JUDGMENT : Rajarshi Bharadwaj, J. 1. 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 judgment 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. 2. 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. 3. 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. 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. 4. In the course of trial, the prosecution examined 19 witnesses to establish its case and exhibited a number of documents. 5. The defence of the accused were one of innocence and false implication. 6. 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. 7. 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. 8. Mr. S. Dutta, learned Counsel appearing as amicus curiae, supported the contentions of Mr. A. Auddy. 9. 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. 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. 10. Let me now examine the evidence of witnesses to ascertain whether the prosecution has been able to prove its case beyond reasonable doubt. 11. 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. 12. 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 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. 13. P.W. 3 Sanjoy Das turned hostile as he did not support prosecution case. 14. P.W. 4 & 5 were tendered by prosecution. 15. 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. 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. 16. 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 Learned Additional Public Prosecutor with regard to his previous statement to the police. 17. P.W. 8 Maya Das was not examined and tendered only. 18. P.W.13 Benimadhab Mukherjee is the de facto complainant in this case. He was declared hostile and cross-examined by the Learned Additional Public Prosecutor with regard to his previous statement to the police. 17. P.W. 8 Maya Das was not examined and tendered only. 18. 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. 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. 19. 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. 20. 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. 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. 21. 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. 22. 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. 23. 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. 24. P.W. 17 received the formal F.I.R., exhibit 11. He also proved his endorsement exhibit 4/3. 25. 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. 26. P.W. 19 is investigating officer of this case. 27. These are all the oral evidence adduced by the prosecution witnesses. 28. He also proved his endorsement exhibit 4/3. 25. 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. 26. P.W. 19 is investigating officer of this case. 27. These are all the oral evidence adduced by the prosecution witnesses. 28. 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. 29. 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. 30. 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. 31. 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. 32. 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. 32. 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. 33. 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. 34. 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. 35. 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. 36. In K.V. Prakash Babu Vs. 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. 36. 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. 37. 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. 38. 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. 39. 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. 40. 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. 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. 41. 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. 42. 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. 43. 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. 44. The appeal is partly allowed. 45. Copy of the judgment along with Lower Court Records be sent down to the trial court at once for necessary compliance. 46. Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities. Joymalya Bagchi, J. - I agree