IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction

BEFORE:

The Hon’ble Mr. Justice Joymalya Bagchi
And
The Hon’ble Mr. Justice Rajarshi Bharadwaj

C.R.A. 44 of 1996

Mira Rani Biswas
Versus
The State of West Bengal

With

C.R.A. 72 of 1996

Goutam Roy
Versus
The State of West Bengal

For the Appellants : Mr. A. Auddy, Advocate.

For the State : Mr. Saswata Gopal Mukherjee, P.P.,
Mr. P. P. Das, Advocate.

For the Amicus : Mr. S. Dutta, Advocate.
Curiae
Heard On : 16/01/2018.

Judgement On : 04/05/2018

Rajarshi Bharadwaj, J.:

Mr. A. Auddy, learned Counsel appears for the appellants in

Criminal Appeal No. 44 of 1996 and Criminal Appeal No. 72 of 1996.

Both the appeals are taken up together for hearing analogously as

they relate to the self-same judgement and order of conviction dated

24th January, 1996 passed by learned Additional Sessions Judge, 2nd

Court, Birbhum in connection with Sessions Trial No. 1st May of 1994

arising out of Sessions Case No. 38 of 1992 convicting the appellant

Goutam Roy for commission of offence punishable under sections

306 and 498A of the Indian Penal Code and appellant Mira Rani

Biswas for commission of offence punishable under section 306 of the

Indian Penal Code.

Prosecution case as levelled against the appellants is that on 1st

April, 1991 at around 9 P.M. there was a quarrel amongst the victim

Smt. Nibedita Roy, the accused Sri Goutam Roy and his mother i.e.

the mother-in-law of Nibedita Roy. After such occurrences Goutam

Roy went to perform his night duty. Smt. Nibedita Roy went inside

the room and hang herself by neck. Police intervened and started U.

D. Case being No. 85/91 dated 1st April, 1991.

On 2nd April, 1991 at about 16:30 hours one Benimadhab

Mukherjee appeared at Suri Police Station and submitted a written

complaint to the effect that his sister Nivedita was given in marriage

to one Goutam Roy of Suri Seherapara locality. Sometimes after

marriage it was disclosed that the said Goutam Roy had illicit relation

with one Mira Biswas, a neighbour to them. Even after marriage with

Nivedita, Goutam continued to keep illicit relation with Mira Biswas

and when Nivedita raised objection accused Goutam physically

assaulted her on several occasion and began to inflict mental torture

upon her. Even after the intervention of neighbours and relatives,

they failed to bring the said Goutam back. The complainant

complained that Nivedita was murdered by her husband and hanged

by her husband, mother in law and the paramour Mira Biswas. Both

the U. D. Case being No. 85/91 dated 1st April, 1991 and the

complaint case was taken up for investigation. During investigation,

the involvement of all the accused persons was fully disclosed and

finally police submitted charge sheet against the three accused

persons under sections 306 and 498A of the Indian Penal Code. The

case being a Sessions triable one was committed to the court of

Sessions and transferred to the court of Additional Sessions Judge for
trial and disposal. The charges were framed under sections 498A and

306 of the Indian Penal Code against all the three accused persons.

The accused persons pleaded not guilty and claimed for trial.

In the course of trial, the prosecution examined 19 witnesses to

establish its case and exhibited a number of documents.

The defence of the accused were one of innocence and false

implication.

In conclusion of trial, the trial judge by judgment and order

dated 24th January, 1996 convicted and sentenced the appellants, as

aforesaid. Co-accused Parul Bala i.e. mother of Goutam Roy was

acquitted of the charges levelled against her.

Mr. A. Auddy, learned Counsel for the appellants argued that

the evidence of the prosecution witnesses does not establish cruelty

on the victim-housewife. Furthermore, the accused Goutam Roy was

not present at the place of occurrence and there is no direct evidence

that the appellant had ever assaulted the victim forcing her to commit

suicide. Accused Mira Rani Biswas had no relation with the victim

and during examination under section 313 of the Code of Criminal

Procedure, she was not even questioned that she abetted the
commission of suicide. He accordingly prayed for acquittal of the

appellants.

Mr. S. Dutta, learned Counsel appearing as amicus curiae,

supported the contentions of Mr. A. Auddy.

On the other hand, learned public prosecutor submitted that

the evidence on record clearly established that the victim housewife

committed suicide within two years of her marriage at the

matrimonial home. The appellants were unable to give any plausible

explanation leading to her untimely death. It was also submitted that

there is ample evidence on record that the victim was subjected to

torture including physical assault at her matrimonial home forcing

her to commit suicide clearly establishing the ingredients of the

offences punishable under sections 498A and 306 of the Indian Penal

Code. Accordingly, he prayed for dismissal of both the appeals.

Let me now examine the evidence of witnesses to ascertain

whether the prosecution has been able to prove its case beyond

reasonable doubt.

P.W. 1 Anandinath Mondal deposed that he is a residence of

Seherapara under Suri town and identified all the accused persons as
neighbours. In the month of February, 1991 nearly at about 12

O’clock night, he heard a hue and cry from the house of the accused

Goutam Roy and rushed to his house but could not find anything

there. He heard that on that night Goutam was in the house of

Anath Biswas their neighbour. P.W. 1 deposed that the relationship

between the accused Goutam and Nivedita had deteriorated as he

used to behave very badly with his wife. On the fateful night, he saw

the dead body of Nivedita and he witnessed to the inquest made by

Investigating Officer as he was present at that time. This witness

proved his signature in the inquest report marked as exhibit 1. He

identified the body of Nivedita with police. In cross-examination, this

witness stated that Mira lived with her husband and she has two

sons and one daughter.

P.W.2 Jayanta Kr. Das also identified the accused persons as

his neighbours. He deposed that he never witnessed any bad relation

between the parties since marriage. He is residing at Rampurhat and

time to time he used to visit his home at Suri. He wrote a letter to

Benimadhab alias Madhab. He proved this letter dated 17th February,

1991 marked as exhibit 2. On 1st April, 1991 at about 9.00 p.m. the

mother of accused Goutam rushed to his house and stated that
Nivedita has closed the door from inside her room and was not

answering her calls. This witness rushed to the house of accused,

climbed on a stool and found Nivedita was hanging from the ceiling

by a rope. He informed the local Chiarman, Jaharlal Mishra and

other para people. Police was also informed. This witness never found

any physical or mental torture by the husband and other accused on

victim Nivedita. This witness was declared hostile and was cross-

examined by the prosecution. He denied that he has stated before

the investigating officer that Nivedita had to commit suicide for

physical or mental torture upon her by the accused persons. He

admitted that Nivedita was a very hot tempered lady. She always

suspected that Goutam had illicit connection with Mira Rani Biswas

in the same para at Suri. He admitted that he wrote the letter of such

suspicion in connection with illicit relation between accused Goutam

and Mira hampered family peace. He admitted that house of Mira

intervened by four houses from the house of Goutam.

P.W. 3 Sanjoy Das turned hostile as he did not support

prosecution case.

P.W. 4 5 were tendered by prosecution.

P.W. 6 Asis Majumdar is a resident of Seherapara, Suri and

deposed that Nivedita was married with Goutam. He admitted that he

himself and one Raju Das went to Dakshinkhanda under P.S. Andhal

to inform the parents of Nivedita that she had committed suicide. He

also admitted that Goutam had illicit relation with accused Mira

Biswas and he seen such illicit association with his own eyes. One

day, two years from the date of his deposition, at night while this

witness went to the house of accused Goutam, he saw accused Mira

Rani Biswas and accused Goutam Roy in half naked condition at the

house of Anath Biswas. At that time, Anath Biswas husband of Mira

was not present. He saw accused Goutam and Mira in half naked

position in one room and also saw son of accused Mira in another

room. Thereafter several para people assembled in the house of Mira

and searched for husband of accused Mira. In cross-examination, he

stated that he was not examined by investigating officer. He had not

stated to investigating officer that on that date at night he saw

accused Goutam and accused Mira in half naked position in one

room. Hearing the halla of para people as ‘chor’, ‘chor’ he came out

from his house and saw many people assembled near the house of

Anath Biswas. He did not know if any information was lodged at Suri
P.S. as to the theft nor had any discussion with the people assembled

at that night in front of the house of Mira. At about 1 a.m. the main

door was opened, and they entered through that door crossing the

courtyard. He stayed for 20 minutes in the house of Mira. When he

entered into the room of Mira, he saw both Mira and accused Goutam

were standing in the said room in half naked condition. Bhuban

Singh, Raju Das, Khokan Bhattacharya, elder brother of Khokan

Bhattacharya, the son and wife of Bhuban Singh also saw accused

Goutam and Mira in half naked condition. He resides after 15

minutes distance from the house of Mira. This witness was specially

cross-examined by the lawyer of Mira Biswas. He stated that Mira

used to reside with her husband, sons and daughter. Bhuban Singh

used to live in the same apartment just beside the house of accused

Mira but there is a common courtyard. When he went to the house of

Mira, he saw her sons and daughter were present. He admitted that

a dispute is going on between para people and Mira about her illicit

relation with accused Goutam and almost 50 people assembled in the

house of Mira on that date.

P.W. 7 Raju Das is a resident of Seherapara under Suri town.

He knew Nivedita committed suicide, informed the matter to the
parents of the victim. He had no bad relation with victim and he had

no knowledge of Mira having illicit relation with accused Goutam. He

was declared hostile and cross-examined by the Iearned Additional

Public Prosecutor with regard to his previous statement to the police.

P.W. 8 Maya Das was not examined and tendered only.

P.W.13 Benimadhab Mukherjee is the de facto complainant in

this case. He is a relation of deceased Nivedita. According to him,

sometimes on or after 7th May 1990, after the marriage, Nivedita

started residing at her matrimonial home. She used to visit their

residence at Dakshinkhanda. For two months of the marriage there

was a good relation between the husband and wife as reported by his

sister. Thereafter his sister Nivedita disclosed that her husband

Goutam was involved in an illicit relation with accused Mira. Before

marriage of his sister it was not disclosed that Goutam had any illicit

relation with accused Mira Rani Biswas. After marriage, Nivedita

opposed over such relationship and Goutam assaulted his sister and

inflicted mental torture upon her. She reported the matter to this

prosecution witnessed and others orally and also by writing letters.

There was a hue and cry in the locality over such illicit relation
between Mira and Goutam and local people also raised protest. For

that, Goutam was furious and further assaulted his sister on several

occasions. Nivedita informed the matter by writing a complaint before

the employer of Goutam and narrated all the fact and copies of such

letter were sent to Mahila Samity also. He identified the signature of

his sister (exhibit 3). After such incident his sister was taken to

Dakshinkhanda for residing with them. Sometimes thereafter

Goutam visited them at Dakshinkhanda and confessed his guilt and

vowed to rectify himself and thereafter they sent back their sister with

her husband so that she can live peacefully in her matrimonial

house. Thereafter on 2nd April 1991 at about 7 a.m. Raju Das a

residence of Suri informed them that Goutam and her mother

Parulbala murdered his sister on 1st April 1991. On 2nd April 1991

this witness along with others went to Suri at 10-30 a.m. They came

to learn from police that the dead body of his sister was at Suri

morgue for post mortem examination. Thereafter this witness

submitted written complaint before the police station which is

marked as exhibit 4 under his signature (exhibit 4/1). Muktipada

Roy is his brother-in-law and resides at Saradapally Durgapur. His

sister Dali resides at Durgapur. He proved the handwriting of his
sister Nivedita who wrote a letter to Dali marked exhibit 5. Nivedita

wrote another letter marked exhibit 5/1. This witness also identified

the signature of his sister marked exhibit 5/2. Accused Goutam also

wrote a letter to him dated 9th December, 1991. He proved the

handwriting of Goutam and his signature. This letter is marked

exhibit 6. Invitation card is marked exhibit 7. Photograph of the

marriage is marked ‘Y’ for identification, Lagnapatra is marked

exhibit 8 and all the documents have been seized under seizure list.

In cross-examination, the witness admitted that he is working in

the E.C.L. and got six sisters by second marriage of his father.

During negotiation of marriage, he visited the house of Goutam on

several occasions. Nivedita used to write several letters to her mother

and sister at Dakshinkhanda after marriage. Nivedita was 4th

daughter of his father. He had no knowledge before marriage that

accused was night guard at T.C.D.C. department. He enquired about

Goutam before marriage from several inhabitants of Seherapara. He

denied that his sister used to reside at Dakshinkhanda for major time

after her marriage. He denied that his sister was too much

sentimental but admits that his sister always suspected her husband

Goutam having illicit relation with other woman. He knew about
several altercation and dissatisfaction of his sister against her

husband for his illicit relation with another woman. His sister

Nivedita never lost his mental balance. He lodged the F.I.R. after a

detailed enquiry about the immediate cause of death of his sister as

none of local people lodged any written complaint before Suri Police

Station.

P.W. 13 narrated the entire incident of illicit relation and torture

upon his sister. His sister Nivedita used to meet her friends namely

Champa, Bani, Saraswati etc. He collected some letters from his

sister Dali 5/6 days after the incident and handed over them to

police. He stated in his complaint that her sister had stated that she

was physically and mentally tortured by the accused. They did not

take any step for the divorce of his sister Nivedita when they heard

that accused Goutam had illicit relation with Mira Rani Biswas.

Amiya Banerjee, Nityananda Mukherjee, Dharmadas Ganguly, his

father’s friends, were all present when accused Goutam took back his

sister from their house with an undertaking that he would not torture

her any longer. His sister attended the marriage ceremony of his elder

brother Kalidas but Goutam did not attend. Goutam is a night guard
and he used to guard his office at night. His sister had to stay alone

in the night because of Goutam’s official duty. He denied that his

sister was suffering from any mental disease.

P.W. 14 is mother of victim Nivedita. After the marriage,

Nivedita used to visit her and complained her that the accused

Goutam was a drunk and used to torture upon her daughter off and

on when she came to know about the illicit relation of her husband

with accused Mira Rani. Her daughter stated to her that she all

along protested about such illicit relation but accused Goutam never

cease is amend.

P.W. 15 is Dali Roy who is sister of victim Nivedita. She lives at

Durgapur. Her sister Nivedita stated to her before death, whenever

they meet each other at their father’s place, that accused Goutam is a

drunkard and he has illicit relation with accused Mira.

P.W. 16 proved written complaint exhibit 4. He is a staff of

Eastern Coalfields Limited. He wrote the same at the attestation of

the complainant.

P.W. 17 received the formal F.I.R., exhibit 11. He also proved

his endorsement exhibit 4/3.

P.W. 18 is the Medical Officer who proved the post mortem

report exhibit 12. He opined that the death is caused due to hanging

ante-mortem and suicidal in nature.

P.W. 19 is investigating officer of this case.

These are all the oral evidence adduced by the prosecution

witnesses.

Needless to say that the primary allegations against the accused

persons are physical and mental cruelty upon the victim lady forcing

her to commit suicide. It was further alleged that accused Mira added

and abetted accused Goutam, husband of the victim to commit acts

of cruelty upon the victim lady.

P.W. 13, Benimadhab is elder brother of the deceased Nivedita.

He disclosed that the deceased Nivedita was born in a lower middle

class family. Their father got two marriages and in all they are seven

brothers and six sisters out of said two marriage of their father. P.W.

13 works at C.C.L. The deceased Nivedita read upto class VIII. There

another brother Kalidas was married after marriage of Nivedita. Mukti

Roy is husband of another sister Doly and working at Durgapur Steel

Plant. His another sister Sarbani was married to one Chittaranjan
Banerjee who is a contractor. His third sister Sova was married with

one Kartik Roy who also works at a private company at Santoshpur.

P.W. 6 Asis Majumdar is also residence of Seherapara but

admitted his knowledge about the illicit relation between Mira and

Goutam. He saw them together in half naked condition in the house

of Mira and at that time several para people also assembled there.

P.W. 14 Niharbala Mukherjee, mother of the deceased Nivedita

disclosed that her daughter told her about the drunkenness of

accused Goutam and his illicit relation with accused Mira. She is a

helpless lady. Her husband is ailing. One of her daughter Nivedita

was not pulling on well in her in laws house. Such illicit relation of

her son-in-law with some other lady is a social stigma to her which

she could not tell to other persons out of shame.

P.W. 15 Doli Roy elder sister of deceased Nivedita complained of

the drunkenness of the accused Goutam’s amorous relation with

accused Mira and all are narrated to her by her sister Nivedita since

deceased. Nivedita was never happy in her matrimonial relations

which Nivedita herself disclosed to her.

We have also considered the evidence of the neighbours of the

victim namely P.W. 1, P.W. 2 P.W. 6 in details. I find the evidence

of the said witnesses is corroborated by the other prosecution

witnesses who stated that there was regular quarrel between the

victim and her husband over his illicit relation and drunkenness.

The exhibit 5 and 6 clearly shows that the victim was mentally and

physically tortured by her husband, Goutam. Motive of the crime has

also been proved by P.W. 14 P.W. 15 who deposed that the

appellant Goutam Roy and the victim had bad relationship as the

victim accused her husband over drunkenness and illicit

relationship.

In Pinakin Mahipatray Rawal Vs. State of Gujarat, (2013)

10 SCC 48, the Apex Court held that extramarital relationship

between husband and another woman must be of such nature that it

is likely to drive the spouse to commit suicide. In the said report,

there was no evidence that the victim housewife had been subjected

to physical or mental torture on the score of such extramarital

relationship. In fact, in the suicide note the wife had exonerated her

husband. In the present case, there is overwhelming evidence that
the wife had been subjected to torture both physical and mental by

Goutam over the illicit relation between himself and Mira and the

victim had repeatedly complained of such torture both to her parents

and the neighbours of her husband.

In Ghusabhai Raisangbhai Chorasiya Ors. Vs. State of

Gujarat, (2015) 11 SCC 753, the Apex Court had acquitted the

husband albeit an extramarital affair as there was no proof of

physical torture. Evidence on record indicate repeated physical

assaults on the victim housewife by her husband, Goutam and,

therefore, the reported decision is of no assistance to the appellant

Goutam Roy.

In K.V. Prakash Babu Vs. State of Karnataka, (2017) 11

SCC 176, there was no complaint of cruelty meted out to the

deceased housewife and owing to vague suspicion on her part that

her husband was having an affair with another lady, she committed

suicide. In the present case, there is ample evidence particularly that

of P.W. 6 that the appellants were found in a compromising position

and accused Goutam had subjected his wife to physical assault when

she had protested to such indiscretion on his part.

On the other hand, in Laxman Ram Mane Vs. State of

Maharashtra, (2010) 13 SCC 125, the Apex Court held that an

illicit relation between appellant and another woman would amount

to cruelty upon a housewife. More so, in the present case there is

ample evidence of torture including physical assault on the deceased

by her husband over the issue of illicit relationship between himself

and Mira. Hence, in the backdrop of the evidence on record, I am of

the opinion that the prosecution has been able to prove its case

against the husband of the deceased, beyond reasonable doubt.

But other than having an illicit relation I find no evidence of

abetment against appellant Mira Rani Biswas and in the light of the

aforesaid ratios I am inclined to extend benefit of doubt to her and

acquit her of the charges levelled against her.

In view of the aforesaid discussion, I uphold the conviction

imposed on the appellant Goutam Roy but conviction and sentence of

the appellant Mira Rani Biswas is set aside.

Coming to the issue of sentence of Goutam Roy, I find that the

incident occurred in 1991 and the appellant is in bail since 9th May,
1996. Under such circumstances, sentence imposed upon the

appellant is modified. The accused is sentenced to suffer rigorous

imprisonment for 2 (two) years for the offence punishable under

section 498A of the Indian Penal Code and to pay a fine of Rs. 2000/-

(rupees two thousand) in default to suffer rigorous imprisonment for

one year. The appellant is also found guilty for the offence under

section 306 of the Indian Penal Code. His sentence on such score is

reduced from rigorous imprisonment for 10 years to 7 years and he is

further directed to pay a fine of Rs. 3000/- (rupees three thousand) in

default to suffer further rigorous imprisonment for one year more.

Both the sentences to run concurrently.

Period of detention suffered by the appellant Goutam Roy during

investigation, enquiry and trial shall be set off from the substantive

sentence imposed upon him in terms of section 428 of the Code of

Criminal Procedure.

Bail bonds of the appellant Goutam Roy are cancelled and he is

directed to surrender forthwith before the trial court to serve out the

sentence in accordance with law. If he fails to do so, the trial court
shall resort to appropriate measures to execute the sentence in

accordance with law.

The appellant Mira Rani Biswas shall be discharged from her

bail bonds after six months in terms of section 437A of the Code of

Criminal Procedure.

The appeal is partly allowed.

Copy of the judgment along with Lower Court Records be sent

down to the trial court at once for necessary compliance.

Urgent Photostat Certified copy of this order, if applied for, be
supplied expeditiously after complying with all necessary legal
formalities.

Rajarshi Bharadwaj, J.

I agree,
Joymalya Bagchi, J.