1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 292 OF 1997 1) Vastalabai W/o Bhivsan Gaware, age 47 years, Occupaton : Labour, R/o Gaware Vasti, Khandala, Tq. Vaijapur, Dist. Aurangabad. 2) Balu S/o Bhivsan Gaware, Age 24 years, Occupation : Labour, R/o Gaware Vasti, Khandala, Tq. Vaijapur, Dist. Aurangabad. Appellants. (Ori. Accused) Versus The State of Maharashtra, through P.S. Vaijapur ... Respondent. -------- Shri. S.S. Shete Advocate for the Appellants. Smt. A.V. Gondhalekar, Additional Public Prosecutor, for the State. -------- CORAM: V.R. Kingaonkar, J. DATE: 01st September 2009 ORAL JUDGEMENT : 1) This appeal is directed against the Judgment rendered by learned Additional Sessions Judge, 2 Aurangabad in Sessions Case No. 162/1995, whereby the appellants have been convicted for offence punishable U/Sections 498-A read with 34 of Indian Penal Code and have been sentenced to suffer rigorous imprisonment for one (1) year and to pay fine of Rs. 250/- each, in default to suffer one month’s rigorous imprisonment. 2) Admittedly deceased Pushapabai was a young married woman. Her marriage with the appellant No. 2 was performed before about 11 months of her death. It was settled marriage. The appellant No. 1 is the brother of the Appellant No. 2. After the marriage Pushpabai started residing with the Appellants in the common house at Village Gavare Vasti (Khandla). 3) The prosecution case, briefly stated, was that deceased Pushpabai was being subjected to matrimonial cruelty by both the Appellants due to failure to fulfill their unlawful demands. The appellant No. 2 had demanded Rs. 6,000/- for extension of his bicycle shop. Since her parents did not fulfill that demand, he started giving 3 ill- treatment to her. Later on he demanded Rs. 10,000/- at the time of “Shimga” festival as he wanted to purchase some agricultural land. Her father expressed inability to pay such amount. Thereafter, the ill-treatment was increased. They came to know that she was admitted in Government Hospital at Aurangabad, as she had received burn injuries. Her parents and brother visited the burns ward to know as to how she received the burn injuries. She narrated to them that her mother-in-law had asked her to prepare grains for grinding and to cook meals, while leaving the house in the morning. She further narrated to them that, after about mid-day,her mother-in-law (appellant No.1) returned home. As she could not prepare the grains for grinding purpose, the mother-in-law assaulted her by means of kicks and fists blows and also abused her. She further told them that the mother-in-law said to her that if she was really the daughter of Pansare, she would not show her face till the evening. She narrated to them that the mother-in- 4 law had kept stove and match box near her. She further told to them that, she was also always being ill-treated by the Appellants on account of non fulfillment of demand for money. She could not bear the torture and the taunts of the appellant No. 1. So she poured kerosene on her person and set her ablaze. She died due to 80% burns on 09-04-1995. Her mother (PW Vithabai) thereafter lodged the FIR (Exh.12). On the basis of material collected during the course of investigation, the appellants were put on trial for offenses punishable Under Sections 498-A & 504 read with 34 of Indian Penal Code and also for the offense Under Section 306 of the Indian Penal Code. 4) The appellants pleaded not guilty to the charge. Their defence was one of total denial. According to them, deceased Pushpabai was involved in accidental incident of burns due to catching of flames by her Sari while preparing a cup of tea on the stove. They denied that she was being subjected to matrimonial cruelty. The 5 prosecution examined in all 7 witnesses in support of its case. The learned Sessions Judge acquitted the appellants for the offences Punishable Under Section 504 read with 34 of Indian Penal Code and Under Section 306 of the Indian Penal Code. The learned Sessions Judge came to the conclusion that the prosecution could not establish the allegation that Pushapabai died suicidal death. The learned Sessions Judge, however, held that, versions of the parents, sister and brother of the deceased Pushpabai are sufficient to prove the charge of matrimonial cruelty. Consequently, they have been convicted and sentenced as described here-in-above. 5) Heard, learned Counsel and learned Additional Public Prosecutor. 6) Crucial question is Whether charge of matrimonial cruelty as contemplated under Section 498-A of Indian Penal Code is duly proved and, therefore, the impugned Judgment of conviction and sentence is legal and proper. It is important to take note of certain aspects of the present 6 case. No independent witness has come forward to subscribe the prosecution story regarding alleged matrimonial cruelty. Whatever is stated by the close relatives of the deceased (Pushpabai) is required to be scrutinized with care and caution. They are the parents, sister and brother of deceased Pushpabai. It is but natural that they are anguished due to her death. It is true that their versions cannot be brushed aside only because of the fact that they are close relatives of the deceased. The learned Sessions Judge was well aware of the requirement of appreciation of their evidence with caution. He has observed in para No. 14 of the impugned judgment that the versions of such witnesses should be dealt with caution. 7) At this juncture, I shall advert to versions of PW 4 Popat and PW Balu. They are father and brother of deceased Pushpabai. The version of PW4 Popat purports to show that initially, Pushpabai was well treated for about one month after the marriage. He narrated that after couple of 7 months, he visited house of the appellants. At that time, she told him about demand of Rs. 6,000/- which was put forth by the appellant No. 2 for purchasing of bicycles required in his shop. He told her that she may send the appellant No. 2 for such purpose. According to him, 7/8 days prior to the incident he and his wife visited house of appellants. Then Pushpabai narrated to them that because of non payment of the amount, the appellants were harassing and ill-treating her. It is pertinent to note that in the FIR (Exh.12) quite different story is stated. The FIR purports to show that Pushpabai was not permitted to talk with her parents on the occasion of their visit to the house of the appellants. It is also alleged in the FIR that in their presence, both the appellants abused Pushpabai and also threatened her for the reason that she had not brought the money. Thus, there is material in-consistency as regards the nature of alleged ill-treatment which was narrated by her to the parents. 8 8) The versions of PW Popat and PW Balu go to show that there was further demand of Rs. 4,000/- by the appellants. However, neither of them stated anything about the matrimonial cruelty or ill-treatment or harassment to Pushpabai due to non-fulfillment of the demand of Rs. 4,000/-. Both of them referred to the solitary incidence narrated by Pushpabai when they had asked her whilst she was in the Government Hospital. They stated that she narrated them that the appellant No. 1 told her if that she was daughter of Pansare, she would not show her face till evening, thereafter kept a stove and a match box near her before she left the house. 9) The versions of PW 1 Vithabai,PW 3 Alka and the above two witnesses do not indicate any specific incidence of matrimonial cruelty prior to the death of Pushpabai. The FIR (Exh. 12) was lodged on 10-04-1995 after a considerable delay. The recitals of the FIR would show that an amount of Rs. 4,000/- was paid in pursuance to the second demand for Rs.10,000/-. The amount was 9 paid through PW 5 Balu. If that was so, a part of unlawful demand was allegedly satisfied. The version of PW 5 Balu purports to show that in the last visit at the Government Hospital, when inquired by himself and the parents, she narrated to them that the Appellant No. 1 had forced her to do some domestic work, though she was suffering from sickness. She narrated to them that she had not done that work and therefore, the appellant NO. 1 told her that, if she was daughter of Pansare, she would not show her face till that evening was over. What transpires from the record is that there was some domestic quarrel between the appellant No. 1 and deceased Pushpabai in the relevant noon. Stray incidence of her so called remarks, which could have caused heart burning, by itself, cannot be treated as matrimonial cruelty within the meaning of Section 498-A of the Indian Penal Code. 10) Section 498-A of Indian Penal Code reads as under:- “498-A. Whoever, being the husband 10 or the relative of the husband of a woman, subjects such women to cruelty shall be punished with imprisonment for a term which may extend to 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 derive 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 is on account of failure by her or any person related to her to meet such demand. 11) The prosecution is required to establish that the appellants harassed the deceased (Wife), with a view to force her for meeting out their unlawful demands. Thus, there must be tangible material on record to show that the cruelty was with a view to force /coerce the deceased woman to meet the unlawful demand. In this context, except for the socalled dying declaration made by deceased Pushpabai in presence of PW Vithabai, PW Alka, PW Balu, and PW Popat, there is no other 11 material on record. If she had narrated to them regarding reason of her self-immolation, then it was expected that they would immediately approach the Police at the out post which is in the campus of the Government Hospital. They could have requested police to record the dying declaration of Pushpabai in this behalf. There is no written dying declaration on record nor above witnesses claimed that they made attempt to get the dying declaration recorded. The recitals of the Post Mortem notes (Exh. 15) and the version of PW 6 H.C. More go to show that deceased Pushpabai informed the Medical Officer and the Police that was accidentally caught fire / flames when she was near the stove. It will have to be said that the except suspicious circumstances like the death of Pushapabai within a year of marriage and that she died due to 88% burns, there is hardly any material to infer that she was being subjected to matrimonial cruelty by the appellants. In absence of reliable evidence, they deserve benefit of reasonable doubt. 12 12) In the result, the appeal is allowed. The impugned judgment of conviction and sentence is set aside. The appellants are acquitted of the offenses punishable under Section 498-A read with 34 of Indian Penal Code. Their bail bonds shall stand cancelled and fine amount, if deposited be refunded to them. (V.R. Kingaonkar,J.) sdm/cr.Appeal.292.97