On Pornography

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

One of the most important teachings of the early Christian fathers was that sex was sinful and it was better to marry than to be consumed with lust. A glorification of virginity resulted in chastity being virtually identified with absolute celibacy. And yet only 700 years ago Saint Thomas Acquinas did permit pre-marital intercourse between those who were formally betrothed - on the understanding that they would not desert afterwards.

This sexual attitude lasted well past Shakespeare's day and is precisely the mortality which some have adopted today. The great hardening of this Western attitude - apart from a temporary rigour under Cromwell when adultery was made a capital offence - came when the Victorian middle classes set the moral tone in English society.

Some civilizations - among the Asians as well as the Eskimos - frown heavily on adultery, but offer the company of a host's wife to an over-night guest because they do not believe that it impairs anyone's chastity. In other communities unlimited sexual intercourse is permitted as most natural to young people before marriage and strict monogamy expected afterwards.

Are ideals of continence and virginity to be permanently abandoned in a long orgy of sexual licence - or are they merely cast up for re-examination, new thinking and responsible decisions on accepted morality?

It could have been only against such a background of diverse moral notions existing in different parts of the globe that two diverse judicial pronouncements were made, one in England and the other in India regarding a common issue :

"Whether the controversial novel 'Lady Chatterley's Lover' literary master-piece of the celebrated author D.H. Lawrenece - is obscene literature or not."

The novel earned a general reprieve in the Central Criminal Court in London in November 1960 when it was held that to read of the exploits of Constance (Lady Chatterley) would not 'deprave and corrupt' the reader. The contention of the prosecution that the book commended sensuality 'almost as a virtue' was rejected. In May, 1961, the Additional Chief Presidency Magistrate of Bombay held that the book is obscene, in an eighteen page judgment in a case in which four partners of a bookstall in South Bombay were charged for having been in possession of unexpurgated copies of the novel.

It is not my purpose to criticise judgments but some considerations mainly pertaining'to literary criticism might be advanced. It is difficult to say where frank literature ends and pornography begins. In the controversial novel we come across intimate description of about a dozen sexual intercourses in the minutest detail where the heroine Constance (Lady Chatterley) commits adultery with their game keeper. The book by itself 1s said to be a satire on the upper class aristocracy. Nevertheless, its potentiality as one of the best literary pieces of the present era could not be underrated.

What is pornography? A serious attempt has been made in America to distinguish between acceptable books which contain passages of erotic realism and sheer pornography which sets out simply to titillate. The stream of smutbooks in France makes no attempt to describe life as it is really lived, even in the most depraved circumstances. Its chief feature is its deliberate unreality. Psychiatrists analysing the structure of such stories find the writers deliberately seizing on out strongest taboos, religious and otherwise. They detect wishful thinking, an exaggerated revolt against all the social rules of sex. In the American analysis 'Pornography and the Law' by Dr. Eberhard, the two categories of books appear quite unmistably different - the one true to life and the other full of sex - fantasy and Freudian Nightmare. But the law still makes no clear distinction between these two classes of writings. Both types tend to be lumped together.

Coming back to that amiable young lady, Lady C. many famous books of the past are open to the objection now advanced against the novel of D.H, Lawrence. The 'Memoirs of Casanova' and even 'Candide' of Voltaire and some of Anatole France's novels are, a Puritan would say, tarred with the same brush. Yet no liberal education could be complete without these books. The very task of regulating literature is repugnant to the fair ranging human spirit; it is clearly inadmissible that Authority should be entrusted with the task of regulating literature. To crib, cabine and confine literature is clearly inadvisable.

The arms of Law are very long; but then let Her Majesty, the Law think twice before it touches the sanctum - sanctorum of the Goddess of Literature.

Ladies First

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

The following case is one of the first known cases in English Criminal History where the dead body was disposed by dismemberment.

On 2nd of March 1725, a watchman found, much to his horror, a human head on the shore of the River Thames where the Tate Gallery now stands. It was placed on a tombstone in St. Margaret's Church yard where people Hocked to see it. Later it was hoisted on top of a pole and several people thought they recognised one Mr. Hayes who lived with Iris wife in the Tyburn Road. Catherine Hayes meanwhile was searching vigorously for her husband who according to her left her, saying that he was going to Portrayal. Finally she identified the head on the pole as that of her husband. By this time other parts of the body were found in Marylebone fields, in a pond.

The grief-stricken Mrs. Hayes overplayed her part a bit, which finally led to her arrest alongwith two other persons Wood and Billings, for the murder of her husband. Wood finally made a clean confession. Mrs. Hayes had apparently reasons for hating her husband and the most important being that he was a free-thinker and therefore, it was no more a sin to kill him than her dog. He had also told her accomplices that Hayes had murdered his two children and buried them under a pear and an apple tree. Mr. Hays was plied with liquor and murdered with a hatchet. The head was then severed over a pail to catch the blood. Mrs. Hayes wanted to boil the head to destroy the features but her accomplices were frightened of the operation and ran away with the head to a lime wharf near Horseferry Passage (now Lambeth Bridge) where they concealed it.

Wood died in Newgate prison before execution. Billings was hanged and Mrs. Hayes was sentenced to be burned alive as being guilty of petty treason (husband murder) and Mrs. Hayes was burned alive. This law continued in force in the land of Sir Edward Coke till 1793 and the last woman to suffer under it was Phoobe Harris in 1788.

And this one from the land of Clinton. The following is the case of a 28 year old Kentuckian sentenced to life imprisonment for the murder of her husband where the modus operandi of the disposal of the dead body was also dismemberment.

In 1947, Nira Housden and her husband bus-driver Charles Housden aged 29, lived in High Land Park, Michigan near Detroit. Nina was a very beautiful woman but she suffered from an insatiable jealousy continuously accusing her husband of infidelity although his diversions were only beer drinking and smoking. His weekly wage packet was only 65 dollars and this was hardly conducive lo extramarital relations. Made frantic by his wife's neurotic conduct, Charles Housden left her several times. But Nina's seductive cajolery always made the healing. Finally things reached a final pass, Charles got a Court injunction in his favour forbidding Nina to phone him during his working hours. Even that did not work out the desired result and the demented husband filed suit, for divorce despite protestations from his wife.

On 18th December 1947 Nina, playing the trump card of feminine cajolery and coquettishness persuaded her husband to meet her in her Highland Park apartment. There she plied him with drink and wifely lust until he collapsed, exhausted in the bed. And then she did it. A clothesline was looped round his neck and she strangled him with the ease of a professional.

The whole night she slept beside the corpse. In the morning she had her breakfast and rolled back the carpet, wadded the floor with newspapers and then in two lengthy and leisurely sessions (with an interval for sleep) she dismembered the corpse of the man whom she could not think of going with another. The blood stained newspapers and the blood stained dress were destroyed in the stove while each dismembered portion was weapped in gay X' mas paper (only four days for white X' mas) and each bundle tied with blue ribbon. The bundles were then piled in the rear seat of her Ford Car. Her intention was to drive to some secluded spot in Kentucky Hills and then dispose of the bundles. During the journey the car broke down at Toledo. Ohio. She was told by the Garage owner that it would take two days for repair but Nina announced her intension to the man that she would prefer to stay in the car all time than occupy a room in a hotel. When on the second day, a disagreeable smell permeated both car and eventually garage Mrs. Housden calmly told them that her back seat bundles contained venison. On X' mas Eve. the repair of the car was over but an inquisitive garage hand investigated the foul smelling packages in the back as the owner was taking a nap in the front seat. In the very first bundle a decomposed human leg was found and the police was instantly called to the scene. Nina Housden admitted the killing - 'My husband was not a bad man, but he was just running about with other women, and that was why I did it'. She comforted herself.

Found legally sane, she was indicted as a charge of first degree murder and found guilty.

The Mischievous S.27, the Mischief of the Police and the Misery of the Suspects

(Joseph Thattacherry, Advocate, Changanacherry)

There is an old saying that a prostitute can be believed to some extent but not a police man to that extent. Whether the saying is true, or not, the Parliament in its wisdom has enacted S. 25 and S.26 of the Evidence Act by which confession made to a Police Officer or confession made while in the custody of a Police Officer is inadmissible in evidence. Those sections were enacted out of distrust of the Police and the reasonable apprehension that the extensive powers they enjoy would be misused if confessions made to them by the accused persons are made admissible in evidence. The purpose of the restriction imposed is to protect the person accused of a crime from third degree treatment. But as a proviso to those sections is enacted as S. 27, by which, when a fact is deposed to as discovered i n consequence of information received from a person accused of any offence in the custody of a Police Officer, so much of such information as relates distinctly to the fact thereby discovered, is made admissible. The only justification for its admissibility is the guarantee of the information being true owing to the consequent discovery. At the same time under S. 24 of the Act, a confession made by an accused person is irrelevant if the making of the confession is caused by any inducement, threat or promise proceeding from a person in authority. As per S. 164 Cr. PC a magistrate before recording a confession has to caution the accused against making such confession and he shall not record it unless upon questioning, he has reason to believe that it is made voluntarily. But strangely no such prosecution or test of voluntariness is not a requirement for the admissibility in evidence of a disclosure statement before the police. An accused does not normally make a disclosure statement before the Police, lead them to the place of concealment and make the recovery of any weapon or stolen article as the case may be, voluntarily.

The malady is that in applying S. 27, Courts are not to look into the voluntariness or otherwise of the disclosure statement and discovery. However, bad and cruel the means employed in obtaining the information may be, in our country S. 27 of the Evidence Act authorises the Court to ignore those means and to act on the information, if recovery is made in consequence thereof. The case law as it stands now, is that even if the panch witnesses turn hostile, courts can act upon the uncorborated testimony of the investigating officer if it is found convincing. No doubt it is easy for an investigating officer to depose convincingly regarding the simple fact of information and recovery, however false and fake they may be.

By the passing of time, in our country corruption from top to bottom has become rampant. Day by day news is coming forth about swindlig of the exchequer by higher ups to the tune of crores of rupees. Supreme Court' s intervention on the functioning and investigation of the CBI is necessitated, along with rubuke and admonition of its chiefs. Our morale and honesty have gone down to a pitiable low. In this context, just imagine about our Police Officers who are under paid. No wonder if they happen to be susceptible to corruption. Use of S. 27 of the Act may not be that safe in their hands.

Neither in America nor in England we find a similar provision as we have in S. 27. In America confessions are admitted only if there is clear evidence that no undue influence, threat or inducement is brought to bear upon the accused. There, the prosecution cannot use a confession, unless certain stringent conditions and safeguards are fulfilled. They include right to counsel during the interrogation and warning to the suspect or accused of his right to counsel. The Supreme Court has held, as reported in 1994 Crl. LJ 1981 that the accused has a right to have some one, his friend or relative, informed of his arrest, and place of detention and also to consult privately with a lawyer. It was also held that it shall be the duty of the Magistrate to satisfy himself that these requirements have been complied with. But the pity is that, very seldom an accused gets such privileges in the custody of Police. Again in arecent decision of the Supreme Court reported in 1995 Crl. LJ 3992, the court set aside the conviction and sentence of an accused in a murder case, on the ground that the disclosure statement and the recovery memo did not bear the signature or the thumb impression of the accused. But that decision of the apex Court is of no avail to the accused so long as they are at the clemency of the Police, while in their custody and have no option but to affix the signature or give the thumb impression wherever and whenever so ordered by the Police.

This author had a very interesting experience in respect of recovery under S. 27 of the Evidence Act effected by the Police of Chingavanam, within the jurisdiction of JFMC Changanacherry. Two suspects were arrested and crime 193/92 was registered against them under S. 41 (l)(d)and S. 102 of Cr. P.C. On interrogation they have alleged to have confessed before the police mat they have committed theft of several articles from 13 different places within the limits of that Police Station. 13 separate crime cases were registered against them. Allegedly, they lead the investigating Officer to 13 different places far apart. 13 Recovery mahazars and 13 sezure mahazars were seen prepared by the selfsame investigating officer on 15.6.1996 within the span of 7.30 hours. In the meanwhile, S. 161 statements of several witnesses in the cases were also been recorded. And strangely the accused were produced before Court at 5 PM on that very same day. Interestingly 3 recovery mahazars are seen recorded on that same day, same hour and same minute viz. on 15.6.92 at3.30 PM at different places, in C.C. 740/ 92, CC 754/92 and CC 372/93 before the JFMC Changanacherry. Indeed it is quiet impossible. Accused are acquitted. That is only one among the many examples of the menance of S.27.

It is high time, to seriously consider whether S. 27 should not be expunged from the Evidence Act. Our Evidence Act is more than a century old. In spite of several criticisms from several quarters and by various High Courts S. 27 remains in the statute book, even now. As long as it remains in the statute the victims generally are the poor and downtrodden. Hence, it is respectfully submitted that steps has to be taken to delete S. 27 from the Evidence Act, at the earliest.

Hot Mail and E-Mail Serves Lawyers

(By A.J. Jose Aedaiodi, Advocate, Ernakulam)

One need not own a computer to be an E-Mail owner. Anybody and everybody can have one or many E-Mail address. One need not be a paid subscriber to the web site or the Internet or such other service providers to own an E-Mail facility.

FAQ or Frequently Asked Questions

What to do or How to get an E-Mail address. The answer is simple and is more easier than the question. It is not very easily asked by one and all. Usually people do not care to bother. What one has to do is simple. One has to approach a Computer -Internet - E-Mail Service Centre, which is fast increasing along with the Telephone booths.

Second step is to tell the operator there to open a free "hot mail" address for yourself.

Then the programmes goes like this-Dial 172222 for access to the Internet connection. Enter your account number and pass word-which the operator knows. Thus you get access to the Internet you can click the mouse to the free hot mail, and you come across.

(1)    Click at sign up here.

(2)    Type your name.

(3)    Type your proposed hot mail address for Example your want your logo as "notaryjos."

(4)    Type your year of birth.

(5)    Click your country at India by moving the mouse across the screen.

(6)    And click at submit Registration.

Congratulations "Notarjos @ hotmail.Com." is your E-mail address. If your logo is not accepted try once again with another logo and submit Registration with a new or altered name till it is accepted. You can remember your pass word for future use.

It takes hardly seven minutes to register one hot mail address. You can register any number of hot mail address as you wish. If you do not use the hot mail for 120 days the Registration automatically gets wiped off.

Why One Should Have One?

Again the answer is simple. It is your private personal address. It is a notice board where you can write anything and send copies of the news and information to a number of persons. You can send a number of pages of printed material and even a colour photograph of your new born baby to your friend or anybody anywhere in the world provided that person's E-mail address is known to you.

What Lawyers do and How It Helps

How to helps a Lawyer is explained easily. A Lawyer in the Muniff’s Court Devicolam files a suit for injunction and obtains an Interim Order. The respondent wish to file a Civil Revision Petition before the High Court. Here comes your E-mail to help. If your Injunction suit and Interim Applications at Munsiff Court is made in a computer floppy by a few clicks of the mouse sitting in your office at Devicolam mountains the entire file is transmitted to the lawyer at Ernakulam instantaneously.

May be you are right; but how would that lawyer at Ernakulam know that a file is send to him and how will he reply or receive it and acknowledge.

If you want your Ernakulam Lawyer to instantaneously receive and go through the file you may have to tell him. Now you may ring him up over the telephone and say I have send an E-mail and that is all. Yes, what he has to do is just simple. Check his E-mail and to he may down load and print or the file remains saved in his mail box or he can get it anytime from anywhere in the world.

Anywhere In the World?

Yes one can get into the E-mail by operating from any computer connected to Internet. It does not matter if you are in Japan, New York or Rajakad. It is advised that you check your mail box once in a week or every day.

How to do that

Just walk into any booth or any computer with Internet and get into the internet and type your E-mail Address Logo and pass word; your information and all that is send to you with their E-mail address, date and time are all there for you. It is as simple as you think. Next time do not forget, to print your E-mail address on your letter pad, docket sheet and of course on your visiting card.

Yet another word; Your free hot mail address is advantageous because if you subscribe to an Internet connection and obtain your pass word as ad cos @ Md VSNL net in, and if you do not continue to pay the subscription your E-mail facility is likely to be stopped. But free hot mail address remains free and of course for your private personal use.

What else

Yes you can log in and go in for an E-chat with your colleagues. Lawyers from the world over can actually talk to each other on the computer with E-chat. Need I say more.

How Costly?

It would hardly take one local call to transmit a 200 pages file from one computer to any E-mail address. This is how it is done. Once you finish Typing or Scanning the matter and documents, the entire matter is collected and packed into one Electronic parcel. It is sent at a speed that would reach the destination almost instantaneously. We get confirmation on commanding to send that the addressee had been "served" but it will be "received" only when he opens his E-mail box. You can send a greeting card with all colorful embroidery to many persons at a single click to send. It would turn out to be cheaper than the cheapest and faster than the fastest, and you become, smarter than the smartest.

The Satanic Angel

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

Dr. Neema Sultana Begum, M.B.B.S. was a very brilliant student of the King George Medical College, Lucknow. She had secured the coveted Empress Victoria Readership (Research Scholarship) of the College for three years and was doing research work in forensic medicines and toxicology under the guidance of Dr. Goutam, Professor of the same College. She was extremely beautiful and vivacious and had even featured as a Beauty Queen in many of the beauty contests in the hill stations of northern India, like Mussorie, Nainital and Simla combining in herself western beauty and oriental charm. She hailed from a highly cultured and aristocratic Muslim family of Lucknow. Her father Mirza Afzal Beg was an I.C.S. Official who met with a motor accident and was killed on the spot. Since then Neema, who was about 23, her widowed mother Salima, who was about 40 years old, and her brother Mirsafar, who was studying for B.A., in the local college had been living in their ancestral house, Mir Manzil, in Lucknow.

Dr. Mohanlal Gautam, M.D., F.R.C.S. (Edinburgh), Neema's Guide in research, was one of the brilliant men on the staff of King George's Medical College, Lucknow. Though his special subject was Pathology, he was supreme in others fields also. His reputation as a general practitioner was great and he had a large number of rich patients who paid him enormous fees. He used to attend to his students and their family members and also genuinely poor people at their homes without any fees at all. He was a tall and extremely handsome man with glistening eyes and a short aquiline nose and was about 38 years old. All his students liked him. His family consisted of his wife and two small children. A loving husband, he lived with his family in a fine bungalow attached to the college.

And then things began to happen! It is strange that young, attractive and talented girls are drawn towards elderly men despite the handicap of their being already married and having children. Gradually Neema got enamoured of the tall and handsome Dr. Gautam nearly twice her age and father of two children with a pretty and devoted wife. She was being irrevocably drawn towards the cold lustre and invisible magnetism of his brilliant and superb manhood. She also wondered why she who could stun any young man with a mere twinkle or her eye, could not move this stalid Adonis of a man who was utterly insensate to her charms.

She was determined for her catch. She took every opportunity to talk to him about her studies, the social conditions of the city and finally a probe into his family life. But Dr. Gautam never exceeded his limits as a Guide and Professor in his talks to her. And then one day on her request he took Neema to his residence and introduced her to his wife and children. Neema begged Dr. Gautam to make a return visit to her residence which Dr. Gautam did out of sheer courtesy. He was introduced to Neema's mother and thereafter Dr. Gautam made frequent visits to Neema's residence. Meanwhile, Neema's nerves were getting frittered and she was almost on the brink of insanity consumed by unrequited love. And one day casting aside all decency and decorum, Neema asked her mother whether she would mind if Neema married Dr. Gautam. Her mother replied that she would have her blessings but added that it was impossible and unthinkable as he was a family man and a Brahmin and was treating her as a grown up daughter. "That is my business mother, you may leave it to me", she replied.

And then on the next visit of Dr. Gautam, when Neema's mother was absent in the house, things got hot. Dr. Gautam was on the point of going away when he found her mother was not present. And then Neema went into a sudden outburst of passion. 'Don't you think that I am far more beautiful than your wife - would you marry me?" Neema burst into tears and was sobbing heavily.

Dr. Gautam was so stunned by this sudden and unexpected outburst of passion. However, he slowly gathered his wits and numbled that it was utterly unthinkable, he being a married man with a devoted wife and a Brahmin too and his feelings towards, her could be no more than that of a father or brother.

Neema was frantic and persistent and then put her second alternative 'You are a rich man, Dr. Gautam, you can hire out another bungalow and keep me there: hundreds of big people are doing it nowadays! Upon this Dr. Gautam flared up like gunpowder and retorted "I thought that with all your faults you were a good girl. But now I find that you are a strumpet!"

Strumpet! The words had an electrifying effect on Neema. She flushed crimson and with a snarling and disdainful gesture she got up and disappeared. Dr. Goutam stepped out of Mir Manzil into broad day light and thereon into his car.

Next day and for many other days Neema was absent in her college for her research work. One evening Dr. Gautam had a special messenger from Neema. To make a visit to her and diagnose her illness and treat her. Dr. Gautam went to Neema's house after finishing his work in the college and that night Dr. Gautam did not return to his residence!

Next morning there was banner headlines in Lucknow newspapers "Dr. Gautam short dead by a girl student! Assailant arrested!". The student was none other than Neema, his research student. The post-mortem examination of the dead body revealed that Dr. Gautam had been killed by a short fired at point blank range from a 12 bore shotgun using buckshot (LG) ammunition. Five of the six LG catridges were recovered from inside the dead body. The sixth was recovered from near the place where the dead body was lying. Death must have been practically instantaneous.

In the police station Neema made a confession - that she loved Dr. Gautam with all her heart; but at least on one occasion he scorned her as a strumpet which overwhelmed her feelings so that she wanted to end her life. But before that she wanted to finish Dr. Gautam who rejected her in such a contemptuous way. Later on when she was produced before the Magistrate, she replied "on advise". She made a statement that she was innocent and that she did not know to use a fire-arm and the gun in her house was used by her father before his death. And also that the dead body was planted in her house by some of the enemies of Dr. Gautam who had done the crime. That Dr. Gautam wanted to marry her and she was not willing for such an alliance!

In the Sessions Court the prosecution proved that contrary to the allegations of Neema, she was an expert in handling firearms. In fact, the licence for the Westley Richards Short gun had been transferred to her by her father before his death and that prior to the incident she had bought 20 Eley-Kynoch-Buck-Shot catridges for the gun from the local ammunition shop. But why did she kill him? The defence made a suggestion that perhaps Neema was showing her guns to Dr. Gautam when an accidental discharge might have killed him. This hypothesis was negatived by the fact that the gun had barrels 33 inches long and it was quite impossible for Dr. Gautam to receive the discharge from the barrel on his chest due to an accidental tripping of the trigger. Two of the neighbors of Neema testified that at about 11 P.M. on that fateful night they had heard the report of gun shot from her house and the piercing cry of a man in agony. One of them had informed the police by telephone.

Neema was convicted by the Sessions Judge for the murder of Dr. Gautam, but instead of awarding the capital sentence, sentenced her to life imprisonment. The High Court on appeal confirmed the conviction, but reduced it to 10 years as in its opinion, the motive for the murder could not be clearly proved by the prosecution.