Gauhati High Court
Page No.# 1/5 vs The State Of Assam on 5 August, 2025
Author: Parthivjyoti Saikia
Bench: Parthivjyoti Saikia
Page No.# 1/5
GAHC010005532012
2025:GAU-AS:10129
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./245/2012
RATUL DUTTA
S/O SRI LAMBODAR @ MOINA DUTTA, VILL- DOLOGURI, P.O.
MACHKHOWA, DHEMAJI, ASSAM,
VERSUS
THE STATE OF ASSAM
Advocate for the Petitioner : MR.B K BHATTACHARJEE, MR S AHMED,H. BHARALI,MR. S
S S RAHMAN,MISSA CHETIA,DR.R SARMAH
Advocate for the Respondent : PP, ASSAM, ,
:: PRESENT ::
HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA
For the Petitioner : Mr. SSA Rahman,
Advocate.
For the Respondent: Mr. R.J. Baruah,
Addl. P.P. Assam.
Date of Hearing : 17.07.2025.
Date of Judgment : 05.08.2025.
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JUDGMENT AND ORDER (CAV)
Heard Mr. SSA Rahman, the learned counsel appearing for the petitioner. Also
heard Mr. R.J. Baruah, the learned Addl. Public Prosecutor, Assam.
2. This is an application under Section 397 read with Section 401 of the Criminal
Procedure Code challenging the judgment and order dated 30.04.2012 passed by the
learned learned Sessions Judge, Dhemaji in Criminal Appeal No.11(1)/2012 affirming
the judgment dated 18.01.2012 passed by the learned Judicial Magistrate 1 st Class
Dhemaji in G.R. Case No.772/2010. In fact, the petitioner was convicted under Section
457 and 497 of the Indian Penal Code.
3. Shri Paranjyoti Gogoi had lodged an FIR before police stating that the present
petitioner was maintaining illicit relationship with his wife for a period of last one year.
On 15.10.2020 at about 9.30 P.M., the petitioner had entered into the house of the
informant and after switching off the light, he started indulging in illicit acts with the
wife of the informant and the informant Paranjyoti Gogoi caught them red handed. On
receipt of the FIR, Dhemaji P.S. Case No.305/2010 under Sections 448 and 497 of the
IPC came into being.
4. At the time of trial, the prosecution side examined 9(nine) witnesses. The
informant Paranjyoti Gogoi has stated in his evidence that on the day of occurrence at
about 9.30 P.M., he arrived at his house and while standing in the verandah of the
house, he felt that somebody was inside the house though the lights inside the house
were switched off at that time. Paranjyoti Gogoi called his neighbours Modan Biswas,
Arpita Biswas and Pranabjyoti Gogoi. He also called his brother-in-law over phone.
When they arrived, all of them went to the back side of the house and locked the door
from outside. Then, again they came to the front side of the house. Paranjyoti Gogoi
called his wife inside the house and asked her to open the door. The wife opened the
door. All of them entered into the house. The witness Modan Biswas switched on the
light and this witness saw that the wearing apparels of his wife were not in proper
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state. They also found the petitioner inside the kitchen and he was trying to button up
his trousers.
5. The second prosecution witness is Modan Biswas. His evidence is similar to that
of Paranjyoti Gogoi. He supported the evidence of Paranjyoti Gogoi.
6. The third prosecution witness is Pranabjyoti Gogoi. He is the brother of Paranjyoti
Gogoi. He supported the evidence of Paranjyoti Gogoi and Modan Biswas. He stated
that long back he had heard that the present petitioner was maintaining illicit
relationship with his sister-in-law.
7. The fourth prosecution witness is Arpita Biswas. She also supported the
evidences of Paranjyoti Gogoi, Modan Biswas and Pranabjyoti Gogoi.
8. The fifth prosecution witness is Jinki Biswas. She is the wife of the witness
Modan Biswas. She is not an eye witness to the occurrence.
9. The sixth prosecution witness is Ganesh Lahon. He is also an eye witness to the
occurrence and supported the evidences of Paranjyoti Gogoi, Modan Biswas and
Pranabjyoti Gogoi.
10. The seventh prosecution witness is Dr. Tikendrajit Taid. On 16.10.2010, on the
basis of a police requisition, he examined the present petitioner. The doctor found no
physical injury upon his person. No semen was found outside the penis or within the
pubic area.
11. The eight prosecution is Gohin Gohain. He is also not an eye witness to the
occurrence. He only heard that the petitioner was having sexual intercourse with the
wife of Paranjyoti Gogoi.
12. The ninth prosecution witness is the Sub-Inspector of police, who investigated
the case.
13. I have gone through the prosecution evidence.
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14. At this stage, a brief visit to Sections 497 and 457 of the Indian Penal Code
would be fruitful. They read as under:
"497 Adultery.--
Whoever has sexual intercourse with a person who is and whom he knows or has reason to
believe to be the wife of another man, without the consent or connivance of that man, such
sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery,
and shall be punished with imprisonment of either description for a term which may extend to
five years, or with fine, or with both. In such case the wife shall not be punishable as an
abettor."
"457. Lurking house-trespass or house-breaking by night in order to commit offence
punishable with imprisonment.--
Whoever commits lurking house-trespass by night, or house-breaking by night, in
order to the committing of any offence punishable with imprisonment, shall be
punished with imprisonment of either description for a term which may extend to five
years, and shall also be liable to fine; and, if the offence intended to be committed is
theft, the term of the imprisonment may be extended to fourteen years."
15. In order to constitute an offence of adultery under Section 497 of the Indian
Penal Code, the offender must have sexual intercourse with the wife of another
person. Similarly, in order to constitute the offence under Section 357 of the Indian
Penal Code, the offender must forcibly enter into the house at night. From the
evidence on record, it is clear that the present petitioner was never found committing
sexual intercourse with the wife of Paranjyoti Gogoi. There is no evidence in the case
to hold that the petitioner had forcibly entered into the house of Paranjyoti Gogoi.
Therefore, the basic ingredients of both the offences are absent in the present case.
The witnesses have presumed that the petitioner was having sexual intercourse with
the wife of Paranjyoti Gogoi. They never saw them indulging in sexual acts.
16. For the aforesaid reasons, this Court is of the opinion that the learned trial court
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as well as the learned appellate court had erroneously oriented themselves and
arrived at incorrect findings. The petitioner Ratul Dutta is found not guilty and he is
acquitted from this case.
17. The Criminal Revision Petition is disposed of accordingly.
Send back the LCR.
JUDGE
Comparing Assistant
