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.

Imprisonment in Default of Payment of Fine and the Abkari Act

(By Yesudasan Varghese, Advocate, Trivandrum)

Recently in a Criminal Revision, the Petitioner/Accused has been sentenced under S.58 of the Kerala Abkari Act to pay a fine of Rs.3,000/- .and in default to suffer simple imprisonment for six months, by the Hon'ble High Court of Kerala in Rajeevan v. Excise Inspector (1995 (1) KLT 38).

The default clause in the above sentence seems to be violative of S.65 I.P.C. which stipulates that the term of imprisonment in default of payment of one shall not exceed one fourth of the maximum fixed for the offence and the maximum under S.58 of the said Act is six months' imprisonment. So it goes without saying "that the default term of imprisonment shall not exceed one and a half month in the above case.

May. I humbly propose that the Court has no jurisdiction to impose a sentence of imprisonment in default of payment of fine in a case where the offence under tire Abkari Act is punishable with imprisonment as well as fine for the following reasons:

The Abkari Act does not contain any enabling provision like S.64 of I.P.C. which empowers the Court to direct imprisonment in default of payment of fine. S.5 IPC provides that nothing in the Code shall affect the provisions of any special or local law. The Kerala Abkari Act being a local law has, vide its S.68 borrowed the provisions of Ss.67, 68 and 69 only from Chapter III of the IPC for their application in the local law. S.67 IPC deals with provisions for imprisonment for non-payment of fine where the offence is punishable with fine only and the following Ss.68 and 69 constitutes mere provisos to S.67 whereas S.58 of the Abkari Act provides for punishment by way of fine as well as imprisonment.

Had the intention of the Legislature been to impose imprisonment in default of payment of fine in cases of offences under the Abkari Act punishable with imprisonment as well as fine also, it would have specifically adopted the provisions of S.64 IPC also to apply in the local law. So it is so clear that, for the purposes of the Kerala Abkari Act, the Legislature had only picked and chosen Ss.67, 68 and 69 of the IPC leaving out S.64 of tine Code.

It is also noteworthy in this context that once the power under S.64 IPC has been invoked for imposing imprisonment in default of payment of fine, then the restriction under S.65 of the Code must follow.

In the above case, there was a concurrent finding of the guilt of the Accused under the same section of the Act, by the Courts below in that he was sentenced to undergo rigorous imprisonment for six months in default of payment of fine. But S.67 IPC requires that imprisonment in default of payment of fine shall be simple. So,4lie imposition of R.I. in default of payment of fine is per se illegal which factor went unnoticed by all the Hon'ble Courts.

Sidelights On 'Contempt'

(T.G. John, Advocate, Trichur)

"The Karachi Bar Association has learned with great regret and concern of the undeserved insults given by the Hon'ble Chief Judge to the President of the Karachi Bar Association, Mr. Syed Ahmed Refique, Barrister-at-Law, and to an outstanding member of (his Association Mr. M. A. Alvi, Advocate and places on record that in its opinion the attitude of the Hon'ble Chief Judge has been persistently contemptuous towards the members of the Bar in general and the displaced lawyers in particular, making it impossible for them to keep up the well-known tradition of the Bar, of placing their clients' causes before a bench adequately and fearlessly. This Association further affirms that the learned profession of law is the mainstay of the liberty and the rights of the citizens and the courts will be undermining the foundation of the State by a disregard of the rights of the lawyers and this Association warns the learned Chief Judge that if there is a further repetition of this behaviour, this Association will be forced to take measures which it sincerely wishes to avoid".

On 15th June, 1949, at a meeting of the Karachi Bar Association, the above resolution was moved by Syed Ahmed Refique, the President of the Bar Association. The Secretary Mr. Raza Mirza supported the resolution. In its issue on 17th June, 1949, the "Dawn", a Karachi Daily newspaper reproduced most of the resolution under the caption "Karachi Lawyers Resent Chief Judge's Attitude".

When these matters were brought to the notice of Sind Chief Court notices were issued to the President and the Secretary and also Altaf Hussain, the Editor and Ghulam Hussain, the printer and publisher of "Dawn" to show cause why they should not be punished for contempt of the court. Tyabji, C.J. had no hesitation to hold that the imputations and threats contained in the resolution were such as were calculated to lower the authority of the Chief Judge and the Court and further expressed that it would be impossible to argue that the matter published was merely a reasonable argument or expostulation against some particular judicial acts as being contrary to the law or the public good. The Judge also referred to 33 Bombay 252 (Government Pleader v. Jaganath Samant) where Scoot, C.J. stated "Pleaders are a privileged class enrolled for the purpose of rendering assistance to the courts in the administration of justice. Their position, training and practice give them influence with the public and it is directly contrary to their duty to use that influence for the purpose of bringing the administration of justice into contempt'. However, in the Karachi case, in view of the unqualified apologies handed over by the two advocates to the Advocate General before the commencement of the hearing and the peculiar circumstances of the case, the Judge discharged the notice against all the parties with the further following observation: "We have reason to believe that Syed Ahmed Refique, the President of The Bar, was the prime mover behind the resolution and that it was personal pique arising from offended vanity, which had led him astray into the irresponsible course which he followed. Under these circumstances, the humiliation involved in the recantation which he was constrained to make, in the presence of his fellow Advocates and in a crowded Court, may in itself, I think, be regarded as a fitting punishment for an offence, which appears to have been committed very largely as the result of false pride".

The principle governing contempt of courts has been neatly elucidated by Lord Russel in his judgment in Reg v. Gray (1900) 2 Q.B. 36). It has been made clear by his Lordship that any act done or writing published calculated to bring a court or judge of the court into contempt or lower his authority, is a contempt of court. That is one class of contempt. Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the court is a contempt of court. The former class belongs to the category which Lord Hardwick L.C. characterized as "scandalizing a Court or Judge". The description of mat class of contempt is to be taken subject to one and an important qualification. Judges and courts are alike open to criticism and if reasonable argument or expostulation is offered against any judicial act as contrary to law or public good, no court could or would treat that as contempt of court.

In AIR 1967 Allahabad 586, it was held that the concept of contempt of court by scandalizing court, as modified in England and Austria has no application in India. The social and economic conditions of the public in India are again such that it would be very dangerous to grant them the liberty of scandalizing the court. In the Supreme Court Judgment in E.M. Sankaran Narnboodiripad v. Narayanan Nambiar (1970 K.L.T. 588), Hidayatulla, C.J. observed; "The spirit underlying Article 19(1)(a) must have due play, but the provisions of the second clause of the Article cannot be overlooked while it is intended that there should be free speech and expression, it is also intended that in the exercise of that right contempt of court shall not be committed".

As far as our country is concerned, the law regarding contempt of court had been neatly codified as early as 1926 with successive enactment upto 1971. It would have been highly salutory that in view of the onerous duties of the Advocates, the Legislature was munificent enough to envisage an enactment on the line of "Contempt of the Bar Act" also. It is upto the Bar Councils to take some interest in the matter.

The Japanese Doll

(By T.G. John, Advocate, Trichur)

Major Gurbaksh Dhillon was an army officer of great distinction who received his training at Sandhurst and saw active service in 1945 on the Burma Front against the Japanese. The major had lost an eye in the battle but this was cleverly replaced by a glass eye. The loss of an eye however made him unfit for active service but in view of his past record he was not discharged or pensioned off but was retained in a semi-military position as the supervisor of Ordinance factories.

Major Dhillon was tall, fair, well built, always clean-shaven and remarkably handsome even at 40. His semi-civilian job in the capital gave him plenty of lesiure and he took membership in a club which was a high class aristocratic gathering. The affluence of the club and its members was manifest not only from the large cluster of shining limousines parked outside and attended to by an army of smart leverlied chuffeurs, but also from its gleaming furniture of fittings, its very fine gardens and well kept lawns. Major Dhillon was in his elements at the club for not only could he drink whisky like a fish, smoke like a chimney and play bridge and poker till late at night, but he could talk for hours together about his exploits in the many wars he had wethered. Gradually, he began to win the admiration of high society women folk at the club and men became envious of his great alacrity in winning the favour of women and called him the lady-killer.

Major Dhillon was particularly familiar at the club with the family of the Syals-Sardar Pritam Singh Syal and his wife Mohini Syal. Pritam Singh was one of the richest men in Delhi but at the age of 35, triggered by wine, women and riches he had become a huge loathsome bundle of flesh, stupidity and ego, fit for only bouts of booze and debauchery. On the other hand, Mohini was chic and charming as a Japanese doll with chiselled features and a figure that likened her to venues de Medicz by Michaelangelo. She was a graduate with refined manners and she was always dressed to kill. The major with all his fighting records surrendered to this beautiful woman with captivating charms.

Before long the blue Mercedes car of the major became a constant sight in the afternoons in the portico of Syal's bungalow. Gossip took wings and reached the ears of Pritam Singh between his bouts of booze and debauchery. He stopped taking Mohini to the Club and warned the major that he would shoot him down if ever the major was found in this precincts of his house. To watch Mohini more closely, Pritam Singh himself stopped going to the club and his orgies of drink and debauchery were carried on in his own house to his satisfaction and he took sadistic pleasure in his wife witnessing it.

Several months elapsed. The blazing heat of the summer was followed by the deluge of the rainy season and soon autumn arrived the season of mellow fruitfulness and fragrances. It was Diwali day and crackers were exploding everywhere. From Pritam Singh's house also the sound of crackers were heard thoughout the evening. At about midnight three loud explosions rang out from inside after which there was silence.

Next morning Pritam Singh was found dead in his house. The floor was littered with bottles of whisky and rum and broken glasses. There were two wounds on his body and a pistol which was identified as Pritam's was lying close to him and from all appearances it seemed to be suicide. The first jolt was however given by the postmortem report. The fatal bullet which had penetrated the heart seemed to be different from the second bullet which had penetrated the right thigh. The fatal bullet from its diameter, weight, and groove markings appeared to the investigating officers as one ejected from a military service revolver. The problem for investigation was this - Two empty shells had been ejected form Pritam Singh (automatic pistol) but only one was found on his body. Where had the second bullet gone? The answer to the question was found by the police when they throughly searched the rooms. The second bullet was found embedded in the wooden door near the entrance.

The fatal bullet having been ejected from a military service revolver and Major Dhillon's entalglements with Pritam's family well known in the locality, the police arrested Major Dhillon on suspicion. On being interrogated by the Police the major made a clean breast of the whole matter.

That he loved Mohini Syal like a sister and was still wearing a 'Raksha' from her on his wrist and that nothing obscene or objectionable had taken place between them. On account of scandals and Pritam's suspicion, she was virtually a prisonerin the house. Mohini was much upset by all this and she implored him through letters to come to the house and reclaim her husband from the depth of degradation to which he was sinking by this nightly orgies in his own house. At first he hesitated but finally he acceded. On Diwali Day, he went to the house of Pritam Singh where he expected to find Pritam alone, Mohini having gone to her parents for the festivity. The major had armed himself with a service revolver knowing that Pritam Singh was a dangerous rogue. Pritam Singh at the sight of the major accosted him in a fit of rage, 'you lewd wretch, I will teach you a lesson' and took out a pistol and immediately fired at the Major. The shot missed the mark because Pritam was fully drunk and the recoil of the weapon threw it down on the floor. Thereupon the major took his own revolver and shot him with the precision of a military veteran. Pritam Singh lurched forward and slumped on the floor and the pistol in his hand went off again by the shock of his fall thereby causing the wound on his leg.

Major Dhillon was sent up for trial on a charge of murdering Pritam Singh Syal but was acquitted on the plea of the right of self defence, since there was clear evidence that Pritam Singh fired the first shot.

Arsenic and Old Lace

(T.G. John, Advocate, Trichur)

Arsenic is the poison most often used by murderers because if it is administered in small but regular doses, it produces a condition which looks like normal illness, Frustrated lovers, anxious heir-at-laws impatient to succeed to rich estates—all have adopted this 'modus operandi'. But many cases of poisoning with arsenic have been detected because of certain peculiar properties of this 'King of poisons'.

Arsenic has a big disadvantage; traces of it can be found in the corpse or in the ground surrounding the grave for years afterwards. Prussic acid, yellow phosphorous, and morphine disappear fairly rapidly but arsenic always remains to give evidence against its user. Science can indicate from the contents of the stomach, the condition of the hair or the nails of a corpse just when arsenic was administered. And that takes us to the story of Harold Greenwood who in 1920 was accused of murdering his wife by poisoning her with arsenic.

Harold Greenwood was a rich solicitor in the village of Kidwelly, in Carmarthenshire, He had very lucrative practice and his wife Mabel was the sister of a former Lord Mayor of London. But Mrs. Greenwood was an invalid. Harold was a philanderer with many affairs and there was widespread gossip in the village of Kidwelly about his infidelities. Mrs. Greenwood was well liked about the fact that she was an invalid caused special sympathy.

And then if happened. Quite suddenly Mabel was taken ill and after twelve hours of vomiting, she died. The death did not by itself arouse any suspicion in the minds of the rustics of Kidwelly. But when just within two weeks of his wife's death Harold began chasing woman, they opened their eyes. And when four months later he remarried, the villagers of Kidwelly began 'to talk'.

The village gossip started which eventually reached the ears of the police and led to the exhumation of Mrs. Greenwood's body, ten months after her death: Science found one grain of arsenic had been administered within twenty-four hours of her death.

Trial followed. The tempestuous oratory of the defence counsel, Sir Edward Marshall Hall, rocked the court hall, baffled the prosecution and left the jury gasping. The counsel was able to throw some doubt on the cause of death, partly because the village doctor said at the inquest that he had given Mrs. Green wood morphine pills. The doctor had not done anything of the sort but when he retracted the statement and said he meant opium pills which contain some morphia, the damage was done.

Several wild theories were also put forward by the defence. It was suggested that Mrs. Greenwood had inhaled arsenic from roses which had been sprayed with insecticide: Further suggestion was that she might have eaten gooseberries for dinner sprayed with the same fatal insecticide: The last suggestion was that she had been using arsenic in certain cosmetic preparations. There was no evidence to support these theories.

It is always dangerous in poison cases for the prosecution to allege that the poison was administered by a particular means. And this blunder, the prosecution committed in the Greenwood's case. The prosecution pinned its faith to the bottle of burgundy from which Mrs. Greenwood had drunk at lunch on the day before her death. They proved Harold Greenwood had arsenic in his possession, but they were wrong when they said that nobody else had drunk the wine except the dead woman. Somebody else had and somebody else said so.

The verdict of the Jury was "We are satisfied that a dangerous dose of arsenic was administered to Mabel Greenwood on Sunday 15th June 1919. We are not satisfied that this was the cause of death. We say not guilty."

Harold Greenwood left the dock a free man!