Judgment:
R.P. Gupta, J.
1. By this judgment we dispose of Criminal Reference No. 3/96 under section 366, Criminal Procedure Code for confirmation of death sentence on the convict and Appeal No. 1552/96, Ravi Shankarv. State of M. P. against the judgment of conviction and sentence of death passed by First Additional Judge, Damoh (M.P.) on 9-9-1996.
2. The finding of the trial Court is that on 11-5-1994 about some time, this appellant being the husband of victim Lokmati in Village Kusmi caused her death by causing injury to her womb by introducing some external hard object or weapon and thus he committed the offence of murder punishable under section 302, Indian Penal Code. He was sentenced to death by hanging.
3. It may be noticed that this appellant along with his father Shyamlal and mother Kallobai were jointly tried on charges of offence punishable under section 304B, Indian Penal Code, that is dowry death of a bride within seven years of her marriage resultant from cruel treatment of her husband or his relatives for non-fulfilment of demands of dowry. The alternative charge was of her murder in pursuance of common intention of them all. The parents of the appellant were acquitted by giving them benefit of doubt. The husband was found guilty of murder.
4. According to the opinion of Autopsy Surgeon Dr. K. C. Kostha (PW 3), the death had occurred due to excessive bleeding resulting from a perforation of womb which was of the size 1/2' x 1/4' cavity deep, on the right side of the womb. The excessive bleeding caused shock resulting in death of the victim. The death had occurred within 24 hrs. of the Postmortem examination which was conducted on 12-5-1994. The death had taken place on 11-5-1994. The Doctor had opined that this injury was homicidal in nature and that this injury could be caused by some hard or pointed object and injury must have been caused within 36 to 24 hours of the Postmortem examination. This Doctor had opined that the injury in the womb of the deceased could be possible by Iron-rod which had been recovered at the instance of the convict appellant from a stack of hay on his pointing out and that the blood found in the paritonial cavity of deceased was the blood which flowed due to haemorrhage caused by this wound. The womb had been taken out and sealed by the autopsy Surgeon Dr. Kostha and it was sent by Investigating Officer for the better forensic opinion to Dr. S. N. Jain (PW 16) at Medico Legal Institute, Bhopal. Dr. Jain examined it on 13-7-1995 and noticed a perforation of the size 1.3 cm. x 0.6 cm in the fundus of the womb. There was no other injury in the womb. Dr. Jain also opined that death had occurred due to shock resulting from bleeding from this womb and that the wound had been caused by some hard object which was not pointed, but was slightly cracked and that perforation of the fundus of the womb in this manner has not been experienced in natural course. The doctors had opined that there was no injury in the vaginal canal of the deceased.
5. Doctor Jain on examination of the Uterus found that the length of uterus was 9.5 cm and width 8.0 cms. Thickness of the wall of the Uterus was 2.5 cms. No other injury was found inside the uterus. This doctor was of the opinion that the size of Uterus was slightly bigger than normal size. The Doctor also gave an opinion that the slightly enlarged size of the Uterus was not due to illness, but due to pregnancy which may have been less than 3 months old. The injury found in the womb could be caused by some wooden stick or Iron-stick having thickness as that of size of wound. This doctor opined that, it is not necessary that if some wooden stick or iron stick is thrust through the vagina into the Uterus, there should be injury on outer portion i.e. the vaginal wall. Such injury is not necessary even if there is resistance against thrust. This is because the muscles have a capacity to contract and expand in all directions and this tendency makes Uterus extremely strong. The doctor further opined that if somebody gives injury on the stomach of lady from outside and the lady falls down due to impact of the injury, still such injury to the Uterus, as found in case of deceased, is not possible. Such injury, however, is possible if the woman is carrying on pregnancy of 8 to 9 months and some injury is caused from outside, but in that case, there will be corresponding injury on the outer part of the body also.
6. PW 3, B. L. Kostha, on Postmortem examination of body, had opined among other factors that the death was not suicidal, but it was homicidal.
7. The trial Court in concluding the guilt of accused in causing this injury to the deceased, observed that considering the situation of the Uterus behind the vaginal entrance, at the time of coitus between a male and female, if the male puts in some hard stick in the vaginal canal, it would reach the Uterus and will be in a position to perforate Uterus without causing any injury to the vaginal canal and in such a situation, the female would have no opportunity to protest or obstruct, as she would have no idea whatsoever, that such an act could be done. The trial Court concluded that a husband, in the process of coitus with his wife, could commit such an act, at that moment of coitus. The Court further observed that if some stranger had attempted to cause such a thrust or the husband had attempted to cause such a thrust by use of force, the lady or wife would protest or obstruct with full force and there would have been other injuries to the lady in her private parts including the vaginal canal or the entrance of the Uterus wall at other places and even in the legs or other extremities and even her bangles would have broken. The trial Court found that, there was no evidence in this case that at the time of inquest or medical examination any other injury was found on the body of Lokmati deceased nor her bangles were found to be broken. So the Court concluded, that this injury had been caused to Lokmati without any obstruction or protest from her side and that such an act could be achieved only by the husband and not by anybody else. However, the Court had found that the evidence of parents and brother of deceased, that, due to non-payment of dowry, the husband and his parents were treating with the deceased with cruelty, is not believable. The Court noticed that the allegations of demands of dowry were not established. The Court, however, found that the husband must have had some other reasons to treat wife with cruelty as he was often doing so. He was often beating her. The evidence of the parents of the girl that she used to complain to them about beating by her husband has been accepted by the trial Court, although the reason of cruelty being non-fulfilment of dowry demand, was not accepted as reliable evidence. The Court observed that it was established from the evidence of these witnesses, that before her death husband Ravi Shankar used to beat her. The Court further observed that such a husband, in a fit of rage and to punish his wife, may take such a step as to thrust some hard stick in her Uterus at the time of coitus. The trial Court expressed the view that some persons may satisfy their ego of punishing their wives by causing injury to their wives at the private parts of the body e.g. Uterus. The Court observed that there was no reliable evidence, that on that night the husband had not come to the house to meet his wife and that the statement of the husband that he was in the field the whole of that night, was not reliable. The Court noticed that some defence evidence has been lead, that Lokmati had fallen down on the way and her clothes had become smeared with vomits and faeces. However, the Court noticed that this evidence was false as her clothes were not found to be so smeared with vomit or faeces at the time of inquest nor this fact was noticed by the Nurse, Geeta Soni, (P.W. 2) who was called to look to the reason of illness of this lady and who found that the situation was beyond her control as Lokmati had become unconscious. The Court found that the clothes of Lokmati were not smeared with vomit or faeces. So this position taken by the accused was false.
With this reasoning, the trial Court found that only the accused could have caused these injuries to Lokmati and had done so and so the accused/appellant was found to be guilty. The finding of the trial Court amounts to this that if a married woman suffers such injury, husband has to be the only killer.
8. Dr. Kostha, in this case, has described the injury as homicidal, ruling it out as suicidal. It has not been stated that a woman cannot insert herself a hard piece of wood or metal in her own vagina. May be, she would not do it ordinarily to kill herself, but whether she would do it for other tendencies or not, is a question never asked from the doctor in this case nor opined by any of the doctors.
9. The inference taken by the trial Court that the husband must have done it, is based on an assumption that if somebody else does it, there would be resistance and injury to vaginal canal or other private parts of the body. In reaching this conclusion, the trial Court has not considered the opinion of Dr. K. C. Jain that even if some force is used to insert a wooden or metal piece in vagina, it may not cause injury to vaginal canal. The husband could certainly be one of the persons who would have access to the private parts of the deceased and in a sadistic turn of mind, he could have caused this injury. But so it could be done in a sadistic turn of mind by the lady herself. She should insert some wooden or other stick in her body.
10. One material factor, in this case, is that in the Panchnama Ex. P-l initially prepared on the date of incident, the panchas had asserted that the lady had fallen down near the hand-pump and she was brought from there to the house. Of course, none of these panchas has been examined as a witness, but one defence witness Santosh has stated that she had fallen near the Hand-pump and was brought to the house. In the Panchnama the Panchas had stated that she died due to vomiting and diarrhoea. This is also stated by DW 1 Santosh. The trial Court has observed that the Investigating Officer in the Panchnama did not note that the clothes of the deceased were smeared with vomit or faeces. This is true. But no questions were put from the Investigating Officer as to why he did not note absence of faeces and vomit. In his observation about the condition of the body he is silent on the point, in the Panchnama Ex. P-1 while the Panchas have specifically stated the factum of vomiting and passing of stools by the deceased. In this aspect of the matter, in view of the notings of the panchas in the Panchnama, the statement of DW-1 Santosh cannot be totally ignored that the lady had fallen down near the Hand-pump of the village, which is at some distance from her house. So the probability of this happening cannot be ruled out in view of the evidence.
11. One more factor is that Geeta, (ANM) nurse of the village, was called to the house and she has appeared as DW 2. It was 9 a.m. She found that the wife of Ravi Shankar was in an unconscious state and so she opined that she could do nothing about it and a doctor should be called. She has not been put to cross-examination on these aspects. This means that by 9 a.m., Lokmati was still alive.
12. It further corroborates or at least makes possible truthfulness of the narration of DW 1, Santosh, that Lokmati had fallen near the Hand-pump and was brought to the house. Thus, if Lokmati was alive by 9 O'clock and she was able to move in the morning out of the house upto the hand-pump, which was more than 100 yards away from the house, the question arises when did she suffer the wound in her Uterus. For this, there is no evidence except the medical opinion of Dr. Kostha, PW 3, who had performed the Postmortem examination on 12th May, 1994 at 7.15 a.m. He also opined that she died 24 hours before the Postmortem examination and that the injury could have been caused within 24 to 36 hours before the postmortem. In fact, he has not explained as to whether the period of '24 hours to 36 hrs.' is to be counted before the Postmortem examination or before death. No questions were asked either from this Doctor or Dr. Jain as to how long, after such an injury, a person can survive or how fast would be the bleeding resulting in shock. But considering the size of perforation the bleeding could be very fast and it is difficult to accept that it would take about 12 hours for the victim to collapse after such an injury. Therefore, the period of '24 hours to 36 hours' narrated by Dr. Kostha has to be approximately 24 hours rather than 36 hours. If we go by 24 hours, then the death had taken place by about 7 a.m. on the previous day and injury must have been caused within few hours thereof. The report of unnatural death had been given on 11-5-1994 at 3.15 p.m., as per Ex. P-8, by brother of deceased, Shyamlal, father-in-law of the deceased had come to him at about 11 a.m. on 11th May, 1994. The distance between their houses is about 6 Kms. At about 12.30 this brother reached the house of the accused and found the girl dead.
13. According to the appellant's statement under section 313, Criminal Procedure Code he was in the field that night and there he learnt about the indisposition of his wife and came over and learnt that his wife, while returning from answering the call of nature from the field, fell down near the Hand-pump and from there, Govind, Hari and Santosh brought her to the house. Geeta, Nurse was called and was consulted. Geeta, Nurse advised that the doctor be called from Majholi. So Ashok was sent to Majholi, but then his wife died and before her death, her father-in-law had gone to her parents house to inform them.
14. In view of the entire evidence, can it be said that Lokmati had died by 7.00 a.m. on 11th May, 1994. If so, the defence witnesses are false. But Geeta, Nurse (ANM) remains unquestioned, when she speaks about her visit to Lokmati in the morning at about 9 a.m. The probability of her being alive at 9 a.m., isasmuch as probability of her death by that time. Medical opinion regarding the time of death being 24 hours before the Postmortem is not absolute opinion in terms of period. It has the element of probability of time which could be few hours either way. This means, she might have died some time between 9 a.m. to 10 a.m. According to Dr. Kostha, the injury could have been caused within 24 hours to 36 hours. Can we take this as the time counted before the starting of the Postmortem. If so, the injury must have been caused some time between 9 p.m. on 10th May and before 9 a.m. on 1lth May, 1994. It could be 4 a.m. or even 7 a.m. It could be 10 p.m. or any time in between 9 p.m. to 9 a.m.
15. The question is what was happening to her during this period. She was in the house in the night, as according to the defence witnesses themselves, she had gone out of the house to answer the call of nature and fell down on her way back. Who was with her in the night? There could be her father-in-law or mother-in-law. There could be her husband also. But there is no witness to say even as to who was in the house that night, apart from the deceased. There is evidence of the parents of the deceased and her brother that the husband had taken her to his house two months prior to her death. Earlier to that, she was in their house being treated there of some ailment for about 9 months. Her father-in-law and mother-in-law had chosen to keep quiet on the question as to who was in the house that night previous to her death. Since she was residing in the house and died in the house and perhaps she died while returning to her house on way after answering the call of nature, we can presume that she was in the house, the previous night. The husband has denied that he was in the house that night. There is no direct or circumstantial evidence of his being in the house or having stayed that night in the house with the woman.
16. The learned trial Court inferred that the injury of this type could be caused only by the husband or a person who was about to have sexual intercourse with that lady and since there was no allegation of any other person having such access to the lady, the only inference was that the husband must have been in the house and must have caused the injury in the process of coitus.
17. At this stage, we may deal with the law regarding burden of proof in a criminal case and the extent of that burden which the prosecution has to discharge. It is well settled and pronounced in umpteen number of cases by the Supreme Court of India that the prosecution must bring home the guilt of accused beyond reasonable doubt. In this respect, it may be further noted that in cases of circumstantial evidence, the prosecution must establish, beyond reasonable doubt, every circumstance and every link in the chain of events, necessary to establish the guilt of the accused. Again the circumstances should be such that only one inference is possible that the accused committed the crime and the circumstances are inconsistent with any reasonable hypothesis of his innocence.
18. In concluding the guilt of the accused, the trial Court presumed that the accused must have been in the house with his wife, the deceased on the previous night. This presumption has been raised on another assumption that an access to such part of the body of woman, as has been found injured in this case, could be possible for a husband only and by the same assumption, the injury has been attributed to the husband.
19. So far as the evidence of disclosure of iron rod and the recovery thereof, are concerned, that evidence has no value as it has not been conclusively proved as the same weapon which has been used to cause the fatal injury, and it has also no blood stains on it. It is a pointed weapon. Dr. Jain has opined that the injury could have been caused by some hard, blunt and splinted object, although Dr. Kostha has opined that this injury could have been caused by a pointed weapon. So it is not certain that such a weapon, like pointed iron rod, could have caused this injury or that this is the same weapon. So it must be excluded from consideration as a circumstance against the accused/appellant.
20. There is only a possibility, that the appellant was in the house that night. The suspicion that he could have caused this injury by itself, is not sufficient to hold that it is established beyond doubt that he was in the house that night.
21. Again, the opinion of Dr. Kostha is that the injury is homicidal which in fact amounts to opinion that this injury has caused death. No reasons have been given to establish that somebody else's hands must have been involved in causing this injury. Whosoever caused it, had a sadistic turn of mind. No reason has been given by Dr. Kostha as to why this injury could not be self-inflicted in a sadistic turn of mind of the patient. Dr. Jain is silent on this aspect as to whether the injury has been caused essentially by somebody, other than the injured herself. Fiddling with her body, will not be a difficult matter, and then such injury could certainly be caused. Why should she do it? Is a question which is not sufficient to reach an inference that the husband must have done it. Why should the husband have done it? Prosecution's answer was that he was treating her with cruelty. Why was he treating her with cruelty is not known. Was the husband sadistic in his tendency? There is no evidence as such. The trial Court has reasoned that if somebody else, other than the husband, had caused this injury, there would have been injury on vaginal part or at the entry part of the Uterus. Specifically, this aspect has not been dealt with by any of the doctors and no opinion on this point has been given. The trial Court has not referred to any medical authority on this point but has proceeded on its own opinion. Dr. Jain has, on the other hand, opined that if some limited force is used, the injury to the outer part of the Uterus may not be necessary nor even to the vaginal canal.
22. Thus, when there is no injury to the vaginal canal or at Uterus entry point, it will not lead only to one conclusion that it is the husband alone who must have done it.
23. No slide was prepared of vaginal discharge of the deceased nor any semen was taken. So we do not know if this lady had any coitus on the previous night.
24. On consideration of the entire evidence medical and other, we are of the opinion that there is deep suspicion that the husband might have committed this crime, but that is only a possibility and since the necessary circumstances, other than injury, even the nearness of the husband with the wife that night, are not established beyond doubt, the chain of event is not complete so as to exclude the other reasonable hypothesis of innocence of the husband. The trial Court has observed that there is no allegation against the morality of the wife or her character. May be there is none. But that is not the touchstone on which the prosecution evidence has to be weighed, to find out the guilt of the accused. The legal requirement is that it is the prosecution alone which must stand on its own legs and the defence is not expected to make out a case or to take a stand regarding an event. The golden rule is that the defence is entitled to silence and the silence of the defence does not lead to any presumptions in favour of allegation of the opposite side or against the defence, unless an explanation of a circumstance from the defence becomes essential to ward off any inferences directly flowing from the circumstance.
25. In our considered opinion, the prosecution has not been able to cross the hurdle of achieving the standard of proof which is 'beyond reasonable doubt', against the accused. It is a case of circumstantial evidence against the accused and the chain of circumstances established should be such as to exclude the possibility of innocence of the accused. In fact, only two circumstances are established : (1) that the girl was in the house that night and (2) that she died of the injury to the fundus of her Uterus which could have been caused by the husband in a sadistic behaviour, if he was in the house attempting a coitus with his wife.
26. One circumstance, which goes against the prosecution is that if such an injury had been caused by the husband at such moment, it would have caused a lot of pain in her body and the lady would have raised a hue and cry and the people must have come to know of it. We do not know whether she did raise any cry. There is no evidence about this. If she was so assaulted, she would have told people outside the home about it. After all she had gone out of the house and might have gone upto the Hand-pump, about more than 100 yards away. There is no evidence that she complained to any-body. The circumstance of absence of any cry of complaint is one which militates against a sudden attack in a sadistic state of mind by the husband.
27. One more factor, which remains undiscussed, and discure is that opinion of Dr. Jain, which says that the size of Uterus was enlarged and further says that this size could be possible when the pregnancy is less than 3 months or so. There is no evidence that there was such a pregnancy noticed in post mortem examination. If there was pregnancy what happened to the foetus and when it was got removed was any physical removal of pregnancy attempted? If so, when and by whom? The medical opinion is silent on these aspects. Was such an attempt made by the lady herself or by husband; or by some nurse. These questions remain unanswered. No questions have been put to doctors as to whether there was a pregnancy. It is important to note that the brother of deceased has stated that she was brought by husband from her parents' house two months back and she had stayed at the parents' house for nine months earlier. Was this couple attempting termination of pregnancy which might have been eight or nine weeks old. But nothing is disclosed by doctors about remains of foetus or any marks thereof in the Uterus. Dr. Kostha opined that there was no other injury except what was found inside the Uterus. But he too has not explained about the reasons of enlargement of the Uterus. Neither of the two doctors says that the injury itself caused or might have caused enlargement of the womb.
28. The net result of the above discussion is that the evidence against the accused remains at the stage of suspicion and has not achieved the standard of proof beyond reasonable doubt. If the husband had caused this injury, certainly he should deserve the severest punishment. But the rule of law, as it prevails in India, is that severer the punishment for a crime, stricter is the proof required. Of course, the Court of law has to look into all the relevant evidence, as is on record, to weigh it and to find out : (i) the proved circumstances (ii) to what inference these circumstances lead. The proved circumstances in the present case do not lead to the only conclusion that this accused committed this crime, being husband of the deceased. It is not ruled out that some other hand or victim herself might have caused this injury.
29. In view of the aforesaid conclusion, the accused entitled to the benefit of doubt, as the accused must be taken to be innocent till his guilt is proved beyond reasonable doubt.
30. The reference is answered accordingly. The appeal is accepted. The judgment of conviction and sentence of the trial Court are set aside and the appellant is acquitted of the charges.