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TMI Blog1966 (2) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vels 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 firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) (5) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il. 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 rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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 cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... econd 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 examinat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 float ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceased 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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-pneumonia, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pressur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... monia, 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 analysi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 compani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 ste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 were 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 presenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 commence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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, C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 obliga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 avail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pattti 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refront. 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 reasonab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 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 Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stances 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 us ..... X X X X Extracts X X X X X X X X Extracts X X X X
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