( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 119 OF 1998 Rajendra s/o Gurushant Swami, R/o Holi, Tq. Omerga, District Osmanabad. APPELLANT VERSUS The State of Maharashtra, through Shivayya Sambhayya Swami, R/o Nagarsoga, Tq. Ausa, District Latur. RESPONDENT .... None present for the appellant. Mr. P.P. More, APP for the respondent/State. .... [CORAM : V.R. KINGAONKAR, J.] [DATE : 23rd November, 2010] ORAL JUDGEMENT : 1. Challenge in this appeal to judgement rendered by learned Additional Sessions Judge, Osmanabad, in Sessions Case No. 43/1996 whereby the appellant has been convicted for the offence punishable under section 498A of the I.P. Code and is sentenced to suffer simple imprisonment for six (6) months and to pay fine of Rs. 500/-, in default to suffer simple ( 2 ) imprisonment for one (1) month. 2. It is undisputed that the marriage between deceased Sangita and the appellant was performed about 4/5 months before her death. There is no dispute about the fact that Sangita was found burning at odd hours after the midnight in the night of 25th September, 1994. She died due to the burn injuries caused to her in the matrimonial home. There is no dispute about the fact that she was residing with the appellant at the relevant time. 3. Briefly stated, the prosecution case is that the appellant and his mother used to demand Rs. 10,000/- and two (2) tolas of gold from Sangita after she started residing with them. They gave her good treatment for initial period of about one (1) month after the marriage, but lateron, due to her failure to fulfill the unlawful demand, both of them started illtreating her. She was subjected to matrimonial cruelty by the appellant. She narrated to her father that she was troubled and illtreated by the appellant. He consoled her and persuaded her to go back to the matrimonial house. The cruelty, however, did not abate. Her mother also noticed that she was subjected to the matrimonial cruelty. Allegedly, she ( 3 ) was burnt in the matrimonial house during the relevant night. Her father lodged the FIR (Exh-17). 4. The appellant denied truth into the accusations. He was tried for the offences punishable under section 498A and 304-B and/or section 302 read with section 34 of the I.P. Code. The prosecution adduced evidence of seven (7) witnesses in order to prove its case. The learned Sessions Judge came to the conclusion that the offence punishable under section 302 or under section 304-B of the I.P. Code is not proved against either of the accused including the appellant. On basis of the material adduced by the prosecution, the learned Sessions Judge came to the conclusion that only the offence punishable under section 498A of the I.P. Code is proved against the appellant and, therefore, the impugned judgement was rendered. 5. Though the appeal was adjourned on earlier dates, yet, learned advocate Mr. S.A. Deshpande, appearing for the appellant, was found absent and, therefore, there was no other option than to proceed with the hearing of the appeal by giving opportunity to the learned A.P.P. and to go through the record and proceedings with his assistance. Heard learned ( 4 ) A.P.P. Mr. P.P. More for the State and perused the record & proceedings with his assistance. 6. The question to be determined is whether the evidence on record is sufficient to establish the guilt of the appellant in respect of the charge of alleged matrimonial cruelty meted out by him to deceased Sangita. It will have to be examined, therefore, as to whether he subjected deceased Sangita to cruelty. 7. At the outset, it is important to notice that the charge (Exh-5) framed by the learned Sessions Judge is quite defective in so far as the offence punishable under section 498A of the I.P. Code is concerned. The charge does not spell out whether the matrimonial cruelty was covered by sub-clause (a) or sub-clause (b) of the Explanation appended to section 498A of the I.P. Code. Section 498A of the I.P. Code reads as follows : "498-A. Husband or relative of husband of a woman subjecting her to cruelty. - Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to ( 5 ) three years and shall also be liable to fine. Explanation. - For the purpose of this section, "cruelty" means - (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand." The charge framed by the learned Sessions Judge in this context reads as follows : "That since May/June, 1994 till 25.9.1994 at about 1.00 or 1.30 mid-night at Holi, taluka - Omerga, you accused 1 being the husband of deceased Sangita Swami and you accused 2 being his relative, in furtherance of your common intention subjected said Sangita Swami to cruelty & thereby committed an offence punishable under section 498-A r.w.s. 34 of Indian Penal Code and within the cognizance of Court of Sessions, Osmanabad." ( 6 ) 8. Perusal of the above charge does not show whether the deceased was subjected to harassment with a view to coerce her or her father to meet any unlawful demand for any property or valuable security and it was on account of failure to meet such unlawful demand, she was subjected to the matrimonial cruelty. In other words, the appellant was not sufficiently explained the precise allegations against him in respect of the matrimonial cruelty. 9. Out of the seven (7) witnesses examined by the prosecution, the learned Sessions Judge relied upon testimonies of PW1 Shivayya and PW2 Laxmibai who are the parents of deceased Sangita, while holding that the charge for offence punishable under section 498A of the I.P. Code is duly proved. The version of PW Shivayya reveals that after one month of the marriage, the appelant and his mother had put forth demandof Rs. 10,000/- and two (2) tolas of gold. He narrated that Sangita informed him that she was subjected to cruelty in respect of the demand of Rs. 10,000/- and two (2) tolas of gold. His version, however, does not show any specific instance about the matrimonial cruelty meted out to deceased Sangita. The manner in which she was tortured or illtreated is also not specified. The statements of both the ( 7 ) witnesses are of omnibus nature. The FIR lodged by PW Shivayya purports to show that deceased Sangita was illtreated by teaching her and saying that she was not beautiful and was not liked by the husband and the mother-in-law. However, his oral testimony does not show any such allegation made by Sangita. He admits that Sangita wanted to marry an educated husband, who was employed. He admits that the appellant was not employed at the time of the marriage and even till commencement of the trial. It appears that the appellant and his family members owned hardly five (5) acres of agricultural land. It is admitted by PW Shivayya that the house properties at village Holi including the house of the appellant, had collapsed due to the earthquake. He admits that the temporary housing arrangement was made by the Government by providing tin-sheds. Thus, it is more probable that Sangita was dis- satisfied with the marriage because the appellant was unemployed and the house property was also not convenient and proper for their residence. No doubt, ordinarily, she would not have committed suicide within period of 4/6 months of the marriage. However, that is the only circumstance against the appellant. 10. Similarly, version of PW Laxmibai does not specify ( 8 ) any particular instance of the matrimonial cruelty. She vaguely states that the appellant was asking Sangita to fetch Rs. 10,000/- and two (2) tolas of gold from the parents. She does not say that due to non-fulfillment of such demand, Sangita was being illtreated or harassed in a particular manner. She vaguely stated that Sangita told her about cruelty at hands of the appellant and his mother. The general statements of the parents do not substantiate the charge of matrimonial cruelty within the four-corners of the law. 11. Coming to the version of PW Babu, it appears that he is neighbour of the appellant. His house is situated at distance of about 20 feet from the house of the appellant. His version purports to show that at about 1 a.m. in the relevant night, he saw Sangita in burning condition. He categorically stated that father of the appellant was extinguishing the fire at the relevant time. He denied the suggestion that Sangita told the neighbours that the appellant had poured kerosene on her person and set her ablaze. He was declared hostile. However, nothing of much importance could be gathered from his cross-examination. PW5 Dnyandeo is another neighbour. He too was declared hostile. Nothing of much importance could be gathered from his testimony and ( 9 ) cross-examination. 12. The remaining evidence is of formal character viz. PW7 PSI Asif Ali Khan. He conducted the spot panchanama and the investigation. The learned Sessions Judge seems to have overlooked the probability that the marriage was against will of deceased Sangita. It transpires that the marriage was foisted on her and, therefore, she was unhappy and did not want to reside with the appellant. The charge of matrimonial cruelty is not sufficiently established from the versions of the parents of deceased Sangita. 13. In view of the foregoing reasons, the impugned judgement of conviction and sentence is not legal and proper. Hence, the appeal is allowed. The impugned judgement of conviction and sentence is set aside. The appellant is acquitted of the charge for offence punishable under section 498-A of the I.P. Code. The amount of fine, if deposited, shall be refunded to him. [V.R. KINGAONKAR] JUDGE NPJ/criapl119-98 ( 10 )