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2012 DIGILAW 641 (KAR)

Gururaj Shetty v. State of Karnataka

2012-08-06

K.N.KESHAVANARAYANA

body2012
JUDGMENT K.N. KESHAVANARAYANA, J.—This appeal is by the convicted accused No. 1 in S.C. No. 182/2001 on the file of Principal Sessions Judge, D.K., Mangalore and is directed against the judgment of conviction and order of sentence dated 19.3.2005 passed in the said case convicting him for the offences punishable under Section 306 IPC and Section 3 of the Dowry Prohibition Act (“D.P. Act” for short), and sentencing him to undergo imprisonment and also to pay fine. 2. The appellant, his elder brother-Harish Shetty and elder sister-Vijaya were tried in the above case for the offences punishable under Sections 498A, 304B and 306 read with Section 34 of IPC and Sections 3, 4 and 6 of the D.P. Act. The deceased in the case was one Thara daughter of P.W. 4-Mahalinga Shetty and wife of the appellant. Marriage of the deceased with the appellant was solemnized on 24.8.2000. After the marriage she joined her husband in the matrimonial home. In the early hours of 4.10.2000, said Thara left the matrimonial home and did not return. The appellant finding that his wife is not seen in the house from the morning, went to the house of P.W. 4 and enquired as to whether his wife has come there and informed P.W. 4 that Thara is not seen in the matrimonial home from the early morning. Immediately, P.W. 4 lodged a report Ex.P.3 about missing of his daughter. Thereafter in the early hours of 5.10.2000, the dead body of the deceased was found floating in a pond in the garden land of CW.22-Padmanaba Bhat situated between the parental and matrimonial homes of the deceased. CW.22 on seeking the dead body in the pond made a report as per Ex.P.12 based on which P.W. 6-C.K. Mohan, Head Constable, Mangalore Police Station registered case in UDR No. 48/2000. Thereafter the dead body was taken out of the pond and inquest was conducted on the dead body by P.W. 10-Ramesh Paduvalker, Tahsildar and Taluka Executive Magistrate. Thereafter the body was subjected to post-mortem examination. P.W. 5-Dr. L.L. Jushva conducted post-mortem examination. During post-mortem examination, he preserved Vicera and sent them for chemical examination. The chemical examiner’s report did not reveal presence of any poisonous material. Thereafter the body was subjected to post-mortem examination. P.W. 5-Dr. L.L. Jushva conducted post-mortem examination. During post-mortem examination, he preserved Vicera and sent them for chemical examination. The chemical examiner’s report did not reveal presence of any poisonous material. Thereafter P.W. 5 furnished his opinion as to the cause of death that the death was due to asphyxia as a result of drowning and submitted post mortem report as per Ex.P.9. In the meanwhile, P.W. 2 had made a statement as to the circumstances leading to the death of the deceased and the same was recorded as per Ex.P.4 between 5 and 5.30 p.m. on 15.10.2000. Based on the said report, P.W. 8-Chandrashekar, Police Sub-Inspector, Mangalore Rural Police Station registered the case in Crime No. 286/2000 and submitted First Information Report to the jurisdictional Magistrate. During investigation, statements of witnesses were recorded, the accused persons were apprehended and after completion of the investigation charge sheet came to be laid. 3. The accused persons appeared before the learned Sessions Judge and pleaded not guilty for the charges levelled against them and claimed to be tried. During the trial the prosecution examined P.Ws. 1 to 10 and relied on documentary evidence Exs.P.1 to P.19. During their examination under Section 313 Cr.P.C., the accused persons denied all the incriminating circumstances appearing against them in the evidence of the prosecution witnesses. However, the accused did not choose to lead any defence evidence. The defence of the accused was one of total denial and that of false implication. 4. On hearing both sides and on assessment of oral as well as documentary evidence, the learned Sessions Judge by the judgment under appeal, acquitted elder brother and sister of the appellant arraigned as accused Nos. 2 and 4 for the charges held against them. However the learned Sessions Judge held the appellant guilty of the offence punishable under Section 306 of IPC and Section 3 of the D.P. Act. Consequently, the appellant was convicted for the aforesaid offences and sentenced to undergo imprisonment and also to pay fine as stated supra. Aggrieved by the said judgment of conviction and order of sentence, the appellant is before this Court. 5. I have heard the learned counsel for the appellant as well as learned Government Pleader appearing for the respondent-State. 6. Consequently, the appellant was convicted for the aforesaid offences and sentenced to undergo imprisonment and also to pay fine as stated supra. Aggrieved by the said judgment of conviction and order of sentence, the appellant is before this Court. 5. I have heard the learned counsel for the appellant as well as learned Government Pleader appearing for the respondent-State. 6. Learned counsel for the appellant contended as under: That the judgment under appeal suffers from perversity and illegality inasmuch as the entire judgment is based on assumption and presumption; that the findings recorded by the learned Sessions Judge is not supported by any acceptable and legal evidence and there are serious infirmities in the judgment under appeal; that the learned Sessions Judge even after holding that the prosecution has failed to prove the alleged demand for dowry and thereby acquitting the appellant for the offence under Section 4 of the D.P. Act has committed serious error in convicting the appellant for the offence under Section 3 of the D.P. Act though the amount of Rs. 2 Lakhs paid was towards marriage expenses and not as dowry as such the conviction recorded for the offence under Section 3 of the D.P. Act cannot be sustained; that the learned Sessions Judge has failed to notice that the evidence on record does not satisfactorily establish that the death of the deceased was suicidal as such the conviction recorded for the offence punishable under Section 306 IPC is highly perverse, since having regard to the evidence on record possibility of the deceased having accidentally slipping into the pond and dying on account of drowning can not be completely ruled out, as such, the offence under Section 306 IPC is not attracted; that assuming for the purpose of argument that the death of the deceased was suicidal, the evidence on record does not satisfactorily establish that soon before her death, the deceased had been subjected to any kind of cruelty within the meaning of Section 498A of IPC and therefore the learned Sessions Judge has committed serious error in drawing presumption under Section 113A of the Indian Evidence Act as to the appellant being husband of the deceased abetting commission of suicide by the deceased; that the learned Sessions Judge has failed to notice that by the evidence on record, the prosecution has not been able discharge the initial burden rested on it with regard to the alleged cruelty and harassment meted out to the deceased and therefore the presumption under Section 113A Indian Evidence Act cannot be drawn; that totality of evidence of the material witnesses would indicate that during the short period after the marriage, the deceased lived happily with her husband and it appears she was finding it difficult to adjust herself to the change in the life and life style as expected by her husband who at that point of time was working in Muscat and it is in that background she appears to have taken a drastic decision of ending her life as such it cannot be said that the deceased had committed suicide in the background of any cruelty or harassment meted out to her by the accused. Therefore, the learned counsel contended that the judgment under appeal is highly perverse and is liable to be set aside. Hence he sought for allowing the appeal and for setting aside the judgment of conviction and order of sentence and for acquittal of the appellant. 7. Therefore, the learned counsel contended that the judgment under appeal is highly perverse and is liable to be set aside. Hence he sought for allowing the appeal and for setting aside the judgment of conviction and order of sentence and for acquittal of the appellant. 7. On the other hand, learned Government Pleader sought to justify the judgment under appeal and contended as under: That the judgment under appeal does not suffer from any perversity or illegality since the learned Sessions Judge on proper appreciation of oral as well as documentary evidence has recorded findings which are sound and reasonable regard being had to the evidence on record and therefore the judgment under appeal does not warrant interference by this Court; that having regard to the evidence on record the learned Sessions Judge has not committed any error in holding that the amount of Rs. 2 Lakhs received by the appellant at the time of the marriage was towards dowry, as, it cannot be construed as a present without demand within the meaning of sub-section (2) of Section 3 of the D.P. Act, as such, the said finding recorded by the learned Sessions Judge cannot be termed as perverse or as illegal; that the evidence on record clearly demonstrates that the death of the deceased was suicidal and that the deceased committed suicide in the background of the mental cruelty meted out to her by her husband by insisting her to take liquor and also to dance in the parties attended by her with him and therefore the learned Sessions Judge is justified in drawing presumption under Section 113A of the Indian Evidence Act. In this view of the matter, learned Government Pleader contended that there are no grounds to interfere with the judgment under appeal, therefore, the appeal is liable to be dismissed. 8. In the facts and circumstances of the case and in the light of the submissions made on both sides, the points that arise for consideration in this appeal are: (1) Whether the judgment under appeal suffers from any perversity or illegality warranting interference by this Court? (2) Whether the learned Sessions Judge is justified in convicting the appellant/accused No. 1 for the offences punishable under Section 306 IPC and Section 3 of the D.P. Act? 9. I have bestowed my anxious considerations to the submissions made on both sides. (2) Whether the learned Sessions Judge is justified in convicting the appellant/accused No. 1 for the offences punishable under Section 306 IPC and Section 3 of the D.P. Act? 9. I have bestowed my anxious considerations to the submissions made on both sides. I have closely scrutinized the evidence, both oral and documentary, which are available on record. 10. As noticed supra, though the appellant was charged for the offences punishable under Sections 498A, 304B and 306 read with Section 34 of IPC and Sections 3, 4 and 6 of the D.P. Act, he has been acquitted of the charges levelled against him for the offences under Sections 498A and 304B of IPC and Sections 412 and 6 of the D.P. Act. The other two accused who also took their trial alongwith the appellant, have been acquitted of all the charges levelled against them. The said judgment of acquittal has not been assailed by the State. Therefore, in this appeal by the appellant/accused No. 1, the correctness of the judgment of conviction convicting the appellant for the offence under Section 306 IPC and Section 3 of the D.P. Act is required to be considered. 11. There is no dispute that the marriage of the deceased with the appellant was solemnized on 24.8.2000. Deceased Thara was found dead in the early hours of 5.10.2000. From this it is clear that the death of the deceased has occurred within about 42 days of her marriage. It is also not in dispute that at the time of the marriage and also as on the date of death of the deceased, the appellant was working in Muscat and he had come to Mangalore on leave and was to go back to resume his work. However on account of the death of the deceased and registration of the case, he could not go back and resume his work. However on account of the death of the deceased and registration of the case, he could not go back and resume his work. As could be seen from the judgment under appeal, the learned Sessions Judge after referring to the oral evidence of the witnesses, while considering point No. 1 raised for consideration to the effect, “whether the prosecution has proved beyond reasonable doubt that the deceased was subjected to cruelty or harassment by the accused soon before her death?”, has held in para 15 of the judgment as under: “in view of the custom prevailing in the community, mere proposal of 3 lakhs or 3.5 lakhs by the side of the bridegroom cannot be termed as demand for dowry.” The learned Sessions Judge has further held in para 15 that, “the evidence shows that without much deliberation the final figure of Rs. 2 Lakhs was agreed between the parties. Therefore, under those circumstances, it cannot be said that there was demand by the first accused for dowry, which he received. However, Rs. 2 Lakhs received by accused No. 1 does not fall within sub-section (2) of Section 3 of the Act, still amount to taking dowry by accused-1”. In the light of this observation, in para 16 of the judgment the learned Sessions Judge concluded on point No. 1 holding that accused No. 1-Gururaj Shetty received Rs. 2 Lakhs as dowry before marriage, but he had not demanded for payment of that amount. 12. With regard to the case of the prosecution that after the marriage, the appellant went on coercing the deceased to get further dowry of Rs. 50,000/- and a site measuring about 5 cents and in that background subjected her to cruelty, the learned Sessions Judge had framed point No. 2 and 3 for consideration which read as under: (1) Whether the prosecution has proved beyond reasonable doubt that the deceased was subjected to cruelty or harassment by the accused soon before her death? (2) Whether the prosecution has proved beyond reasonable doubt that such cruelty or harassment was for/or in connection with demand of Rs. 50,000/- and a house site measuring five cents as further dowry? (2) Whether the prosecution has proved beyond reasonable doubt that such cruelty or harassment was for/or in connection with demand of Rs. 50,000/- and a house site measuring five cents as further dowry? On these two points, the learned Sessions Judge after referring to the oral evidence on record in para 20 of the judgment, concluded thus: “Considering all the above facts and circumstances, I hold that the alleged further demand for Rs. 50,000/- and a house site is not proved beyond reasonable doubt.” 13. Nevertheless, the learned Sessions Judge proceeded to hold that the evidence on record disclosed that after the marriage, the appellant/accused No. 1 was insisting the deceased to take liquor and also to dance in the parties which was not liked by her and by insisting the deceased to have liquor and dance in the parties, the appellant has subjected the deceased to mental harassment which led the deceased to commit suicide. Therefore the learned Sessions Judge held that the presumption under Section 113A of Indian Evidence Act would get attracted and since the appellant has not placed any acceptable evidence to rebut the said presumption, the learned Sessions Judge proceeded to hold that the appellant by his willful conduct of insisting the deceased to consume liquor and to dance in the parties, subjected her to harassment and in that background, she has committed suicide as such, the appellant is guilty of the offence punishable under Section 306 IPC. 14. With regard to the finding of guilt recorded by the offence under Section 3 of the D.P. Act, the learned counsel took me through the evidence available on record more so the evidence of the father of the deceased examined as P.W. 4 and one of sister of the deceased sister, Bharathi, examined as P.W. 7 and also evidence of P.W. 1 who is the daughter of elder sister of the deceased. 15. P.W. 4-Mahalinga Shetty, father of the deceased in his examination-in-chief has stated as under: That on seeing each other, the bride and the bridegroom both gave consent for the marriage and after two days accused No. 1 and his relatives had come to his house for settlement of marriage terms; that Accused No. 1 demanded Rs. 3 Lakhs towards dowry, however he agreed to pay Rs. 3 Lakhs towards dowry, however he agreed to pay Rs. 2 Lakhs and for that figure accused No. 1 consented; that though he stated that he would give ornaments to the bride, he did not disclose the quantity of the ornaments to be given to the bride; that accused No. 1 did not give any ornaments to the bride; that about a month earlier to the marriage, engagement ceremony was performed in Quality Hotel, Mangalore and on that day he gave Rs. 1 lakh to accused No. 1 and he paid the balance of Rs. 1 Lakh about 8 days earlier to the marriage; that he had sold 7½ cents of vacant site to raise money to meet the marriage expenses; that his two sons-in-law gave Rs. 50,000/- each towards marriage expenses. In the cross-examination, it is elicited from him as under: That they belong to Bunts community and that there is a custom in their community to pay the amount to the bridegroom sufficient to meet the marriage expenses and that amount would be fixed as per the status of both the parties; that there is also the practice of bridegroom presenting gold ornaments to the bride of the bridegroom presenting gold ornaments to the bride taking into consideration the amount the bridegroom received from the bride’s side; that a necklace was presented by accused No. 1 as gift to the bride; that he voluntarily gifted the ornaments and clothes to his daughter Thara and there was no demand for it by accused No. 1; that usually they present customary ornaments and clothes as per their status to the bride; that accused No. 1 had arranged the marriage hall and other things like dinner, ‘Volaga’ etc.,; that he paid his share of marriage expenses but he does not remember how much he paid. He has denied the suggestions that he had not given any amount towards dowry and he has not given Rs. 2 Lakhs to accused No. 1. He has admitted that he did not pay any amount towards dowry on the day of the marriage as according to him, it had been paid earlier. 16. He has denied the suggestions that he had not given any amount towards dowry and he has not given Rs. 2 Lakhs to accused No. 1. He has admitted that he did not pay any amount towards dowry on the day of the marriage as according to him, it had been paid earlier. 16. It is on the basis of the evidence of P.W. 4, the learned Sessions Judge has come to the conclusion that as there is a custom prevailing in the community to pay certain amount as dowry, the alleged demand of money cannot be construed as a demand for dowry. It is in that context, the learned Sessions Judge acquitted the appellant for the offence under Section 4 of the D.P. Act. P.W. 4, as noticed supra, has admitted that there is custom in the community to pay amount towards marriage expenses to the bridegroom sufficient to meet the marriage expenses and such amount is fixed depending upon the status of both the parties. As per the findings of the learned Sessions Judge, a sum of Rs. 2 Lakh had been paid by P.W. 4 to accused No. 1 and that has been held by the learned Sessions Judge as dowry within the meaning of Section 3 of the D.P. Act. It is in the evidence of P.W. 4 that the appellant made all the arrangements for the marriage. Though P.W. 4 states that he has paid his share of the expenses, he is not in a position to state as to how much he paid to the accused/appellant towards his share of marriage expenses. Therefore, the evidence is not sufficient to indicate that P.W. 4 had paid any other amount towards marriage expenses other than a sum of Rs. 2 Lakhs. From the evidence of P.W. 4, it is clear that a sum of Rs. 2 Lakhs paid was the amount fixed to be paid to the bridegroom sufficient to meet the marriage expenses. 17. P.W. 7-Smt. Bharathi elder sister of the deceased in her evidence has stated that a sum of Rs. 3 Lakhs was demanded towards dowry by bridegroom and her father offered to pay Rs. 2 Lakhs and accused No. 1 agreed for the said amount. According to her, on the day of the Betrothal ceremony, her father paid Rs. 17. P.W. 7-Smt. Bharathi elder sister of the deceased in her evidence has stated that a sum of Rs. 3 Lakhs was demanded towards dowry by bridegroom and her father offered to pay Rs. 2 Lakhs and accused No. 1 agreed for the said amount. According to her, on the day of the Betrothal ceremony, her father paid Rs. 1 lakh to accused No. 1 and a week earlier to the marriage, the remaining amount of Rs. 1 Lakh was paid to accused No. 1. In the cross-examination, she has denied the suggestion that accused No. 1 did not demand any dowry nor it was paid to him. 18. According to the evidence of P.W. 1, accused No. 1 demanded dowry of Rs. 3.5 lakhs but P.W. 4 offered to pay Rs. 2 Lakhs, which was agreed by accused No. 1. According to her, on the date of the engagement ceremony Rs. 1 lakh was paid to accused No. 1 and balance amount of Rs. 1 lakh was paid prior to the marriage. In the cross-examination of P.W. 1, it is elicited from her that on the date of the marriage dowry was not paid but according to her she does not remember whether she has stated before the police as per Ex.D.24 to the effect that Rs. 1 Lakh was paid on the date of the marriage. She has denied the suggestion that no dowry was demanded by any of the accused and no amount was given as dowry. 19. Having regard to the answers elicited in the cross-examination of P.W. 4 with regard to the custom prevailing in their community about payment of amount to bridegroom to meet the marriage expenses and in the absence of any acceptable evidence that apart from this Rs. 2 lakhs any other amount had been paid to the appellant-accused, the amount of Rs. 2 Lakhs paid by P.W. 4 to accused No. 1 will have to be construed as payment towards marriage expenses as per the prevailing customs in their community. Admittedly, accused No. 1 had made all the arrangements like Marriage Hall, lunch and dinner etc., Therefore, in my opinion, the payment of Rs. 2 Lakhs paid to accused No. 1 cannot be construed as dowry within the meaning of Section 3 of the D.P. Act. Admittedly, accused No. 1 had made all the arrangements like Marriage Hall, lunch and dinner etc., Therefore, in my opinion, the payment of Rs. 2 Lakhs paid to accused No. 1 cannot be construed as dowry within the meaning of Section 3 of the D.P. Act. In this view of the matter, in my opinion, the finding of the learned Sessions Judge holding the appellant accused No. 1 guilty of the offence punishable under Section 3 of the D.P. Act is perverse and cannot be sustained. 20. As noticed supra, with regard to the alleged further demand of Rs. 50,000/- as dowry and 5 cents of vacant site, the learned Sessions Judge has recorded a definite finding that there are no satisfactory evidence to prove the same. Therefore, the case of the prosecution in this regard is not substantiated by any evidence. 21. Though the prosecution has projected that the death of the deceased was suicidal, the evidence on record does not, beyond reasonable doubt, establish that the death was suicidal. The essential ingredient to attract the offence punishable under Section 306 of IPC is the suicidal death. Even to attract a presumption under Section 113A of the Indian Evidence Act, the married woman must have been committed suicide within 7 years from the date of the marriage and the prosecution should have proved that soon before her death, the deceased had been subjected to cruelty or harassment within the meaning of Section 498A of IPC. As could be seen from the case of the prosecution, the dead body of the deceased was found floating in the pond situated in the land of CW.22 in the early hours of 5.10.2000. According to the contents of Ex.P.3, the report lodged by P.W. 4 at the earliest point of time reporting missing of his daughter, on 4.10.2000 at about 6.30 a.m., accused No. 1 and others came to his house and enquired as to whether the deceased has come there and that she was not seen in the matrimonial home from about 5.00 a.m. on that day. Thus from the contents of Ex.P.4, it is clear that till about 5.00 a.m. on 4.10.2000, the deceased was in the matrimonial home and thereafter she was found missing from the matrimonial home and ultimately her dead body was found floating in the pond in the morning of 5.10.2000. 22. Thus from the contents of Ex.P.4, it is clear that till about 5.00 a.m. on 4.10.2000, the deceased was in the matrimonial home and thereafter she was found missing from the matrimonial home and ultimately her dead body was found floating in the pond in the morning of 5.10.2000. 22. As could be seen from the inquest report Ex.P.1 there were no external injuries on the dead body apart from some bite marks of aquatic animals. According to the opinion furnished by the Doctor who conducted post-mortem examination the death was due to asphyxia as a result of drowning. P.W. 5-Dr. L.L. Josha in his evidence has stated that on the external examination of the dead body, he found no ante mortem external injuries and there were no ligature injuries on the dead body. According to him, there were clear signs of drowning and it was a clear case of asphyxia. Further he has stated that he preserved Vicera and handed over the same to the police. Later Vicera report revealed no poison was detected in the Vicera. Therefore, he gave a final report that the death was due to asphyxia as a result of drowning and the death occurred 6 to 8 hours after consumption of last meal and about 24 to 36 hours prior to the post-mortem examination. He has further stated that subsequently, the Police Inspector, COD asked some clarification and he gave his clarification as per Ex.P.11 stating that he is unable to ascertain as to whether the death was suicidal or accidental. 23. Thus the evidence placed by the prosecution on record does not establish the death of the deceased as suicidal. The Doctor who conducted post-mortem examination was not in a position to say definitely whether the death was suicidal or accidental. Of course, as opined by the Doctor, the death was due to asphyxia as a result of drowning. The death by drowning could occur even in the case of accidental fall into the pond. In the cross-examination of P.W. 9-Chandrappa, the Investigating Officer it is suggested to him that there was possibility of deceased accidentally falling into the well. Exs.P.15 and P.16 are the photographs of the pond in which the dead body was found floating. As could be seen from these photographs, the pond is not surrounded by any fence or stone wall. In the cross-examination of P.W. 9-Chandrappa, the Investigating Officer it is suggested to him that there was possibility of deceased accidentally falling into the well. Exs.P.15 and P.16 are the photographs of the pond in which the dead body was found floating. As could be seen from these photographs, the pond is not surrounded by any fence or stone wall. The water in the pond is almost to the ground level. As per the sketch marked as Ex.P.18, there is a pathway by the side of the pond at a distance of about 10 feet from the southern edge of the pond. The incident has occurred in the first week of October 2000, which is generally a rainy season. As noticed supra, according to contents of Ex.P.3 till about 5.00 a.m. on 4.10.2000, deceased was in the matrimonial home and thereafter she was found missing. From this it appears that the deceased left matrimonial home at about 5.00 a.m. and at that time there would be darkness. Therefore, possibility of deceased accidentally falling into the pond cannot be completely ruled out. At any rate there is no definite evidence to indicate that the death of the deceased was suicidal. The photographs produced by the accused and marked as Ex.D.2 to Ex.D.4 would indicate that after the marriage, the deceased and the appellant had gone on a honey moon tour, they had visited the houses of their close relatives and on those occasions, the photographs were taken. The photographs indicate that the deceased was in a happy mood with her husband. The end of the deceased has come within about 42 days of her marriage. The only ground on which the learned Sessions Judge has come to the conclusion that the deceased has committed suicide was on account of the insistence on the part of the appellant to her to consume liquor and also to dance in the parties. Assuming for the purpose of argument that the appellant who was admittedly working in Mascat at the relevant point of time wanted the deceased to consume liquor and also to dance in the parties, that by itself, in my opinion cannot be construed as subjecting the deceased to mental cruelty or harassment within the meaning of Section 498A of IPC. Assuming for the purpose of argument that the appellant who was admittedly working in Mascat at the relevant point of time wanted the deceased to consume liquor and also to dance in the parties, that by itself, in my opinion cannot be construed as subjecting the deceased to mental cruelty or harassment within the meaning of Section 498A of IPC. It cannot be said that it is wrong on the part of the young husband more so when he was working in an overseas country, to expect his wife to be modern and look modern to suit to western society, and to achieve that expectation if he wanted his wife to do certain things like consuming liquor in the parties and to dance, it cannot be said that he has done that with an intention to cause mental cruelty or harassment to her. It is in the evidence of the material witnesses that in their community even the woman folk consume liquor in the parties. May be that the deceased was not in the habit of consuming liquor. The learned Sessions Judge has come to the conclusion that by this insistence, the appellant has subjected the appellant to mental cruelty within the meaning of Section 498A of IPC, therefore presumption under Section 113A of Evidence Act has to be drawn. In my opinion, the learned Sessions Judge had no basis to come to this assumption. No circumstance has been brought out on record to indicate that the deceased committed suicide by jumping into the pond. Therefore, in the absence of any definite evidence as to the nature of the death of the deceased, it is highly difficult to come to the conclusion that the death of the deceased was suicidal. In the absence of any such definite conclusion as to the nature of the death, in my opinion, the conviction recorded by the trial Court for the offence punishable under Section 306 of IPC is highly perverse and it suffers from illegality and infirmity as such, it cannot be sustained. In this view of the matter, the appeal filed by the convicted appellant/accused No. 1 deserves to be allowed. 24. Accordingly, the appeal is allowed. In this view of the matter, the appeal filed by the convicted appellant/accused No. 1 deserves to be allowed. 24. Accordingly, the appeal is allowed. The judgment of conviction and the order of sentence dated 19.3.2005 passed by the Principal Sessions Judge, D.K., Mangalore in S.C. No. 182/2001, convicting the appellant/accused No.1 for the offence punishable under Section 306 of IPC and Section 3 of the D.P. Act is hereby set aside. The appellant-accused is acquitted of those charges also. The bail and surety bonds of the accused are ordered to be discharged. Fine amount, if any, deposited by the appellant is ordered to be returned to him.