sitting in the shop of Munuswami. Munuswami and Swaminathan went to the shop of Natesan for seeing the ornaments. At the time the accused and Guruswami were in the shop. The accused showed the ornaments to Munuswami then asked the accused to see him at his place and Guruswami went to Munuswami at 3 p. m. Swaminathan was present at this time also. The ornaments were weighed and found to be 163 grams in weights. The price was fixed at Rs. 1,900. Munuswami told the accused that he did not have sufficient funds and asked them to meet him at 6 p.m. ?He also asked the accused to keep the ornaments with him. Thereafter Munuswami went to Murugesan for getting the ornaments polished. Eventually he sold the ornaments to Murugesan for a sum of Rs. 1, 940. At about 6-30 p.m. the accused along with Guruswami went to Munuswami and has was paid a sum of Rs. 1, 900 as previously agreed upon. It is the case for the prosecution that the profit of Rs. 40 was divided equally between Munuswami and Swaminathan. On 19th August 1964 the accused approached Munuswami in the morning. He had brought two earrings with stone setting. The accused asked Munuswami to prepare one right from them. Thereafter, the accused left Vellore. It is the case for the prosecution that the accused went to Vellore about a month after the above date and collected the ring from Munuswami. It is suggested that one of the rings that was produced by the brother of the accused on 5th December 1964 was the ring which was prepared by Munuswami. This ring came to be attached under a Panchanama (Exhibit 32)

On 16th August 1964 Railway Police Sub-Inspector, Kumbhojkar started an enquiry into the cause of the death of the man under S. 174, Criminal Procedure Code who was then unknown. On 16th August 1964 he inspected the detached bogie and noticed that there were blood-stains on the berths lower as well as upper on the back rest and at other places in the cabin such as the aluminium stripe below the window. He also noticed that the back rest was smeared with frothy material. There was also froth material. There was also froth on the rubber flooring of the compartment under the berth i.e., berth No. 1. He also saw hair sticking to the frothy material. On a close inspection he noticed that there were finger prints on the mirror, which was above the centre window. He therefore, sent for the Fingerprint Expert from the C. I. D. Crime Branch Bombay. The Finger print Expert, Shankar Karla, put some power on the fingerprints for making them clear and visible. The C. I. D. photographer was then called and he took the photographer of the fingerprints. Kumbhojkar then got a Panchnama made of the condition of the berths in the bogie. He noticed two small drops of blood on the flooring outside cabin 'A'. He also noticed a discarded empty Scissors cigarette packet. He further found a number of cigarette stubs, burnt catch sticks and another empty packet of Scissors cigarette in the same cabin, he attached all these articles under a Panchanama. The aluminium strips on which there were blood-strains were removed as also the mirror was taken charge of. The frothy material was collected in a bottle. The chipping of the flooring on which there were blood stains was taken i.e., pieces of rexine taken from the berths and the back-rest. Kumbhojkar then drew a panchanama (Exhibit 79) about the condition of the articles described above. Head constable Sawant produced the clothes of the deceased and also a ring, a toeing, an iron ring and a bunch of artificial hair. At the end of the sari which is worn by women on the shoulder, there were blood-stains on the blouse near the left shoulder and at the end. There were corresponding stains on the bodice. Kumbhojkar cut the piece of the sari, blouse and bodice for being sent to the Chemical Analyser. He got a description of the companion of the deceased from the car attendant Pingale. He had also come to know from the reservation chart that the two persons travelled in that cabin under the names of Mr. And Mrs. M. A. kandasyamy. He sent the description of the man to all the police Stations in Greater Bombay and also to the Railway Stations in the State of Bombay. He enquired about M. A. Kandasyamy on the address mentioned in the reservation application form through the District Superintendent of Police, North of Arcot district and learnt that there was no such person at Vellore on that address. He deputed Sub-Inspector Dadar to Madras the instructions to public's the photograph on the woman in Tamil newspapers. Dinamani, and Dina Thanthi'. Accordingly, the photograph was published. In the meantime, he took the fingerprints of the hamals, the police constable and the railway servants, pingale and Kulkarni, who had occasion to go into the cabin. Those fingerprints were taken for the purpose of ascertaining whether the fingerprints on the mirror were of any one of them. On 31st August 1964. Dr. shivamrutam, a resident of Minnakkal and a friend and medical attendant of the family of Perumai, wrote a letter to the Railway Police Bombay stating that one lady known as Paniyakka alias Palaniammal of Minnakkal was missing from her parents since 13th August 1964. He further stated that his suspicion was roused on seeing the picture appearing in a daily paper that it must of the missing lady. On 2nd September 1964 Perumai went to the police station at Vennadur, which is about a mile and a half from Minnakkal and gave a report about the fact that her daughter was missing from 13th August 1964. Her statement was recorded on the same day and it is at Exhibit 50. In this statement, she stated that her daughter had received a letter from him for the purpose of reaching a settlement in the litigation started by her against her husband. Accordingly, her daughter left the place telling her that she would go to arumugam. She then referred in detail to the clothes and ornament s which Palaniammal was then wearing. She stated as follows (Exhibit 50)-

'While she was going she had dressed in red coloured silk saree and Kumkum coloured jacket. Also she had taken some black thread (cotton) sarees and jackets. In hand she was wearing a gold ring engraved 'P' on it. While going she was wearing on the neck a necklace with white stones weighing nearly six sovereigns, a neck gold chain weighing nearly five sovereigns, bangles weighing nearly eight sovereigns and in the ear white stone ear-ring. So far she has not returned'.

She then referred to the photograph appearing in daily newspaper 'Thanthi' and stated that her relatives had informed her that the photograph resembled her daughter. On 3rd September 1964 after the receipt of the letter written by Dr. Shivamrutam, Sub-Inspector Kumbhojkar sent a photograph of the woman to him. On 11th September 1964 Perumai came to Bombay along with Dr. Shivamrutam. Kumbhojkar took them to the morgue and showed them the body. Both of them identified the body as that of the deceased Palaniammal. He asked them to take charge of the body, but Perumai informed him through Dr. Shiavamrutam that it was not possible for her to make arrangement for cremation in Bombay. The body, therefore, was cremated by the Bombay Municipal Corporation. Naturally, the first suspicion fell on Arumugam, Kumbhojkar therefore, called Arumugam and took his finger prints. He sent them to the Fingerprint Expert for identification and comparison with the chance fingerprints obtained on the mirror in the compartment. Kumbhojkar received the report from the hospital authorities on 6th October 1964 stating that death was due to severe pulmonary oedema and early broncho-pneumonia following administration of some unknown agent prior to her admission the hospital Accordingly, he registered an offence under S. 302, Indian Penal Code on 7th October 1964. He then started regular investigation. The investigation was taken over by Inspector Thakre or 23rd October 1964. After making enquiries from persons in Bombay, pune and Sholapur he proceeded to Minnakkal and collector certain information about the accused. He then called the accused and interrogated him. He put the accused under arrest on 14th November 1964. Before that he had recorded the statements of the members of the railway staff who had given description of the companion of the deceased who travelled with her in cabin 'A' of bogie No. 2985 of 10 UP Madras-Bombay Mail on the day in question. The same day the finger prints Expert for his examination. On a certain statement made by the accused, Thakre went to Vellore and contacted witness Natesan and seized his ledger books and two cash books under a panchanama (Exhibit 36). He noticed signs of rubbing from which he concluded that the date was altered to 17th August 1964. He sent the entry at Exhibit 36-A to the Hand writing Expert for his opinion. He then came to Bombay along with the accused sometime after 15th November 1964. Three parades were held for the identification of the accused by different witnesses. The first parade was held on 20th November 1964 in Bombay and witnesses Pingale, Jadhabv and V. Rajamani identified the accused in this parade. The accused was then taken to Sholapur on 23rd November 1964 where a second parade was held for the identification of the accused by other witnesses. In this parade witnesses Shaikh Abdul Karim, Mahaling. Bidwe V.Y. Kulkarni, Mohammed Hussein and Mahomed Nazir identified the accused. One Kutbuddin, who was also present at this parade, was unable to identify the accused. Borkar was not available at the time of this identification parade held in Sholapur on 23rd November 1964. Therefore a third parade was arranged on 19th December 1964 in Bombay and witness Borkar identified the accused in this parade. The accused was sent to the North police hospital to enable the surgeon to take his blood and that blood was sent to the chemical analyser for examination and report. When Inspector Thakre arrested the accused he noticed that there was a mark of injury on his right thumb. He, therefore sent him to the Police Surgeon in Bombay for examination for ascertaining the age of the injury. After the receipt of the report of the Fingerprint Expert, Inspector Tharkre interrogated the accused. On a statement made by him he took the accused to Vellore and contacted Natesan and recorded his statement. Consequent to a statement made by Natesan he recorded the statement of Guruswamy, Munuswamy, Murgesan and Swaminathan on 30th November 1964 and 2nd December 1964. On a statement made by the accused, Inspector Thakre went to Minnakkal and attached a ring produced by the brother of the accused on a certain information he went to Minerva Cafr Lodging House. On 5th December 1964 he contacted M. A. Kandaswamy, who was the President of the Village Gram Panchayat Board at Minnakkal. He showed the application for reservation (Exhibit 6) to Kandaswamy. He then obtained a specimen signature of M. A. Kandaswamy under a panchanama (Exhibit 29). The specimen handwriting of the accused was taken in Bombay on 20th November 1964. The signature in the application for reservation read 'M. A Kandaswamy'. He asked the accused to write 'M. A Kandawamy' on certain sheets of paper in the presence of the panchas. These sheets were taken charge of under a panchanama (Exhibit 89). On 26th November 1964 he again took specimen hand writing of the accused at Poona in the presence of the panchas. These sheets were taken charge of under a panchnama (Exhibit 100) . Again he asked Sub-Inspector Dhere to take specimen hand writing of the accused. Accordingly, Dhere took the specimen handwriting on 13th December 1964 at Poona which was attached under a panchanama (Exhibit 52). These sheets were sent along with Exhibit 6 to the Handwriting Expert for his examination and report. The signature of real M. A. Kandaswamy which were taken on 5th December 1964 were also sent to the Handwriting Expert. After completion of the investigation, Inspector Thakre submitted a charge-sheet against the accused under Section 302, Indian Penal Code on 16th March 1965.

(6) At the trial in the Court of the Session, the accused abjured the guilt. He denied that he travelled with the deceased, Palaniammal in the Madras-Bombay Mail on 14th August 1964. He also denied that he was in any way connected with the deceased. In particular, he denied that she was working in his fields. He also denied that he had taken up the work of construction of roads or that the deceased was working under him in regard to that project. He further denied that he had gone to Vellore on 14th August 1964 and took an amount of Rs. 230 Natesan on that day. According to his he had lent a sum of Rs. 5,000 to Natesan and that a large balance of about Rs. 4,000 was still outstanding from Natesan. His case was that he had been to Vellore on 17th August 1964 with a view to demand that balance and that Natesan paid him a small amount of Rs. 230. He admitted that he put his signature below the entry (Exhibit 36-A) in the ledger book at Exhibit 36, but asserted that he had put that signature on 17th August 1964. He denied that either the entry was made on 14th August 1964 or that he put his signature on that date. He asserted that he left Vellore on the night of 17th August 1964. He asserted that he attended the function to celebrate the Independence Day at Minnakkal on 15th August 1964. He stoutly denied that he sold any ornaments to Munuswamy or Murgesan through the intervention of Natesan or Guruswamy. He asserted that he did not know Munuswamy, Murgesan or Swaminathan. He pointed out that he is a well to do person, that he owns six acres of land and that his annual income is to the tune of Rs. 5,000 a year. He asserted that he was doing social work and that it was through his intervention that the Chief Minister of Madras, Bhaktavastalam agreed to attend the function at Minnkkal. According to him, he delivered the well-come speech on that occasion. His main contention was that there were two parties in the panchayat

Board of Minnkkal, one led by Thaila Gounder and the other by Kandaswamy, Gounder. According to the accused; he belonged to the party of Thaila Gounder. He has then set out the details about the contest which took place between Thaila Gounder and Kandaswamy Gounder during the election to the post of the President of the Panchayat Board and contended that not only he canvassed for Thaila Gounder but that he recorded his vote in favour of Thaila Gounder. According to him, since then the relations between him and M. A. Kandaswamy have been embittered. He suggested that it is at the instance of M. A. Kandaswamy that the prosecution witnesses and in particular, Minnakkal group of witnesses have tried to involve him falsely in the present offence. He denied that the letters 'M. A. Kandaswamy' against item No. 4 in Exhibit 6 were in his hand writing. He denied that he had made any application for reservation of seats on 14th August 1964 in the 10 UP Madras-Bombay Mail. In regard to the identification parades that were held in Bombay and Sholapur. He suggested that he was shown to the identifying witnesses while he was kept in the respective lock-up at the police stations. He also stated that the Magistrate was telling the panch, who went out for calling the identifying witnesses, the rank occupied by the accused in the line of persons who were telling for the parade. As regards the produced by his brother at Exhibit 31, he stated.

'Inspector asked me if it was my practice to put ring on my finger. I replied in the affirmative. He asked me to bring a ring which I used to put I used to were three rings. Exhibit 31 is one of them. I had sent my paternal uncle's son to bring the ring from my house. After seeing the three rings Inspector Thakre selected this ring. And allowed me to take back the other two rings. The rings was prepared two years back at the time of marriage of my sister by the father-in-law of my sister'.

He denied that he has given two ear rings to Munuswamy on the 19th August 1964 asking him to prepare one ring out of them. He also denied that the ring at Exhibit 31 was the same as was prepared by Munuswamy. In regard to the specimen hand writings obtained from him by the police in the course of investigation, he stated that the was asked to copy down the writing on Exhibit 6 viz., 'M.A. Kandaswamy' and accordingly he wrote the letters on the sheets as per the suggestion made to him by the police. He stated that none of the panchas was present at the time when he wrote out the sheets. In short the case for the accused is that he did not travel with the deceased in 10 UP Madras-Bombay mail in the day in question and that he knew nothing as to whether the deceased was travelling in that train on the relevant dates and as to what happened to her in the course of the journey. In fact, he suggested that even the identity of the deceased has both been established in the present case.

(7) The learned Sessions Judge, after a protracted trial held that the deceased met with an unnatural death; that it was the accused who seduced the deceased from Minnakkal and took her in 10 UP Madras-Bombay Mail; that in the course of this journey he must have administered some drug having deleterious effect on the health of the woman and eventually causing her death; that he did this with the object of mis-appropriating the ornaments that were with her; that having accomplished the object of administering the drug or poison and after finding that the deceased was lying below the berth in an unconscious condition, he decamped from the train and ran to Vellore; that he had been to Vellore on 14th August 1964; that he borrowed a sum of Rs. 230 from Natesan with a view to enable him to defray the expenses of the journey; that he put his signature in the ledger book on that date; that after running away from Bombay, the accused went back to Vellore and contacted Natesan and asked him to change the date 14th August 1964 to 17th August 1964 and thereafter he got the ornaments belonging to the deceased sold through Natesan's clerk, Guruswamy for a sum of Rs. 1,900. The learned Sessions Judge believed the evidence of the railway witnesses, who identified the accused as also the deceased while the two were travelling in cabin 'A' of bogie No. 2985 of 10 UP Madras-Bombay mail on 14th, 15th and 16th August 1964. He also held that the letters 'M. A. Kandaswamy' appearing on the application from for reservation (Exhibit 6) were in the handwriting of the accused which indicated that the accused travelled under an assumed name or a pseudo name. The learned Judge also held that the accused lured away the deceased from Minnakkal with a view to misappropriate her ornaments and that he got rid of her by administering a drug or poison which led to her death so that he would not be exposed and held responsible for the misappropriation of the ornaments. He also felt that this was a case of cold-blooded and sordid murder committed for the sake of pecuniary gain and murder of a woman with whom the accused deserved to be awarded the highest sentence laid down under S 302, Indian Penal Code. Consequently, he convicted and sentenced the accused to be hanged . The death sentence has come up for confirmation and the accused has preferred an appeal from the conviction.

(8) Mr. Kode, for the accused, who argued the appeal with ability and in great detail, contended in the first place that the prosecution has failed to prove that the deceased died an unnatural death. He argued that on the medical evidence led in this case, death by natural causes cannot be ruled out. According to him, this was a case of sudden death and since the deceased died under suspicious circumstances, the prosecution, the prosecution has jumped to the conclusion that this must have been a case of unnatural or homicidal death. He further contended that the motive suggested for the prosecution is not only not adequate but is ridiculous. According to him, it was unthinkable that a man of the position of the accused would stoop so low position as to commit murder of his own beloved merely for the purpose of securing a small gain of Rs. 1,900 or so. He attacked the evidence of the railway witnesses, who tired to identify the accused, firstly on the ground that all of them are interested in upholding the prosecution case and secondly, it was not possible for any one of them to identify the accused person after a lapse of time that intervened between their so called observation and the dates of the identification parades. He also argued that the evidence of Natesan and his companions viz., Guruswamy, Munuswamy, Murgesan and Swaminathan, is in the nature of tainted or accomplice evidence and since their evidence is not supported even by the scrap of a paper, the Court should not accept the said evidence. He suggested that there is dispute between Natesan and the accused in regard to the exact amount that remained outstanding between the debtor and the creditor and in order to get himself rid out of the indebtedness. Natesan has cooked up a false story relating to the so-called sale or ornaments. He pointed out that the prosecution has been unable to lead any evidence relating to the movements either of the deceased or of the accused after Attiyampatti till Vellore. He also pointed out that there was also no evidence travelled from Vellore upto Madras till he was supposed to have boarded 10 UP Madras-Bombay Mail. He also argued that the accused did not have a fair trial inasmuch as copies of the statements of a larger number of witnesses recorded under section 174, Criminal Procedure Code were not supplied to the counsel for the accused at the proper time so as to enable to properly cross-examine the witnesses. He also contended that the identification parades have not been conducted in a fair and straightforward manner and the investigating officer has not stated that proper precautions were taken for concealing the identity of the accused during the course of his travel first from Madras to Bombay and then from Bombay to Sholapur at the time of the second identification parade. In substance, his argument is that at best this may be a case of strong suspicion. But suspicion however strong cannot take the place of doubt.

(9) The case for the prosecution solely rests upon circumstantial evidence. The principles relating to appreciation and evaluation of circumstantial evidence are well settled. In the first place, each of the circumstances on which the prosecution relies, must be affirmatively established. In the second place, these circumstances considered in their totality must be consistent and consistent only with the guilt of the accused. In the third place, the circumstances must be incompatible with the hypothesis of the innocence of the accused. The cases in which these principles have been propounded are legends and it is enough to cite a passage from the judgment of the Supreme Court in Govinda Reddy v. State of Mysore, AIR 1960 S.C. 28:

' In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.'

Before we deal with the circumstantial evidence led in this case, the first question for our consideration is whether the deceased, Palaniammal met with an unnatural death. If the prosecution fails to prove that Palaniammal died by unnatural causes, then it would be an end of the prosecution case. The question as to whether the deceased died an unnatural or a violent death is to be decided mainly with reference to the medical evidence and the medical authorities. Mr. Kode contended that the question as to whether the deceased met with a violent or unnatural death can only be decided with reference to the medical evidence. We are not prepared to accept this proposition as an absolute proposition of law. Wills in his famous book on the Principles of Circumstantial Evidence, 1912 edition, page 333 states:

'In cases of homicide three propositions must be made out in order to establish the corpus delicti:

(1) That a death has taken place.

(2) That the deceased is identified with the person alleged to have been killed.

(3) That the death was due to unlawful violence or criminal negligence.'

'In the great majority of cases, the moral conduct of the person accused or suspected has little or nothing to do with the investigation of death, identity, or foul play, but it would be going too far to say that moral conduct of an accused or suspected person can have no bearing upon any of these questions'.

Again at page 401 the following passage appears:

'The Lord Chief Justice, Lord Campbell, in his charge to the jury said that: 'in cases of this sort the evidence had often been divided into medical and normal evidence; the medical being that of the scientific men, and the moral the circumstantial facts which are calculated to prove the truth of the charge against the party accused. They cannot 'be continued', be finally separated in the minds of the jury, because it is by the combination of the two species of evidence that their verdict ought to be found. . . .

His Lordship also said;

'It is impossible that you should not pay attention to the conduct of the prisoner, and there are some instances of his conduct as to which 'you' will say whether they belong to what might be expected from an innocent or a guilty man.''

The propositions enunciated by Wills have been accepted by the Supreme Court in Anant Lagu v. State of Bombay, : 1960CriLJ682 Hidayatullah J., who delivered the judgment for the majority of the Court, stated;

'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 post-mortem 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'.

Indeed, there may be cases where the corpus delicti may not be forthcoming at all. To quote Wills again, at page 326 the learned author observes:

'It is clearly established law that it is not necessary that the corpus delicti should be proved by direct and positive evidence, and it would be most unreasonable to require such evidence. Crimes, and especially those of the worst kinds, are naturally committed at chosen times, and in darkness and secrecy; and human tribunals must act upon such indications as the circumstances of the case present, or society must be broken up. Nor is it very often that adequate evidence is not afforded by the attendant and surrounding facts, to remove all mystery, and to afford such a reasonable degree of certainty as men are daily accustomed to regard as sufficient in the most important concerns of life; to expect more would be equally needless and absurd. Again, at page 328 the author observes:

'It is enough if its existence the highly probable, particularly if the opposite party has it in his power to rebut it by evidence, and yet offers none; for then we have something like an admission that the presumption is just.'

It would thus be clear that the Court would be entitled to raise an inference about the unnaturalness of death on the basis of only circumstantial evidence. In this connection, the case of Mary Anna Nash reported in Criminal Appeal Reports, Vol. VI page 225, edited by Herman Cohen (Stevens and Haynes, Law Publishers), gives us a proper perspective. The facts of that case were as follows:

On the 27th of June 1907 the appellant was charged with the murder of her illegitimate son, aged five years and nine months. The body was discovered in a well at Burbage in April 1908; an inquest was then held, quite close to the scene of the alleged murder and to the place where the appellant was then living. The features were unrecognisable, and decomposition was advanced. At that time, no evidence was forthcoming and no suggestion was made against the appellant. In October 1906, appellant removed the child from care of her father and placed him with Mrs. Mary Stagg, at Pewsey. She got behind in her payments, and on May 29, 1907, he was removed to a Mrs. Emma Stagg at Aughton, with whom appellant was herself then living. On the way the child was taken for a rest to the cottage of a Mrs. Taken for a rest to the cottage of a Mrs. Sherwood, which overlooks the field where the well is in which the body was afterwards found. Mr. Stagg objected to keeping the child, and one or two days after June 26, 1907, appellant took him away, saying she was going to the house of a Mrs Hiller, near Marlborough. She returned the same evening without him, after an absence of about twelve hours; and then on several other occasions stated, untruly, as was admitted at the trial, that the boy was at Mr. Hiller's alive and well. Mrs. Sherwood, which overlooks the field where after the child was at her house she met him walking on the Aughton side of her cottage' i.e. going for Mrs. Stagg's house towards the well, and beyond that in the direction of Marlborough, and that he was accompanied by a woman whom she could not identify, but who was tall. . . . . . . In December 1907, two workmen, looking in to the well, saw something floating, which they took to be a dog; they could touch the water with a stick. They saw nothing else; no doubt the well was wider down below than at the aperture, which was 18 inches in diameter. The remains of dog were afterwards found in the well. The evidence was that if the body of the child was put in the well in June 1907 it must have been floating by December. In April, 1908, it was found by two other workmen, although a doctor was called in, he made no post mortem or other careful examination. There was no evidence even as to sex except from the general appearance and dress. There was nothing to show whether death was natural or violent, nor whether it occurred before or after the body was put into the well. It was conceded that a child of five or six years could lift the well cover, and might therefore, have fallen in accidentally.

The Lord Chief Justice, Mr. Justice Darling and Mr. Justice Banker held: but we cannot accept that Mr. Goddard cannot have meant that there must be proof from the body itself of a violent death'

In the famous Palmer's case where there was conflicting expert evidence on both the sides, Lord Campbell said that circumstantial evidence is all that can be reasonably expected and he pointed out that of the various heads of evidence in charges of poisoning that of moral conduct is of most general interest (see page 374 of Wills). At page 375 Wills says:

'In most criminal charges, the evidence of the corpus delicti is separable from that which applies to the indication of the offender; but in cases of poisoning, it is often impossible to obtain conclusive evidence of the corpus delicti, irrespectively of the explanatory evidence or moral conduct: and Mr. Justice Buller, in Donnellan's case told 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 some poison administered, or that there was not, and that every part of the prisoner's conduct was material to be considered' (Vide page 376 of Wills).

Again at pages 376 and 377 Wills observes : 'It is indeed, obvious that where the medical evidence is not conclusive as to the cause of death, evidence of facts tending to show that the accused person knew that poison had been administered is relevant to the question whether the deceased did in fact die of poison'.

It would thus be clear that even for the purpose of finding out as to whether death was unnatural, we can, and have got to take into account the conduct of the accused.

(10) Although this is the position in law, still, for the sake of clarity of understanding, it would always be convenient to separate the medical evidence from what is known as moral evidence, and first consider the medical evidence separately and thereafter if any doubt remains on the question as to whether death unnatural, the conduct of the accused should be pressed into service. With that end in view, we will deal first with the medical evidence and consider whether that evidence is sufficient to lead to the conclusion that the deceased met with an unnatural death either as a result of administration of poison or as a result of administration of a drug, which would lead to the death of the deceased. The deceased Palaniammal was admitted in the K.E.M. Hospital at 6-15 a.m. on 16th August 1964 and she expired at 7-15 p.m. on the same day in the said hospital. We have already referred to the contents of the case-papers which have been styled as Surgical Medical History Sheet. (Exhibit 119). The symptoms which the patient exhibited on admission have been noted in considerable detail on these case-papers. Dr. (Miss) Acharya, who treated the deceased on admission and prepared the notes at Exhibit 119, has stated that on examination she noticed the following symptoms:

'At that time, she (the deceased) was in a semi-conscious and delirious state. She was muttering incoherently and was at times rowdy. By that I mean she was moving her limbs. Her pulse was not felt. I could record the systolic blood pressure. It was 68, Diastolic could not be recorded, because it was very low. Her pupils were pin-point and not reacting to light. Her pin-point and not reacting to light. Her breath did not smell of any specific smell. There were secretions at the mouth and in the throat. Examination of the respiratory system revealed bubbling sounds were heard in both the lungs. That would show that her lungs were flooded with fluid. Other examination could not be done because here condition was very low and treatment had to be instituted immediately. We tried to drain out the secretions by means of suction pump. She was given injections of Coramine and Atropine . Coramine was given as a stimulant to the respiratory movement and Atropine to dry up the secretion. A glucose saline treatment was started to maintain her blood pressure. A stomach tube was passed and the stomach contents were aspirated. Brownish colour aspire was saved for chemical analysis, which was sent to the Chemical Analyser. She was also given oxygen and intravenous hydrocortison. Patient failed to recover and died at 7-15 a.m.'

It may be mentioned at this stage that the report (Exhibit 117) of the Chemical Analyser relating to the brownish aspirate that was sent to him for chemical analysis shows that no recognisable poison was detected. Dr. Acharya requested the Dean of the Medical College to carry out a post-mortem examination on the dead body. Later on, the post-mortem examination was carried by Dr. Vaidya. Dr. Acharya says that she asked Dr. Vaidya to hand over the viscera to the Chemical Analyser. Dr. Acharya had suspended her judgment as to the cause of the death till she received the post-mortem report as also the Chemical Analyser's report. On receiving these two reports, she applied her mind afresh to the question. She also consulted Rr. Joglekar . Dean of K. E. M. Hospital in regard to the cause of death of the patient and eventually, made the following entries in the case-papers (Exhibit 119):

'The death was due to severe pulmonary oedema and early broncho-pneumonia following administration of unknown agent.

This death could be accidental, homicidal or suicidal following administration of an agent which

could have been ingested, inhaled or injected'

She has then explained as to what is meant by oedema. According to her, oedema is present of fluid in the lung alveoli (small air spaces in the lung). She says that fluid was uniformly present in both the lungs. She had then explained as to what kind of broncho-pneumonia was noticed as a result of the post-mortem examination. According to her it was early broncho-phemonia, because very few areas were involved. She has further explained that in the case of a patient suffering from early broncho-phemonia about by disease and not by administration of any foreign agent, it is not detected very easily. She has added that advance broncho-phemonia shows the following symptoms': A patient has temperature, breathlessness and cough'. At paragraph (3) of her evidence, she has given reasons as to why she arrived at the conclusion that death was due to pulmonary oedema, which, according other, was primary and not secondary to any other disease. Says Dr. Acharya:

'Pulmonary oedema in a patient due to natural causes is a secondary to a disease in the heart, occasionally in the brain, kidney and lung. There was no abnormality with regard to the deceased in the brain, the heart and the kidney. If there was severe pulmonary oedema as a secondary effect to the condition of the heart, lung, kidney or brain, any one of the organs connected to it would be more severely affected. In this case, it was the other way round. All these organs were normal and yet there was severe pulmonary oedema in the lung'

It should be noted that the evidence of broncho-phemonia was found in what is known as histological examination carried out by Dr. Purandare. The date when this examination was made is not clear from the record of the case. It is, however obvious that the examination was done and the report submitted prior to 5th October 1964. On that date, Dr. Acharya submitted her report (Exhibit 118) to the Coroner of Bombay. Therein she has referred to the result of histological examination. She has stated:

'Histopathology revealed evidence of early broncho-phemonia in the lungs. Sceptical capillaries were congested. A few alveolar spaces contained edemas fluid and a few others contained acute inflammatory cells. Liver cells showed cloudily changes. Uterus showed endometrium to be in the proliferate phase. There were large number of chronic and acute inflammatory cells.'

Dr. Purandare has not been examined in this case. But, Dr. Vaidya has stated that he had seen all these slides on the microscopic examination carried out by Dr. Purandare and that he agreed with the findings recorded by Dr. Purandare. Dr. Purandare has made notes in his own handwriting in the autopsy report under the heading Histology report' and Dr. Vaidya has identified that handwriting, Dr. Acharya received the report (Exhibit 117) of the Chemical Analyser on 19th September 1964, which report stated. No recognisable poison was detected'. Dr. Acharya has then referred to the book on Poisoning-Diagnosis and Treatment by Sven Moschin who according to her, is an authority on the subject of poisoning for the proposition that pulmonary oedema i a frequent complication in poison. On the basis of the findings of the postmortem examination and the histological examination, Dr. Acharya has asserted;

'In this particular case, I ruled out a natural death. I would ascribe the death of the administration of some unknown foreign agent.'

The only theory that was put to Dr. Acharya as a alternative hypothesis relation to the probable cause of death was that of cholera sicca. We will have occasion to discuss this aspect of the matter at a later stage of this judgment. It may also be mentioned that there was a faint suggestion in her cross-examination as to whether pneumonia, which was found in the histological examination in the case of the deceased could be the result of the froth, which was coming out of the mouth, entering the mouth and eventually reaching the lungs. We may quote the question and the answer in full:

Q. - If a person is suffering from fits and falls down and if froth that comes out of the mouth goes into the lungs, it develops into pneumonia?

A. - That is known as aspiration pneumonia. In such a case, the sounds which a doctor would hear on the stethoscope would be different from the one I heard in examining that woman. The sound that I heard was bubbling sound. In the case of aspiratory pneumonia, a doctor would not hear bubbling sound. Before the 16th August, 1964 I have examined quite a number of cases who have aspiratory pneumonia. Severe oedema and broncho-phemonia'.

There was also a suggestion as to whether this could be a case of peripheral circulatory failure with signs of severe pulmonary oedema of the lungs as a result of food poisoning. Dr. Acharya pointed out that in such a case there would be signal of severe pneumonia and not severe pulmonary oedema. Dr. Acharya ruled out the alternative hypothesis of cholera sicca as an improbability and has given very good reasons in support of the same. she has finally stated that she reached the conclusion on the basis of her own clinical examination and the findings of the autopsy.

(11) Dr. Ravindra Vaidya, who carried out the post-mortem examination in this case, has given his evidence at Exhibit 121. He has stated:

'There were no marks of any external injury. Rigor mortis was present. Pupils were semidilated. My internal findings were as follows : The trachea and bronchi contained plenty of frothy secretion. Throat and lungs showed marked oedema. Stomach contained 100 c.c. of semi digested bile stained fluid. Semi-digested food material. The mucosa of the stomach was normal. Small intestine was normal. Liver was congested and friable. Alimentary track did not show any lesion. Nothing abnormal in the spleen and kidney was detected. Genital organs were normal. No evidence of pregnancy or any injury to genital organs. There was nothing abnormal in the central nervous system. The pericardium of the heart was normal. The heart was of normal size and shape. The heart was normal. The meanings covering the brain were normal. There was nothing abnormal detected in the brain. So far as the respiratory system was concerned, the trache, the mucosa covering the larynx and bronchi were slightly congested. The trachea and bronchi contained plenty of frothy secretion. More amount of such secretion could be seen pouring the tracheas ad bronchi on squeezing the lung. Both the lungs were heavy. Oedematous, sub-crepitate and potted on pressure. By pitted against pressure, I mean that if a thumb or a finger is pressed on the lung, the dent would be visible on the lung. In a normal lung the pressed portion of the lung would immediately come up and the dent would not be visible. The lung tissue (parenchyma) was slightly congested. The cut surface of the lung showed marked exudation of frothy fluid. The bronchi contained plenty of frothy material. The hilar lymph nodes were not enlarged. That shows that there was no marked infection of the lung. On a microscopic examination of the uterus I noticed that it was slightly infected. It was a chronic infection but that infection did not lead to the severe pulmonary oedema or the frothy secretion in the trachea and bronchi'.

Dr. Vaidya therefore, asserted that he could not find any natural cause for the death in his post-mortem examination. He has then explained that pneumonia may be of two types, one broncho-phemonia and the other lobar pneumonia. By lobar pneumonia is meant consolidation of whole lobe of a lung. According to Dr. Vaidya, this is due to exudation of inflammatory exudates in the air spaces of a lung. Dr. Vaidya asserted that in the case of the deceased both the lungs were totally affected. They were water-logged and pitted on pressure. In case of lobar pneumonia, only lobe is affected and it is solidified. It does not pit on pressure. In pulmonary oedema there would be frothy secretions in the traches and bronchi. This was what was found on autopsy in this case. According to Dr. Vaidya, in lobar pneumonia in the earlier stages, there is a mucoid secretion, which is different from watery secretions as it was in this case, Dr. Vaidya then proceeds to say;

'In the later stages of lobar pneumonia there is plenty of mucopurulent secretion. That is, mixture of mucus and pus. In this case I did not find either mucus or pus. Microscopically, in lobar pneumonia there is marked exudation of fluid and in this case, in addition to this, there was scanty exudates of polymorph cells. In case of lobar pneumonia there was marked exudation of inflammatory cells, so that the air spaces are fully packed with this inflammatory cells. In addition, there is a fibrin deposit in the air spaces. In the instant case, there was no fibrin deposite. There were few polymorph cells.'

The object of this part of Dr. Vaidya's exposition is to explain that pulmonary oedema would not be due to broncho-phemonia which was noticed in histological examination. Dr. Vaidya ha then tried to make a distinction between lobar pneumonia and broncho-pneumonia. He has pointed out that this could not be a case of lobar pneumonia for two reasons : (1) In lobar pneumonia, there is consolidation of the whole lobe of the lung, whereas in the present case, the lungs were totally affected, water-logged and pitted on pressure. In the case of lobar pneumonia, only lobe is affected and it is solidified, which means that it would not pit on pressure. (2) In the case of lobar pneumonia in the earlier stages, there is a mucoid secretion which is different from watery secretions as it was in this case. In the later stages of lobar pneumonia, there is plenty of muco purulent secreion, which is a mixture of mucus and pus. In this case, Dr. Vaidya did not notice either mucus or pus. He has also added a third point of distinction viz., in the case of lobar pneumonia, there is a fibrin deposit in the air spaces. In the present case there was no such deposit and there were few polymorph cells. He has then explained that in the case of broncho-pneumonia there is patchy solidification of lung tissue, so that when you feel for the lung it gives a nodular feeling. In the present case, there was no nodular feeling. In the case of broncho-pneumonia, in the earlier stages there is a mucoid secretion followed by plenty of mucoid purulent secretion. Dr. Vaidya has stated that in the instant case, under microscope he saw a few air spaces surrounding the bronchi showing scanty inflammatory cells. In addition to the above, he noticed marked oedema o f the rest of the air spaces. It is on the basis of this evidence that Dr. Vaidya came to the conclusion that pulmonary oedema was primary and early broncho-pneumonia was secondary to the pulmonary oedema. He has added that in the case of primary broncho-pneumonia, hilarlymph nodes may be enlarged, but such enlargement was not present in this case. He therefore, concluded that the severe pulmonary oedema was not due any natural disease. In reaching that conclusion he also took into consideration that the heart, brain and kidney were normal. He has also asserted that frothy material, which was coming out of the mouth, was produced primarily in the lung. As a result of the attempt made by the deceased to take air into breath the oedema got mixed with air bubble in that process. He has explained that when there is excess of secretion in the lung, that the lung tires to throw it out and that is how it came out in the form as it appeared in the case of the deceased. In answer to a question in cross-examination, Dr. Vaidya asserted;

'I do not agree that severe pulmonary oedema and early broncho-pneumonia can be caused by natural disease of ineffective nature.'

This question was posed on the basis of the letter (Exhibit 124) written by Dr. (Mrs.) Sathoshkar to the Sub-Inspector, Central Railway Police, Dadar, on 22nd October 1964. It is clear from the contents of this letter that the letter purported to be in reply to the queries made by the Sub-Inspector to the medical authorities on 7th October 1964. Unfortunately, that letter has not been produced and we are not in a position to know what were the questions that were asked, to which replies have been given by this letter. The letter (Exhibit 124) reads thus:

'Severe pulmonary oedema and early broncho-pneumonia can be caused by natural disease of infective nature, but it is unlikely in this case, as the patient was not having fewer on admission'.

What was put to Mr. Vaidya was only a part of this reply viz., whether pulmonary oedema and early broncho-pneumonia can be caused by natural disease of infective nature. The latter part in which Dr. Sathoshkar mentioned the reason for her positive reply to the effect that, this should be accompanied by fever, was omitted, and therefore, Dr. Vaidya asserted that he did not agree with the view with which he was confronted. Of course, at a later stage, the defence counsel, Mr. Nair did refer to the present of fever and asked Dr. Vaidya whether this would make any different to the problem. Dr. Vaidya replied;

'. . . . . . . .It is true that there may or there may not be fever in the case of natural infection'.

Unfortunately, Dr. Sathoshkar has not been examined and no request was made that she should be examined. As pointed out above, we do not know that nature of the question asked to her t o which the first reply in Exhibit 124 is purported to be directed. In the absence of Dr. Sathoshkar having been examined as a witness, it is not possible to accept the opinion expressed by her in reply to certain queries put to her. The opinion of an expert must be supported by reasons and it is the reasons and not ipse dixit which is of importance in assessing the merit of the opinion. According to the reply given by Dr. Sathoshkar, absence of fever is decisive and rules out the possibility of pulmonary oedema and early broncho-pneumonia being the effect of natural disease of infective character. Dr. Vaidya's admission was to the effect that there may or may not be fever in case of natural infection. No question was asked to him as to whether when pulmonary oedema and broncho-pneumonia are present and could be attributed to a natural disease of infective character, the patient would or would not get a fever. The expression 'natural infection' is generalised one. There are different varieties of infection, some very minor and some extremely virulent. All that Dr. Vaidya admitted was that there may be cases where fever may not be an accompaniment to natural infection. The reply given by Dr. Sathoshkar and that given by Dr. Vaidya, therefore, do not appear to be inconsistent with each other, nor do we think that either of them affects the merits of the opinion expressed by Dr. Vaidya. Certain questions were put to Dr. Vaidya based on the hypothesis that this was a case of cholera. As we propose to discuss the validity of this hypothesis separately, we do not propose to deal with the questions and answers given by Dr. Vaidya at this stage of the discussion. It would thus be noticed that the attempts made by the two medical witnesses examined for the prosecution was in the first place to establish that there was no evidence in the post-mortem examination about death being due to any natural causes. The two doctors have proceeded by the process of elimination. They noticed that all the organs of the deceased were healthy and there was no sign of any disease in any one of the organs such as, brain, heart, lung and kidney. There could not, therefore, by any natural disease to any of these organs. That means that pulmonary oedema could not be the result of disease to any of these organs. So far as broncho-pneumonia is concerned, the two doctors maintained that broncho-pneumonia was secondary to pulmonary oedema. Had pneumonia been of lobar origin, it may be possible to maintain that pulmonary oedema was the result of pneumonia. Having ruled out the possibility of death being due to any natural causes, the two doctors addressed themselves to the question as to what could be the possible cause of death. They concentrated their attention upon the presence of pulmonary oedema, which was primary and not consequence of disease to any of the vital organs which may lead to the appearance of pulmonary oedema. Therefore, they posed the question whether pulmonary oedema could be the result of administration of any foreign agent, and they were forced to the conclusion that it could only be the result of entry of a foreign agent in the body. How this entry was effected, of course could not be stated by the experts. The drug could be inhaled, could be orally administered and could be injected. The effects would be the same whatever, the manner of the administration of the drug. This then is summary of the views expressed by the two doctors. (After discussing medical evidence (Paras 12 to 27) His Lordship proceeded.)

(28) It would thus be seen that there are some poisons particularly vegetable poisons and also Fungi and Mushrooms for which there are no reliable tests of identification of poison, and there are some which cannot be detected by any known method of isolation because of various factors such as absorption, evaporation and ejectment of urine, blood etc. It is settled law that merely because poison has not been isolated in chemical examination, it does not follow that no poison was administered. Once it is decided that pulmonary oedema, which made its appearance in the case of the deceased, could not be due to the pathological condition prevailing in any of the organic tissues, it must follow that pulmonary oedema was the result of administration of an outside agent. Pulmonary oedema could be the effect or could be secondary to some primary cause such as, disease. But, when that primary cause is absent, it would be reasonable to assume that pulmonary oedema has been caused by the entry of a foreign agent which has exercised a catalytic influence on certain organs of the body particularly, the lungs in the present case.

(29) Before leaving this aspect of the matter, we may refer to one more argument that was advanced by Mr. Kode. Mr. Kode referred to the table on page 267 in snyder's Homicide Investigation, 1958, and pointed out that blood is one of the organs in which poison remains mixed and thus becomes amenable to detection in the case of most of the poisons. In this connection he referred to the fact that according to Sub-Inspector Kumbhojkar, a sample of blood of the deceased was sent to the Chemical Analyser for chemical analysis. The Assistant Chemical Analyser, D'Mello, has stated that blood was sent for determining the blood group and that it was not suitable for analysis, because the blood had broken down. Mr. Kode complained that, as a matter of fact, the blood of the deceased should have been sent to the Chemical Analyser for detection of poison, if any, in the blood. No questions have been asked to Dr. Vaidya as to the purpose for which the blood was sent for chemical analysis. It, however, appears from the evidence of D'Mello as also Exhibit 106 that the blood was sent for analysis for the purpose of determining the blood group. Whatever the purpose for which the blood was examined by the Chemical Analyser, it is clear that the blood has broken down and, therefore, was not suitable for any kind of chemical analysis. Prima facie, therefore, it does not appear to us that any useful purpose would have been severed by asking the Chemical Analyser to examine the blood for the purpose of finding out whether there was any element of poison therein. Incidentally, we may refer to pages 263 and 264 of Snyder's Homicide Investigation. On page 263 under the heading 'Medical Notes on Poisoning' the author has stated;

'In attempting to isolate and identify poison in a dead body, two questions confront the toxicologist. These are;

1. Is embalming likely to interfere with the analysis ?

2. What is the tendency for poison to disappear in the dead body?'

(30) On page 264 under the heading 'Disappearance of Poison in the Dead Body the author was stated:

'. . . . . .Some poisons disappear rapidly after death, while others may be found after several years'.

(31) After having exhaustively discussed the question as to whether in the present case death could be due to poison or drug which would act as poison, we may now pose a question, which arises out of the conduct of the unfortunate woman, who was found lying in cabin 'A' of bogie No. 2985 on the morning of the 16th August 1964 and who eventually breathed her last in the K.E.M. Hospital. For the time being, we are not assuming that it was the accused who accompanied the deceased in her itinerary in the train on those fateful days and nights. Whoever the male companion of the hapless woman was, the question is why did he think of running away from the scene without seeking the help of the other passengers in the bogie, when the woman must have exhibited some uneasy symptoms before falling unconscious, and without making an attempt to send her for medical treatment either to a doctor or to any hospital? If the cause which brought about the condition of unconsciousness upon the woman was natural or in any case was not known to the male companion, his first reaction would be extreme alarm at the sudden appearance of uneasy symptoms. In that event, he would certainly seek the assistance of the other passengers remembering that he had brought that woman with him from her distant village and that he was a sort of trustee for her well-being. If the cause was natural or in any case not known to the male companion obviously, he would not assume that the woman would die. On the other had, he would be optimistic that the woman, who was, to all intents and purposes, hail and hearty, could be restored to her normal health after prompt and proper treatment. If the woman recovered, as the male companion would naturally assume that she would, there would be no fear for him that he would be exposed or that it would bring any kind of public disgrace on him. whoever, the companion was, it is quite certain that he would not be her husband but that he was a stranger. In such a case, obviously the question would arise whether he would suffer from fear of public obloquy or disgrace, in case it was discovered that it was this man who accompanied the woman. In our view, such a question would not arise in the mind of an innocent male companion, for the simple reason that his first duty would be to see that proper treatment is given to his female companion, who was lying in a helpless condition and secondly, he would have no reason to assume that the illness from which the woman was suffering was of a dangerous type culminating only in her death. Assuming that he had that kind doubt in his mind, he would not hesitate to send her to a doctor or hospital because on her recovery he could trust her in not disclosing the episode to anyone. She would equally be interested in suppressing the real facts because it would equally be her exposure. Again, she would be overwhelmed by a sense of gratitude for her male companion for whatever he did to restore her to her normal health. In any case the male companion would confidently act on the expectation and assumption that the woman would behave in a proper way and see that their elopement was kept a guarded secret. On the other hand, if the companion had left the woman in the lurch and by any chance she were to recover and come back to life, the companion stood the danger of being exposed at the hand of that woman. She would immediately turn round and accuse him not only of having seduced her away but also of having left her in the lurch in that extreme condition. Considering the question from any point of view, the conduct of the male companion was consistent with his cocksureness that the woman would die. He could only be sure about the death of the woman only if he had administered some deadly poison or a drug, which would act as poison, from which he was sure that she would not recover. We will deal with this question again after we succeed in identifying the male companion of the deceased in he course of her itinerary, and if, we come to the conclusion that it is the accused, we will further examine the question about the significance of his running away from the field of his duty at the critical hour in the career of his female companion. (Then after discussing evidence of some of the witnesses (Paras 32 to 52) His Lordship proceeded).

(53) That takes us to the evidence of witness Shri Krishna Pingale (P.W. 11). He was working as a car attendant on that day having taken over from Mahomed Hussein. The evidence given by Pingale is of great importance. (After discussing the evidence of the witness his Lordship proceeded).

The evidence of Pingale would, therefore, establish the fact that the accused came upto Dadar and that he must have left the compartment as soon as the train arrived at Dadar station. another circumstance which has some significance is the fact that the witness had been accused going towards the tea stall with an empty cup and saucer at Kalyan station. The witness was asked to state whether he told the police that the accused had a talk with him at Kirkee. This question was disallowed by the Court as it was intended t elite a mere omission. In our view, the learned trial Judge was right in disallowing the question because of the decision of the Supreme Court in Tahsildarsingh's case, : 1959CriLJ1231 , to the effect that an omission is not relevant unless the same amounts to a contradiction. The statement of this witness was not recorded by the police after the regular investigation started till the date of the parade, and his statement was recorded only on the day when the parade was held. (Then again after discussing the evidence of witnesses (Paras 53 to 59) His Lordship continued.)

(60) We will now deal with the general criticism levelled by Mr. Kode in respect of the identification parades and the value to be attached to the evidence of identification. It was pointed out at the first parade was held after a lapse of about three months from the event. It is true that three months had elapsed between the occurrence and the holding of the first parade. At the same time, we cannot ignore that the accused was arrested on 14th November, 1964. At the earliest the accused could be brought to Bombay on the 16th or at best on the 17th November 1964. We do not, therefore, think that there was any important time-lag between the arrival of the accused in Bombay and the holding of the first identification parade, which took place on 20th November 1964. The second parade was held three days thereafter. The third was a special parade organised for Yeshwant Borkar, who was not available for either of the two earlier parades. The second and more important pointed urged by Mr. Kode was that there is nothing to show that when the accused was brought from Madras in the train, any precautions were taken to keep his identity concealed. He also argued that it was wholly unnecessary for the accused being taken to Sholapur for the purpose of the second parade. No explanation was offered as to why the witnesses, who participated in the second identification parade, could not be called to Bombay for the purpose of the parade. It was contended that the police ought to have avoided the risk of transporting the accused from one place to another with the inevitable exposure of the accused in the course of the journey. There is some substance in this line of reasoning. We, however, find that no question was directed against the investigating officer as to why he felt the necessity of taking the accused from Bombay to Sholapur for the second parade. Of course, the removal of the accused from Madras to Bombay was inevitable. If in the course of his journey the accused was exposed to the gaze of the witnesses, then there was no point in saying that he should not have been removed from Bombay to Sholapur. It was pointed out that additional precautions were necessary to conceal his identity while he was being removed from one place to the other especially in view of the fact that the witnesses, who were being called upon to participate in the parade, happened to be connected with the railway and might be travelling in the train. This argument also is not without substance. At the same time, in order to take advantage of these circumstances it, was necessary for the cross-examining counsel to ask the investigating officer as to whether he had taken any precautions while the accused was being removed from one place to the other. It was contended by Mr. Kode that it was the duty of the prosecution to show that while removing the accused from one place to the other in a public transport such as the railway train, every precaution possible in the circumstances of the case was actually taken. In this connection he referred to the two decisions of Rajasthan High Court in Dholok Singh v. State, ILR (1953) 3 Raj 762 and the other in Bhurgiri v. State, ILR (1954) 4 Raj 476. In particular, he relied upon the following observation appearing at page 765:

'. . . . . .It is also the duty of the police to take steps themselves to see that such an accused is convened Ba Parda (under proper cover) from the place of his arrest to the thana or whatever else he is taken and from there to the lock-up or the jail. It is also necessary for the police to see that, while such an accused is kept at the thana, there are proper arrangements so that no one is able to see him. Further, if the accused is kept in a lock-up or a jail from which he has to be taken out for purposes of easing himself or for his bath or for any other purpose, it is again the duty of the police to see that proper arrangements are made to keep him Ba Parda when he is so taken out, till the identification is over.'

These observations, in our view, do not purport to lay down any proposition of law or any general binding rule. The proposition must be related to the facts of the case. In the case under discussion by the Rajasthan High Court, the accused had lodged a complaint before the identifying officer that they were shown to the witnesses and that was why the witnesses were able to identify. They had reiterated this complaint before the committing Magistrate as also in the Sessions court. It is in this context that the observations must have to be read and construed. This will be further clear from the sentence, which appears after the passage cited above to the following effect;

'These precautions become all the more necessary in a case like the present where the appellants started saying from the moment they were put for identification that they had been shown to the witnesses.

In the above case, the learned Judges have also observed that it was necessary that proper entries in the various police records should be made of the precautions that have been taken to keep the accused persons Ba Parda, and evidence of police constables or other police officers who had made theses entries and who kept the accused Ba Parda is produced in Court. The second proposition was reiterated by the same Court in ILR (1954) 4 Raj 476. It is however, note-worthy that a Full Bench of the same Court in a later case State of Rajasthan v. Ranjita (FB) has dissented from the view taken in the two earlier cases cited above. Even with regard to the proposition that all necessary precautions should be taken by the police, the Full Bench has pointed out that the generalised statements are somewhat of a sweeping character. At page 79 the Full Bench has observed : (After citing the passage referred to above in Dholaksing's case ILR (1953) 3 Raj 762 -

'A perusal of the passage indicates that it is based upon a strong suspicion of the conduct of the police and that of the identifying witnesses. But, is it reasonable or fair to start with any such assumption No one doubts the position that there the accused are put up for identification by witnesses to whom they ware stranger, every precaution should be taken agent the witnesses having an opportunity of seeing the accused prior to the stage of the test identification parade. If an accused has been shown to the witnesses or the witnesses have had the opportunity of seeing him prior to the test identification, the identification becomes meaningless and loses all its significance. . . . . . . . . Therefore, precautions are necessary against any such opportunity being given to the witnesses either at the instance of the witnesses themselves or at the instance of the police'.

At page 82, the Full Bench observed;

'It is obvious from these discussions that the value of the sworn testimony of witnesses in Court, should not be lightly discarded on the mere assumption that there was no test identification parade held earlier or that the test identification was not in proper form provided that the evidence on record on the point of identification is otherwise adequate and convincing. In our opinion, therefor, it would be going too far to suggest that all the precautions of Ba Parda with corresponding routine entries in the police diary or in the jail warrant are absolutely essential. All that is necessary is to see whether there is anything on the record to indicate that the accused had been either deliberately shown to the witnesses prior to the test identification parade or that the witnesses had an opportunity of seeing the accused and being pointed out their identify before the test identification.'

A little later, the Full Bench summed up its conclusion in the following words; (Page 82) -

'In conclusion, therefore, we are of opinion that the propositions laid down in ILR (1953) 3 Raj 762, cannot possibly be regarded as a rule of law. If i may say so with the utmost respect, they have been laid down far too broadly to merit acceptance even as practical propositions and can only read to the accentuation of the difficulties of honest investigating officers and truthful witnesses'.

It is significant to note that the accused in his statement recorded under S. 342, Criminal Procedure Code, has nowhere complained that he was being taken in an open carriage or that no precautions were taken to conceal his identity or that he was being shown to witnesses while he was being taken in the train. The only complaint made by him respect of the evidence of the identifying witnesses in all three parades was that prior to the parades he was shown in the police station to the identifying witnesses and that the panch was being instructed by the Magistrate to give out to the identifying witnesses the rank occupied by the accused in the parade line. There is no hint whatsoever that he was being exposed to public gaze while he was being taken from Madras to Bombay or Bombay to Sholapur. Mr. Nair contended himself by cross-examining the magistrate and J. Ps. only on the footing that the accused was shown while he was in custody and that the panch was being instructed to tell each of the identifying witnesses the position held by the accused in the parade line. In the absence of any such suggestion we do not think that the prosecution is called upon to exclude all possible arguments and objections in anticipation. Some foundation must be laid for the argument that precautions were not taken and that opportunity was given to outsiders including of course the railway witnesses to have a look at the accused during transhipment. It was also argued by Mr. Kode that it is apparent from the evidence, at any rate, of the Sholapur group of witnesses that they had gone to the police station before the identification parade and the accused was also detained in the same police station. In our view, that by itself is not a ground for holding that the witnesses got an opportunity of seeing a accused. Generally, the accused person is detained in a lock-up and it was not suggested to the witnesses that they were taken to the lock-up. The general admission that they had gone to the police station where the accused was already kept is neither here nor there. Mr. Kode next argued that none of the panchas who officiated at the identification parades and signed the panchnamas in these three parades has been examined. He suggested that these panchas had been deliberately kept out. He went a step further and argued that the panchanamas should not be held to have been properly proved in the absence, at any irate, of any of the panchas. We are unable to accept either of the two arguments. The taluka Magistrate and the J. Ps. who had organised the parades were also parties to the panchnamas. They can, therefore, certainly prove the panchnamas and also give evidence as to what transpired at the identification parades. We are also unable to understand what useful purpose would have been served by examining the panchas. As stated above, unless the Magistrate or the J.Ps. is a party to the fraud, no panch or anyone else can play any mischief in regard to the identification parades. The Magistrate as also the two J. Ps. have been examined. They have denied the suggestion about their having played false during the identification parades. We do not think that the case of either side would, in no way, have been advanced by examining the panchas. No is there mush substance in the point made viz., that it was Allauddin in the course of the second parade and Madhukar Shinde in the course of the first parade, who played the part of calling most of the identifying witnesses. It was also pointed out that the dummies who were also made to stand in the identification parades have not been described in details in the panchnamas. In our view, a detailed description of each of these dummies also is not of much importance. It was incidentally suggested that Muniswamy (P.W. 22), Swaminathan (P.W. 24) and one Rajgopal tailor, who are connected with the transaction of sale of the ornaments of the accused, should also have been called for the identification of the accused in the parade. We have to deal with the evidence of each witness separately. At this stage it is sufficient to note that these witnesses must have been confronted with the accused before the investigating officer could possibly record their statements. That being the case, there was no point in enacting a farce by asking these persons to identify the accused in a identification parade.

(61) An argument of a general character was advanced by Mr. Kode based on certain authorities stating in a general way that it is not safe to act upon the evidence of the identifying witnesses because of the possibility of the mistaken identification. We do not propose to examine these authorities because the observations made in them have reference to the peculiar facts of the case. It is clear that the value to be attached to the evidence of the identifying witnesses varies from circumstance to circumstance. When a crime has been committed where there is poor visibility and when witnesses claim to have identified the culprit in a flash of light with only a glimpse of the culprit, evidently, the risk attending upon the acceptance of the evidence of such identifying witnesses is very great. Again, if the power of observation or the sight of the identifying witnesses is impaired, then evidently no value can be attached to the claim made by the witnesses in regard to their having been able to identify the culprit. It, on the other hand, the witnesses had ample opportunities of seeing the culprit and that there was no want of light or other factors inhibiting his vision and again if the witnesses had watched the culprit from close quarters and for longer periods of time, it would not be proper to treat the evidence as weak piece of evidence and reject it on that ground. In most of the cases where an offence is committed in a strange place and in unfamiliar surroundings, it is impossible to accept the presence of witnesses who had seen or known the accused before. It may only be strangers who had no occasion to know the accused before who may be present on such occasion. To discard their evidence would be to give a blank chart to the culprits to commit offences in unknown placed. It wouldn't be difficult for a culprit to lure the victim to a distant place and then commit the offence in the hope that detection would be defied because of the suspicion which the Count generally entertains regarding the value of the evidence of the identifying witnesses. Mr. Kode called upon us to give certain general directions for the guidance of the officers conducting the identification parades or arranging such parades. Such general instructions may be valuable, but that would be an academic exercise. Courts of law are meant for deciding problems a and when they arise before them for decision. Judges of treaties or textbooks on topics of general interest. They are expected to confine their attention within the four corners of the facts of the case. Mr. Kode drew our attention to the lengthy passages in the two judgments of the Allahabad High Court reported in Anwar v. State and Asharfi v. State, : AIR1961All50 respectively and suggested that since there are no observations relating to the general guidance as to how identification parades must be conducted it would be desirable that we should make some observation on this point. In this connection, he also pointed out that the Criminal Manual also does not contain any instructions in that regard. We would consider the question and consult the Chief Justice and other colleagues as to whether it is desirable to incorporate general instructions in the Criminal Manual with regard to holding of identification parades. All that is necessary to be said about the identification parades in the present case i that we do not think that any delay had taken place in the holding of these parades or what opportunity was afforded to the identifying witnesses for seeing the accused before the identification. It is needless to say that identification parades should be held as expeditiously as possible and precautions should be taken to see that the identifying witnesses get no opportunity of seeing the accused before the identification parades. Mr. Kode also contended that it is not desirable that the parade should be held in police stations. We do not think that we should lay down a rule to the effect that every parade must be held outside the police station or outside the compound of the police station. when parades are held outside the police station, other difficulties may crop up and the parades may be exposed to other criticisms. We do not, therefore, consider that there is any infirmity in the fact that the parades, in the present case, have been held in the police station or in the compound of the police station.

[After discussing further evidence (Paras 62 to 77) His Lordship proceeded)

(78) We will now consider another line of argument pursued by Mr.Kode viz., that there have been material irregularities in the investigation resulting in serious prejudice to the defence of the accused. Mr. Kode contended that the accused is entitled to the copies of all the statements recorded in the course of the investigation under Section 161 or Section 174, Criminal Procedure Code. In that connection, he relied upon the wording of Section 173(4), Criminal Procedure Code, which runs as follows:

'After forwarding a report under this section, the officer in charge of the police station shall, before the commencement of the inquiry or trial, furnish or cause to be furnished to the accused, free of cost, a copy of the report forwarded under sub-section (1) and of the first information report recorded under Section 154 and of all other documents or relevant extracts thereof. On which the prosecution proposes to rely. Including the statements and confessions, if any, recorded under Section 164 and the statements recorded under sub-section (3) of Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.'

Mr. Kode argued that this obligation is not confined to the statements recorded under Section 161, Criminal Procedure Code, but must also extend to the statements recorded under Section 174, Criminal Procedure Code, for the simple reason that the proceedings under Section 174 are also in the nature of investigation. For the purpose he relied upon the definition of the word 'Investigation' contained in Section 4(1). Criminal Procedure Code which runs thus;

'(1) Investigation includes all the proceeding under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf'.

The word 'inquiry' has been defined in Section 4(k) , Criminal Procedure Code as follows:

'(k) Inquiry includes every inquiry other than a trial conducted under this Code by a Magistrate or Court'

(79) Mr. Kode, therefore, contended that if the inquiry is conducted by any person other than by a Magistrate or Court and the purpose of that inquiry is to collect evidence, then it amounts to investigation. In this connection, he drew out attention to the wording of Section 174, Criminal Procedure Code under which Sub-Inspector Kumbhojkar had started the inquiry into the causes of death of the deceased and in the course of which statements of several witnesses came to be recorded. Section 174 (1), Criminal Procedure Code, runs thus (relevant part quoted):

'The officer in charge of a police station . . . . . . . . . . .on received information that a person -

(a) has committed suicide, or

(b) has been killed by another, or by an animal, or by machinery, or by a accident, or

(c) has died under circumstances raising a reasonable suspicion that some other person has committed an offence,

shall immediately give intimation thereof to the nearest Magistrate empowered to hold inquests and, . . . . . . . shall, proceeded to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death,. . . . . . . . . .'.

Mr. Kode emphasized the use of the word 'investigation' in the sub-section whereas the head-note of the section has used the word 'inquire'.

Mr. Kode argued that it is settled law that the head-note does not afford a sure guide for interpretation of the main section. Evidently, the word 'inquire' in the head-note appears to have been used in a loose sense. The word 'inquire' has been defined in Section 4(k), Criminal Procedure Code as a proceeding before a Magistrate or Court. Actually, in the body of the section, the word used in 'investigation'. Although, therefore we agree with Mr. Kode that the proceedings under Section 174, Criminal Procedure Code also amount to investigation that does not mean that he would be entitled to the copies of the statements recorded under Section 174, Criminal Procedure Code. In terms, the provisions of Section 173(4), Criminal Procedure Code do not apply to the statements recorded under Section 174, Criminal Procedure Code. Section 173(4) Criminal Procedure Code contemplates furnishing of copies of the following documents:

'(1) Report forwarded under sub-section (1);

(2) The first information report recorded under Section 154;

(3) All other documents or relevant extracts thereof on which the prosecution proposes to rely;

(4) Including the statements and confessions, if any recorded under Section 164;

(5) Statements recorded under sub-section (3) of Section 161 of all the persons whom the prosecution proposes to examine as its witnesses'.

The case of the statements recorded under Section 174, Criminal Procedure Code does not fall under any of the five categories listed above. Obviously, it does not fall under ' all other documents or relevant extracts thereof on which the prosecution proposes to rely', because a statement of a witness recorded by the police is not a document on which the prosecution can ever rely. It is immaterial whether such a statement is excluded under Section 162, Criminal Procedure Code or not. It is significant to note that sub-section (4) of Section 173, Criminal Procedure Code refers to statements recorded under Section 161, Criminal Procedure Code. If we examine the scheme of the provisions of Chapter XIV, Criminal Procedure Code, we will find that two categories of investigation have been contemplated under that Chapter. The first category of investigation begins with information in cognizable cases referred to in Section 154, Criminal Procedure Code. This investigation comes to an end when a charge-sheet or a challan is submitted under Section 173, Criminal Procedure Code. The end of the investigation, which begins from the first information is the submission of a final charge-sheet. The provisions of Section 174 and Section 175, Criminal Procedure Code lay down a complete procedure by itself for the purpose of investigation, which starts on information relating to suicide or accidental death or death under suspicious circumstances. The object of Section 174, Criminal Procedure Code is not to submit a challan or a charge-sheet. All that the officer in charge of a police station who has started the investigation under Section 174, Criminal Procedure Code is required to do is that he has to submit a report of the inquiry made by him. It is significant to note that there is a special provision made in Section 175, Criminal Procedure Code enabling the police officer to issue summons to persons for making statements before him in the course of the inquiry under Section 174, Criminal Procedure Code. Had there been no difference between the investigation commencing under Section 174, Criminal Procedure Code and the investigation commencing on the information under Section 154, Criminal Procedure Code, there was no need of making a special provision under Section 175, Criminal Procedure Code about the power of the police officer to summon persons. Section 161, Criminal Procedure Code empowers a police officer to examine any person orally and the person so called shall be bound to answer all questions relating to the case. The provisions relating to an investigation started on the basis of information in cognizable cases are elaborate and culminate in the submission of a final charge-sheet. Section 164, Criminal Procedure Code also finds place in the scheme of investigation started on the first information. On the other hand, all that Section 174(5), Criminal Procedure Code provides is that certain Magistrates mentioned therein shall hold inquests. This appears to be the only power vested in the Magistrates when an inquiry is commenced under S. 174 , Cr .P.C. In other words, the provisions of Sections 174 and 175 afford a complete and autonomous code in itself for the purpose of inquiries in cases of accidental or suspicious deaths under Section 174, Criminal Procedure Code. That being the case, the accused would not be entitled to ask for copies of such statements as a matter of right under Section 173(4), Criminal Procedure Code, so far as the statements of witnesses examined in the course of the inquiry instituted under Section 174, Criminal Procedure Code is concerned. We do not, therefore, think that any illegality has occurred in this case by reason of the fact that copies of the statements recorded in the investigation under Section 174, Criminal Procedure Code have not been supplied to the accused.

(80) Mr. Kode then contended that assuming that the accused was not entitled to the copies of the statements recorded under Section 174, Criminal Procedure Code under the provisions of S. 173(4), still in the interest of a fair trial, copies ought to have been furnished to the accused in proper time to enable the counsel to embark upon the cross-examination of various witnesses. He further argued that great prejudice has been caused to the accused and in fact there is failure of justice on account of the copies of the statements not having been supplied to the accused in proper time. Before pronouncing our verdict on the aspect of the matter, it is necessary to investigate some more facts. We notice that the statements of as many as six witnesses were recorded only under Section 174, Criminal Procedure Code and not under Section 161, Criminal Procedure Code. These witnesses are, Sushila Subramaniam (P.W.1); Kamatan K. Venkataswami (P.W.3); Shaikh Abdul Karim (P.W.4)' Shrikrishna Pingale (P.W.11); Bhaskar Jadhav (P.W. 12) and Namba Goundar (P.W.16). It is, however, noteworthy that copies of these statements recorded under Section 174, Criminal Procedure Code were supplied to the accused. the accused, therefore, can hardly have any ground for grievance on the score that proper opportunity has not been provided to him for making preparations to cross-examine these witnesses. At the same time, Mr. Kode pointed out that the statements of witnesses recorded under Section 174, Criminal Procedure Code have not been entered in the station diary. These statements were recorded on loose sheets of paper. He argued that, in the first place, this is a serious irregularity and in the second place, there is no guarantee that the statements have not been tampered with. In this connection, it is necessary to refer to Section 172, Criminal Procedure Code, which relates to the diary of proceedings in investigation. That section runs thus : (Only relevant part quoted)-

'(1) Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances through his investigation.

(2) Any criminal court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial . . . . .'

Mr. Kode contended that the obligation to maintain a diary is not confined to an investigation in the cause of which statements are recorded under Section 161, Criminal Procedure Code but must also extend to an investigation under Section 174, Criminal Procedure Code. He emphasized the expression 'investigation under this Chapter' in sub-section (1) of Section 172, Criminal Procedure Code, which expression, according to him, includes an investigation under Section 174, Criminal Procedure Code as well. We have already held that the provisions of Sections 154 to 173, Criminal Procedure Code fall in one category whereas the provisions of Sections 174 and 175, Criminal Procedure Code fall in a separate category. The provisions of Section 172, Criminal Procedure Code, therefore do not apply to an inquiry or investigation started under Section 174, Criminal Procedure Code. In this connection, reference must be made to Rule 225 (5) in Chapter VI of the Bombay police Manual, Vol.III, 1959, at page 228, Rule 225 relates to 'Case Diary of the Investigation Police Officer'. Sub-rule (5) of the said Rule runs thus:

'Case diaries should be maintained in cognizable cases and in inquiries under Section 174, Criminal Procedure Code, and in the latter case, after verification, if the inquiries were first made by Police Patels'.

It is true that under this sub-rule, case diaries in regular investigations as also case diaries in inquiries under Section 174, Criminal Procedure Code have been placed on the same footing and the sub-rule says that case diaries should be maintained in both cases. The provisions in the Police Manual do not have the force of a stature. Although, therefore, it is desirable that a case diary should be maintained even in respect of an investigation under Section 174, Criminal Procedure Code it would not be correct suggest that it is obligatory on the part of the police officer to maintain such a diary in respect of investigation under Section 174, Criminal Procedure Code. Failure to maintain such a diary would not amount to an illegality. At best, it may be an irregularity. Even assuming that it is an illegality, it does not follow that the trial is vitiated. It is well settled that breach of every obligation does not entail the consequence of vitiating the trial. In addition to a breach of a statutory provision, it must be established that prejudice has been caused to the accused as a result of that breach. It is suggested, for the first time, in the course of the arguments here that there is likelihood of the statements having been tampered with by reason of the fact that no diary has been maintained. No suggestion was made at any stage either to Kumbhojkar or Thakre that there has been any kind of fraud or fabrication committed in the course of the investigation. The allegations of fraud or fabrication are of a serious character and they must be made at the proper time and put to the witnesses so that the witnesses would have an opportunity of offering an explanation in respect of the same. we have already pointed out although no diary has been maintained, copies of the statements of six witnesses were supplied to the accused along with the submission of the charge-sheet. It is idle to suggest that, at any rate, with respect to the statements of those witnesses, whose copies were furnished, there was any possibility of tampering with those statements. Proceeding further with the investigation of the factual position, we notice that in respect of six more witnesses, statements were recorded both under Section 161 and also Section 174, Criminal Procedure Code. These witnesses are Mahaling Bidwe (P.W. 6); V. Y. Kulkarni (P.W.7); Mahomed Hussein (P.W.8); Mahomed Nazir (P.W. 9); V. P. Kulkarni (P.W.10) and Shri Krishna Pingale (P.W. 11). Copies of the statements of these witnesses recorded under Section 174, Cr . P.C. were not supplied to the accused. It is only copies of statements of these witnesses recorded under Section 161, Criminal Procedure Code have been supplied to the accused. so far as Mahaling Bidwe (P.W.6) is concerned, his statement recorded under Section 174, Criminal Procedure Code was shown to the cross-examining counsel almost at the close of Bidwe's cross-examination. Advocate Nair, who represented the accused at the trial, did not know Marathi as the statement was recorded in Marathi. The statement, therefore, was translated for the benefit of Advocate Nair and thereafter Nair declined to embark upon any further cross-examination of that witness. It would have been better had the copies of the statements of all the witnesses recorded under Section 174, Criminal Procedure Code, been furnished in proper time to the accused. at the same time, we cannot forget that it was open to Advocate Nair to requires the Court to grant him time to prepare himself for cross-examining the witness with reference to the statement, a copy of which was supplied at the fag-end of the cross-examination of Bidwe. So far as V. Y. Kulkarni is concerned, the copy of his statement recorded under Section 174, Criminal Procedure Code, was shown to Advocate Nair, while he was cross-examining the said witness. The cross-examination was postponed to the next day. But Advocate Nair declined to cross-examine this witness further. so far as Mohomed Hussein is concerned, his statement recorded under Section 174, Criminal Procedure Code was shown to Advocate Nair, while he was cross-examining the witness. The same position holds good in respect of Mohomed Nazir, V.P.Kulkarni and Pingale. The procedure adopted by the Public Prosecutor and endorsed by the learned Sessions Judge was not conducive to fairplay and fair trial. That is so particularly in view of the fact that seven days before the trial commenced i.e., on 15th June 1965, Advocate Nair had written a letter to the Public Prosecutor asking for copies of all statements and documents in possession of the police. Copies of all the statements recorded under Section 174, Criminal Procedure Code were not furnished. But, Advocate Nair had no means of knowing whether there were statements of any other witnesses recorded under Section 174, Criminal Procedure Code. No reply was given to this requisition. On the contrary, however, it became clear that the public prosecutor was taking his stand under Section 173(4), Criminal Procedure Code. The position taken up by the learned public prosecutor was accepted by the Sessions Court and, as stated above, the statements of witnesses recorded under Section 174, Criminal Procedure Code were shown to the counsel during the cross-examination of each of these witnesses. A question was asked to Inspector Thakre to the following effect (Page 152) :-

'Excepting the statements of Bhaskar Tukaram Jadhave, Rajamani, Rajarathnam Sambhandhan, Kumaraswamy, Thorat, Dr. Shivamrutam, Sushila, Miss Kasturi, and copies of the three Panchanamas, have you furnished copies of any other statements recorder under Section 174?'

The learned Sessions Judge disallowed the question saying that the prosecution was not bound to supply copies of the statements recorded under Section 174, Criminal Procedure Code. A further question was asked to the same witness to the following effect;

'Have you given any indication to the accused that statements of witnesses were recorded under Section 174, Criminal Procedure Code?'

The learned Sessions Judge overruled the question remarking:

'I asked Mr. Nair to read Section 173(4) and I must give him the credit that after reading it, he still persisted in that argument. Section 173(4) refers to two kinds of statements : (1) Statements on which the prosecution proposes to rely, and (2) statements recorded under Sections 164 and 161. Question is disallowed.'

The matter does not rest there. There are certain statements of witnesses recorded under Section 174, Criminal Procedure Code which were never made available to the counsel for the accused at all. These witnesses are Perumai (P.W. 14) and Yeshwant Borkar (P.W. 5). Mr. Kode complained that there were no means for the accused to know that the statements of these witnesses were recorded under Section 174, Criminal Procedure Code at all. For the first time, Sub-Inspector Kumbhojkar disclosed that Perumai's statement was recorded under Section 174, Criminal Procedure Code. So far as Yeshwant Borkar was concerned, everybody was in doubt as to whether his statement was recorded under Section 174, Criminal Procedure Code till a very late stage of the arguments. Even the learned Assistant Government. Pleader was under the impression that the statement of Borkar was not recorded under Section 174, Criminal Procedure Code. At the end of his arguments, however, he showed us the statement of Borkar which purports to have been recorded on 23rd August 1964. These circumstances clearly disclose a very unsatisfactory state of affairs. There may not be an obligation on the prosecution for supplying copies of statements recorded under section 174, but the interests of fair trial do require that copies of the statements recorded under section 174, Criminal Procedure Code are made available to the accused at the proper time. That is particularly so when the inquiry under Section 174 Criminal Procedure Code has preceded the investigation and recording of the statements under Section 161 Criminal Procedure Code. The defence is expected to know what was the purport of the statements recorded at the earlier stage. It is therefore, not fair to withhold the statements recorded at the earliest possible opportunity. At the same time, we do not think that the defence has been prejudiced in any manner by reason o the attitude adopted by the prosecution during the trial. The other reason for supplying copies of the statements recorded under section 174 is that if the diary is not maintained then the prosecution will lay itself open to the charge that the statements have been tampered with or ante-dated. It is, therefore, necessary in the interest of justice that copies of the statements of material witnesses recorded under Section 174, Criminal Procedure Code are supplied to the defence at the earliest possible opportunity. It would not be possible to justify the action or the stand taken in this case on the ground that copies of the statements of important witnesses were supplied to the accused in proper time. It is impossible to suggest that Perumai or Yeshawant Borkar are not important witnesses in this case. In fact, Yeshwant Borkar is one of the most important witnesses and fairness demanded that a copy of his statement should have been made available to the accused at the proper time. Not only no copy was given to the accused but even his statement was not made available during the cross-examination of Yeshawant Borkar. The defence had no means to ascertain whether Borkar's statement had been recorded under Section 174, Criminal Procedure Code. This state of affairs is far from satisfactory. But, as noted above, we do not think that the defence has in any way been handicapped by reason of the stand taken on behalf of the prosecution, and there is no case whatsoever for failure of justice. As Mr. Kode insisted upon a retrial on the ground that the statements of Perumai and Yeshwant Borkar were not made available to the defence and that the witnesses could not be properly cross-examined, we thought it fit to peruse their statements recorded under Section 174, Criminal Procedure Code (vide Section 172(2), Criminal Procedure Code) with a view to see whether there are improvements made by the witnesses in their depositions before the Court upon the statements recorded under Section 174, Criminal Procedure Code. We have carefully gone through the statement of Perumai and Yeshwant Borkar recorded under Section 174, Criminal Procedure Code. We do not find any omissions or contradictions, which would materially affect the evidence given by these witnesses in Court. As a matter of fact, the evidence of Perumai was not of much assistance to the prosecution on the main point as to whether the accused was the perpetrator of the offence. Perumai had already referred to the ornaments which the deceased had on her person in her missing report, which was submitted by her even prior to her statement under Section 174, Criminal Procedure Code. So far as Yeshwant Borkar is concerned, although he is a material witness, even if his evidence is left aside, there is still voluminous evidence left so far as the identification of the accused during his travel in the train is concerned. We do not, therefore, think that there is any case for retrial on account of these failures and omissions on the part of the prosecution to conform to the highest standards of a fair and just trial.

(81) We have discussed the entire evidence on record and also referred to the various circumstances that have been established on the basis of the prosecution evidence. We may now summarise the circumstances which have been established against the accused. Here is a case of an uneducated and unsophisticated village woman being seduced from Minnakkal or Attiyampattti and taken in a first class railway compartment from Madras right upto Bombay rather Dadar. In the very nature of things, the acquaintance of such a woman would be very much limited. Evidently, she is a consenting party to the elopement. She would not agree to go with the man unless she was in terms of intimacy with him. The companion must have represented to her that she was being taken to Bombay for spending good time at that place and for sight-seeing. The companion, however, had a nefarious plan in his mind in seducing her away from Minnakkal or Attiyampatti to Bombay. That plan could not be just to enjoy with her. For that purpose, it was not necessary for him to take her to a place of long distance like Bombay. She could have been taken to a nearer place and for a shorter period. Nor was it necessary for the accused to take her in the first class compartment. Obviously, it was not possible for him to have intercourse with her while travelling in the railway compartment. The object, therefore, in taking her in a first class compartment at a considerable expenditure to himself was to provide him with an opportunity of carrying out his plan of administering poison or drug which would be harmful to her life. The plan of elopement obviously must have been hatched before the departure of the deceased from Minnakkal on 13th August 1964.

(82) The second circumstance, which militates against the innocence of the accused, is that he has tried to travel under a pseudo name. He masqueraded himself as M. A. Kandaswamy and the woman who has travelling with him as Mrs. Laxmi Kandaswamy. It is evident that the accused himself must have invented these names. It is, however, significant that these names have not been conjured up by him out of his imagination. What the accused seems to have done is that he has combined three pieces and put them together to weave a thread of names and address of himself and the deceased. M. A. Kandaswamy happened to be the name of a real living person, who again happen to be a rival of the accused. By mentioning that name, the accused would be killing two birds in one stone. Firstly, he would conceal his identity and secondly, he would divert the suspicion towards his rival. The address that he has chosen happened to be the address of Natesan of Vellore. The name which the accused has chosen for the lady, who travelled with him, happened to be the name of the wife of the accused. The accused seems to have felt that by this queer and strange combination of different names and address it would be possible to keep his identity concealed. Natesan's evidence disclosed that the accused had gone to him on 14th August 1964 and taken an amount of Rs. 230 from him. This indicates firstly that the accused used Vellore as his first hop of the journey towards Bombay. Secondly, it indicates that the address of Natesan was fresh in his mind and he has utilised the same in mentioning that address in the application form for reservation of berths in the train.

(83) The third circumstance against the accused is that he was moving with a woman who was not his wife. He would, therefore, obviously, be interested in not exposing his identity at least on paper. He would be still more interested in keeping his identity concealed if he had a nefarious design in his mind. It was not necessary for him to keep himself away from the gaze of the passengers, who were travelling in the same bogie or the same train or even the railway employees who were on the platform or who were travelling in the train. He seems to have felt that the precautions, which he had taken in mentioning the wrong names on the paper, would be sufficient for screening himself from the offence. He also seems to have felt that after all the passengers and the railway employees were total strangers and even if, therefore, he exposed himself to their gaze, he confidently felt that he would not run the risk by doing so. In any case, it was not possible for him to keep himself under closed doors all the while.

(84) The fourth circumstance against the accused in his conduct during the course of the journey which was extremely strange. In the first place, he was travelling without any luggage, not even a bedding. In the second place, he was consistently refusing the assistance that was offered to him by the railway employees and in particular by Abdul Karim and V. Y. Kulkarni. He was also insisting that he would have his own arrangements so far as the refreshments and meals were concerned.

(85) The fifth circumstance is, that the accused was exhibiting restlessness and uneasiness throughout the course of his journey. Shrikrishna Pingale's evidence disclosed that the accused was making enquiries about the timings of the trains running from Bombay to Madras.

(86) The sixth circumstance is, that on 17th August 1964, the accused went back to Vellore from were he commenced his journey and in the first place requested Natesan to cancel the date of entry from 14th August 1964 to 17th August 1964. This clearly indicates a guilty consciousness.

(87) The seventh circumstance is, that he sold away the ornaments is further indicative of his guilty consciousness. The fact that he hurried to Vellore for disposing of the ornaments gives us the clue to find out the motive, which must have prompted him to commit this ghastly deed. His object evidently was to get himself enriched. The extent of that enrichment is not a matter of decisive importance in analysing and assessing the motive of the accused. It obviously is not possible for the accused to induce the deceased to part with the ornaments for good while she was alive. The accused, therefore, must have resorted to the extreme step of getting rid of her with a view to enable him to rob her of her ornaments.

The eighth and the most important circumstance against the accused is that when the woman was lying in an unconscious condition and in great agony, he thought of running away from the scene. His first duty to the deceased, whom he had brought in confidence, was to render succour to her. There was no question of his running any risk of public exposure by reason of the fact that the accused put her in a hospital. He could have continued the same camouflage and the same pseudo names while the woman was kept in the hospital. The fact that he ran away from the train indicates that he was sure that the deceased would not survive. This cocksureness could be generated in his mind only if he knew what had happened to the woman. In other words, he knew what he had one to the woman. Had he not been sure about the ultimate death of the woman, he would not have taken the risk of running away, even for the purpose of avoiding public exposure. Had the woman survived, and the accused had no reason to believe, if he was innocent, that she would not survive, he stood the danger of being accused by her of having kidnapped her and after doing some mischief left her in the lurch. That would have brought him greater odium and greater public obloquy. We do not think that the accused would have placed the consideration about his safety in the forefront. The first and the foremost consideration which would ordinarily have weighed with him was the consideration to save the life of the woman who had suddenly fallen ill. No attempt has been made to give her any kind of succour. He has raised no alarm while he was in the train when the woman must have exhibited signs of restlessness and uneasiness. The indecent haste with which he took to his heels from the station clearly indicates his awareness that he committed the ghastly deed and that he wanted run away from it. If he had taken the deceased to the hospital and if she had survived the illness, then it was not difficult for him to prevail upon her not to disclose his name in the entire affair. The deceased would certainly have agreed to that suggestion at least out of a sense of gratefulness.

(88) The ninth circumstance is , that the accused has offered no explanation as to why he ran away. The explanation has been offered only in the course of the argument. The accused has consistently denied that he was present in the train and that he was travelling with the deceased woman. By taking up this negative stand, he has denied himself an opportunity of offering a reasonable explanation about his otherwise irrational conduct. The explanation offered by Mr. Kode in the course of his argument based on public censure ought to have been put forward by the accused himself and in that case only his flight would have been regarded as consistent with this innocence. Furthermore, the fact that the accused thought of selling away the ornaments does not fit in with the explanation offered by Mr. Kode in the course of his arguments. The accused cared a hoot for public censure. He was rather particular about disposing of the ornaments at the earliest possible opportunity and making a gain.

(89) The tenth circumstance is , that the accused had ample opportunity to carry out the design of administering poison or drug to the deceased. He must have sought asylum in a cabin the first class compartment mainly with the intention of offering himself of an opportunity of committing this dark deed. Such an opportunity did present itself to him, because after the train left Wadi station, there was no passenger sitting in cabin 'A' which was occupied by the accused and the deceased woman.

(90) The eleventh and the final circumstance, is that the evidence of the handwriting expert clearly shows that the application for reservation was made by the accused and that he actually had put his signature as 'M. A. Kandaswamy'.

(91) These are the various circumstances which have been brought out against the accused. In our view, the cumulative effect of these circumstances produce a over-whelming conviction in the mind of the Court that the accused and the accused alone must have committed the ghastly act. The circumstances are often compared to various links in a chain. As Wills has pointed out, it would be more appropriate to compare the circumstances with the different strands of a rope. As the strands are woven together the rope that is formed as a result of this interweaving assumes great strength. Taking a perspective view of the case and considering all the circumstances together, we are driven to the conclusion that these circumstances are consistent and consistent only with the guilt of the accused. They are inconsistent and incompatible with the innocence of the accused.

(92) We heard Mr. Kode on the question of sentence, Mr. Kode contended that sub-section (5) of Section 367, Criminal Procedure Code, has been deleted by Act XXVI of 1955. Sub-section (5) before its amendment ran as follows:

'If the accused is convicted of an offence punishable with death and the Court sentences him to any punishment other than death, the Court shall in its judgment state the reason why sentence of death has not been passed.'

Mr. Kode argued that the effect of deletion of this sub-section is to give an unfettered discretion to the Court for passing an appropriate sentence. The deletion of sub-section (5) at best exempts the Court from the obligation of recording the reasons as to why lesser sentence than death was being imposed. We do not think that by the deletion of this sub-section any substantial difference in the powers of the Court has been made. It is always for the Court to consider the quantum of the sentence in the light of the surrounding circumstances attending on the commission of the offence. The only obligation imposed by the original sub-section of Section 367, Criminal Procedure Code was that reasons should be recorded as to why lesser sentence was being imposed. Whether reasons are recorded or not, the position about the powers of the Court remains the same. As before the amendment the Court has to take into account the surrounding circumstances attending upon the commission of the offence and then pass the sentence commensurate with the magnitude and enormity of the offence. Mr. Kode relied upon the judgments of this Court in Confirmation Case No. 13 of 1958 and No. 14 of 1965 in which the learned Judges thought it fit to award lesser sentence on the ground that no motive was proved in the case. That decision, in our view, does not lay down any precedent. Whatever that may be, the circumstances of this case are such as to leave no room for thinking of lesser sentence. This is a case of murder of a woman, who was the mistress of the accused. He had taken her to Bombay on the pretext that they would have a good time. She confided in him and agreed to go with him. He was betrayed the confidence imposed in him by the innocent woman and then administered poison or drug which was harmful to her life with the object of robbing her of the ornaments. He was all along taking advantage of the helpless condition of the woman. He did not think it fit to stop for a moment to give her any kind of medical assistance. He hurried to Vellore with the object of disposing of the ornaments. There is not even one extenuating circumstance which can induce us to reduce the sentence from that of death to imprisonment for life. Mr. Kode contended that in view of the fact that the accused has not got a fair trial, this should be a proper case for exercising discretion in favour of lesser sentence. We have already pointed out that, as a matter of fact, no prejudice has resulted to the accused by certain omissions or failures on the part of the prosecution. We have made certain observations for guidance in future trials in the interests of fair trial and fair play. That does not mean that the accused did not have a fair trial so far as the present case is concerned. That cannot, therefore, be a ground for reducing the sentence. If we had accepted the argument that the accused did not have a fair trial or that prejudice has been caused to the accused, we would either have quashed the sentence on that ground or sent the case for retrial. The submission based on the absence of fair trial is irrelevant for the purpose of considering as to what sentence should be awarded to the accused for the offence he has committed. We have given our anxious consideration to all the circumstances of this case and we feel no hesitation in holding that the only sentence which would meet the ends of justice is the supreme penalty provided by law.

(93) The result, therefore, is that the appeal fails and is dismissed. The conviction of the accused under section 302, Indian Penal Code is upheld and the sentence of death imposed on the accused by the trial Court is confirmed. The conviction and sentence of the accused under section 379, Indian Penal Code is also confirmed.

(94) In conclusion, we would like to place on record our appreciation for the valuable service rendered by Mr. Rane, the learned Assistant Government Pleader, for the State, in unravelling the intricacies of this case. He has devoted considerable industry to the task. The case has lasted for twenty-two working days and has covered an entire month. The State Government should, therefore, consider the question as to what adequate remuneration should be awarded to him for the work done by him in this case. We have already referred to our sense of appreciation for the manner in which this case was conducted by Mr. Kode assisted by Mr. Nair for the defence. Mr. Kode has argued the matter with his usual fairness and ability and has left nothing unsaid.

(95) Appeal dismissed.


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