M.F. Rego v. Emperor

Niyogi, A.J.C:— Mrs. Rego and Driver Scrowston were committed to the Court of the Sessions Judge of Jubbulpore on charges of abetment of the murder of Mr. Rego, the husband of Mrs. Rego, and of murdering him respectively. The learned Sessions Judge amended the charge against Mrs. Rego in the first instance converting the abetment into that of actual commission of murder and by the addition of another charge in the alternative, namely, giving false information that there had been a burglary at her house with the intention of screening the murder punishable under S. 201, I.P.C, and later by an addition of the charge of conspiracy with Scrowston to commit the murder. Both the accused persons were adjudged guilty and sentenced to death subject to confirmation by this Court. The prisoners have filed two separate appeals. The judgment in this appeal will govern the disposal of the other appeal also. The deceased Mr. Rego, a Roman Catholic, married,; Mrs. Rego, who was of Russian or Polish origin, in the year 1924 and lived with her in a bungalow in Napier Town, Jubbulpore. On the night of 20th August, 1932 he was found dead due to injuries inflicted on the head. At about 3 a.m Mrs. Rego went about behaving in a wild and erratic manner to the bungalows of the neighbours informing them of the circumstances of the tragedy, and eventually at 4.45 a.m she made a report about the occurrence at the police outpost.

2. It appears that Mrs. Rego had a fascination for British soldiers of the Cantonmont at Jubbulpore. She had numerous admirers of whom one was Sergeant Sebborn, who was in Jubbulpore in 1930 and left for England towards the close of that year. For some months prior to the murder she had developed illicit intimacy with Driver Scrowston of the 90th Field Battery Royal Artillery, which strangely enough culminated in a bigamous marriage solemnized on 10th June, 1932 at the Wesleyan Church at Jubbulpore. The fact that Mrs. Rego had her husband alive was concealed from Rev. Brooke, the Chaplain of the Church, who was led to believe that she was then a widow of her previous Russian husband Falkoffski. Mr. Rego became aware of this illegal marriage but took no legal action and on the contrary did his best to hush up the matter. Scrowston continued his liaison with Mrs. Rego as is evident from the fact that on 30th June he was found locked up in the sweepers' quarter of Mrs. Rego's bungalow. All though he was punished by the military authorities for being out of bounds he persisted in his visits to Mrs. Rego during the hours when Mr. Rego was away at his office, he being employed as Supervisor in the office of the Divisional Engineer in the G.I.P Ry. On 25th June, 1932 Mr. Rego received a letter addressed to Mrs. S. Scrowston, C/o Mr. Rego. This letter, it is alleged, was deliberately addressed in the manner it was with the intention that Mr. Rego should peruse the contents and be disposed to divorce his wife. The letter bears the signature of one Valentine Harrison, who, in the role of a lover, expresses his surprise at her bigamous marriage with Scrowston and seeks to induce Mrs. Rego to give up her connexion with Scrowston and accompany the writer to Calcutta. This letter was proved to have been written by one Rolph in the interest of Scrowston. Notwithstanding the bigamous marriage, the provocative letter and the objectionable conduct of Scrowston, Mr. Rego, to all intents and purposes, maintained his relations with his wife as if they were normal. During the month of August a Russian Circus was performing in the cantonment area of Jubbulpore, at a place about 1½ miles away from Mrs. Rego's bungalow. It is admitted that Mrs. Rego and Driver Scrowston attended the Circus on the night of 19th August and were seated next to each other. As Scrowston held a pass which entitled him to leave of absence till 12-30 a.m he left the Circus before it ended to report himself at his barracks. He returned to his barracks at 12.15 He was however noticed at about 1 a.m moving fast on his bicycle towards the barracks from the Civil Station. Apart from the evidence of motive supplied by the bigamous marriage, the Valentine Harrison letter and the persistent intimacy between Scrowston and Mrs. Rego, the prosecution relied on a mass of evidence of a four-fold character, namely, (a) evidence of the accused being seen at or near the scene of the murder at or near the time when it was committed, (b) evidence of the conduct of the accused before and after the murder, (c) evidence of statements made by the deceased relating to the transaction resulting in his death, and (d) statements made by the accused before and after the murder. The evidence which, was produced under the head (a) consisted of the testimony of one sweeper woman Mt. Dujia (P.W 7), who boldly affirmed that she had seen Scrowston clad in a khaki vest outside the door of the spare-bathroom and that Mrs. Rego came out of the bungalow and joined Scrowston in carrying a large black trunk all the way round the bungalow and deposited it in front of that bathroom door. Her story, if believed, would conclusively prove the crime against the appellants but the learned Sessions Judge discarded her testimony as being utterly false and fabricated. No attempt was and could, reasonably have been made here to induce this Court to accept that evidence as true. Under the head (b) the learned Sessions Judge considered the evidence pertaining to the conduct of Mrs. Rego and Scrowston before and after the murder. The prosecution relied on the following circumstances to show Mrs. Rego's conduct before the murder that the Regos removed to the bungalow where there was no garage or quarter for the motor driver, from another bungalow in the same locality, where there was such a provision; that the-servants were sent of to the circus on the night of the tragedy that Mrs. Rego got rid of her dog a few days before the occurrence. As the sweeper and his wife-were in fact sleeping in the bungalow which was incompatible with any preconcerted plan, as a reasonable explanation was given by Mrs. Rego to account for the change of the bungalow and as Dr. Oke (D.W 1) testified to the dog being, in reality, ill, the learned Sessions Judge concluded that there was nothing suspicious in Mrs. Rego's conduct before the murder.

3. Nor was the learned Sessions Judge disposed to draw any adverse inference as to Mrs. Rego's conduct after the murder from her wild and hysterical behaviour (after the murder). As regards Scrowston's conduct during the night of the occurrence, the learned Sessions-Judge regards the fact of Scrowston having been seen at the Cenotaph at about 1 a.m coupled with the further fact that while nothing was found on a search of his kit on the 20th morning, oil a search two days later a purse containing a gold watch and chain with a pendant two pairs of cuff links, some studs and a the pin and a gold finger ring were recovered, as two very suspicious circumstances against him. Under the head (e) several statements alleged to have been made by Mr. Rego revealing his mental attitude towards his wife wife admitted under Section 32(1) of the Evidence Act, and under the head (d) various incriminating statements alleged to have been made by Mrs. Rego before and after the murder were admitted. It is mainly on the strength of these statements attributed to Mr. Rego and Mrs. Rego that the inference of guilt is drawn against both the appellants. In appeal it is strenuously pressed that neither the Sessions Judge nor this Court has jurisdiction to pass sentence of death on Scrowston who is a European British subject. The argument is advanced that S. 34(a), which has been added by Section 7 of the Criminal Law Amendment Act 12 of 1923, has not acquired the force of law on account of the absence of any words in the section to indicate that the previous approval of the Secretary of State in Council as required by Section 65(3) of the Government of India Act of 1919, had been given. Having regard to the presumption as to the regularity and validity of all the laws passed by the legislature the burden was incumbent on the contestant to prove that there was no such previous approval. Whatever doubt there could be in the matter has been resolved by the information supplied to us by the learned Government Advocate that such approval was given by a telegram No. P-5020, dated 29th December, 1922, from the Secretary of State for India, London to the Viceroy. The contents of the telegram are clear to show that under Section 65(3) of the Government of India Act, approval of the Secretary of State in Council was given to the introduction of the legislation which resulted in the addition of S. 34-A and amplification of the definition of “High Courts” given in S. 4(i)(j) so as to include the Court of the Judicial Commissioner, Central Provinces, for the purpose of trial of European British subjects. On behalf of Mrs. Rego no such contention is possible as she is not a European British subject. In fact both she and Scrowston moved the Sessions Court, under Section 446 of the Cr PC, for being tried with the and of assessors under the special provision of S. 284-A on 14th October, 1932, on which date the committal proceedings were received by the Sessions Judge.

4. There can be no doubt that both the Court of Session and this Court are competent to deal with the case and can award appropriate sentence according to law. There is also no illegality in the trial with the and of assessors under S. 284(A) which is the correct procedure. On behalf of Mrs. Rego it is contended that the addition of three charges by the Sessions Judge to the one already framed by the committal Court offended against S. 234 which permits joinder in one trial of offences not exceeding three. This objection affects the form more than the substance and on analysis it would be found to be devoid of cogency. The original charge framed against Mrs. E.I Rego lay the committing Magistrate was one of an offence under S. 302, I.P.C, read with S. 114.

5. It gave a clear indication of the allegation that Mrs. Rego did not only abet the crime but that she was present when the murder was committed. S. 114 is not a substantive offence, but it only states that an abettor, if present when the offence is committed, will be deemed to have committed the offence himself. Although such a person may not have physically participated in the murder, in point of law he is a participant in the crime to the same extent as the actual perperator. It has been held by their Lordships of the Privy Council in Barendra Kumar Ghose v. The King-Emperor Opposite Party. AIR 1925 PC 1 , 85 IC 47 , 26 Cr LJ 431 , 52 IA 40 , 52 Cal 197 (PC) that when an abettor is present at the crime he is guilty not of abetment with circumstances of aggravation but is guilty of the very crime which is abetted. The actual presence prior to the abetment can mean nothing else but participation, and S. 114 being evidentiary brings the case within the ambit of S. 34, I.P.C It must therefore follow that whether the charge is framed in terms of S. 302, read with S. 114, or in terms of S. 302 alone, the offence denoted is substantially the same. Although in form the charges are two in substance they mean only one offence. As the two charges overlap each other they cannot be regarded as implying two separate offences one of them was superfluous and no prejudice has been shown to have accrued to the accused. This contention must therefore fail.

6. It is further urged that the charge of giving false information to the police, punishable under S. 201, could not be framed against Mrs. Rego, as it was not so connected with murder as to form one transaction. The expression “the same transaction” has not been defined anywhere although many learned Judges have tried to explain it in several cases. As was observed in Gunwant Accused v. Emperor . (1917) 13 NLR 35 , 38 IC 723, the question whether or not different offences by two or more persons have been committed in the same transaction, is a question of fact, to be determined with reference to the circumstances of each particular case. In Emperor v. Hari Raot (1906) 2 NLR 147 , 4 Cr LJ 420, Drake-Brock-man, C.J, laid down the test to be not so much proximity in time as continuity of action and purpose. In Choragodi Venkatadri v. Emperor (1910) 33 Mad 502 , 11 Cr LJ 258 , 5 IC 847 the tests applied to decide whether different acts are parts of the same transaction were proximity of time, unity of place, unity of purpose or design and continuity of action. The essential tests are continuity of action and unity of purpose. If the act is done in pursuance of a particular end in view and as accessory to what preceded it the two acts must be regarded as forming parts of the same transaction: see Gam Mallu Bora v. Emperor AIR 1925 Mad 690 , 95 IC 304 , 49 Mad 74. In the present case the prosecution alleged that simultaneously with or closely following the murder the trunk was removed from the bungalow of the deceased and left outside the bathroom and some valuable articles were also removed and the almirah was thrown open with a view to impart to the murder the colour of burglary, and suggest a false motive for the crime. The further allegation was that Scrowston helped in removing the articles in furtherance of the same design. Thus according to the prosecution both the parties joined in laying a false trail and the actual false information suggestive of a burglary given by Mrs. Rego was only an incident of this transaction. The murder, the fabrication of evidence to suggest burglary and the false information given by Mrs. Rego are sd connected together as to form parts of one transaction. Each of the appellants would be punishable under S. 201, I.P.C, even without a specific charge framed in that behalf, as was held by their Lord ships of the Privy Council in Begu v. Emperor AIR 1925 PC 130 , 88 IC 3 , 26 Cr LJ 1059 , 52 IA 191 , 6 Lah 226 (PC). I therefore hold that there was no illegality in adding the charge of an offence punishable under S. 201, I.P.C, to the charge already framed against Mrs. Rego and in trying Scrowston and Mrs. Rego together. No fresh evidence was produced to substantiate this charge as the evidence already recorded in the committal Court was relied on by the prosecution as being sufficient for the purpose. No prejudice has resulted to any of the accused, on this account.

7. Proceeding now to the merits of the case I have first to determine whether certain statements which were alleged to have been made by Mr. Rego some days prior to his murder were rightly held admissible under Section 32(1) of the Evidence Act. Those statements are sought to be proved by the evidence of Mr. Clay (P.W 14). They are:

“(1) The day was Tuesday. Mr. Rego was talking to me about his brother coming. He said he thought he would arrive on the following Saturday. He also spoke about his father's property in Goa. I do not know when the father died but there was talk about some settlement between Mr. Rego and his brother of the property. (2) As I was leaving Mr. Rego accompanied me to the gate and between the porch and the gate he said to me ‘Mr. Clay, if ever you hear of my death and it is through foul play, my wife is the cause of it.’ I could see from his tone that he was in trouble and I asked why he said such a thing. He then told me that Scrowston accused had been over there and had ordered Rego to give his wife her freedom. He told me that Mrs. Rego had said to him she liked him as a father because he was good and kind to her but she was in love with Scrowston and that if Rego gave her Rs. 20,000 she would go to England and be out of his life for ever. I then asked when Scrowston had been there he raid it was on the previous day Monday, which was Nagpanchami. (3) He also gave me to understand that when his brother arrived on Saturday he would come to some arrangement With him about his wife and her recent bigamous marriage with Scrowston. (4) Previous to this he was constantly complaining to me about his wife and he told me that he was even afraid to kneel down and say the Lord's prayer for fear his wife should murder him while he did so. (5) Mr. Rego brought us out tea to drink and Rego advised me not to drink it thinking it might be poisoned. He did not drink the tea.”

8. Garth waite (P.W 21) affirms that a week before the tragedy Mr. Rego, the deceased, had been to his bungalow and confidentially told him that he was afraid of his life and afraid to stay in his bungalow. Naidu (P.W 23) who is employed in the same office as the deceased, avers that the latter told him, about two or four days before his death, that he should not be surprised if he were poisoned by his wife. Similarly Andrew Leslie (P.W 47) deposes that on one occasion the deceased, Mr. Rego, told him that his wife was always threatening to stab him and that soldiers were always hovering about his house and he did not know what they might do to him, and that is why he wanted to make a will. All these statements repeated by the several witnesses were made long before the actual incident of murder. The question is whether they fall within the purview of Section 32(1) of the Evidence Act, so as to be capable of being used as evidence respecting the cause or circumstances of death. S. 32(2) reads as follows:

“When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death in cases in which the cause of that person's death comes into question, such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.”

9. It is contended that the statements are admissible as relating to the circumstances of the transaction which resulted in his death. The section purports to deal with the facts relevant to death and consequently it must be interpreted in such a way as to include only those facts which have such a close bearing on death as to form one single transaction ending with death. Such statements are referred to as dying declarations in S. 8, Illus. (j) and (k), although S. 32(1) is framed in somewhat wider terms. Under English law declarations made by the deceased are not admissible unless he is in actual danger of death and has full apprehension of his danger and death has actually ensued. Under Indian law it is immaterial whether the person was actually under expectation of death or not.

10. The two paragraphs of sub-Section (1), S. 32, read together seem to apply only to such statements of the deceased as are made subsequent to the injuries sustained by him. The transaction resulting in death which is contemplated in this section cannot possibly mean any fact or series of facts which have no direct and organic relation to death. It cannot reasonably include the conspiracy to commit murder which as defined in S. 120(a), I.P.C, is only an agreement between two or more persons for the commission of any offence. The agreement to commit the offence and the motive of or preparation for the offence do not directly result in death. It is only when the agreement is sought to be executed that the transaction resulting in death ensues. Two persons may agree on a particular day to kill a third person on some specified day. With a view to commit the offence, they may collect arms and other accessories, but the actual transaction which is calculated to result in death will not arise until they give effect to their conspiracy by actual commission of the offence. The transaction resulting in death represents the ultimate phase of the whole series of acts beginning with the agreement to commit the offence. Light is thrown on the meaning of the word “transaction” by Section 6 of the Evidence Act, especially by Illus. (a) to that section, which is as follows:

“A is accused of the murder of B by beating him. Whatever was said or done by A or B, or the bystanders at the beating or so shortly before or after it as to form part of the transaction is a relevant fact.”

11. In S. 32 the fact of death is the res gestea, the main fact, and only those circumstances, which constitute or accompany this main fact can be regarded as forming part of the transaction. These incidents therefore must be intimately connected with the immediate cause of death, viz., the injury which results in death, and such facts as are within the knowledge of the injured person intimately and immediately connected with the injury, are primarily contemplated in the section. The view taken in Autar Singh v. Emperor AIR 1924 Lah 253 , 81 IC 964 , 25 Cr LJ 1140 , 4 Lah 451, that certain statements made by the deceased some days prior to the event which resulted in death are excluded by S. 32(1), Evidence Act, seems to be sound. In Venkatasubba Reddi, In re AIR 1931 Mad 689 , 134 IC 1143 , 54 Mad 931 it was held that certain statements made by the deceased some days prior to her murder, which proved the motive of the offenders to murder her, were held to be inadmissible under Section 32(1) of the Evidence Act. No doubt in Shivabhai v. Emperor AIR 1926 Bom 513 , 97 IC 660 , 27 Cr LJ 1140 , 50 Bom 683 some statements which were made prior to injury were admitted under this section, but it was because they were held to have been made in the course of the transaction which resulted directly in death. In that case the accused was decoyed from his place and was found travelling in a railway train. On inquiry he told the witness that he had a companion who purposely sat in a separate compartment. It was that companion who was being prosecuted for the murder of this man committed on the same day. Now, it was known that the deceased had disappeared in the morning on that day in the course of which he was murdered. The transaction which resulted in death began with his disappearance and continued until his death and his travelling in a different compartment from that of his companion was a circumstance of the transaction. Therefore the statements made to explain that circumstance were held to fall within the purview of Section 32(1) of the Evidence Act. Their Lordships of the Bombay High Court referred to an unpublished decision of this Court reported in Chunilal v. Emperor, A.I.R 1924 Nag. 115. In that case a report made by the deceased a day prior to his death to the effect that he was stabbed by a pahelwan of Nagpur because he refused to deliver the keys of his house was admitted under S. 32(1). There is no discussion of the law to support the view and I am unable to affirm its correctness. There is however no question that the evidence in the Bombay and Nagpur cases was admissible under S. 8 as the statements made by the deceased in both cases explained their conduct.

12. I follow the view taken in Autar Singh v. Emperor AIR 1924 Lah 253 , 81 IC 964 , 25 Cr LJ 1140 , 4 Lah 451 and Venkatasubba Reddi In re AIR 1931 Mad 689 , 134 IC 1143 , 54 Mad 931 and hold that none of the statements sought to be proved by the evidence of the aforesaid witnesses is admissible under Section 32(1) of the Evidence Act. It is argued that the statements are admissible under Section 8 of the Evidence Act. Under that section it is not the statements but the evidence of conduct which is admissible. Expl. 1 to that section expressly lays down that “conduct” does not include statements unless those statements accompany and explain acts other than the statements. In none of these statements except possibly those referring to the incident of Mr. Rego refraining from drinking tea is Mr. Rego's conduct evident. The various statements were made on different occasions in the course of more than eight months. None of these statements throws any light upon a particular act of Mr. Rego which may be considered relevant to the fact in issue. Unless the statements are the essential complements of acts done or refused to be done, so that the act itself or the omission to act acquires a special significance as a ground for interference with respect to the issues in the case, they could not be admitted. They are more or less expressions of suspicions or opinions. In fact, mere declarations are no proof of the fact they accompany; the existence of the fact itself must be established independently. What is relevant is the particular act upon the statement and the statement and the act must be so blended together as to form a part of a thing observed by the witnesses and sought to be proved. Having regard to this law the statements must be rejected as inadmissible. (The judgment then considered the evidence and proceeded.) The prosecution relies under head (d) on the statements alleged to have been made by the accused before and after the murder. The question is whether the statements made by the accused, Mrs. Rego after the murder while she was under surveillance, if not in the custody of the police are admissible against her. It raises a question as to the scope of Section 162 of the Cr PC. Does the expression “statement made by any person” occurring in Cl. 1, Section 162 of the Cr PC, include a statement made by a person accused of the offence under investigation? This has given rise to a divergence of opinion among Judges. Recently the question was referred to a Full Bench of the Madras High Court in a case reported in Syamo Maha Patro v. Emperor AIR 1932 Mad 391 , 1932 Cr C 355 , 137 IC 9 , 33 Cr LJ 418 , 55 Mad 903 (FB) and the opinion was recorded that a statement made by an accused person in the course of the investigation is admissible in evidence under Section 162 of the Cr PC. This view is contrary to what was held in a series of cases reported in Jagwa Dhanuk v. King-Emperor AIR 1926 Pat 232 , 93 IC 884 , 27 Cr LJ 484 , 5 Pat 63, Rannun v. Emperor AIR 1926 Lah 88 , 94 IC 901 , 27 Cr LJ 709 , 7 Lah 84, Emperor v. Maung Tha Din AIR 1926 Rang 116 , 96 IC 145 , 27 Cr LJ 881 , 4 Rang 72 (FB), Azimuddy v. Emperor AIR 1927 Cal 17 , 99 IC 227 , 28 Cr LJ 99 , 54 Cal 237 and the Full Bench case Thimmappa v. Thimmappa AIR 1928 Mad 1028 , 112 IC 682 , 29 Cr LJ 1098 , 51 Mad 967 (FB). Perusal of Ss. 160, 161, 170 and 173 together leaves no room for doubt that the statements which are contemplated in S. 162 refer to statements other than those made by the accused. I am more impressed with the reasons given by Waller and Pandalai, JJ., who delivered the judgment than those given by the learned Judges of the Full Bench. In Gola Accused v. Emperor Opposite Party. AIR 1929 Nag 17 , 114 IC 273 , 30 Cr LJ 258 , 24 NLR 158 (FB) it was held that the statements made after the arrest were not covered by S. 162 and the question whether the statements made by the accused person prior to his arrest in the course of police investigation were covered by S. 162 was left undecided. In view of the facts in the present case, namely, that Mrs. Rego was kept under detention soon after she made the report, it is clear that she was for all practical purposes in the custody of the police although not formally arrested. As was pointed out in Maung Lay v. Emperor AIR 1924 Rang 173 , 25 Cr LJ 381 , 1 Rang 609 , 77 IC 429 the idea of free detention is altogether mistaken. The moment the suspected person comes into the hands of the police officer his movements are restricted and he is no longer at liberty. When such a condition is reached it is nothing less than being in the custody of the police. I have therefore no hesitation in holding that Section 162 of the Cr PC, does not come into operation to exclude the statements made by Mrs. Rego in the course of the police investigation.

13. The statements alleged to have been made by Mrs. Rego fall into two categories: (1) statements made before she came under police custody; and (2) statements made in the presence of the police in the course of investigation. Mr. Clay (P.W 14), Mrs. Gately (P.W 20), Mr. Garthwaite (P.W 21), Father Bazelans (P.W 25) and Mr. Leslie (P.W 47) testify to these statements. According to Mr. Clay (P.W 14), soon after the bigamous marriage, which was 10th June, 1932, Clay and his wife were visiting the Regos when Mrs. Rego had an outburst of temper in which she abused her husband saying that she was building a foundation for him and in a month or 20 days he would know all about it and that she would have him murdered by Indians or soldiers and that she would pour petrol on him and burn him. Mrs. Gately (P.W 20) states that Mrs. Rego came to her bungalow a week before the tragedy looking very worried and told her that something terrible was going to happen. Mr. Garthwaite (P.W 21) says that Mrs. Rego told him that her soldier friend was leaving the army and had obtained a post in the police at Bangalore and that he wanted her to go with him and if she refused he threatened reprisals on her and her husband. He also said that on another occasion she told him that Mr. Rego's brother was coming from Bombay to settle something about her husband's will and that if this will were not settled in her favour she would “show” him. Mr. Leslie (P.W 47) states that he frequently heard Mrs. Rego saying that she would not hesitate to stab her husband as she valued life lightly having seen so many atrocities in her own country during the revolution, when her brothers and sisters had been cut to pieces.

14. The question is whether these statements are admissible. From the mass of evidence revealing the unhappy relations existing between Mr. Rego and his wife, which had almost become a normal feature of their life, such outbursts of temper on the part of Mrs. Rego cannot have any particular significance in relation to the point at issue. Unless there is anything that indicates an intention to commit a particular crime, which is the subject of investigation these statements can have no relevancy. These statements are presumably brought in as facts showing the existence of Mrs. Rego's state of mind in view of Section 14 of the Evidence Act. But Expl. 1 to that section requires that a fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists not generally, but in reference to the particular matter in question. This is illustrated by. Illus. (p): A is tried for a crime. The intention to commit that a particular crime is relevant. The fact that he said something indicating a general disposition to commit crimes of that class is irrelevant. Now we have here the story of constant bickering with threats of violence extending over many months. Her threats to stab her husband mentioned in the presence of Leslie was some time before Mr. Leslie (P.W 47) left Jubbulpore for good on 19th December, 1931.

15. That was long prior to the period of the alleged conspiracy the beginning of which is supposed to date from the bigamous marriage. In the same category stand the statements by Mr. Clay and Mrs. Gately. The account of Mr. Garthwaite (P.W 21) speaks rather in favour of Mrs. Rego than against her. If Mrs. Rego desired that the will should be settled in her favour by Mr. Rego in consultation with his brother it militates against any intention of murdering Mr. Rego before he had the opportunity of making the will. As to the other statement, viz., that Scrowston was going to Bangalore, there is nothing to corroborate the truth of the statement. On the other hand there is evidence of the Battery Clerk, L. Gardner (P.W 44), that Scrowston was not due to leave until January following. Father Bazelmans (P.W 25) only states that Mr. Rego had been afraid of his life when Mrs. Rego had formed illicit intimacy with Sergeant Sebborn. The defence alleged that these statements were an afterthought as they were not mentioned before the police. It is unfortunate that the learned Sessions Judge passed a general order on 20th October, 1932 disallowing cross-examination on the point, holding that the defence had no right to cross-examine the witnesses as to the statements which they never made to the police. The learned Sessions Judge committed an error in declining to allow the defence to draw the; attention of the witnesses to the omissions and seek their explanations: see Bihari Mahton v. King-Emperor AIR 1931 Pat 152 , 1931 Cr C 392 , 32 Cr LJ 797 , 10 Pat 107 , 137 IC 801. All these statements, including those alleged to have been made by Mr. Rego, cannot be regarded as sufficient to warrant an inference of the existence of any conspiracy between Scrowston and Mrs. Rego to murder Mr. Rego. They, no doubt, indicate very bitter relations subsisting between Mr. Rego and his wife and at best go to prove the motive for the crime.

16. Turning to the statements alleged to have been made by Mrs. Rego, two points, are sought to be made out against her; (1) that she reported the almirah to have been burst open, and (2) that some ornaments including the links (Article 1) were-found missing after the murder. According to Mr. Gately (P.W 3) Mrs. Rega stated that the almirah had been burst open, but his evidence is not confirmed by Mr. Wancer (P.W 33) and Mr. Walton (P.W 37) who agree that Mrs. Rego, simply said that the almirah was found open. As the almirah was actually not burst open there was no significance in stating a thing which could have been disproved by inspection. It accords-with probability to believe the account of the last two witnesses as to what Mrs. Rego said. As to the fact whether the links (Article 1) were mentioned at all by Mrs. Rego is a matter shrouded in, obscurity. The best evidence was her own statement which was recorded by Mr. Safdarkhan. In that statement no specific mention of the links occurs. Mr. Safdarkhan (P.W 51) was sought to be cross-examined with reference to Ex. P-3, but it was disallowed by the? learned Sessions Judge. Here also the Sessions Judge committed an error inasmuch as Ex. P-3 represented the statement of Mrs. Rego as recorded by the police officer and was exhibited in the committing Magistrate's Court. That document should certainly have been produced for contradicting Mr. Safdarkhan. Moreover there is no reliable evidence to prove the identity of the links. Mr. Naidu (P.W 23) affirms-that he had seen Mr. Rego wearing; the links on his shirt on the 19th August. He is contradicted by Kuppuswami (P.W 19), the man in charge of Mr. Rego's dressing table and clothes, who states that he did not wear that shirt on that day. Mr. Naidu did not disclose this fact either to the police or in the committing Magistrate's Court or even in the Sessions Court, until he was recalled for further examination. It was very unfair to the accused that the full copy of Mr. Naidu's statements made to the police should not have been supplied to them as I find by comparing the copy with the original. Besides this evidence as to the identity of the links Chere is nothing to show that the articles which were found with Scrowston were removed from Rego's house after the murder. Scrowston's explanation was that the articles were presented to him at the time of the bigamous marriage and that they had been in his possession since then. It is said that Scrowston's kit was searched on the 25th; but as to this point the evidence is not free from doubt. Ordinarily, one would expect come witnesses to be present at the time of the search, but not a single witness besides the police officer Kundanlal has been produced to say anything about the search. The search alleged to have been made on 20th appears to be a myth. There is therefore hardly any ground for drawing a presumption adverse to Scrowston in regard to the find of the articles in his custody.

17. As to the time of murder there is no evidence at all. The time is sought to be fixed with reference to the movements, known or presumed, of the appellants during that night. There is no doubt evidence that Scrowston was seen going fast on his bicycle from the civil station to the barracks at about 1 a.m but there is nothing to show that he did not go to the barracks after he was put under open arrest by Corporal Cropper (P.W 17). The learned Sessions Judge believes that Scrowston purposely brought himself to the notice of Corporal Cropper with a view to create evidence of alibi. The inference is not reasonable since no man in Scrowston's position bent on a secret homicidal crime would ever show himself to anybody, much less to a military officer, out of barracks. That would be the surest way of getting himself traced. In the absence of evidence that Scrowston was not at the barracks during the hours of the night no presumption could reasonably be drawn against him. Corporal Cropper (P.W 17) found Scrowston dressed in his usual khaki drill tunic and slacks. He was tidily dressed as usual. It is clear that the murder could not have taken place before 1 a.m Moreover it is on record that Scrowston had reported himself to his Guard Commander, J., McKeown (P.W 18) at 12-15. It is improbable that he would have had time enough to-commit the murder between 12-15 and 1 a.m

18. The learned Sessions Judge appears to connect Scrowston with the crime relying on the opinion of Mr. Mehta, the medical officer, that the injuries on the victim's head were of two kinds suggesting participation of two persons in the murder. No weapon has been discovered although the existence of a shikar knife is indicated by Mr. Clay (P.W 14). Kuppuswami (P.W 19) is positive that there was no shikar knife with Mr. Rego. It is very dangerous to found inferences, on mere opinion of experts. Much stress is laid on the conduct of Mrs. Rego after the murder; but it is clear from the evidence of Mr. Cole (P.W 5) that Mrs. Rego had been out on the road in a state of frantic excitement, at about 3 a.m From the evidence of Sergeant Barry (P.W 26) it appears that the circus ended as a rule between 1-30 and 2 a.m The prize distribution was the last event and it usually took between 15 and 30 minutes. Mrs. Rego is alleged to have left before the prize distribution in which case she would not return home until after 2 o'clock as she had to walk all the way. She spent some time at the bungalow calling for the sweepers and are the bungalow of Mr. Cole talking with Miss Webb. It may indeed be difficult to account for every minute of her time from the moment she left the circus at about 12-45 or 1 a.m to the moment her cries were heard by Mr. Cole at 3 a.m, but the circumstance by itself is not cogent enough to sustain the inference of her participation in the crime particularly when Scrowston's presence after 1 a.m is doubtful. It is impossible that-the murder could have been committed by her alone.

19. Considering the case as a whole, although no doubt there is a very strong ground for suspicion against the appellants, there is no sufficient evidence to sustain their conviction. Much of the evidence given by the witnesses in the case is influenced by the initial fact that everybody in the neighbourhood was in a frame of mind to attribute the murder to the unfortunate friction between Mrs. Rego and her husband and her scandalous intimacy with soldiers, particularly Scrowston. The idea seems to have operated so strongly on the minds of the police that they did not pause to satisfy themselves as to the veracity of the various witnesses produced by them. Mt. Dujia has been exposed as a liar. Akin to it was the attempt made to show that in the early hours of the morning four soldiers were seen by Bittilal (P.W 45) Tiding on their cycles one of them having an injury on the left elbow. The evidence of these witnesses has been brought in only to influence the mind of the Court in the same manner as the statements of Mr. Rego and Mrs. Rego, (which have been held to be inadmissible), have been introduced. A close analysis of the whole evidence only results in establishing a powerful motive on the part of the appellants and gives aground for suspicion against them; but beyond this point it is impossible to press the conclusion so as to brim the charge of the crime home to the appellants with any reasonable certainty. The evidence leaves room for reasonable doubt as to their guilt and the benefit must go to the appellants. The result is that the appeals are allowed and the appellants are directed to be acquitted and set at liberty.

20. Staples, A.J.C:— I have read the judgment of Niyogi, A.J.C, and, although I might be disposed to differ slightly from his interpretation of Section 32(1) of the Evidence Act, the matter is unimportant for the purposes of this appeal, as in any case I agree that the statements made by the deceased Mr. Rego are clearly inadmissible. On the other questions raised, namely, the admissibility of Mrs. Rego's statements under Section 162 of the Cr PC, and the alleged misjoinder of charges, I fully agree. I also agree that on the evidence on record neither the murder nor the conspiracy to commit murder has been proved against the appellants. I wish to deal rather more fully with the questions of jurisdiction and sentence of death that have been raised in the grounds of appeal. By Section 65(1)(a) of the Government (India Act, 1915, the Indian ??? has power to make laws for all person for all Courts, and for all places an things, within British India. In ??? of that power the Indian ??? passed Act 28 of 1923, style “an Act further to amend the Code of Criminal Procedure, 1898.” By that Act more of the special privileges which were granted to European British subject by the Code of Criminal Procedure ??? 1898 have been taken away, and Eure pean British subjects can now be trier under S. 445(1) by a Bench ??? two Magistrates of the First Class, ??? whom one should be a European an the other an Indian, in summons cases and in warrant cases can be tried by that the Court of Session under S. 446(1). A proviso is added to that section that where the trial before the Court of Session would in the ordinary course be with the and of assessors, the trial shall be held with the and of assessors all on whom shall, in the case of Europeans British subjects, be persons who an Europeans or Americans. The important point to notice is that, although there is still some privilege as regards the Courts by which a European British subject can be tried, there is practically no privilege with regard to sentence. Under S. 34-A a Court of Session can pass a sentence of death, penal servitude, or imprisonment with of without fine, or of fine upon a European British subject; and a District Magistrate or other Magistrates of the First Class can pass a sentence of imprisonment which may extend to two years, or fine which may extend to Rs. 1,000, or both.

21. In the present case the appellants, Mrs. Rego and Scrowston, put forward their claims to be tried apparently as European British subjects before the committing Magistrate, though Mrs. Rego is not a British subject, although undoubtedly she is a European. They however only claimed that they should have European assessors before the Court of Session, which is the right given by the proviso to S. 446 of the Code. Under S. 446(2) Scrowston could have claimed a trial by jury, as is held in Bray v. Emperor AIR 1925 Lah 236 , 85 IC 380 , 26 Cr LJ 540 , 5 Lah 515 (FB), but he was free to choose a trial by European assessors under the proviso to S. 446(2), and it appears that he did so choose. I would refer to the order-sheet dated 3rd October, 1932 in the Magistrate's Court and the order-sheet of 14th October, 1932 in she Court of Session. This claim was duly granted and four European assessors were chosen, of whom two were present throughout the trial and have given their opinion.

22. The chief objection raised by the learned counsel for the appellants, though it may be noted that this objection could only be raised in the case of Scrowston, who is undoubtedly a European British subject born in England, was that under Section 65(8) of the Government of India Act of 1915, the Indian legislature had act the power, without the previous approval of the Secretary of State in Council, to make any law empowering any Court, other than a High Court, to sentence to the punishment of death any if His Majesty's subjects born in Europe, or the children of such subjects, or abolishing any High Court. This clause certainly seems on the face of it to raise a difficulty in view of Section 34-A of the Cr PC but the question is one of fact, namely, whether the sanction of the Secretary of State was or was not ???. In the ordinary course, the presumption in a case like this would be that everything had been done according to law, and in the present case the presumption is still stronger because under Section 69(1) of the a copy of every Act of the Indian Legislature has to be sent the Secretary of State. A copy of the Code of Criminal Procedure Amendment Act, 1923, must therefore have been sent so the Secretary of State, and in the sen years which have elapsed since the enactment it is certain that, had there been a want of sanction of the Secretary of State in this matter, it would have seen brought to notice by the law of ??? of the Crown. However to make certain a reference was made and it has been ascertained that the sanction of the Secretary of State was duly obtained lot only to empower Courts of Session on pass sentence of death on European British subjects, but also to constitute his Court of the Judicial Commissioner, Nagpur, a High Court under S. 4(j) of the Code, in reference to proceedings against European British subjects. There can be no question, therefore, of the legality of the sentence passed by the Sessions Judge, Jubbulpore, on the appellants or of the jurisdiction of this Court as a High Court. A curious argument was put forward by the learned counsel Mr. P.C Dutt, who appeared for Mrs. Rego, that his client could not be tried because under the old law Europeans other than European British subjects had certain rights, which have not been taken away by the Amendment Act of 1923. There is, it may be stated, no ground whatever for such a contention and, as already noted, under Section 65(1) of the Government of India Act, the Indian legislature has power to make laws “for all persons,” which must surely include all Europeans. Apart from that under the Code of 1898 Europeans other than European British subjects only possessed the right under S. 460 of being tried by a jury of assessors, of whom not less than half the number should be Europeans or Americans. That section has now been repealed, but under S. 275(2), Europeans other than European British subjects or Americans have a right, in case of trial by jury, that a majority of the jury shall, if practicable, consist of persons who are Europeans or Americans; and under S. 285-A (2), in the case of trials held with the and of assessors, all the assessors shall, if practicable, be persons who are Europeans or Americans. No other special privileges are given to Europeans other than European British subjects, and prima facie it is clear that such Europeans would not be given any greater privileges than European British subjects. On general grounds, too, where there are no special privileges in the Code, recourse can be had in this, as in other matters where the law in India is silent, to the Common law of England. Under that law aliens are liable for offences committed in England and are tried by the ordinary Courts. I would quote a paragraph at p. 23 of Harris's Criminal Law, Edn. 13, which runs as follows:

“Aliens—Foreigners who commit crimes in England are punishable exactly as if they were natural-born subjects. It is no defence on behalf of a foreigner that he did not know he was doing wrong, the act not being an offence in his own country. Though this is no defence, it may mitigate the punishment.”

23. I would also quote a paragraph from p. 136 of the Common Law of England by Blake Odgers, Edn. 2:

“Again, if an alien commits a crime in this country, he can be tried, convicted and punished for it here; it does not matter what his nationality or domicile may be, or what the object of his visit to this country; so long as he is resident within the jurisdiction of our Courts, for however short a period, he owes our King local allegiance: he is within the protection of our laws and must therefore obey them.”

24. As a case in point, it may be noted that in 1924 a French citizen named Vaquier was tried in England with a Mrs. Jones for the murder of Mr. Jones, and Vaquier was found guilty and sentenced to death. There can therefore be no ground for exemption in the case of the appellant Mrs. Rego either as regards jurisdiction or sentence. (After discussing evidence on merits the accused were acquitted.)

25. Accused acquitted.