P L D 1958 (W (PLP)

A. R. CHANGEZ, J.‑--Asghar, aged 20/22 years, was sent up for trial under sections 376 and 302 of the P. P. C. The learned Sessions Judge found him guilty of both the offences and sentenced him to ten years' rigorous imprisonment under the former section and to death under the latter section. The convict has filed this appeal against his convictions end sentences and the record is also before us under section 374 of the Code of Criminal Procedure. This judgment will dispose of both the appeal as well as the reference for confirmation of the death sentence imposed on the appellant.

2. The facts of the case are that Sultan (P. W. 8) was tenant of the accused and his brother, Muhammad Bakhsh. About three weeks before the occurrence, the accused and his brother asked Sultan P. W. to leave their land after harvesting the standing crop as they suspected illicit intimacy between him and their sister, Mst. Sahib Khatun. At about the same time Asghar accused had threatened Ramzan (P. W. 10), father of Sultan P. W. that he would avenge his sister's suspected illicit relations with Sultan P. W.

3. On the 30th of December 1956, at about a pehar and a half after sunrise, Mst. Nawab Bibi (P. W. 6), Mst. Sattan (P. W. 7) and Mst. Rani (not examined at the trial) went to the square of the accused about two squares to the south of Chak No. 102/12‑L intending to pick cotton cultivated by Sultan in a field about one killa to the south of the ihata of the accused. This ihata is situate in Killa No. 16 of Square No.

54. Mst. Nawab Bibi on arrival at the ihata sat down in the ihata in front of the kholas situate in that ihata and suckled her infant daughter, Mst. Ghulam Rabia, the deceased in this case, aged about 4/5 months. In the meantime, Mst. Suttan P. W. and Mst. Rani went ahead to the cotton field. After suckling Mst. Ghulam Rabia, Mst. Nawab Bibi made a cloth‑cradle of the chunni (Exh. P. 3) and hanging it from a chorpoy that lay in front of the western khola put the child in that cradle and went away to the cotton field. Mst: Nawab Bibi joined Mst. Sattan and Mst. Rani in picking cotton from that field. Being the end of the season, the cotton crop in the field was very poor and they took time in collecting the cotton. At about digarwela, Mst. Nawab Bibi heard a scream from the side of the ihata and proceeded to the ihata. But when she entered the ihata she did not find her daughter near about the cot and on proceeding‑ahead when she got near the doorway in the southern wall of the western khola she found the accused sitting on the ground inside the khola. He had put his loin‑cloth on his shoulder and he was holding the infant daughter in his hands in front of his penis. On seeing Mst. Nawab Bibi, the accused left the chunni (Exh. P. 3) in which he was hold ing the infant at the place where he was sitting and while going out of the khola placed the child in the doorway and ran away west wards and then leaving the ihata from the door in the northern wall of the ihata made good his escape. Mst. Nawab Bibi began to cry and picked up the little girl but found that she was dead. On hearing the outcry of Mst. Nawab Bibi, Sultan (Pr W. 8), Mst. Sattan (P. W. 7) and Mst. Rani rushed to the ihata and saw the accused running away towards the north of the ihata. Mst. Nawab Bibi told Sultan and others what she had seen. After a short while, Sultan P. W. went away to make a report at the Police Station, Kassowal, at a distance of about four miles from the spot. He reached there at 7‑30 p. m. and made the report (Exh. P. A.) which was recorded by Assistant Sub‑Inspector Muhammad Ali (P. W. 9). After recording the report the Assis tant Sub‑Inspector proceeded to the spot and reached there at about 10 p. m. He found Mst. Nawab Bibi P. W. sitting in the ihata with Mst. Ghulam Rabia in her lap. He took into possession the blood‑stained chunni (Exh. P. 3) from inside the western khola and made it into a sealed parcel as it was blood‑stained, lie also took into possession some cotton weighing about six seers which was lying in the ihata. As there was no proper arrangement for light he stopped further investigation and on the following morning he prepared the injury statement and the inquest report as regards the dead body of the child and forwarded it for post -mortem examination. He also took into possession a chorpoy (Exh. P. 4) which was 'lying in front of the khola. The accused was arrested on the 31st of December 1956, in the evening, and was got medically examined.

4. On the 31st of December 1956, at 5‑30 p. m., Dr. Muhammad Hussain (P. W. 1) performed the post‑mortem examination on the dead body of Mst. Ghulam Rabia, aged about five months, and found the following injuries on the body:‑ (1) An abrasion, " x ", below up in front of the neck to the left of the middle line. (2) The posterior angle of the vagina was ruptured and badly lacerated in half inch length. The labia majora were swollen and bruised. The labia minora were also badly bruised and lacerated. Hymen was torn. There was bad bruising and laceration of the whole of inside of vagina with dried blood and blood clots inside and on the outer side. Vagina was stretched and about 21" long and the external opening of the; uterus into the vagina was also bruised. The doctor prepared two slides from inside the vagina and surface of the vulva and sent them to the Chemical Examiner for detection of semen. On dissection, he found that both the lungs were congested and the stomach was healthy and contained about one ounce of milk clots. Death, in the opinion of the doctor, was due to shock as a result of the injuries to the vagina and vulva which injuries were dangerous and sufficient to cause death due to the very tender age of the child. Injury No. 1 was simple and could be caused due to rubbing and injury to the genitals was due to the thrust of the male organ or some hard substance. He further expressed the opinion that time between death and post -mortem examination was about 24 hours. He also examined Asghar accused on the 1st of January 1957, but he did not find any mark of injury on any part of his body. He also did not find any evidence of any discharge on the genitals thighs or clothings of the accused. He found that he was well built strong man with well developed genitals, and expressed the opinion that injury No. 2 p.m the body of Mst. Ghulam Rabia deceased could be caused by the penetration of the male organ of the accused. In cross‑examination, he stated that a baby would require two to three hours to digest mother's milk, and a baby of the age of the deceased could suckle up to four ounces of milk at one feed. He further expressed the opinion that as the deceased was of very tender age and the parts and tissues were very soft, it was not necessary that the male organ of the accused should have some scratch or other mark as a result of the intercourse.

5. At the trial, ten witnesses were examined in support of the prosecution case. The accused denied the commission of the offences and also denied that he suspected Sultan P. W. of illicit intimacy with his sister Mst. Sahib Khatun. He also denied that Sultan P. W. was his tenant and had cultivated Killa No. 24 in Square No.

54. He could not say why he had been implicated in the case. He examined Dr. A. H. Malik, District Health Officer, Montgomery, in his defence who stated that on the data furnished by Dr. Muhammad Hussain and on the evidence that the clots in the stomach of the deceased were the clots of the mother's milk, the suckling must have taken place 1 to 2 hours before the occurrence. He further stated that the maximum time taken by a child of the age of the deceased for complete digestion of mother's milk and the emptying of the stomach would, in all probability, be four hours. And as the stomach content was milk clots naturally the deceased would have taken less than four hours to convert the milk of the mother to the stage of the milk clots. He further expressed the opinion that if the feed was full, that is, if the deceased had taken four ounces of milk of the mother then the presence of the mother's milk in the form of clots' about one ounce in weight meant that the deceased had been suckled about two and a half hours before her death, but if the feed was not full, that is, if the deceased had taken only an ounce or so of the mother's milk, then she might have had the suck an hour and a half before her death.

6. The learned Sessions Judge accepted the prosecution case as true and convicted and sentenced the accused as mentioned above.

7. The prosecution case rests entirely on the evidence of Mst. Nawab Bibi (P. W. 6), Mst.‑Sattan (P. W. 7) and Sultan (P, W. 8). The learned counsel for the appellant has criticised the evidence of these witnesses on several grounds. He has con tended that the child must have died within two or three hours of her last feed and not at digarwela as alleged by the P. Ws. Mst. Nawab Bibi has stated that she had suckled the child for the last time at about a Pehar and a half after sunrise, and the doctor has stated that at the time of the post‑mortem examination he had found one ounce of milk clots in the stomach of the deceased. This doctor has also expressed the opinion that a baby would require two to three hours to digest the mother's milk. Doctor A. H. Malik, D. W. has stated that on the data furnished by Doctor Muhammad Hussain P. W., the suckling must have taken place 1 to 2 hours before the occurrence. This view finds further support from, Taylors Medical Jurisprudence (8th Edition (1928) Volume 1, page 294) where a table is given of the time taken by the stomach to digest certain articles of diet. In this table, time for digestion of the milk is given as two hours. At page 295 of this book, it is, however, written that the rate of digestion varies with different individuals and with the state of the gastric mucosa. This table which deals with a number of Articles of diet including mutton, beef and veal, obviously gives the time of digestion of a healthy stomach of an adult.

8. The doctors have not cited any authority in support of their opinion as regards the time required by a baby for digestion of milk nor has the learned counsel placed before us any medical text‑book on the subject. The state of digestion of the contents of the stomach is sometimes used as a means of fixing the hour of death, but we have grave doubts if it is a reliable test. The table given in the 8th Edition of the book referred to above, has not been reproduced in its eleventh Edition (1956). From the old Edition, the following observations of the learned author may be reproduced with advantage:‑ "The table must not be taken as of mathematical certainty, but, may represent fair averages and hence the first great doubt of the value of the data. The rate of digestion varies with different individuals and with the state of the gastric mucosa with all this uncertainty too much stress must not be placed on such evidence; it must be weighed along with all other items." In the latest edition this view is expressed in the following terms:- "Most elaborate tables have been prepared of the time taken by the stomach to digest certain articles of diet but these are too unreliable to be of use. The rate of digestion varies in different persons and according to the functional efficiency of the gastric mucosa . . . . . . Therefore evidence from this source must be treated with great reserve." .

9. Milk is, no doubt, an ideal food for children up to the age of eighteen months and it provides a well balanced diet for them. It is secreted from the mammary glands iii the form of an emulsion of fat containing proteins, salts and carbohydrates etc. Though a fluid, milk is rendered practically solid on reaching the stomach. The gastric juice secreted by the gastric glands lining the mucous membrane of the stomach curdles the milk. The digestibility of the milk depends on the density of the clots formed in the stomach. If hard and tough clots are formed, then they are not easily digestible. Except for the fact that one ounce of milk clots was found in the stomach of the deceased we have no indication on the record to show whether the clots were hard or soft. One thing is, however, clear that these clots had not yet been reduced to chyme. Chyme was of course found in the small intestines, and the large intestines contained faecal matter as is evident from the post‑mortem report (Exh. P. B). The condition of food in the various stages of the alimentary canal shows that most of the food had passed through the stomach by the time the child had died. Unless the food in the stomach is reduced to chyme, it cannot be ejected into the duodenum. The ejection of chyme from the stomach occurs at regular intervals and depends upon the strength of the peristaltic waves. The muscular activity of the stomach is highly varied in different individuals both in strength and type. In the stomach of a baby, the state of digestion of the contents of the stomach will also depend upon the feed taken. The larger the feed, the longer will be the time required for emptying the stomach. Both the doctors have assumed that the full feed in the case of the deceased baby would have been four ounces of milk. But this does not appear to be correct. In the 3rd Edition of `Diseases of Infancy and Childhood by Wilfird Sheldon M. D. F. R. C. P. at page 41, the method of finding out the quantity of food required for a baby is given as follows:- "A safe rule is that a healthy infant needs in the twenty- four hours two and a half ounces of fluid for each pound of baby weight, the fluid being either breast milk or some suitable substitute. The total amount of food for the day, determined in this way must then be divided into the number of feeds that the baby is to receive . . . . . . A baby fed every four hours will need more at each feed than when he is fed every three hours." In the present case, the weight of the baby is not known and, therefore, the opinion of the doctors about the amount of food required is just a guess which might be wholly wrong. What is known for certain is that the age of the baby was about five months, and that the baby was of an average build. At page 42 of the aforesaid book, the method of the calculation of the amount of food for a weak and wasted baby is given as follows:- "If the age is used, a useful guide is that so long as an infant it fed three‑hourly, he may take up to one ounce more at a feed than his age in months: For instance, an infant of four months may take up to five ounces at a feed." The deceased being aged five months, she must have, therefore, taken about six ounces of milk provided it is assumed that the baby was weak and the feed was three hourly. But we know that the baby was of an average build, and apparently it was not a three‑hourly feed; therefore she must have taken even more than six ounces of milk at her last feed. In the text‑book of Anatomy and Physiology by Kimber, Gray and Stackpole (Eleventh Edition), it is written at page 536 that small test meals may remain from one to four hours, but average meals probably stay in the stomach from five to seven hours. In these circumst ances, we think that it will not be safe to accept the opinion of the doctors in the matter. Besides the process of digestion is affected by various factors. Sometimes fear or shock can retard digestion to an appreciable degree. Even sleep retards the digestion slightly and a cold winter day could have its effect. The digestive disorder may be another factor. In the absence of full and reliable data on the point involved, it would, therefore, be futile to make any attempt to find out by this method the exact time of the death of the baby.

10. We cannot also overlook the fact that the idea of time with illiterate village folks is often very vague, and such folks cannot be expected to give the time with mathematical accuracy. In the present case, we find that according to Mst. Nawab Bibi, she had gone to the cotton field a pehar and a half after sunrise. It was the 30th of December and the sun had risen on that day at 7 a.m. A pehar and a, half is equal to 4J hours. There fore, she had reached the field at about 11‑30 a.m. There she had suckled the child. It must have been about 12 noon, when the last feed was taken by the child. The occurrence is alleged to have taken place at about digarwela. The sunset time on that date was 5.11 p.m. Digar time would, therefore, be between 3 and 4.30 p.m. She had, therefore, seen the girl in the hands of the accused between 3 to 4 hours after her last feed. Doctor A. H. Malik D. W. has admitted that the maximum time taken by a child of the age of the deceased for complete digestion of mother's milk and the emptying of the stomach would in all probability be four hours. This is quite consistent with the case for the prosecution. By the time the child had died only a small portion of the milk had remained undigested Having regard to all these circumstances, we do not think that on account of the medical evidence referred to above any doubt has been cast on the prosecution case. As already pointed out, much reliance cannot be placed on such evidence in view of the uncertainty of the matter.

11. Learned counsel for the appellant has also argued that Mst. Nawab Bibi must have reached the spot sometime after the girl had died because she has admitted that when she had picked up the child from the ground, she had not seen any blood coming out of the vagina, but had seen co‑angulated blood on the vagina, and as coagulation of blood takes place after a few minutes, therefore, she could not have seen the accused at the spot. In the Urdu record, we find that the word used in her statement is `munjamid', which could not have been uttered by her. From the context of her statement it appears that the answer must have been given to a leading question put by the learned counsel for the defence as to whether the blood was `beh raha tha ya jama hua tha'. In all probability, she never meant to say that the blood had coagulated. This small infant could not have bled profusely. She must have died instantaneously and the blood must have been just a trickle on her vagina. It is not surprising that the mother did not find the blood flowing out of the vagina but saw the blood only sticking around it. We have, therefore, no hesitation in holding that this is far too slender a foundation for rejecting the prosecution case.

12. It has also been urged that it is difficult to believe that only the mother could hear the screams of the child. The answer is quite obvious. The mother was the nearest to the ihata of the accused, and she must have been very alert to hear the screams of her child because it was time for her next feed. Mst. Sattan and Mst. Rani being farther away were probable engrossed in their work. Besides, Mst. Rani was a very old woman as stated by the Public Prosecutor in his statement dated the 3rd of June 1957.

13. Another point which has been urged is that it is significant that the Arains who were admittedly present at the place where Sultan P. W. was, did not come to the spot at all, as stated by Sultan P. W. We have it in the evidence of Ramzan P. W., that Shamsher Lambardar is the father‑in‑law of tile elder brother of the accused and that the abadi of the Chak is of Awans who are related to the accused. The complainants are Machhis (Mueens). Could the Arains, in the circumstances come forward to testify against the Awans? The conduct of Sultan P. W. has also been adversely commented upon on the ground that he did run after the accused to catch him. In fact, he was the person who had been threatened with dire consequences. By the time he had reached the spot and learnt about the occurrence the accused must have gone far ahead of him and being alone he could not have dared to pursue the accused. Some minor discrepancies have also been pointed out in the statements of these witnesses but in our opinion they are immaterial and do not detract from the value of their testimony. The mere fact that all the P. Ws. are nearly related is hardly a ground for rejecting their testimony.

14. We have carefully perused the evidence of the witnesses, but we have not been able to discover any valid reason to reject the testimony of Mst. Nawab Bibi and Mst. Sattan Bibi. The field in question where they were picking cotton is close to the place of occurrence. Mst. Nawab Bibi could not have been far away from her child. The recovery of six seers of cotton from the spot confirms their testimony that they were picking the cotton in the field.

15. The chunni (Exh. P. 3) which was recovered from inside the kotha of the accused, was found to be stained with semen and human blood. There was a patch of blood found on the chunni. It is true that no semen was detected on the slides prepared from the vagina of the deceased, as there was very little material on them. This, however, does not make any difference in the case. The girl was found in the doorway of the kotha which is a strong circumstance to show that being surprised the accused had suddenly got up and left the child in the doorway, while running away from the spot. If he had not been surprised, the accused would have left the child in the kotha, or would have taken away the child and the chunni to throw them somewhere else. No blood was, however, found anywhere except on the chunni which only shows that the infant had not bled profusely. The accused was arrested by the police more than twenty‑four hours after the occurrence. It is, therefore, not surprising that no mark of semen or blood was found on his clothes at the time of his arrest.

16. Sultan P. W., according to his own showing, had come near the spot only by chance. One cannot be very certain about his presence. But we have no doubt in our minds about the presence of Mst. Nawab Bibi and Mst. Sattan Bibi. Their evidence is straightforward and convincing. On a due consideration of all' the facts and circumstances of the case, we are satisfied that the accused had committed rape upon, the deceased as a result of which she had died.

17. The learned counsel for the appellant has seriously contended that even if the accused had committed rape upon the child, he cannot be held guilty of murder. He has drawn our attention to the charge which is as follows:- "Secondly: That you, on or about the 30th day of December, 1956, at Chak No. 102/12‑L, at digarwela committed rape with Mst. Ghulam Rabia with intent to murder her which caused her death and thereby committed an offence punishable under section 302 of the P. P. C., and within Court of Sessions's cognizance." The finding of the learned Sessions Judge, however is that the accused was within the mischief of murder as defined in clause fourthly of section 300 of the P. P. C. He has, therefore, maintained that as the charge which he had to meet was in respect of intentional murder, he could not have been held guilty of murder by bringing his case within the fourth clause of section 300, P. P. C. We are not impressed by this argument. The finding the learned Sessions judge amounts only' to this that the accused had no intention to cause the death of the child, but, that he must have known that his act was so imminently dangerous that it must, in all probability, cause the death or such bodily injury as was likely to cause the death of the child. The difference between the two is merely as regards the intention and the higher degree of knowledge. We do not see how the accused could have been prejudiced in his defence. Another point which has been urged in this connection is that clause fourthly of section 300, P. P. C., does not apply to a case where the act is directed towards a particular individual. No authority has been cited in support of this contention and as at present advised we do not find any justification for putting such a narrow and restricted interpretation on this cause. In view of the tender age of the infant, the necessary knowledge as required by this clause can be safely attributed to the accused. It was a wholly inexcusable act. The learned counsel has argued that as Sultan P. W. was suspected of carrying on with the sister of the accused therefore, he had the excuse for committing this act. We do not agree with this proposition. In our view, the term "excuse" mentioned in clause fourthly, does not contemplate such an excuse. It plainly refers to an excuse for incurring the risk of causing C death. The familiar example is of a woman holding a baby in her arms jumping into a well out of fright on being pursued by her husband to attack her. In such a case, because of the panic she is in, there is excuse for incurring the risk of causing death within the purview of this clause.

18. In fact, on the evidence on the record, we are of the opinion that, in all probability, the accused had committed rape upon the child not to satisfy his lust, but to wreak vengeance. It was an atrocious act and was carried out most brutally. The accused had not merely acted in a wild and reckless manner, but he had also the intention of causing the death of the child or at least had the intention of causing such bodily injury as was sufficient in the ordinary course of nature to cause death. Intention, which is a state of mind, can only be inferred from) proved facts. There is no divining rod by which we may locate intention. The law presumes that a man intends the natural and inevitable consequences of his acts. From the proved facts, the conclusion is irresistible that he had the requisite intention. We, therefore, uphold the conviction of the accused both under sections 376 and 302 of the P. P. C.

19. As regards the sentence, the learned counsel for the appellant has pleaded for mercy. But the offences committed by the accused were most heinous. It is perhaps the first case of its kind which shows that depth of degradation to which a man can fall. To show mercy to such a person who could not have any mercy upon an infant of the age of five months will be entirely misplaced. It was a diabolical crime and therefore the accused richly deserves the extreme penalty of law. We accordingly confirm the sentence of death imposed on him. We also maintain the sentence awarded to him under section 376 of the P. P. C., and dismiss this appeal. Z, A. S./A. H. Appeal dismissed.