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2008 DIGILAW 859 (CAL)

Abdul Hannan v. STATE OF WEST BENGAL

2008-08-22

G.C.Gupta, Kishore Kumar Prasad

body2008
JUDGMENT: 1. THE Death Reference as also the appeal arose out of a judgement dated 30th July, 2007 passed by the learned Additional District and Sessions Judge, Fast Track Court, gangarampur at Buniadpur, District " Dakshin Dinajpur in Sessions Trial No. 06 of 2006 arising out of Sessions Case No. 38 of 2006 convicting the appellant for charges under Sections 302 and 201 of the Indian Penal Code and an order dated 2nd August, 2007 by which the appellant was sentenced to extreme penalty of death for the offence punishable under section 302 of IPC as also to pay fine of Rs. 50,000/-, in default to suffer rigorous imprisonment for a further period of five years. The appellant was also sentenced to suffer rigorous imprisonment for seven years as also to pay a fine of rs. 10,000/-, in default to suffer rigorous imprisonment for a further period of one year for the offence punishable under section 201 IPC. Both the reference and appeal have been heard together and this judgment will govern both the reference and appeal. Briefly stated the facts and circumstances of the case are that on 18th April, 2005 the deceased Meher Negar Begam was given in marriage to the appellant Abdul Hannan according to Sariyat Law. The Bidai ceremony was held within a month thereafter. Eleven days prior to her death, the deceased came to her paternal house accompanied by a cousin of her husband. On 13th October, 2005 corresponding to 26th Aswin 1412 b. S., the appellant took away his wife from her parental house on the pretext of a dinner thrown by a brother-in-law of the deceased. On the following day in the morning at about 6 A. M. ., the deadbody of the deceased was found. The appellant was charged under Sections 302 and 201 of the Indian Penal Code and was convicted and sentenced as aforesaid. Mr. Mukherjee, the learned Advocate, appearing in support of the appeal, submitted that there is no dependable evidence to sustain the conviction whereas Mr. Goswami, the learned Public Prosecutor, prayed for confirmation of the death sentence. Before we consider the submissions advanced by Mr. Mukherjee, we would like to notice the evidence on the record. The month of Ramjan began on or about 5th October, 2005. Prior to his marriage, the appellant was prosecuting his studies at Nomunia Madrasah. Goswami, the learned Public Prosecutor, prayed for confirmation of the death sentence. Before we consider the submissions advanced by Mr. Mukherjee, we would like to notice the evidence on the record. The month of Ramjan began on or about 5th October, 2005. Prior to his marriage, the appellant was prosecuting his studies at Nomunia Madrasah. For the month of Ramjan, commencing from 5th October, 2005, the appellant was appointed imam of Dangapara Mosjid which is situate in the village Bhullakuri. The appellant took the assignment and started residing in the house of Mohiruddin, the P. W. 9. 2. THE evidence of P. W. 1 in this regard is as follows :-"during this time my son-in-law used to reside at Dangapara in the house of Mohiruddin and in the Mosjid. " the evidence of P. W. 9 in this regard is as follows :- "before one year of his marriage Abdul Hannan used to reside in my house for one month in the month of Romjan while he (was) acted as Imam of dangapara Mosjid. On the following romjan he (was) also stayed in my house in that year also he acted as Imam of Dangapara Mosjid. Sometimes abdul Hannan used to reside in Dangapara Mosjid during romjan period. During that romjan period Hannan used to take his meal and dinner rotationally in different villager's house of our village. There is only 17/18 houses at Dangapara village. After the marriage of Abdul Hannan his wife meher Negar occasionally visited my house and stayed with Abdul hannan. Hannan also visited his in-law's house. " On 24th Aswain 1412 B. S. corresponding to 11th October, 2005 the appellant confided to the P. W. 11 that the foetus, carried by his wife Meher Negar, was conceived prior to their marriage and that he would not keep his wife any more. An identical message was confided to the P. W. 12. The P. W. 11 deposed as follows: - "on 24th Aswin 1412 B. S. in the afternoon Abdul Hannan came to my house for courtesy visit, during course of my conversation with Abdul hannan he reported that the foetus which was carrying by Meher Negar was not mine. Abdul Hannan also stated to me that perhaps prior to his marriage with Mehernegar she might have some illicit relation with anybody else. Abdul Hannan also stated to me that perhaps prior to his marriage with Mehernegar she might have some illicit relation with anybody else. I suggested for medical test, on reply Abdul Hannan said by raising his hand that he shall not keep Meherneger any longer. Now I realized that Abdul Hannan hinted that he will eliminate Mehernegar from this world. " The P. W. 12 deposed as follows :- "i met Abdul Hannan in patiraj hatt in the month of Aswin before 2/4 days of murder of Mehernegar. Abdul Hannan stated to me in hatt that he is not the father of the foetus of Meher Negar. I replied that I will go to the father-in-law's house of Abdul Hannan and we held discussion about the matter. " P. W. 1, father of the victim, deposed, concerning the suspicion entertained by the appellant, as follows:- "my said daughter Meher Negar Begam was conceived on the same month of marriage. I have heard from my wife that my son-in-law told that he was not the father of the said foetus. My daughter reported the said fact to my wife. " P. W. 2, the mother of the victim, deposed in this regard as follows :- "on Baisak 1412 B. S. the mohar of my daughter was observed with Abdul hannan of Ziapara. The Biday was held in the month of Jaistha. During this period of Mohar and Biday, my daughter was with us at Bhullakuri. Occasionally my son-in-law Abdul Hannan used to come in my house and stayed with us and my daughter Mehernegar at Bhullakuri village as husband and wife. My daugher became pregnant. A trouble broke out in between my said daughter and son-in-law on the issue of pregnancy. It was reported by my said daughter that my son-in-law became suspicious about the matter of pregnancy of my said daughter. I relayed the incident to my husband. My husband did not pay any heed about the said matter. Bidai ceremony was performed. " As regards the age of the foetus carried by the victim, the opinion of the Autopsy surgeon (P. W. 22) is as follows: -"organs of generation external and internal were healthy gravid uterus with a dead male foetus of about 28 weeks of gestation. " the victim was killed on the 178th day from the date of her marriage. " As regards the age of the foetus carried by the victim, the opinion of the Autopsy surgeon (P. W. 22) is as follows: -"organs of generation external and internal were healthy gravid uterus with a dead male foetus of about 28 weeks of gestation. " the victim was killed on the 178th day from the date of her marriage. According to the evidence of the Autopsy Surgeon, the fetus carried by the victim was about 196 days old. The age of the fetus opined by the doctor is, however, tentative which could well have been less than 178 days old regard being had to the fact that the last date of mensuration was not available, as would be evident from the following view expressed by the autopsy surgeon, the P. W. 22: - "the method of calculation of gestation i. e. date of last menstruation and subsequent weeks. The date of pregnancy is after 15 days (fortnight) from the date of gestation. I am also Gynecologist. Pregnancy is possible, as early as possible after marriage of a competent couple if menstruation was held prior to marriage. " The fact that the appellant entertained a serious doubt in his mind as regards the paternity of the foetus carried by the victim would further be evident from the following suggestions given to the P. W. 1:- "not a fact my daughter Meher Nigar leaded (led?) indiscipline life and owing to that she became pregnant prior to the marriage. Not a fact the instant marriage was solemnized concealing the fact of pregnancy within 2/3 days in collusion with one Mahiruddin Ah. of Dangapara. Not a fact abdul Hannan returned my said daughter after marriage and expressed his desire to give talaque. Not a fact there was no relation in between the accd. and our family after Abdul Hannan came to know about the fact of pregnancy. Not a fact Abdul Hannan never visited our house in Bhullakuri village although he used to reside in Masjid of Dangapara. " 3. ON 13th October, 2005, the appellant and the P. W. 9 together participated in Iftar (breakfast during Ramjan) and thereafter, the appellant went out of his house at about 5. 30 P. M. with a knife which belonged to the P. W. 9 who was also a butcher by profession. " 3. ON 13th October, 2005, the appellant and the P. W. 9 together participated in Iftar (breakfast during Ramjan) and thereafter, the appellant went out of his house at about 5. 30 P. M. with a knife which belonged to the P. W. 9 who was also a butcher by profession. The evidence of the P. W. 9 in this regard is as follows: "on the 8th day of romjan month on Thursday I and Hannan made Iftar in my house by taking fried-rice (muri) water and other at about 5. 15 P. M. After that I and Hannan went to participate Mogroop namaz at Dangapara mosjid. I and Abdul Hannan returned home after completion of namaz within 10 minutes. Then Hannan went outside of my house with a knife at about 5. 30 P. M. The said knife belonged to me. I occasionally work as butcher by this time. I did not ask any question to Abdul Hannan as he was Moulabi. " The appellant went to the house of the P. W. 1 and came out accompanied by the victim around 5. 45 P. M. . The evidence of P. W. 2, the mother of the victim, in this regard is as follows :- "on 8th day of Romjan month after making Iftar my son-in-law Abdul hannan came to my house at about 5. 45 P. M. and stated to me that I have no time to sit as myself and my wife Meher Negar have to attend the house of Enamul Hq. of Barmahar. Accordingly I permitted my son-in-law to go to Barmahar in the house of my elder son-in-law accompanied by my daughter Mehernegar Begam. I also accompanied them for one minute on their way to Barmahar. After that I stood at place and noticed my son-inlaw and my said daughter was talking with Mojibur and Sajibur in front of the door of their house. " The appellant on his way to intended destination met Mojibur and Sajibur according to the evidence of P. W. 2 which we have noticed. Sojibur, P. W. 4, deposed in this regard as follows: - "on 8th day of Romjan last year Thursday after Iftar I and my elder brother mojibur was gossiping in front of my house after one hour of Iftar. Sojibur, P. W. 4, deposed in this regard as follows: - "on 8th day of Romjan last year Thursday after Iftar I and my elder brother mojibur was gossiping in front of my house after one hour of Iftar. We noticed Abdul Hannan and Meher Negar were coming from Dangapara and proceeded to his brother-in-law's house at Barmahar. Abdul Hannan himself disclosed the same on my asking to me. " The P. W. 5, Mojibur, has corroborated the evidence of P. W. 4. The appellant we have noticed had attended the Magroop Namaz after iftar. The next Namaj was at 7. 30 P. M., which he did not attend according to the evidence of P. W. 9 which is as follows :- "hannan returned home after two hours while I was going to participate tarabi namaz at about 7. 30 P. M. I did not notice Hannan to participate trabi namaz but Hannan participated Bethne Namaz at about 8. 00 P. M. " P. W. 4 and P. W. 5 corroborated the evidence of P. W. 9 that the appellant was absent from the Mosque at the Namaj held at 7. 30 P. M. but he was present in the mosque during Namaz performed at 8. 00 P. M. 4. ON 14th October, 2005 in the morning at about 5. 30 A. M., the P. W. 3, dhan Mohammad, went to his paddy field where two workers had been engaged by him for the purpose of spraying insecticides. The aforesaid workers informed the P. W. 3 that a deadbody of a woman was lying beneath a Pakur tree. These two workers also deposed in this case and they are P. Ws. 6 and 7. They have corroborated the evidence of P. W. 3. P. W. 6 deposed that the matter was first informed to Mohiuddin Ali, mohiuddin then informed to Sajibur and Mojibur and ultimately parents of the victim were informed. The villagers assembled and identified that the deadbody as that of mehar Negar, wife of the appellant. The deadbody was lying at eight to ten minutes walking distance from the village Bhullakuri. The P. W. 1 deposed that he came to know from the P. W. 3 and his workers about the incident at about 6 a. m. He went to the locale which according to him was ten minutes walk from his house. The ghastly sight unnerved him. The P. W. 1 deposed that he came to know from the P. W. 3 and his workers about the incident at about 6 a. m. He went to the locale which according to him was ten minutes walk from his house. The ghastly sight unnerved him. He fainted on the spot. He was brought home with the assistance of the villagers. He thereafter, lodged the written complaint at about 7. 30 A. M. P. W. 8, Nabiur, deposed that after the body was located at the place of occurrence, the P. W. 1 was sent to the Police Station for lodging the written complaint. The appellant, Abdul Hannan, came to the place of occurrence. What happened thereafter, can best be described in the words of the P. W. 8 which are as follows : "i and villagers interrogated Abdul Hannan and he admitted that he committed murder (to) of his wife at the time of sexual intercourse with meher Negar. Some irate villagers assaulted Abdul Hannan and I tried to rescue Abdul Hannan. Abdul Hannan received minor injuries and we sent him to Kushmondi Hospital by a van rickshaw. " It is not in dispute that the appellant was in the Kushmondi Hospital till 20th october, 2005. The wearing apparels of the appellant and the offending weapon were recovered from the room occupied by the appellant in the house of the P. W. 9. The wearing apparels of the appellant were not only blood stained but also semen stained as would appear from a forwarding letter dated 29th November, 2005 addressed by the officer-in-Charge, Regional Forensic Science Laboratory to the Serologist, Government of India (Ext. 18/1 ). The relevant portion whereof reads as follows: -"the presence of blood and semen has been proved in the exhibits as noted in the margin and it is requested to inform me the origin of blood and semen. " the aforesaid wearing apparel of the appellant and the offending weapon had earlier been sent to the FSL by the Additional Chief Judicial Magistrate, Gangarampur. The wearing apparels and the knife seized and recovered from the room of the appellant contained human blood according to the report of the Forensic Science laboratory which have collectively been marked ext. 18 to 18/5. . The wearing apparels and the knife seized and recovered from the room of the appellant contained human blood according to the report of the Forensic Science laboratory which have collectively been marked ext. 18 to 18/5. . The offending weapon was shown to the autopsy surgeon and he deposed that the injuries found on the body of the deceased could have been inflicted by the same. The Post Mortem Report and the evidence of the P. W. 22 goes to show that besides nine specific injuries, multiple cut wounds on right thumb and index finger and on left shoulder on anterior aspect were found. According to the P. W. 22, Autopsy Surgeon, the death was, in fact, caused due to the said injuries which were ante-mortem and homicidal in nature. 5. MR. Mukherjee drew our attention to the charges framed against the appellant. The incident happened on 13th October, 2005 whereas the charge framed by the learned Trial Court contains the date of 30th October, 2005 as the date of incident. The obvious typographical error pointed out by Mr. Mukherjee has not occasioned any failure of justice. He did not even suggest that due to this typographical error in charge the accused was unable to follow the case he had to meet. Moreover, in the absence of any prejudice we are of the view that nothing really turns on this point of mr. Mukherjee regard being had to Section 464 of the Code of Criminal Procedure. Mr. Mukherjee by way of his second submission drew our attention to the order sheet dated 16th October 2005 and submitted that the F. I. R was for the first time produced before the learned Magistrate on 16th October, 2005 and there was no explanation for the delay. He added that the wearing apparels and the offending weapon allegedly seized on 14th October, 2005 were not produced to the learned magistrate nor even the seizure list was produced. He also added that the wearing apparels were seized vide Exhibit 7 but the exhibit 7 did not contain any indication that the wearing apparels of the appellant contained any mark of semen. 6. He also added that the wearing apparels were seized vide Exhibit 7 but the exhibit 7 did not contain any indication that the wearing apparels of the appellant contained any mark of semen. 6. NOT one question with regard to the dealy in forwarding the FIR to the nearest Magistrate was put to the Investigating Officer (P. W. 23) when he was in the box nor was any question put to him as to why did he omit to send the seized alamats to the learned Magistrate. Mr. Mukherjee has also not been able to indicate any prejudice suffered by his client for the omissions highlighted by him. Insofar as the absence of any indication in the seizure list to show that the wearing apparel of the appellant contained any mark of semen, suffice it to say that it would appear from ext. 18 to 18/5 that the wearing apparels of the appellant were sent by the Court of the learned magistrate to the FSL. The Forensic Laboratory was of the opinion as indicated earlier that the presence of semen in the wearing apparel of the appellant seized by the police was proved. We are under the circumstances unable to attach any importance to this submission of Mr. Mukherjee. The third submission advanced by Mr. Mukherjee was that it would appear from the written complaint that the appellant at the relevant point of time was staying at the Mosque. He submitted that the evidence adduced by the P. W. 1 and the P. W. 9 that the appellant was staying at the house of P. W. 9 is untrue. This submission of Mr. Mukherjee is also without any substance. Apart from p. Ws. 1 and 9 we have evidence of P. W. 21 and P. W. 23 to show that the appellant at the relevant point of time was residing in the house of the P. W. 9 and was working in the dangapara mosque as the Imam thereof. We are unable to accept this submission that the appellant at the relevant point of time was not residing in the house of P. W. 9. The fourth submission of Mr. Mukherjee was that the appellant shunned the company of the victim because he knew that she had lost her chastity and was carrying somebodyelse's child. This submission of Mr. We are unable to accept this submission that the appellant at the relevant point of time was not residing in the house of P. W. 9. The fourth submission of Mr. Mukherjee was that the appellant shunned the company of the victim because he knew that she had lost her chastity and was carrying somebodyelse's child. This submission of Mr. Mukherjee reinforces the case of the prosecution as regards the motive which prompted the appellant to undertake this bloody business. His fifth submission was that the incident could not have taken place on 13th october 2005 at 7. 30 P. M. . The Post Mortem was conducted roughly 42 hours thereafter 7. 30 P. M. The autopsy surgeon found rigor mortis in the deadbody. According to the autopsy surgeon, rigor mortis could remain for 24 hours only and thereafter decomposition would set in. The appellant was after 8. 00 P. M. admittedly in his house which was deposed to by the P. W. 9 and the others. Therefore the victim could not have been killed after 7. 30 P. M. on 13th October 2005. The fifth submission of Mr. Mukherjee has also not impressed us for the complete loss of rigor mortis "may be attained in tropical climates within twenty four hours of death, though in temperate climates this is more likely to be thirty six to forty eight hours or even longer" (see 2nd Print 1993 Page 211 of HWV Cox"x Medical jurisprudence and Toxicology). The death took place in October when the climate is relatively cool. Moreover according to the same learned author rigor mortis and postmortem lividity offer little hope of estimating the time since death within any practical limits. "it is obvious from the foregoing sections that rigor mortis and post-mortem lividity offer little hope of estimating the time since death within any practical limits. Most attention has been directed towards changes in temperature after death in an effort to establish a more accurate system of determining the time since death. Again, however, regretfully, it must be emphasised that all methods (temperature estimations included) are full of inaccuracies which are often extremely gross. Errors of 100% or even more must be accepted in many cases, and most experienced forensic pathologists and recall cases where fourfold errors were present, when the real time of death became known from other information. Again, however, regretfully, it must be emphasised that all methods (temperature estimations included) are full of inaccuracies which are often extremely gross. Errors of 100% or even more must be accepted in many cases, and most experienced forensic pathologists and recall cases where fourfold errors were present, when the real time of death became known from other information. " It is difficult for reasons indicated to disbelieve unimpeachable evidence which shows that the incident took place within 7. 30 P. M. on 13th October 2005. . His sixth submission was that even according to the Investigating Officer, the appellant was arrested on 15th October, 2005. If the appellant had committed the crime, there was no reason why he would not have been arrested on 14th October, 2005 itself. He drew our attention to the evidence of the I. O., which goes to show that the P. W. 9 was detained by him. Mr. Mukherjee added that the P. W. 9 must have committed the crime. An answer to this point of Mr. Mukherjee has been provided by the suggestions given on behalf of the defence to the P. W. 15 which are as follows:- "abdul Hannan suffered bleeding injury on his head. I cannot say whether the accd. was dragged to the house of Nabibur Rh. from the P. O. I can not say whether the accd. person was mercilessly beaten in the house of nobiur Rh. I can not say whether police was informed over the telephone from the house of Nabibur as the condition of accused Abdul Hannan was critical due to assault. I can not say whether the villagers handed over abdul Hannan to police. I cannot say whether the police refused to accept the accd. as the condition of the accd. was extremely critical. " It is true that the P. W. 9 was detained by the police. The bloodstained and semenstained wearing apparel of the appellant together with the offending weapon were recovered from the room occupied by the appellant in the house of the P. W. 9. Therefore, police had reasonable grounds to suspect as to the complicity of the P. W. 9. The mere fact that the P. W. 9 was detained by the police and thereafter let-off does not militate against the case of the prosecution. 7. MR. Therefore, police had reasonable grounds to suspect as to the complicity of the P. W. 9. The mere fact that the P. W. 9 was detained by the police and thereafter let-off does not militate against the case of the prosecution. 7. MR. Mukherjee added that pieces of hair were found stuck in the palm of the deceased which were compared by the Forensic Science Laboratory with the hair of the appellant and they were found dissimilar. Blood group of the appellant was also not tested. The mere fact that the pieces of hair found stuck to the palm of the deceased did not match with the hair of the appellant cannot nullify the effect of the voluminous evidence on the record which unerringly points to the guilt of the appellant. We have not been able to understand why was the blood group of the appellant required to be tested. Nobody has suggested that the appellant was bleeding after he came back to his residence in the house of the P. W. 9 around 7. 30 P. M. on 13th October 2005. Therefore, the wearing apparel of the appellant which contained bloodstains could not have been the blood of the appellant. His seventh submission was that the entire story of the prosecution was false because it would appear from the inquest report that on primary investigation it was revealed that the appellant had gone out of the house of the P. W. 1 accompanied by his wife at about 1. 45 P. M. 8. IT is true that in the inquest report there is a recital that the appellant went out of the house of the P. W. 1 at quarter past two accompanied by his wife whereas evidence of p. Ws. 1,2,4,5, and 9 is that he went out of the house of the P. W. 1 at 5. 45 P. M. on 13th october 2000. This discrepancy pointed out by Mr. Mukherjee was not put to the witness who had prepared the inquest report while he was in the box for obvious reasons. We are inclined to think that this discrepancy crept in due to mistake in putting the figure and it is nothing more than that. Mr. Mukherjee lastly submitted that the prosecution has left many unanswered questions and it cannot be said that the guilt of the accused has been proved beyond any reasonable doubt. We are inclined to think that this discrepancy crept in due to mistake in putting the figure and it is nothing more than that. Mr. Mukherjee lastly submitted that the prosecution has left many unanswered questions and it cannot be said that the guilt of the accused has been proved beyond any reasonable doubt. As regards the sentence awarded by the learned Trial Court he submitted that the appellant deserved acquittal. In any event it was not a rare of the rarest case to merit a death sentence. We have dealt with all the points urged by Mr. Mukherjee and we are unable to hold that the prosecution has left any or many questions unanswered. Mr. Mukherjee relied on judgments (a) dealing with the standard of proof required in a case dependent upon circumstantial evidence; (b) evidentiary value of confession and (c) lastly on the parameters regulating award of capital punishment. The judgments cited on the first point are as follows: the first judgment cited by Mr. Mukherjee is in the case of Bhalinder Singh @ raju vs. State of Punjab reported in 1994 (1) SCC 726 in order to show that the mere theory of last seen together is not enough. This was a judgment in which none of the circumstances proved by the prosecution established beyond reasonable doubt the guilt of the accused. This judgment does not, in our view, render any assistance to the appellant. The second judgment cited by Mr. Mukherjee is in the case of Ramreddy Rajes khanna Reddy vs. State of A. P. reported in 2006 (3) SCC (Cri) 512 wherein the last seen together theory was discussed and the law laid down earlier was applied. It was further held that mere suspicion however grave cannot be a substitute for proof. The views expressed in the aforesaid case are as follows:- "it is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. (See Anil kumar Singh v. State of Bihar and Reddy Sampath Kumar vs. State of A. P. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration. In State of U. P. vs. Sathish this Court observed: (SCC p. 123, para 22) "22. The last-seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of P. W. 2. " Similarly the third judgment cited by Mr. Mukherjee in the case of K. Sukumaran vs. State of Kerala reported in 2000 (10) SCC 365 does not lend any assistance because in that case the circumstances proved by the prosecution were not enough to satisfactorily establish guilt of the accused. The fourth judgment cited by Mr. Mukherjee is in the case of Aloke Nath Dutta vs. State of W. B. reported in 2008 (2) SCC (Cri) 264 to show that the chain of circumstances must lead to a certainty as regards the guilt of the accused. The fourth judgment cited by Mr. Mukherjee is in the case of Aloke Nath Dutta vs. State of W. B. reported in 2008 (2) SCC (Cri) 264 to show that the chain of circumstances must lead to a certainty as regards the guilt of the accused. In paragraph 82 of the judgment Their Lordships quoted from the judgment in the case of Sharad birdhichand Sarda vs. State of Maharashtra wherein the following view was expressed:- "153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:-1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in shivaji Sahabrao Bobade v. State of Maharashtra where the following observations were made: [scc Para 19, p. 807: SCC (Cri) p. 1047] "certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between "may be" and "must be" is long and divides vague conjectures from sure conclusions. " 2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, 3) the circumstances should be of a conclusive nature and tendency, 4) they should exclude every possible hypothesis except the one to be proved, and 5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. " (emphasis in origina.) It was further observed: (SCC pp. 194-95, paras 179-80) "179. We can fully understand that though the case superficially viewed bears an ugly look so as to prima facie shock the conscience of any court yet suspicion, however great it may be, cannot take the place of legal proof. " (emphasis in origina.) It was further observed: (SCC pp. 194-95, paras 179-80) "179. We can fully understand that though the case superficially viewed bears an ugly look so as to prima facie shock the conscience of any court yet suspicion, however great it may be, cannot take the place of legal proof. A moral conviction however strong or genuine cannot amount to a legal conviction supportable in law. 180. It must be recalled that the well-established rule of criminal justice is that "fouler the crime higher the proof". In the instant case, the life and liberty of a subject was at stake. As the accused was given a capital sentence, a very careful, cautions and meticulous approach was necessary to be made. " The judgments cited on the second point are as follows:-The first judgment cited by Mr. Mukherjee is in the case of for the proposition that doubtful testimony of a witness alleging extra-judicial confession cannot be relied upon. The second judgment cited by Mr. Mukherjee is in the case of for the proposition that in the absence of any substantive evidence no judgment of conviction can be recorded only on the basis of a confessional statement of a co-accused whether judicial or extrajudicial. 9. THE judgments cited on the third point are as follows:-The first judgment relied upon by Mr. Mukherjee is in the case of Bachan Singh vs. State of Punjab reported in 1980 SCC (Cri) 580 wherein the following mitigating circumstances, in the matter of awarding capital punishment, cited by the learned counsel were approved by Their Lordships. "mitigating circumstances :-In the exercise of its discretion in the above cases, the Court shall take into account the following circumstances:-1) That the offence was committed under the influence of extreme mental or emotional disturbance. 2) The age of the accused. If the accused is young or old, he shall not be sentenced to death. 3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. 4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above. 5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence. 4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above. 5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence. 6) That the accused acted under the duress or domination of another person. 7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct. " The second judgment cited by Mr. Mukherjee is in the case of wherein the sentence of death was commuted to life imprisonment. 10. THE third judgment cited by Mr. Mukherjee is in the case of in which the death sentence was commuted to life imprisonment. The fourth judgment cited by Mr. Mukherjee is in the case of Surendra Pal shivbalakpal vs. State of Gujarat reported in 2005 SCC (Cri) 653 wherein also the death sentence was commuted to life imprisonment. The fifth judgment cited by Mr. Mukherjee was in the case of Amrit Singh vs. State of Punjab reported in 2007 (2) SCC (Cri) 397. That was a case of murder after committing rape. Life imprisonment was awarded in that case. We are convinced that the prosecution has been able to prove its case against the appellant. The following facts and circumstances have been proved beyond any reasonable doubt : a) The appellant entertained a grave doubt as regards the faithfulness of his wife. He also was of the view that she was carrying a child in her womb of which he was not the father. He also had contemplated to divorce his wife. b) During the month of Ramjan commencing from 5th October 2005 the appellant was employed in the Dangapara mosque as the Imam thereof. The Dangapara mosque is situate in Bhulakuri village. The parental house of his wife was also in the bhulakuri village. The appellant had already sent his wife to her parental house accompanied by one of his cousins before he actually took over the assignment in the Dangapara mosque. c) After taking over the assignment of Imam in Dangapara mosque, the appellant was residing in a room in the house of the P. W. 9 whereas he would take food rotationally in the house of the villagers. c) After taking over the assignment of Imam in Dangapara mosque, the appellant was residing in a room in the house of the P. W. 9 whereas he would take food rotationally in the house of the villagers. On 11th October 2005 the appellant disclosed his intention of not retaining his wife because she was unfaithful according to him. He had a deep-rooted resentment in his heart against his wife. d) It is his disturbed mind which found expression when he disclosed this fact to the p. Ws. 11 and 12. On 13th October the appellant had Iftar in the house of the P. W. 9 at about 5. 15 P. M. e) At about 5. 30 P. M. the appellant reached the house of his in-laws. On a false pretext he took out his wife from her parental house and care. On the way of his intended destination he met the P. Ws. 4 and 5. He gave them false answer as regards his intended destination. Between 5. 45 P. M. and 7. 30 P. M. he alone was in the company of his wife. He did not attend the Namaz held at 7. 30 P. M. The next namaz was at 8 P. M. which he attended but his wife was not with him. There is evidence to show (P. W. 9) that the appellant passed sleepless night on 13th October 2005. f) In the morning at about 5. 30 A. M the dead body of the deceased was located and identified within half an hour. The appellant was thereafter interrogated and during such interrogation he confessed his guilt whereupon the irate mob gave him a good deal of thrashing and he was hospitalised. g) During his confession he told the witness that he had killed his wife during coitus. Soon thereafter his bloodstained and semenstained wearing apparel were recovered from the room which he occupied which lend assurance as regards the truth of the extra-judicial confession made by him in the presence of the witnesses. h) The last but not the least the appellant has not given any explanation whatsoever as to where he was during the period between 5. 45 P. M. and 7. 30 P. M. on 13th October 2005 nor has he given any explanation as to what happened to his wife who was last seen alive only in his company. h) The last but not the least the appellant has not given any explanation whatsoever as to where he was during the period between 5. 45 P. M. and 7. 30 P. M. on 13th October 2005 nor has he given any explanation as to what happened to his wife who was last seen alive only in his company. The summary of the circumstances indicated above, in our view, proves the guilt of the appellant beyond any reasonable doubt. The question however remains as to whether it is a rare of the rarest cases wherein the death penalty awarded by the learned trial Court should be upheld. We cannot but think that the appellant is not a villain. He, in our opinion, is a tragic character. He had reasons to doubt the fidelity of his wife. We are not suggesting that he had justified reasons but we cannot also say that he had no reason to doubt the fidelity of his wife. In the given state of circumstance such a doubt was not unnatural. The appellant evidently was undergoing a conflict in his mind as to the mode of getting rid of his supposedly unfaithful wife. He obviously had thought of divorcing his wife which we get from the evidence of the P. W. 2, the mother of the deceased. The parents of the deceased knowing fully well that their son-in-law entertained doubt as to the paternity of the fetus carried by their daughter did not do anything during the period of more than five months to remove his doubt which could easily have been done by resorting to paternity test. No such step was taken by him. As a matter of fact, the evidence of the P. W. 2 is that her husband (P. W. 1) did not pay any heed when she had divulged this fact to him. The unconcerned attitude of the parents of the deceased may have added fuel to the fire which already was burning in the heart of the appellant. The appellant was left with the choice to divorce his wife. But a person wronged as the appellant considered himself to be, may have been led to take this extreme step which could have been avoided by the parents of the deceased by appropriate counseling including medical tests. The appellant was left with the choice to divorce his wife. But a person wronged as the appellant considered himself to be, may have been led to take this extreme step which could have been avoided by the parents of the deceased by appropriate counseling including medical tests. We are inclined to think that the appellant committed a serious error of judgment in choosing his remedy. He chose an illegal rather than a legal way of getting rid of his wife. The deep sense of injury and the natural urge for vengeance prevailed against his reasoning capacity It is at this stage that the following mitigating factors approved by Their Lordhips in the case of Bachan Singh (Supra) become important. "mitigating circumstances :- In the exercise of its discretion in the above cases, the Court shall take into account the following circumstances:- 1) That the offence was committed under the influence of extreme mental or emotional disturbance. 2). . . . . . . . . . . . . . . . . . . . 3). . . . . . . . . . . . . . . . . . . . 4). . . . . . . . . . . . . . . . . . . . 5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence. " These are the reasons why we are inclined to think that the appellant is not a villain. It is not due to any characteristic depravity that he resorted to this crime and therefore we conclude that the death sentence is inappropriate. In our view in the facts and circumstances, the present case does not fall within the category of "rarest of rare case". We are satisfied that the ends of justice would be met by awarding life imprisonment for the offence punishable under section 302 IPC. We do not think that there was any need to have imposed a sentence of fine of Rs. 50,000/- with default stipulation ( AIR 1987 SC 692 relied upon ). We also do not think that there was any need to have imposed separate substantive sentence as also to pay fine with default stipulation for the offence punishable under section 201 of IPC over and above the sentence of life imprisonment. 50,000/- with default stipulation ( AIR 1987 SC 692 relied upon ). We also do not think that there was any need to have imposed separate substantive sentence as also to pay fine with default stipulation for the offence punishable under section 201 of IPC over and above the sentence of life imprisonment. For the reasons assigned above while affirming the conviction of the appellant under sections 302/201 IPC, we set aside the sentence of death imposed by the learned trial Court and reduce the same to imprisonment of life together with a fine of rs. 5000/-, in default he shall undergo further imprisonment of six month. We also set aside the sentences imposed by the learned Trial Court for the offence punishable under section 201 IPC. Except to these extent of modification in the sentences, the appeal will stand dismissed. The appellant is in jail and shall be kept there to serve out the sentence as modified by this Court. Death reference made by the learned Trial Court is accordingly answered in the negative and in favour of the appellant. The learned Trial Court will issue necessary revised jail warrant as required by the rules. Lower Court Records with a copy of this judgment be sent down forthwith to the learned Trial Court for information and necessary action.