Criminal Appeal (SJ) No.38 of 1999 **** Against the judgment, dated 16.02.1999, passed by Shri Kirishananand Pandey, Additional Sessions Judge, III, East Champaran, Motihari, in S. Tr. No. 548 of 1995 **** Nagendra Mahto, son of late Thakur Mahto of Kamar Choli, P.S. Chiraiya, district East Champaran .. Appellant Versus The State of Bihar .. Respondent **** For the Appellant .. Mr. S.K. Lal, Adv. For the Respondent .. Mr Parmeshwar Mehta, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and the State. 2. The appellant has been convicted for offence under Section 498A of the Penal Code and sentenced to undergo rigorous imprisonment for two years. 3. The prosecution case, as alleged in the fardbeyan, is that the victim America Devi, niece of the complainant, was married with Nagendra Mahto about eleven years back and was blessed with a son aged 6-7 years. It is, further, alleged that said appellant, Nagendra Mahto, solemnized his second marriage with one Usha 2 Devi on 17.02.1991. America Devi filed a petition under Section 125 of the Criminal Procedure Code as well as a case under Section 498 A of the Penal Code, but, both the cases were compromised at the instance of the panches. It is alleged that the complainant got information that the appellant is not giving maintenance and the medicines and when informant went to enquire then it was informed that America Devi has fled away and on enquiry the informant could not ascertain and it is alleged that the accused persons have done her to death. 4. On the complaint petition the first information report lodged filed by Manohar Prasad, the uncle of the victim, for offence under section 364 of the Penal Code. However, subsequently, the charge sheet submitted under Sections 364 and 498A of the Penal Code. After submission of the charge sheet cognizance taken and the charge framed for offence under Sections 364 and 498A of the Penal Code. 5. During the trial seven witnesses were examined on behalf of the prosecution and one witness on behalf of the defence. The trial Court acquitted the appellant for offence under Section 364 of the Penal Code, but, convicted for offence under Section 498A of the Penal Code in view of the evidence of P.W. 1. 6. The trial Court, taking into consideration the evidence the evidence of the witnesses acquitted the appellant for charge under Section 364 of the Penal Code, however, convicted the appellant under Section 498A of the Penal Code in view of the evidence of the 3 father of America Devi that Nagendra Mahto used to demand dowry from his daughter and in view of this evidence it was argued that demand of dowry, itself, is a cruelty. The trial Court taking into consideration the fact that since the victim had filed a petition for maintenance against her husband and considered the evidence of the father and uncle (P.W. 1) that the husband behaved with the victim with cruelty and, hence, held that the cruelty not only be he physical, but, mental cruelty also suffice for conviction under Section 498A of the Penal Code and, hence, convicted the appellant. 7. The learned counsel for the appellant, however, contended that there is no specific evidence regarding subjecting cruelty and unless there is unimpeachable evidence of subjecting cruelty, conviction under Section 498A of the Penal Code is not sustainable. However, from the perusal of the record, itself, it appears that the victim was thrown out by the appellant and the appellant has solemnized second marriage for which a case of maintenance under Section 494 of the Penal Code was filed, however, the same was compromised and, thereafter, the victim has informed that the appellant is not giving her the maintenance causing inconvenience. However, the victim has not been examined though seven witnesses examined and the appellant has been acquitted for offence under Section 364 of the Penal Code and with regard to offence under Section 498A of the Penal Code the only evidence is the evidence of P.Ws. 1 and 5. However, the evidence of the witnesses, P.Ws. 1 and 5 is quite vague. The evidence adduced by the prosecution is general and omni bus and the father of 4 the victim has only stated that there was demand of dowry and a vague allegation that her husband used to subject her cruelty. However, there is no specific and unimpeachable evidence regarding specific overt act subjecting cruelty and the mode and manner of subjecting cruelty. P.W. 5 in his cross examination has also stated that he has not stated before the police about assault, hence, from the evidence of the witness it is not established that the victim was subjected to cruelty. 8. Hence, I find and hold that prosecution has not been able to establish the charge under Section 498A of the Penal Code and, hence, conviction, recorded by the lower Court, is hereby set aside and the appeal is allowed. ( Gopal Prasad, J. ) The Patna High Court, The 13th day of December, 2011, N.A.F.R., S.A.