- (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. 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. 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. "
(3.) 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. 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. ";