CRIMINAL APPEAL No.1016 OF 2008 Appeal against the judgment and order dated 18.09.2008 passed in Sessions Case No. 614 of 2007/Tr. No. 147 of 2007 by Additional Sessions Judge, Fast Track Court No. III, Bhagalpur. 1. SASHI RASMI @ Bablu, Son of Gyani Das. 2. Sabita Devi wife of Gyani Das. Both residents of Chhatrapati Talab, P.S.- Mojahidpur, District-Bhagalpur. ………Appellants Versus THE STATE OF BIHAR …………Respondent ----------- For the Appellants : Sri Diwakar Upadhya, Adv. For the State : Sri Binod Kumar, APP P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH ************* Anjana Prakash, J. The appellants have been convicted for the offences under Section 498A of the Indian Penal Code and sentenced to appellant No. 1 for two years and three months and appellant No. 2 was sentenced to RI for one year in addition to fine of Rs. 3,000/- in default payment of which simple imprisonment of one month by the Additional Sessions Judge, Fast Track Court No.-III, Bhagalpur. The case of the prosecution according to Sobha Devi is that the informant was married with the appellant No. 1 on 03.07.1998 and all things were right between them for the next one year. However after the second child was born the - 2 - appellant No. 2 started assaulting her due to which she lost her child in the womb and thereafter she was driven away from the house for not bringing Rs. 50,000/- for doing business. The appellants along with Nutan Devi i.e. Nanad of the present appellant No. 2 was also charged along with the present appellants but she was acquitted of the charges under Sections 498 and 316 of the Indian Penal Code and Sections 3 & 4 of the Dowry Prohibition Act but the conviction of the appellants were pronounced as stated above. During trial the prosecution examined eight witnesses out of whom Shobha Devi is the informant, PW 1 Yogendra Prasad Das is her father and PW 2 Pradip Kumar and PW 3 Mangal Kumar are brothers whereas PW 3 Mangal Kumar is independent witnesse and PW 8 Amar Singh is the Investigating Officer. The defence also examined four witnesses PW 5 Ashok Das and PW 6 Shyam Mandal have been declared hostile. The defence also examined four witnesses for no torture was meted out to the informant as stated in the First Information Report and in fact the differences between the parties were on account of the unnatural demands being made by the informant. In - 3 - the present case after examining the evidence adduced on behalf of the prosecution I find that the major part of the prosecution case is not tenable and it is for this reason that the co-accused persons were acquitted of the charges under Sections 316 of the Indian Penal Code and Section 3 of the Dowry Prohibition Act. In the present case it appears in the First Information Report that the demand of Rs. 50,000/- was being made for doing business which can not be described as “dowry” within the meaning of Dowry Prohibition Act since the demand was not made in consideration of the marriage. No doubt an attempt has been made by the prosecution witnesses during trial to make out to develop the story by adducing evidence that in fact the appellants made demands and it is on account of non-fulfilment of such demand that the informant was beaten up. This part of the evidence is not reliable since it is the case of the prosecution itself that for one year after the marriage everything was right between the parties and therefore a demand having been made after one year and birth of two children is totally untrustworthy. Moreover, I find from the evidence that apart from oral evidence of the informant as she having - 4 - been assaulted there is no medical evidence in support of the same. Moreover, Section 498A defines as defence in the Indian Penal Code is as follows:- “498A. 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 three years 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.” However from the evidence adduced by the prosecution there is total paucity of any evidence suggesting that the appellants committed any willful act of such a nature so as to drive the PW 5 to commit suicide or caused any injuries on her or caused any danger to life, limb or health (whether mental or physical) of the woman and therefore even Section 498A can not be pressed into surface by the prosecution. - 5 - Under the circumstances, this Court is firmly of the view that no offence under Section 498A is made out against the appellants and they deserve to be acquitted. In the result the appeal is allowed the conviction and the sentence passed in Sessions Case No. 614 of 2007/147 of 2007 is set aside and the appellants are acquitted of the charges. Patna High Court Dated 9th October, 2009 NAFR/Vikash (Anjana Prakash, J.)