JUDGMENT : ROHIT B. DEO, J. 1. The appellants seek to assail the judgment and order dated 6.7.2002 delivered by the learned 2nd Ad hoc Additional Sessions Judge, Pusad in Sessions Trial No. 27/2000, by and under which the appellants are convicted for offence punishable under Section 498A of the Indian Penal Code and offence punishable under Section 306 read with Section 34 of the Indian Penal Code. The appellants are sentenced to suffer simple imprisonment for two years for offence punishable under Section 498A of the Indian Penal Code and simple imprisonment for five years for offence punishable under Section 306 of the Indian Penal Code. The appellants are further directed to pay fine of Rs. 200/- and Rs. 300/- each respectively for offences punishable under Sections 498A and Section 306 of the Indian Penal Code. 2. None appears on behalf of the appellants even on second call. The appeal was on board on 22.8.2017 and was adjourned till today at the request of the Counsel for the appellants. I must record serious concern and displeasure at the casual and cavalier attitude and approach of the learned Counsel in seeking time on the last date of hearing and remaining absent today. Neither the appellants nor their Counsel have bothered to remain present nor is there any request on behalf of the appellants or their Counsel seeking adjournment, which request could have been made through any colleague in the event of a genuine difficulty in appearing before this Court today. It is with some anguish that this Court is impelled to record, that in old criminal appeals in which the challenge is to conviction and the accused are on bail, more often than not, neither the accused nor the counsel appear before the Court, for reasons not far to seek, I would appreciate if the Hon’ble President of the High Court Bar Association personally addresses the issue and ensures that such conduct of the Advocates does not derail or render ineffective, the justice disposition system. Let the registry bring this order to the notice of the Hon’ble President of the High Court Bar Association, Nagpur and file a compliance report within 48 hours. 3. In light of the non-co-operative attitude of the Counsel, I have no option but to decide the appeal on merits after scrutinizing the record, which I have done. Let the registry bring this order to the notice of the Hon’ble President of the High Court Bar Association, Nagpur and file a compliance report within 48 hours. 3. In light of the non-co-operative attitude of the Counsel, I have no option but to decide the appeal on merits after scrutinizing the record, which I have done. I must record the able and extremely fair assistance of the learned Additional Public Prosecutor Shri H.R. Dhumale, who in the true tradition of an officer of the Court, brought to the notice of this Court every material including material ostensibly adverse to the prosecution, to my notice. 4. The gist of the prosecution case is Archana, the daughter of the complainant Purushottam (PW-1) married accused 1 on 04.6.1998. Archana visited her parental place on the occasion of Akhadi and allegedly conveyed that the accused demanded Rs. 15,000/- and ill-treated and taunted her. The complainant states in the police report that he ignored the grievance in the interest of the marital peace. On 27.12.1998 the complainant received a message from a person from Tendoli, that Archana expired due to consumption of endrine and her body was at the Yavatmal hospital. The complainant rushed to the hospital and the accused informed him that Archana died due to consumption of poison. Her last rights were performed at 5:00 p.m. on 27.12.1998. The version of the prosecution is that on 31.12.1998 the complainant received a letter dated 25.12.1998 written by Archana in which Archana mentioned that if amount is not paid, she would be left with no option but to commit suicide. The letter speaks of injustice being done and the ill-treatment meted out. The prosecution contends, that in view of the receipt of the said letter, the complainant lodged a report on 13.1.1999. Pursuant to the said report dated 13.1.1999, offence punishable under Sections 306 and 498A read with Section 34 of the Indian Penal Code was registered, investigation ensued and the charge-sheet was filed in the Court of the Judicial Magistrate First Class, Digras who committed the case to the Sessions Court. The Sessions Court framed charge at Exhibit 7/C, the accused pleaded not guilty and claimed to be tried. The defence of the accused, as is revealed by trend and tenor of the cross- examination and the statements recorded under Section 313 of the Criminal Procedure Code is of total denial. 5. The Sessions Court framed charge at Exhibit 7/C, the accused pleaded not guilty and claimed to be tried. The defence of the accused, as is revealed by trend and tenor of the cross- examination and the statements recorded under Section 313 of the Criminal Procedure Code is of total denial. 5. The learned Additional Public Prosecutor fairly states that the case of the prosecution is entirely founded on the contents of the letter addressed by deceased Archana to her father. The learned Additional Public Prosecutor states, that if the letter is kept out of the consideration, the evidence on record may not be sufficient to bring home the charge under Section 498A or Section 306 of the Indian Penal Code. The learned Additional Public Prosecutor fairly invites my attention to the nature of defence and in particular the cross-examination on behalf of the defence, which endeavours to cast a doubt on the authenticity of the letter. 6. Before I consider the sanctity of the letter dated 25.12.1998 written by the deceased to her father, a striking and eloquent aspect of the case must receive due consideration. The learned Additional Public Prosecutor has brought to my notice the fact that upon the death of Archana accidental death enquiry was initiated under Section 174 of the Criminal Procedure Code, during the course of which the statement of PW-1, the father of the deceased was also recorded. This statement was recorded on 29.12.1998. The previous statement of PW-1 would suggest that PW-1 unequivocally asserted that Archana was happy and was not subjected to any harassment by her in-laws or any other person and that Archana was suffering from urinary track ailment and was frustrated as despite medical treatment there was no recovery. The defence used the previous statement under Section 145 of the Indian Evidence Act to contradict PW-1. The contradictions were duly proved as Exhibits 39, 40, 41 and 42, during the evidence of PW-6 Shinde, Investigating Officer. However, the learned Sessions Judge observes that opportunity to explain the contradictions was not given to PW-1 and the testimony of PW-1 cannot be said to be untrustworthy since in the absence of an opportunity to explain, the purported contradiction is not a contradiction in law. This finding of the learned Sessions Judge is ex facie contrary to record. However, the learned Sessions Judge observes that opportunity to explain the contradictions was not given to PW-1 and the testimony of PW-1 cannot be said to be untrustworthy since in the absence of an opportunity to explain, the purported contradiction is not a contradiction in law. This finding of the learned Sessions Judge is ex facie contrary to record. The testimony of PW-1 would reveal that the portion of the previous statement recorded in the enquiry under Section 174 of the Criminal Procedure was brought to the notice of the witness and the omission/contradiction was then duly proved during the cross-examination of the investigating officer. 7. With the assistance of the learned Additional Public Prosecutor Shri H.R. Dhumale, I have given my anxious consideration to the contention of the defence that the letter dated 25.12.1998 was fabricated and not authored by deceased Archana. The learned Sessions Judge has rightly observed that the handwriting is duly proved by the father of the deceased and that it was the burden on the defence to examine a handwriting expert or adduce such other evidence to prove that the letter was not in the handwriting of Archana. I am not persuaded to take a view different from that of the learned Sessions Judge. I would proceed on the premise that the letter dated 25.12.1998 was indeed written by Archana and received by PW-1 on 31.12.1998. A close and holistic consideration of the contents of the letter would reveal, (a) the deceased Archana was depressed as the business of accused 1 had come to a standstill and both the deceased and accused 1 were in the words of Archana penniless, (b) accused 1 was not keeping well and the deceased Archana was suffering from urinary tract infection and burning sensation (infection), (c) accused 1 was worried, (d) his mother and father asking him to reside separately, (e) PW-1 got the deceased married to accused 1 only because the accused 1husband was a good person without considering other aspects, (f) PW-1 gave Rs. 15,000/- as dowry in the marriage, but then the life of Archana remained meaningless and full of anxiety and agony, (g) if PW-1 would have spent Rs. 15,000/- as dowry in the marriage, but then the life of Archana remained meaningless and full of anxiety and agony, (g) if PW-1 would have spent Rs. 2,000/- more, Archana too would have been a happy person, this expression is preceded by the words ‘Godavari is happier than me’ (h) The sister-in-law (accused 4) was picking up quarrels with Archana since the day she came for delivery, (i) Archana’s mother-in-law (accused 3) conveyed to Archana’s uncle from Jalgaon ‘our grievances” and (j) accused 1 was asking Archana to bring the amount of Rs. 15,000/- for Mahamai (accused 3), mother-in-law. 8. The frustration and unhappiness pervading in the life of the deceased is apparent from the contents of the letter. The deceased did have some grievance against her sister-in-law (accused 4), however, the grievance is too vague and general to suggest cruelty much-less cruelty within the meaning of Explanations (a) and (b) of Section 498A of the Indian Penal Code. The contents of the letter, even if taken at face value do not attribute any misconduct or cruelty to accused 1-husband. Au contraire, on perusal of the original letter available in the record would show that accused 1 was equally frustrated and told the deceased that if Rs. 15,000/- is brought, he himself would shower the same on accused 3 or else he was consumed poison. 9. The only grievance against accused 2, the father-in-law is that accused 3 asked the couple to reside separately. The deceased does suggest in the letter that PW-3 mother-in- law asked her to bring Rs. 15,000/- but, then such solitary statement cannot be construed as cruelty within the meaning of Section 498A of the Indian Penal Code nor as an investigation within the meaning of Section 306 read with Section 107 of the Indian Penal Code. I am satisfied, that the contents of the letter addressed by deceased Archana to PW-1 only reveal an unhappy and frustrated soul and no inference muchless a positive conclusion that the deceased was treated cruelly or harassed for any unlawful demand can be drawn. 10. The testimony of PW-1 does not take the case of the prosecution any further. Firstly, the testimony is sketchy and vague and the omnibus allegations would not constitute proof of cruelty, secondly and more importantly the credibility of the testimony is totally destroyed by the duly proved omissions and contradictions. 10. The testimony of PW-1 does not take the case of the prosecution any further. Firstly, the testimony is sketchy and vague and the omnibus allegations would not constitute proof of cruelty, secondly and more importantly the credibility of the testimony is totally destroyed by the duly proved omissions and contradictions. The testimony is apparently an after thought and it must be noted that in the statement recorded on 29.12.1998 in the enquiry under Section 174 of the Criminal Procedure Code, PW-1 clearly asserted that there was absolutely no harassment meted out the deceased and that she was frustrated due to illness. The statement recorded in enquiry under Section 174 of the Criminal Procedure Code is a statement of fact and is not based on perception or hearsay information. The fact that PW-1 received the letter dated 31.12.1998 after the recording of the statement under Section 174 of the Criminal Procedure Code would be of no relevance. Indeed, the allegations leveled by PW-1 in examination-in-chief go beyond the contents of letter dated 25.12.1998 written by deceased Archana. I have no hesitation in discarding the testimony of PW-1 as unreliable and not trustworthy. 11. The only other material witnesses are Shrawan Thakare (PW-3) and Jagannath Donadkar (PW-4) respectively. However, neither PW-3 nor PW-4 have said anything adverse to the accused in the testimony. PW-3 and PW-4 have been examined only to prove the receipt of the letter from Archana and the lodging of the police report on the basis of the said letter. 12. The learned Additional Public Prosecutor would urge that in the teeth of the evidence on record, the finding of the learned Sessions Judge that offence under Section 498A of the Indian Penal Code is made out, does not suffer from any legal infirmity. Section 498A of the Indian Penal Code reads thus: “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 and shall also be liable to file. - 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 and shall also be liable to file. 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. (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 scrutiny or is on account of failure by her or any person related to her to meet such demand.” Section 498A of the Indian Penal Code was inserted by Act 46 of 1983, with the object of preventing torture and ill-treatment to a woman by her husband or by relatives of her husband. In order to bring home the charge under Section 498A of the Indian Penal Code, it would be necessary for the prosecution to prove that the woman was subjected to cruelty as defined in the explanation to Section 498A of the Indian Penal Code. Cruelty is defined to mean any willful 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) and harassment of a woman whether such harassment is with view to coercing 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. 13. It is well settled that not every kind of cruelty constitutes an offence under Section 498A of the Indian Penal Code. Cruelty for the purpose of Section 498A of the Indian Penal Code may be different from cruelty envisaged by other statutory provisions including the cruelty necessary to establish a matrimonial misconduct or offence. 14. I am not persuaded to uphold the conviction. I am satisfied that the prosecution has not brought home the charge beyond reasonable doubt. Cruelty for the purpose of Section 498A of the Indian Penal Code may be different from cruelty envisaged by other statutory provisions including the cruelty necessary to establish a matrimonial misconduct or offence. 14. I am not persuaded to uphold the conviction. I am satisfied that the prosecution has not brought home the charge beyond reasonable doubt. I set aside the judgment and order of the learned 2nd Ad hoc Additional Sessions Judge, Pusad in Sessions Trial No. 27/2000 on 6.7.2002. The appellants are acquitted of the offences punishable under Sections 498A and 306 read with Section 34 of the Indian Penal Code. The bail bonds of the appellants stand discharged. Fine, if any, paid by the appellants be refunded to them. The appeal is disposed of accordingly.