( 1 ) crap187.98 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 187 OF 1998 Arjun Fakira Khade .. Appellant Age. 48 years, Occ. Agriculture, R/o. Agadgaon, Tal. & Dist. Ahmednagar. Versus The State of Maharashtra .. Respondent Mr. S.S. Bora, Advocate for the appellant. Mr. P.P. More, A.P.P. for the respondent/State. CORAM : V.R. KINGAONKAR,J. DATED : 22.12.2010 ORAL JUDGMENT :- 1. Challenge in this appeal is to the judgment rendered by the learned Sessions Judge, Ahmednagar, in Sessions Case No. 83 of 1996, whereby the appellant is convicted for offence punishable under Section 498-A of the Indian Penal Code and under Section 306 of the Indian Penal ( 2 ) crap187.98 Code. He has been sentenced to suffer rigorous imprisonment for two years on the first count and to suffer rigorous imprisonment for five years on the second count. 2. The marriage between the appellant and Gulbas was performed about 20 years prior to her death. The spouses did not pull on well with each other. After about three years of the marriage deceased Gulbas returned to the house of the parents along with infant male child. She resided with the parents for about some months, till the marriage of her sister-in-law by name, Bijal, was scheduled. The appellant visited the house of her parents along with relatives and respectable persons. The appellant assured to her father that he would give good treatment to the wife i.e. Gulbas. The father of deceased Gulbas sent her with the appellant due to intervention of respectable persons and the relatives. She resided with the appellant for about eight months thereafter. It is alleged that she was ill-treated, harassed and was beaten up by the appellant and his relatives. So, she started residing with her parents. She was residing with her parents for about eight years before last re-union ( 3 ) crap187.98 between the spouses. She had filed proceedings for maintenance allowance against the appellant. There was again settlement between the parties with intervention of maternal uncle of the appellant. She was sent to the house of the appellant for co-habitation before about 20 days of the alleged incident. 3. The prosecution alleges that during the period of 20 days after re-union, deceased Gulbas was again subject to matrimonial cruelty. The appellant used to abuse and beat her. She was fed-up with the conduct of the appellant and matrimonial cruelty meted out to her. Consequently, she committed suicide by jumping in a well situated in the agricultural land of one Maruti Palve. 4. The appellant denied truth in the accusation. His defence was of simple denial. 5. At the trial, the prosecution examined in all four witnesses, in support of its case. The learned Sessions Judge held that the appellant subjected the deceased Gulbas ( 4 ) crap187.98 to matrimonial cruelty and therefore she committed suicide. In keeping with such a finding, the appellant was convicted for the offences with which he was charged and was sentenced as indicated here-in-above. 6. Heard learned advocate for the appellant and learned A.P.P. With their assistance, I have gone through the record and proceedings. 7. Out of four witnesses examined by the prosecution, there is relevant evidence of only P.W.2-Shankar. He is son of deceased Gulbas and the appellant. His version purports to show that on 2-4 occasions, the appellant did not provide meals to himself and the mother. His version purports to show that the appellant had beaten up him and the matter on 5-6 occasions during the period of three weeks prior to her death. The learned Sessions Judge appears to have placed heavy reliance on the testimony of P.W.-Shankar. One cannot be oblivious of the fact that P.W.-Shankar was residing with the parents of deceased Gulbas for long drawn period of about 8-10 years before the few days of his joint residence in the ( 5 ) crap187.98 house of the appellant, after the re-union of the spouses. His version vaguely shows that the appellant did not provide meals and was beating himself and the mother. He did not say anything about the reason for such kind of beating. He did not say anything about a particular instance of the cruelty. There is no reason as to why the appellant could have beaten up the wife, though there was no quarrel between the spouses between last twenty days of the conjugal life. The differences were patched up by the spouses before about 20 days of the alleged incident. It is not explained as to why again there was reason to strain relationship between them. The testimony of minor witness i.e. P.W.-Shankar reveals that he did not disclose the incident of beatings to the mother of deceased Gulbas. He admits that he did not tell anyone about the beating until recording of his statement. He categorically admits that he was permanently residing at village Tribhuvanwadi with the maternal uncle. Needless to say, he had not gone to reside with the appellant after the appellant and deceased Gulbas patched up their differences and re-union was effected before about 20 days of her death. In other words, he cannot be regarded as eye-witness of the ( 6 ) crap187.98 alleged matrimonial cruelty meted out to deceased Gulbas. 8. Perusal of the version of P.W.1-Nivrutti and P.W.3- Janabai would show that they have no personal knowledge regarding matrimonial affairs of the appellant and deceased Gulbas during the relevant period of 20 days prior to the alleged incident. Both of them narrated as to how there was previous trouble given to deceased Gulbas and why she had obtained shelter in their house for about 8-9 years. Neither of them have shed any light on the internal domestic affairs between the spouses during the last period of 20 days after their re-union. It appears, no doubt, that there was previous dispute between the spouses and Gulbas had filed proceedings for separate maintenance allowance. Even so, the fact that the differences were patched up and as such she had willingly joined company of the appellant, tends to show that she was not apprehending any harassment, trouble or cruelty at his hands. 9. The testimony of P.W.4-P.S.I.Ugale is of formal character. He narrated as to how the investigation was ( 7 ) crap187.98 navigated. His version has no direct bearing on the question of complicity of the appellant. 10. In “Bhagwan Das Vs. Kartar Singh” (AIR 2007 S.C.W. 3107), the Apex Court held that harassment of wife by husband or in-laws due to differences would not per se attract Section 306 of the Indian Penal Code. 11. The marriage between the deceased and the appellant was performed 20 years back and that the presumption available under Section 114-A of the Indian Evidence Act is not of any avail in the fact situation of the present case. So also, it is nobody’s case that the appellant was making any unlawful demand. Considering the quality of evidence tendered in support of the prosecution case, the charge of the matrimonial cruelty does not come within the ambit of explanation (a) of Section 498-A of the Indian Penal Code. The offences are not duly proved beyond reasonable realm of doubt. In-fact, there is hardly any material evidence to infer that deceased Gulbas ended her life by committing suicide. ( 8 ) crap187.98 12. For the reasons stated here-in-above, the impugned judgment of conviction and sentence is unsustainable in the eye of law. Hence, the appeal is allowed. The impugned judgment is set aside. The appellant stands acquitted of the charges levelled against him. His bail-bonds be deemed as cancelled. [V.R. KINGAONKAR,J.] snk/2010/DEC10/crap187.98