( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 171 OF 1998 Ashok s/o Shankar Sawle, R/o Udgir, Tq. Udgir, District Latur. APPELLANT VERSUS The State of Maharashtra, through P.S. Udgir (Rural), Tq. Udgir, Dist. Latur. RESPONDENT .... Mr. H.F. Pawar, advocate holding for Mr. A.H. Kapadiya, advocate for the appellant. Mr. P.P. More, APP for the respondent/State. .... [CORAM : V.R. KINGAONKAR, J.] [DATE : 16th December, 2010] ORAL JUDGEMENT : 1. Challenge in this appeal is to judgement rendered by the learned 3rd Additional Sessions Judge, Latur, in Sessions Case No. 85/1995 whereby the appellant, who was original accused No. 1 in the said sessions case, came to be convicted for the offence punishable under section 498A of the I.P. Code and sentenced to suffer rigorous imprisonment for one (1) year and to pay fine of Rs. 1000/-, in default to suffer rigorous ( 2 ) imprisonment for one (1) month more. 2. Originally, the appellant was tried before the learned Sessions Judge alongwith other seven (7) accused persons for the offences punishable under section 306, 498A read with section 34 of the I.P. Code. All of them were acquitted of the offence punishable under section 306 of the I.P. Code and the original accused Nos. 2 to 8 were acquitted also for the offence punishable under section 498A of the I.P. Code. 3. It is not necessary to elaborately set out the prosecution case. There is no dispute about the fact that prior to about eight (8) years, deceased Urmila and the appellant were married. They were blissed with a male child. The appellant is a Mason and was residing at Udgir at the relevant time as a tenant in the house of PW4 Jankabai. It was alleged that he was subjecting the wife to matrimonial cruelty and, therefore, she had left his company. She resided with her parents for about four (4) years and had filed application under section 125 of the Criminal Procedure Code. There is no dispute about the fact that during pendency of the proceedings under section 125 of the Criminal Procedure Code, ( 3 ) the spouses settled the dispute. Thereafter, somewhere prior to about 4/5 months of the alleged incident of her death, Urmila started residing with the appellant. 4. The prosecution had come out with a case that the appellant though had assured to treat Urmila properly, yet, did not keep his word. He harassed her. He gave her illtreatment during the period of consortium of about four (4) months. She was fed-up with the matrimonial cruelty meted out to her at hands of the appellant. Resultantly, she ended her life by plunging herself under a running train at a short distance away from the railway station of Udgir. 5. The prosecution examined in all six (6) witnesses in support of its case. The learned Sessions Judge, on evaluation of the evidence, came to the conclusion that deceased Urmila did not commit suicide by plunging herself on the railway track, under the running train, but met with accidental death while travelling by the train. The learned Sessions Judge also came to the conclusion that there was no specific instance of the matrimonial cruelty as spelt out by the witnesses. The appellant was convicted, however, only for the reason that he performed second marriage with original ( 4 ) accused No. 3 Shakuntala and that instance itself was extreme kind of matrimonial cruelty qua deceased Urmila. No other reason was assigned while convicting the appellant. 6. With the assistance of learned advocate for the appellant and learned A.P.P., I have perused the record & proceedings. 7. The statements of the kiths and kins of deceased Urmila do not make out any reliable case in support of the charge of matrimonial cruelty. There is no material on record to infer that after the settlement of the matrimonial dispute, Urmila was physically or mentally harassed, troubled or subjected to cruelty on account of any unlawful demand or with intention to drive her to commit the suicide. The version of PW2 Pramilabai reveals that she used to meet deceased Urmila often because they were sisters. She narrated that due to the harassment at hands of the husband and his relatives, deceased Urmila had left the matrimonial house and was residing with the parents. She does not whisper anything about the conduct of the appellant after the settlement of the matrimonial dispute in the context of the proceedings under section 125 of the Criminal Procedure Code. It is pertinent to notice that ( 5 ) the mother i.e. PW1 Sulochana categorically admits that she did not visit the house of the appellant and Urmila after their re-union. Needless to say that she has no first hand information regarding the manner in which Urmila was being treated by the appellant in the matrimonial home after the re- union. There is absolutely noting on record to show that the appellant entered into the compromise with deceased Urmila with an oblique intention. It is pertinent to note that the second marriage of the appellant was prior to such settlement of the terms and yet, deceased Urmila accepted his second marriage as the fete-accompany. Needless to say, she started residing with the appellant inspite of the knowledge that he had performed the second marriage. 8. The mere fact that the appellant performed second marriage by itself could not be sufficient ground to infer the matrimonial cruelty, much less the offence which falls within the ambit of Section 498A of the I.P. Code. It does not cover either under sub-clause (a) or sub-clause (b) of the Explanation under section 498A of the I.P. Code. The learned Sessions Judge committed patent error while holding that the second marriage of the appellant was the extreme cruelty and as such, the appellant could be held liable for the offence ( 6 ) punishable under section 498A of the I.P. Code. 9. A faint attempt was made to rely on certain observations in "State of Karnataka v. Anni Poojary" (2005 CRI.L.J. 2662). A Single Bench of Karnataka High Court observed that when the harassment of the wife was in connection with the demand to give consent for second marriage and resultantly she committed the suicide by consuming poison, the husband could be convicted for the charge punishable under section 498A and section 306 of the I.P. Code. In the present case, the appellant was not demanding for divorce nor was seeking consent of the deceased for performing the second marriage. He was already married to another woman even before deceased Urmila went to reside with him as a result of the settlement in the proceedings under section 125 of the Criminal Procedure Code. Moreover, once it is found by the learned Sessions Judge that she died accidental death, then there is absolutely no co-relation between her death and the treatment meted out to her at hands of the appellant. 10. For the reasons aforestated, the impugned judgement is unsustainable in the eye of law. Consequently, the appeal is allowed. The impugned judgement of conviction and sentence, ( 7 ) passed in Sessions Case No.85/1995 is set aside. The appellant stands acquitted of the offence punishable under section 498A of the I.P. Code. His bail bonds be deemed as cancelled. The fine amount, if has been deposited, be refunded to him. [V.R. KINGAONKAR] JUDGE NPJ/criapl171-1998