1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.267 OF 1997. 1. Bhaskar S/o Yamaji Chavan, Age 32 years, Occ.Agriculture, R/o Vazur-Bk. Tq. Pathri, Dist. Parbhani. 2. Yamaji S/o Wamanrao Chavan, Age 53 years, Occ.Agriculture, R/o Vazur - Bk., Tq. Pathri, Dist. Parbhani. 3. Mankarnabai W/o Yamaji Chavan, Age 47 years, Occ.Household, R/o Vazur - Bk. Tq. Pathri, Dist. Parbhani. ... Appellants. Versus 1. The State of Maharashtra. 2. Balsaheb S/o Abasaheb Khiste, Age 45 years, Occ.Agri., R/o R/o Niwali, Taluka Jintur, Dist. Parbhani. ... Respondents. ... Mr.H.F. Pawar, advocate holding for Mr.A.H.Kapadia, advocate for the appellants. Mr.K.S. Patil, A.P.P. for the Respondent No.1. Mr.P.V.Khiste and Mr.S.G.Chapalgaonkar, advocate for the Respondent No.2 - absent. ... 2 CORAM : V.R.KINGAONKAR,J. Date : 17.08.2009. ORAL JUDGMENT 1. This appeal is directed against judgment and order rendered by the learned Additional Sessions Judge, Parbhani, in Sessions Case No.26/1995, whereby, the appellants have been convicted for offence punishable U/s 498-A read with Section 34 of the I.P.C. and have been sentenced to suffer rigorous imprisonment for two (2) years and to pay fine of Rs.5,000/- (Rupees five thousand), in default to suffer rigorous imprisonment for six (6) months. 2. The appellants are husband and father- in-law of deceased Kusum. The marriage between deceased Kusum and appellant No.1 was performed in the month of May 1992. Her father is an agriculturist. 3. The prosecution case was that an amount of Rs.47,000/- (Rupees forty seven thousand) and three (3) tolas of gold had been agreed to be 3 paid towards the dowry to the appellants when the marriage was settled. An amount of Rs.32,000/- (Rupees thirty two thousand) and three (3) tolas of gold had been given before performance of the marriage ceremony. Thus, an amount of Rs. 15,000/- (Rupees fifteen thousand) had remained unpaid towards the dowry. It was agreed that father of deceased Kusum would pay such balance amount within a period of one year of the marriage. He did not keep the word. The appellants started harassing and ill-treating Kusum due to non-payment of remaining dowry amount. She ventilated her complaints to the parents. The father, eventually arranged for the money and paid the remaining amount of dowry to the appellants. The appellants demanded gift articles on eve of birth of male child before about few months of the untimely death of said Kusum. They were not happy due to non-payment of the balance amount of dowry within the given time frame and added to that they were unhappy due to not providing of gift articles. They continued to harass and ill-treat her. As a result of such harassment, she ended her life on 29.4.1994 by 4 consuming some unknown poisonous substance or insecticide. She died while under medical treatment in Civil Hospital at Parbhani on 30.4.1994. Her father lodged FIR after her death and narrated as to how the unlawful demands were being made and Kusum subjected to matrimonial cruelty at hands of the appellants. On the basis of his report (Exh.14), the Police carried out certain investigation. The appellants along with the deceased appellant No.3 Smt.Mankarnabai were made to stand their trial for offences U/ss 498-A and 304-B or 306 read with Section 34 of the I.P.Code. 4. The appellants pleaded not guilty to the charge. Their defence was of total denial. According to them, the matrimonial life of deceased Kusum was happy but she use to get convulsions on account of medical problems. They submitted that she met with natural death due to infarction. They denied truth into the accusation that she was subjected to matrimonial cruelty during the relevant period. 5 5. At the trial, the prosecution examined in all eight (8) witnesses in support of its case. Out of these eight (8) witnesses, P.W. Balasaheb is the father, P.W. 3 - Annasaheb is the maternal uncle and P.W. 5 - Raosaheb is the uncle of deceased Kusum. They are close related to deceased Kusum. They are the only three (3) witnesses who deposed about the matrimonial cruelty meted out to her. The medical evidence tendered by P.W.2 Dr.Takalkar, revealed that the death of Kusum had occurred due to convulsions sustained by her. The report of Chemical Analyser also showed that there was no poisonous substance detected in the viscera. The learned Sessions Judge came to the conclusion that the story regarding her commission of the suicide or her death was under suspicious circumstances is imaginary and could not be accepted. The appellants and deceased accused No.3/appellant No.3 Mankarnabai were acquitted for offence punishable U/ss 304-B and 306 read with Section 34 of the I.P.C. However, relying upon the three testimonies referred to above, the learned Sessions Judge held that the charge of 6 matrimonial cruelty is duly proved. Consequently, the appellants have been convicted and sentenced as described hereinabove. 6. Heard learned counsel for the appellants and learned A.P.P. for the State. 7. Before I proceed to scrutinise the prosecution evidence, it may be stated that no independent witness was examined by the prosecution to corroborate the charge of matrimonial cruelty. The prosecution did not rely upon any documentary evidence to corroborate the charge of such cruelty. The prosecution came out with a case that the deceased was subjected to matrimonial cruelty on account of non- fulfillment of the unlawful demand of remaining amount of the agreed dowry and thereafter due to non-fulfillment of the demand for presentation articles or gifts on eve of the birth of male child begotten to deceased Kusum. Thus, the charge of matrimonial cruelty is only as shown under Explanation (a) appended to Section 498-A of the I.P.C. The case is not covered by 7 Explanation (b). 8. The conduct of complainant P.W. Balasaheb may be first noticed. It is but natural that being father of deceased Kusum, he was anguished due to her untimely death. He alleged in the FIR (Exh.14) that he was informed by one Panditrao of village Wadgaon, who happens to be the Chairman of Cooperative Society, that Kusum was admitted in the Civil Hospital at Parbhani because she had consumed some poisonous drug (insecticide). He alleged that the appellants and the mother-in-law of deceased Kusum always harassed and troubled her because the remaining dowry amount was not paid and, therefore, she was fade up and had consumed poisonous drug (insecticide). In fact, the version of P.W. Dr.Takalkar, would show that deceased Kusum was suffering from convulsions and was referred by Rural Hospital, Manwat for medical treatment. The prosecution failed to place on record the medical evidence regarding treatment given to her in the Rural Hospital at Manwat. There is absolutely nothing on record to 8 show that she had consumed any poisonous substance or insecticide. Though, P.W. Balasaheb had no personal knowledge regarding consumption of insecticide by deceased Kusum, yet, he firmly stated in the F.I.R. (Exh.14) that she had consumed poisonous drug as she was fade up with the matrimonial cruelty of the appellants. This conduct of P.W. Balasaheb reveals that the anger and 'anguish' caused due to death of Kusum had taken precedence over the 'reason'. Needless to say, P.W. Balasaheb had no compunction to make bald allegations in this behalf. 9. On close scrutiny of version of P.W. Balasaheb, it would be amply clear that up till first Dipawali after marriage of Kusum, there was no difficulty and she was given proper treatment by the appellants and her mother-in-law. She had informed during her visit on occasion of the lst Deepawali festival that she was happy in the matrimonial house. His version reveals that after the Dipawali festival, she was sent to the house of the appellant along with his son Shivhari. He states that after returning from 9 house of the appellants, said Shivhari informed him that Kusum had told the latter about the ill- treatment by the appellants and had informed to pay the remaining amount of the dowry. This part of his version is contrary to the version of P.W. Raosaheb. According to P.W. Raosaheb, after Shivhari had returned to the village, he told them that Kusum was quite happy in her matrimonial home. The versions of these two witnesses are at variance from each other. 10. I have carefully gone through the versions of P.W. Balasaheb, P.W. Annasaheb and P.W. Raosaheb. Out of these three (3) witnesses, P.W. Annasaheb deposed that Kusum had been to the house of her parents at the time of Dipawali festival and then she narrated to him that there was ill-treatment to her on account of non- payment of remaining amount of Rs.15,000/- (Rupees fifteen thousand) by her husband and the inlaws. He had no further information about her matrimonial life except and save her visit on the occasion of first Dipawali after the marriage. He does not say that the ill-treatment had 10 continued due to omission to give gift articles to the appellants on the occasion of birth of the male child born to Kusum. It has come on record that P.W. Balasaheb gave remaining amount of Rs.15,000/- (Rupees fifteen thousand) to the appellants after about 1-1/2 years of the marriage. So, the initial cause for the ill- treatment had vanished. The next reason given by the witness, regarding demand for gift articles does not appear to be specifically stated in the FIR (Exh.14). It is pertinent to note that the FIR (Exh.14) is elaborately drafted. The testimony of P.W.Balasaheb goes to show that deceased Kusum was educated upto 7th standard. He admits that there was exchange of letters between himself and deceased Kusum. He had not produced any letter sent by Kusum to him. If she was subjected to serious ill-treatment in the matrimonial home, at least for once she would have sent a letter to the parents in this behalf. Apart from these circumstances and omissions, it is worthy to be noticed that the versions of the witnesses do not specify the nature of matrimonial cruelty alleged against the 11 appellants. All the three (3) witnesses vaguely stated that she was being ill-treated or harassed. They have not referred to any particular act of harassment. The "harassment" is a vague term used by them. 11. The learned Sessions Judge gave much importance to the fact that three injuries were found on her person during course of the post- mortem examination. The version of P.W. Dr.Takalkar, reveals that there was a minor abrasion on her nose which had healed. There was also an abrasion on back side of scapular region and a minor abrasion on her neck. The age of these injuries do not correspond with the time of alleged matrimonial cruelty and moreover, P.W. Dr. Takalkar, admits unequivocally that such minor abrasions could have occurred while transporting the patient (Kusum) in a jeep vehicle. Considering this probability, the minor abrasions found on her person could not be interpreted as the evidence of matrimonial cruelty as has been done by the Sessions Judge. 12 12. It is not necessary to elaborately to discuss the remaining part of the evidence which is either of formal nature or pertains to the steps taken during course of the investigation. Considering the vague statements about the cruelty meted out to deceased Kusum and the possibility of the charge being slapped due to anguish caused on account of her death, the appellants deserve benefit of reasonable doubt. Hence, the impugned judgment of conviction and sentence is unsustainable and needs to be interfered with. 13. In the result, the appeal is allowed. The impugned judgment of conviction and sentence for offence U/s 498-A read with Section 34 of the I.P.Code, is set aside. The appellants are acquitted for the offence punishable U/s 498-A read with Section 34 of the I.P.C. Bail bonds be deemed as cancelled. The fine amount be refunded to them. (V.R.KINGAONKAR,J.) asp/office/Crappeal26797 13