The Woman in Black Satin

(T.G. John, Advocate, Trichur)

"Base and shameful England there is no justice in this Country".

The words rang like a clear bell and the packed court hall of Old Bailey which had witnessed many a criminal trial swayed a bit at the electrifying statement which came from the slender woman dressed severely in black satin standing in the dock. On the Bench Mr. Justice Cressel (who pronounced the death sentence on this woman) squirmed restlessly.

"I tell you, my Lord", she continued "this verdict the jury has returned will rest on their consciences heartier. I am not treated like a Christian but like a wild beast of the forest".

She was still shouting when the Judge pronounced the death sentence.

EngIand-1849.....It was the same old story of two men and a woman; a saga that had trailed humanity ever since Adam had tasted the forbidden fruit. The prisoner in the dock was Maria De Reux a Swiss maid employed by the Duches of Sutherland. She was indicted for the murder of Pat O' Connor, an Irishman. The meeting of Maria and Pat had ripened into friendship and with the relentless arrows of Cupid, the friendship ripened into something else. But for Patrick O' Connor, the Swiss lady meant business and business meant marriage. In a fit of pique and to cure a growing sense of frustration she switched her continental charms from Pat. O' Connor to one Fred Manning and they became man and wife at St. James Church, Piccadilly. Manning was a railway guard; but subsequently he was out of employment and also turned out to be a pauper. And then 'ideas' began to take shape. Together they invited Pat O' Connor, Maria's old flame. And when Pat came he had a wad of securities with him, as good as spot cash. A crowbar, a shovel and some quicklime did the rest of the business. Pat O' Connor was murdered and his body was buried in the scullery of the house of Fred. Fred Manning sold the first batch of securities for $ 110 and when Fred returned with the second batch unsold, Maria knew that the police was on their trial. And when the next day Fred returned after his ramblings Maria was gone with everything worth taking. Left on his own Fred also panicked and hurriedly he caught the boat train to Jersey.

Meanwhile all Britain was looking for Fred and his wife. Detectives trying to trace the missing Irishman had found Manning's home deserted. Their search ended when they dug up some freshly cemented flagstones in the scullery. They found the late Mr. O' Connor, very dusty with quicklime and minus his clothes. Maria was arrested in Scotland trying to dispose of some railway bonds.

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The aforesaid outburst of Maria, the woman who donned black satin, during the course of her trial earned her a great gathering for the public hanging. Ten thousand Londoners watched the slim woman in black satin keeping her appointment with the hangman.

In the crowd that watched was Charles Dickens, the immortal English novelist. He had no liking for what he saw and wrote a seething letter to the press. That letter started an outcry that twenty years later, resulted in the abolition of public hangings.

The Last Kiss

(T. G. John, Advocate, Trichur)

On the night of June 3, 1973, a Chevrolet Caprice driven by a woman was forced off the road by a car carrying four men at Cook County, Illinois, USA. One of them pointed a 12 - guage pump shotgun at her, ordered her to strip and then to climb through a barbed wire fence at the side of the road. As she begged for her life, her assailant thrust the shotgun barrel into her vagina and fired. After watching her agonies for several minutes, he finished her off with a blast to the throat. Less than an hour later, the marauding motorists stopped another car and told the man and the woman inside it to get out and lie down on the road. When the couple saw the shotgun, they pleaded for mercy saying that they were engaged to be married in six months. The man with the gun said 'Kiss your last kiss', then shot both of them in the back, killing them. No sexual assault and the total take from these three murders were two wrist watches, an engagement ring and a wedding band!

Twenty eight year old Henry Brisbon who accomplished these cold blooded murders escaped the death penalty because death penalty was invalidated in Illinois in 1972. Brisbon took the sentence like chicken soup. While in prison, he stabbed and killed a fellow inmate with the sharpened handle of a ladle. In 1977, Illinois had restored its death penalty and now the same man is facing death penalty for the last crime - a walking testimonial for the non-abolition of death penalty.

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It has become a fashion to decry the awarding of death sentences and much controversy is raging round, how these sentences are to be carried out. By the standards, of history, the execution of Socrates in 399 B.C. was singularly humane. He was found guilty of heresy and 'corruption of the young' and was condemned to drink a cup of hemlock - a relatively honourable and painless death.

In ancient China, an occasional penalty was death by 'thousand cuts', the slow slicing away of bits of the body. A 19th century French traveller described an excruciating method in our own country during the rule of the Rajahs. "The culprit bound hand and foot, is fastened by a long cord, passed round his waist, to the elephant' s hind leg. The latter is urged into a rapid trot through the streets of the city and every step gives the cord and body of the condemned a violent jerk. He is then released and by a refinement of cruelty, a glass of water is given to him. Then his head is placed upon a stone and the elephant executioner crushes the head beneath his enormous foot!"

The Romans decreed death for arson, perjury and murder, but also for disturbing the city's nocturnal peace, the condemned were often hurled 100 feet to their death from the top of the TARPEIAN ROCK, which overlooked the Forum. A medieval German code decreed "should a coiner (counterfeiter) be caught in the act, then let him be stewed in the pan or a cauldron".

The English meted out the death penalty for more than 200 offences including stealing of turnips, associating with gypsies, cutting down a tree or picking pockets. Hanging days were public holidays and in 1807 a crowd of 40,000 became so frenzied at an execution that nearly a hundred were trampled to death. Frequently, both the victims and executioners were drunk and occasionally the condemned man had to be hanged two or even three times. Afterwards, the crowd surged towards the corpse, because the dead body and the scaffold were believed to have curative powers!

One of history's most spectacular executions was that of Damiens, the unsuccessful assassin of Louis XV in Paris in 1757. His flesh was torn with red hot pincers, his right hand was burned with sulphur, his wounds were drenched with molten lead, his body was drawn and quartered by four horses, his parts were set afire and his ashes scattered to the winds. The execution was accomplished before a large crowd.

Not until the enlightenment 200 years ago did societies seriously question the State's right to kill. Until then the only dilemma had been to find the most ingenious cruel methods of execution. Boiling, burning, beheading, crucifying, stoning, burying alive - all were in vogue at various times. The crucifixion of Jesus Christ was, for its day, only a routine execution. By the late 18th century, a reform movement had taken hold in Europe, aided by the invention of such humane devices as the hanging machine and the guillotine. Since then, similar movements in many countries have succeeded in banning the ultimate penalty.

The idea of total abolition of death penalty still requires reconsideration.

As the State Prosecutor in Henry Brisbon's case remarked 'Henry Brisbon is a terrible human being........ On the day he dies in the electric chair at Stateville, I plan to be there to see that it is done. Nobody I have heard of deserves the death penalty more than Hentry Brisbon'.

Love's Labours Lost!

(T.G. John, Advocate, Trichur)

Sri. Hitendra Desai was a fair, tall young man of apparently languid and sleepy disposition. He was a school teacher in one of the suburban High Schools of Bombay where he was teaching Gujarati, a compulsory vernacular subject. Being the teacher of a vernacular subject he was a low-paid employee of the school and it was with great difficulty that he was making both ends meet.

His family was not a large one but nevertheless it was not a happy one either. His wife Urmilla was a fair complexioned, good looking girl of 24 and she had all the general comely features of a Gujarati girl of good family. She was of medium height with glistening curls of hair and her gait and deportment were equally elegant. Her relations with her husband seemed to be quite cordial when they were by themselves.

The couple had no children. But the fire in Hitendra's restless eyes, the drooping corner of his tightly closed mouth and frequent twitches of his face muscles showed that he was frustrated in life. There were only three members in his family, himself, his wife Urmilla and his mother Anasuiya. He had married Urmilla when his first wife Nalini died in a tragic accident in which her sari caught fire while she was cooking the family lunch over a kerosene stove.

It has been sometimes that Eve was able to get on so well with Adam in the Garden of Eden, because of the absence of a mother-in-law! Urmilla and Hitendra's mother never got on well. The mere sight of the mother-in-law would pucker up Urmilla's brow, the comer of her mouth would turn up in a defiant gesture and she would unconsciously grind her teeth as if in a fit of rage. But she would say nothing until the other side opened up her volley of invectives in a high pitched clatter.

A sample of their conversation was as follows:

Mother-in-law:

"You daughter of an owl, you dare say all these things boldly! Let my son come back from the school. I will throw you out of the house. I will the n make my son marry a nice docile girl, respectful to her superiors."

Daughter-in-law:

"At the time of my marriage only a year ago my father had given so much cash and ornaments in the form of dowry, but you and your son have contrived to cat up everything in the course of a single year and now there seems to be nothing left. The family had been plunged into poverty due to your spendthrift habit".

The gulf of estrangement between the daughter-in-law and mother-in-law became wider and wider. Hitendra seemed to be kindly and affectionate towards Urmilla, but in the presence of his mother he took up a stern attitude towards Urmilla. The situation was becoming explosive and that day came soon enough!

On a dull morning in mid-June, the sky was over-cast with clouds, a gentle moisture-ladenbreeze was blowing. It was about 8 O'clock in the morning. Hitendra had already gone to the School. Urmilla was still asleep. Since the previous night was hot and stuffy, Urmill a could not get a wink of sleep during the whole night although she was very tired doing the house work the previous day. She was feeling drowsy early in the morning with the cool wind blowing. Imagine the rage of her mother-in-law seeing Urmilla asleep even after her son had gone to work! She got hold of Urmilla's large bunch of hair, dangling from the edge of the bed and pulling hard at it dragged her down from the bed and pushed her on the floor. The daughter-in-law woke up with a shock and seeing her mother-in-law running away got hold of an umbrella nearby and with the bent handle of the same, caught her fleeting mother-in-law's ankle. The mother-in-law fell forward and badly cut her fore-head on the door ledge. Pandemonium broke out and the whole neighbourhood shifted to the scene. Peace however was restored and Urmilla signified to the neighbours her intention to leave the house and go to her parents next morning.

Next morning news was flashed in the neighbourhood that Urmilla had committed suicide! The police were already on the spot and took the body for post-mortem examination. To the Police Hitendra gave a statement according to which he found Urmilla lying dead on the floor of the latrine early in the morning with a kitchen knife struck into the right side of her abdomen and that she had apparently committed suicide.

The post-mortem examination revealed a different story. The wound was of such a nature that it could not have caused death so congested quickly. The lungs were congested with signs of asphyxiation and the thoracid cavity was emanating a fragrant odour. In the mouth of the dead body there were bits of cloth with strands of whitefibre attached. The bladder was congested and full of urine with a peculiar sweet smell. On further examination the urine was found to contain chloroform. And the smell noticed in the thoracic cavity was due to the chloroform vapour. The bits of cloth found in the mouth were identified to be those bitten out from a pillow case and its long cloth cover and the attached fibres to be silk cotton.

On a search of Hitendra' a bed room, a pillow was recovered from which a portion seemed to have been bitten off by rats. But the bitten off portion fitted exactly with the portion found in the bitten mouth. A 4 Oz. bottle of B.P. Chloroform made by Boots Pure Drug Co., was found in the kitchen cupboard. A cash memo of the local Pharmacy for the purchase of the chloroform was also recovered. Hitendra could not explain the presence of these things and the Police arrested Hitendra and his mother on suspicion. The mother was later let off for want of evidence. After a preliminary examination the Magistrate committed Hitendra to the Sessions to stand his trial for the murder of his wife Urmilla by asphyxating and poisoning her with chloroform.

Although Hitendra denied all charges, his guilt was proved to the hilt in the Sessions Court. His defence that chloroform was only an anaesthetic was not accepted. According to Taylors's Medical Jurisprudence "when chloroform vapour undiluted with much air and oxygen is inhaled for some lime the patient passes into a stage of paralysis. The muscular tone is abolished and consequently the muscles become quite flaccid. The respiration becomes slow and irregular, the pulse becomes weak. Death occurs from the stoppage of the heart's action or from respiratory paralysis or closure of the epiglottis by pressure of the tongue caused by involuntary spasms". The knife thrust had evidently been made after death.

The Sessions Judge found Hitendra guilty of the pre-meditated murder of his wife Urmilla and sentenced him to death. The High Court confirmed the sentence and a prayer for commuting the death sentence to one of life imprisonment was rejected.

Comment on 'A Comment on Mathew v. Saramma'

(By Yesudasan Varghese, Advocate, Trivandrum)

This is with reference to 'A comment on 1995 (1) KLT 61' by V.K. Sathyavan Nair, Advocate, Kottayam, published on June, 19 in 1995 (1) KLT, expressing genuine doubts as to the correctness in the decision of D.B. of the Kerala High court in the matter of the second proviso to S.33 of the Evidence Act and advocating for a second look. My comment is strictly confined to the said article without going deeply into any of the cases cited therein.

At the outset, my learned brother Sathyavan Nair seems to have narrowed the meaning of 'adverse party' in the context of Ch.II of the Evidence Act. I am of the view that the term 'adverse party' as used in the proviso secondly of S.33 must have a dual meaning firstly a party who is adversely affected by the evidence in the former proceeding and secondly, the party against whom such evidence is sough t to be used in the latter proceeding. And if the same party has had both the right and the opportunity to cross-examine in relation to that evidence, then notwithstanding whether or not the right has been exercised or the opportunity utilised, such evidence can be used against that party in the subsequent proceeding.

Generally speaking 'adverse party' includes parties on both sides. But for the purposes of the Evidence Act the term means and includes any party against whom the evidence is tendered or who is adversely or unfavourably affected by such evidence. Occasions are not rare when a witness may depose against the party calling him to depose. Then the party has me protection under the provisions of S.154 of the Act. However, that protection is not as a matter of right but by discretion of the Court enjoyed under S.154 does not extinguish the prohibition under S.33 of the Act.

In Shri. Sathyavan's illustration, if C's statement was favourable to B to a certain extent, then it was certainly unfavourable or adverse to A to that extent thus making A 'the adverse party' though C was examined as A's witness. I humbly advocate that it is not the witness-factor that decides the 'adverse party' for the purposes of the Evidence Act, but the evidence-factor that decides it. If the evidence tendered is unfavourable to a certain party, then, naturally, that party becomes 'die adverse party'. So in my learned brother's illustration A can lawfully raise the objection in the subsequent proceeding that C's statement in the first proceeding is inadmissible in the latter. The position is the same if in the first proceeding B's witness gives evidence unfavourable to him which is sought to be proved against himself in the subsequent proceeding. Thus the principle of reciprocity is well intact and not at all impaired. 'Is it an illogical, unjust and unreasonable doctrine?'

So, 'the adverse party in the first proceeding' occurring in the second proviso of S.33 of the Evidence Act can only mean the party adversely or unfavourably affected by the evidence in the first proceeding and against whom such evidence is sought to be used in the subsequent proceeding. The Hon'ble Kerala High Court has rightly observed that if the Rajasthan view is accepted then the proviso itself was quite unnecessary.

1994 (2) KLT 47 and 1996 (1) KLT 349

 v. 

Article 320 of the Constitution of India

(M.R. Rajendran Nair, Advocate, Ernakulam)

Can the Public Service Commission advise Candidates against a vacancy which arose during the currency of a ranked list, eventhough the vacancy is reported to the Public Service Commission after the expiry of the list? Can the Public Service Commission advise candidates against vacancies arising on account of non-joining of candidates already advised, if the non-joining is made known to the Public Service Commission after the expiry of the ranked list?

2. The answer to the first question is in the negative as per the judgment of Full Bench of Kerala High Court reported in 1994 (2) KLT 47 (Vimalakumari v. State). The second question is also answered in the negative by a Division Bench in the decision reported in 1996 (1) KLT 349 (Babu v. Public Service Commission).

3. It is submitted that both the decisions are wrong and contrary to the Art.320 of the Constitution of India and relevant provisions of the Public Service Commission Rules of Procedure.

4. According to Art.320(1) of the Constitution, it shall be the duty of the Public Service Commission to conduct examination for appointments to the Services of the Union and the Services of the State respectively. The Public Service Commission shall be consulted on various matters including all matters relating to methods of recruitment to civil Services and it shall be the duty of Public Service Commission to advise on any matter so referred to them. The Kerala Public Service Commission Rules of Procedure, is a set of procedural rules and obviously none of the Rules shall be understood in derogation of the constitutional duty expressly imposed by Art.320 of the Constitution of India on Public Service Commission. R.13 of the Public Service Commission Rules of Procedure prescribes the maximum period for which a ranked list shall remain in force. R.14 reads as follows:

"The Commission shall advise candidates for all the vacancies reported and pending before them and the vacancies which may be reported to them for the period during which the ranked lists are kept alive in the order of priority, if any and in the order of merit subject to the rules of reservation and rotation, wherever they are applicable".

5. The rules are silent regarding the time when the vacancies shall be reported to, or advise shall be made by Public Service Commission. But it is mandatory that the Commission shall advise candidates for all the vacancies reported and pending before them and the vacancies which may be reported to them for the period during which the ranked list are kept alive. The Rules do not put any embargo on the appointing authority and the Public Service Commission regarding the time for reporting the vacancies or regarding the time for advising. The only condition is that the vacancies reported must be for the period during which the ranked list are kept alive. In Vimalakumari's case, a Full Bench of Kerala High Court held:

"If no request is made by the State to the Public Service Commission for advising candidates during the currency of a list, the Court cannot compel the Public Service Commission to advise candidates after the expiry of the list".

It was also observed that giving such a direction will be clearly violating the statutory rules. But nowhere in the judgment reference is made to any provisions of statutory rules which prohibits Public Service Commission from advising a candidate against a vacancy which arose during the currency of the list, request for such advice not being made during the currency of the list. The conclusion of the Full Bench run counter to the constitutional mandate contained in Art.320 and the object and purpose for which Public Service Commission is constituted. In the decision reported in ILR 1982(1) Ker. 346 a learned single Judge rightly held that the Court had not only the right but also the duty to ensure that the appointing authority did not circumvent its statutory obligations by delaying and defeating the rights of selected candidates. The Full Bench found it difficult to agree with that observation for two reasons:

(1) a direction will be violative of the statutory rules.

(2) mere inclusion in the rank list does not give a right to the post or to be appointed.

Here again the pertinent issue as to whether advice can be made by the Public Service Commission against a vacancy which occurred during the currency of rank list, but reported after the currency of list was not pointedly considered in the light of R.14 of the Public Service Commission Rules of Procedure.

6. In the later decision reported in 1996(1) KLT 349 a Division Bench of Kerala High Court held as follows:

"Prior to the date of the expiry of the list, namely 15.6.1993, appointing authority reported 115 vacancies. To fill up those vacancies, candidates included in the ranked list were advised. On such advise, the vacancies reported to the Public Service Commission have been satisfied. It was only thereafter, i.e., after the expiry of the list on 15.6.1993, non-joining duty were reported to the Public Service Commission. Those vacancies so reported can only be treated as vacancies reported to the Public Service Commission after the expiry of the ranked list. To fill up those vacancies reported after the expiry of the ranked list, the list which had already expired cannot be operated on. This legal position is settled by the Full Bench decision in Vimala Kumari v. State, 1994 (2) KLT 47".

7. In Para. 3 of the judgment, it was emphasised "once the advice is issued, vacancy stands extinguished".

The reasoning and conclusions will not stand scrutiny. A vacancy may arise either on account a new sanction or on account of death/retirement/removal/promotion of an existing incumbent. That vacancy can extinguish only when a person appointed joins duty or when the post is abolished. Merely because an advice is made or even when an appointment order is issued the vacancy will not get extinguished. If the theory of vacancy extinguishing on advice is accepted it will lead to a situation where the appointing authority will not be able to appoint even the candidate advised because once the vacancy is extinguished no appointment can be made.

8. The object of the Rules, it cannot be disputed, is to make appointments to the vacancies existing and arising during the currency of the ranked list, and unless the appointing authority takes a bonafide decision to the contrary he is bound to fill up the vacancies in accordance with rules. An interpretation of the provisions, not warranted by any express words therein, cannot be adopted to defeat the objects and purpose of the provisions. With great respect it is submitted that the conclusions in the two judgments cited above are not warranted by the plain words in Art.320 of the Constitution of India and R.14 of the Kerala Public Service Commission Rules of Procedure. Since R.14 of the Public Service Commission Rules of Procedure makes it obligatory on the Commission to advice candidates for all the vacancies reported and pending before them and the vacancies, which may be reported to them for the period during which the ranked list are kept alive, it was unnecessary for the Bench to strain too much and come to an opposite conclusion. The words "for the period during which the ranked lists are kept alive" in R.14 qualified the word "vacancies' and not the word "reported'.

9. Procedure is always designed to facilitate compliance with substantive provisions, and thereby to facilitate justice according to law. To say that even when the appointing authority delays reporting of vacancies and thereby denies the constitutional guarantee of equality of opportunity in matters relating to employment, the High Court exercising power under Art.226 cannot issue appropriate directions is to attach too much importance to the form at the cost of substance. On a plain reading of the constitutional provisions and the provisions in the procedural rules it can be safely concluded that all the vacancies existing and arising during the currency of the ranked list can be filled up, even if the vacancies are reported to Public Service Commission after the expiry of the ranked list. In any case, once the vacancies are already reported, the short fall due to non-joining can be treated as vacancies already reported.

10. It is submitted that both these decisions will require reconsideration by a larger Bench.