[1] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.263 OF 1997 Ramesh s/o Dhondiba Shirsath, age 30 yrs, Occ. Agril, R/o Wakdi, Tq. Bhokardan, District Jalna. ..Appellant. (orig. accused no. 1.) V E R S U S The State of Maharashtra, (Copy served on Govt Pleader, High Court of Bombay, Bench at Aurangabad.) ..Respondent. Advocates appearing :- Learned Advocate Shri B.N.Magar, h/f Shri J.V.Deshpande, Advocate for the appellant. Shri K.S. Patil, learned A.P.P for respondent. CORAM : V. R. KINGAONKAR, J. DATE : 7 TH AUGUST, 2009. ORAL JUDGMENT :- 1. This appeal is directed against the judgment rendered by 2 nd Additional Sessions Judge, Jalna in Sessions Case No. 57/1991 whereby the appellant has been convicted for offence punishable under section 306 and 498A of the Indian Penal Code and is sentenced to suffer rigorous [2] imprisonment for four years and to pay fine of Rs.1,000/- (Rs. One thousand), in default to suffer rigorous imprisonment for three months on first count and to suffer rigorous imprisonment for two years and to pay fine of Rs.1,000/- (Rs. One thousand), in default to suffer rigorous imprisonment for three months on second count. 2- There is no dispute about the fact that deceased Anjanabai was married to the appellant before about three and half years of her death. There is also no dispute about the fact that after some period of about 6-7 months of the marriage, there was strained relationship between them. She had lodged a complaint against the appellant and his relatives for offence under section 498-A of the Indian Penal Code. They were prosecuted for offence under section 498-A of the Indian Penal Code vide RCC No.73/1988. However, the said criminal case ended in acquittal as a result of settlement of the dispute between the parties. It was agreed that the appellant would maintain her well and she would go to reside with him. An agreement in writing was executed by the appellant and his relatives including the parents, brother as well as deceased Anjanabai and her father in presence of some respectable witnesses including P.W. 3 Pandurang. She was sent to cohabit with the appellant after such compromise which was effected in the month of October, 1989. She went [3] to reside with the appellant and was brought to house of her father after some days, probably 2-3 weeks there after, in order to attend the marriage of her cousin. 3. The prosecution case is that, deceased Anjanabai was being subjected to matrimonial cruelty at the hands of the appellant. She was driven out of the house after giving ill treatment to her and therefore was required to file the report for offence under section 498-A of the Indian Penal Code. After the criminal case ended in compromise when she again started residing with the appellant, then he started giving ill treatment to her. He used to demand amount of Rs.12,000/- towards expenditure borne by himself and his family members to defend themselves in the earlier criminal case. She was found missing from the matrimonial house, from the evening of 2 nd April, 1990. Her dead body was found in a small well situated at village Wakdi. She had committed suicide by jumping in the well. Her cousin reported the incident to police. On basis of such report, case of accidental death vide A.D No.7/1990 was registered. Her father lateron lodged FIR alleging that she was subjected to matrimonial cruelty by the appellant, his parents and other relatives while she was residing with them. The police carried out certain investigation and there after charge sheeted the appellant along with other six accused persons [4] including his parents, brothers etc. 4. At the trial, the prosecution examined in all six witnesses in support of its case. The prosecution also placed on record a certified copy of judgment rendered in earlier criminal case bearing RCC No.73/1988. On consideration of the evidence tendered by the prosecution, the learned Sessions Judge came to the conclusion that original accused Nos. 2 to 7 were not guilty for the alleged offences. He held that only the appellant was guilty for the offence of matrimonial cruelty and that due to his unlawful demands of Rs.12,000/- and as a result of harassment at his hands, Anjanabai committed suicide. The learned Sessions Judge held him guilty for offence of abetment of her suicide and offence of matrimonial cruelty. Therefore, he has been convicted and sentenced as described herein above. 5. The appeal is old one and was scheduled for final hearing since many dates. When it was lastly scheduled for final hearing on 05.08.2009 the learned Advocate Mr. Deshpande appearing for the appellant was found absent. Therefore, the hearing was suo-motto adjourned for today. However, today also he was found absent. One Shri B.N. Magar Advocate holding for Mr. Deshpande sought adjournment on the ground that Mr. Deshpande has gone out of station. The request was [5] turn down. I have heard learned APP Mr. K.S. Patil for the State and with his help has gone through record and proceedings. 6. Out of six witnesses examined by the prosecution, version of P.W.1 Eknath, who is father of deceased Anjanabai, P.W.2 Janabai who is mother of deceased Anjanabai, P.W.4 Ramdas who is real brother and P.W. 3 Pandurang are relevant in so far as the allegations of matrimonial cruelty are concerned. Out of these witnesses, P.W.1 Eknath, P.W.2 Janabai and P.W.4 Ramdas are the close relatives of deceased Anjanabai being her parents and brother. Admittedly, P.W.3 Pandurang is the middle man with help of whom the previous criminal case (RCC No.73/1988) was settled between the parties. He is a signatory to the agreement (Exh.66). There is no dispute about the fact that earlier criminal case ended in acquittal because P.W.1 Eknath, P.W. 2 Janabai and other witnesses turned hostile to the prosecution. They narrated before the Court that there was no unlawful demand for Rs.10,000/- as alleged in the complaint nor Anjanabai was subjected to matrimonial cruelty, as alleged in the previous case (RCC No.73/1988). 7. On close scrutiny of the versions of the above three witnesses, it is explicit that they vaguely referred ill treatment meted out to deceased Anjanabai on account of unlawful demand for Rs.12,000/-. [6] According to P.W.1 Eknath, he learnt about alleged ill treatment to deceased Anjanabai, after the period of her joining company of the appellant and therefore he visited house of the appellant. He inquired with Anjanabai about the information received by him. He deposed that she narrated to him that the appellant had demanded Rs.12,000/- towards expenditure incurred for defending earlier criminal case and there after started ill treating her. However, there is only a general statement as regards the ill treatment referred by deceased Anjanabai. The manner of ill-treatment and nature of matrimonial cruelty has not been spelt out by P.W.1 Eknath, P.W.2 Janabai or P.W.4 Ramdas. It is admitted by P.W.1 Eknath that, Bhaurao and P.W.3 Pandurang are his close relatives and are inhabitants of village Wakdi. He admits that he and the members of family of the appellant were on visiting terms on account of certain ceremonies or family functions. His cross examination shows that he was unable to disclose in which season Anjanabai disclosed to him about the alleged ill- treatment. No independent witness was examined from village Wakdi where the appellant resides. 8. Coming to the version of independent witness, namely P.W.3 Pandurang it may be gathered that he corroborated execution of the mutual agreement (Exh.66) as a result of settlement of the dispute between the [7] spouses. His version purports to show that after that compromise vide Exh.66 Anjanabai started residing with the appellant. He deposed that after some days, she had visited his house and told him that the appellant was not talking with her. He, therefore, approached to the father of the appellant and requested him to treat her well. He admits that the well from which dead body of Anjanabai was taken out was in use of the villagers for drawing drinking water. He admits that his relations with the appellant and his family members are not strained. 9. At this juncture, let it be noted that P.W.3 Pandurang does not say anything about alleged unlawful demand of Rs.12,000/- by the appellant towards expenditure incurred for defending him and his family members. The only stray allegations about so called ill-treatment to Anjanabai by the appellant, appearing from her complaint made to him was that he was not talking with her. There is no iota of evidence to show that she was subjected to violence or was abused in the matrimonial home. The general statement of P.W.3 Pandurang that she made a complaint that he was not talking with her is of no avail to infer the alleged matrimonial cruelty at his hands. If she would have been really subjected to matrimonial cruelty by the appellant then, ordinarily relations of P.W. Pandurang with the appellant and his family members could not have been [8] continued to remain co-cordial. 10. The version of P.W.5 PHC Shri Joshi B.No.738 is of formal character. He recorded A.D.No.7/1990 on the basis of information given by cousin of deceased Anjanabai. So also P.W.6 P.S.I. Vishvas Shejul gave details of the investigation carried out by him. It is not necessary to elaborately discuss the evidence of these two witnesses. 11. Mr. K.S. Patil, Ld. APP would submit that presumption under section 113A of Evidence Act is available in as much as Anjanabai died within a period of 7 years of the marriage, there was unlawful demand of Rs.12,000/- and she was subjected to ill treatment He invited my attention to the reasons ascribed by the Learned Sessions Judge in respect of the alleged matrimonial cruelty. What appears from the record is that the learned Sessions Judge gave much importance to the prior history pertaining to criminal case bearing R.C.C. No.73/1988. In fact, that criminal case ended in acquittal. The parents of deceased Anjanabai stated before the trial Court that there was no unlawful demand of Rs. 10,000/- nor Anjanabai was ill treated by the appellant and his relatives. Obviously, such past instances could not have been considered by the learned Sessions Judge. It appears that Ld. Sessions Judge took it as a chain of events. In fact, when the learned Sessions Judge held that [9] evidence of the parents and brother of deceased Anjanabai was insufficient to rope in the accused Nos. 2 to 7 and convicted the appellant only on evidence of P.W.3 Pandurang then it will have to be said that there is hardly any substratum available to reach the conclusion that there was unlawful demand of Rs.12,000/-. Mere vague allegations that he was not talking with Anjanabai could not be regarded as matrimonial cruelty within the meaning of 498-A of the Indian Penal Code. The presumption under section 113-A of the Evidence Act can be availed when the necessary ingredients are proved. It has to be proved that the death of a married woman occurred within a period of seven years of the marriage, nextly it has to be proved that she was subjected to matrimonial cruelty in the proximity of time of her death, further it has to be proved that she committed suicide as a result of such cruelty. In the present case, the evidence pertaining to matrimonial cruelty is scanty. As stated before, P.W.3 Pandurang does not refer to unlawful demand of Rs.12,000/-. Moreover, the allegations that appellant was demanded Rs.12,000/- towards expenditure incurred for the purpose of defending him and his relatives in the earlier criminal case and simply the allegations that he was not talking with the wife cannot go hand in hand. Under these circumstances, the appellant deserves benefit of reasonable doubt. It will [10] have to be said that the prosecution has failed to prove the charges leveled against the appellant. 12. In the result, the appeal is allowed. The impugned judgment of conviction and sentence is set aside. The appellant is acquitted of the charges for offence punishable under section 498A and 306 of the Indian Penal Code. The fine amount shall be refunded to him. The remaining part of the impugned order regarding disposal of property articles is maintained. ( V. R. KINGAONKAR, J. ) ***** aaa/criappl263.97