JUDGMENT B.V. PINTO, J.-This appeal is filed challenging the judgment dated 31.03.2006 passed by the District and Sessions Judge, Chamarajanagar in S.C. No. 15/2005 convicting the appellants for offence punishable under Section 306 and 498 (A) read with 34 IPC and sentencing accused No. 1 to undergo R.I. for 7 years and to pay a fine of Rs. 10,000/-, in default to undergo R.I. for a period of 6 months for the offence under Section 306 read with 34 IPC and further sentencing accused Nos. 2 to 4 to undergo S.I. for a period of 3 years and to pay a fine of Rs. 10,000/- each, in default to undergo S.I. for a period of 6 months for the said offence and further sentencing accused Nos. 1 to 4 to undergo S.I. for a period of 2 years and to pay a fine of Rs. 1,000/- each, in default to undergo S.I. for a further period of 3 months for the offence under Section 498A read with 34 IPC. 2. It is the case of the prosecution that the deceased Yashoda had married to the appellant No. 1 about 3 years prior to the date of incident and that when the deceased was in the company of the appellant as his wife, the appellants had meted out cruelty and harassment to the deceased, thereby, it is alleged that the appellants have committed an offence under Section 498A IPC. 3. It is the further case of the prosecution that on 24.05.2004 at about 8.00 p.m., when the deceased was in the house of the appellants she was done to death by the appellants by squeezing her neck and smothering, as a result of which, she succumbed to the injuries sustained by her on her neck, thereby, all the appellants are alleged to have committed an offence punishable under Section 302 read with 34 IPC. 4. The prosecution in order to prove the case has examined in all 19 witnesses and got marked Exs-P1 to P13 and produced material objects 1 to 6. The defence of the accused was one of total denial. However by the impugned judgment, the learned Sessions Judge was pleased to convict the appellants and sentence them as aforesaid. The convicted accused have filed this appeal. 5. On 25.05.2004, the father of the deceased Yashoda by name Siddaiah informed the Kollegal Police Station regarding the incident. The defence of the accused was one of total denial. However by the impugned judgment, the learned Sessions Judge was pleased to convict the appellants and sentence them as aforesaid. The convicted accused have filed this appeal. 5. On 25.05.2004, the father of the deceased Yashoda by name Siddaiah informed the Kollegal Police Station regarding the incident. The police arrived at the spot, which is the residence of appellant No. 1 and they have received the written complaint. In the said compliant, it is stated by Siddaiah that his daughter by name, Yashoda was married to appellant No. 1 by name Mahesha about three years back and about 1 year prior to the said incident, the appellant was quarreling with his wife. The villagers by name Shekara, Mallesha and Basavanna and others joined together and the matter was settled in the Police Station. Nevertheless, similar incidents of quarrel was happening. Appellants were quarreling on the previous evening in connection with the sale of Thali of the deceased, Yashoda. It is stated in the complaint that Mahesha, Siddaiah, Rangaswamy and Sharadamma were quarrelling with the deceased, Yashoda, in the night. One Raju and others went and intervened the said fight, it was about 8.00 p.m. Thereafter, Yashoda has been killed by assaulting in the hand and squeezing the neck. He came to know about the same on the next day morning and hence he has requested for taking action. 6. PW-17, Chikka Madappa on receipt of the said information registered the same as Crime No. 101/2004 for the offence under Section 302 read with 34 IPC. 7. PW-19, the Circle Inspector of Police took over the investigation and thereafter he visited the scene of occurrence and prepared a spot Mahazar as per Ex-P2. He has recorded the statement of one Siddaiah and Mallesha. PW-19 thereafter seized the articles produced by the Constable which were found on the dead body of the deceased as per Seizure Mahazar Ex-P12. On 26.05.2004, the accused were apprehended and produced before him. He has arrested them and forwarded the accused to the Court after recording the voluntary statement of the accused No. 1, which is marked as Ex-P13. PW-19 thereafter seized the articles produced by the Constable which were found on the dead body of the deceased as per Seizure Mahazar Ex-P12. On 26.05.2004, the accused were apprehended and produced before him. He has arrested them and forwarded the accused to the Court after recording the voluntary statement of the accused No. 1, which is marked as Ex-P13. Inconsequence of the voluntary statement given by the accused No. 1, the latter took the police and the witnesses to Bhavani Bankers, where the accused had pledged one gold Thali weighing about 2 grams and the same is recovered as per Ex-P7 Seizure Mahazar. The deceased was subjected to medical examination. The postmortem was conducted by PW-18, Dr. Y.K. Lingaraju, who has issued Ex-P10 postmortem Examination report (PME Report). PW-18 has opined that the death is due to asphyxia as a result of throttling with smothering. PW-19 thereafter continued the investigation and on conclusion of the investigation, charge sheet came to be filed. 8. PW-1 is the complainant. He has reiterated the version in the complaint. He has stated that at the time of marriage, he has given a cash of Rs. 25,000/- and 12 grams of gold to his daughter. About two years after the marriage, the husband and wife were in cordial terms. Thereafter the appellant No. 1 was ill-treating his daughter for bringing more money. His daughter was informing him that all the accused were harassing her and were quarrelling with her. Though he had advised the accused, the said quarrel did not stop. There was an obsequies ceremony in the neighbouring house of the accused. Hence all of them had gone to the house of the said neighbor of the accused. At about 8.00 p.m., they had finished the meals in the said house. In the meantime, they observed that quarrel was going on in the house of appellant No. 1. It is in the evidence of PW-1 that all the four accused were quarrelling with his daughter together. Accused No. 4 Sharadamma was holding the tuft of his daughter and accused No. 3 Rangaswamy was assaulting with his hands and accused No. 2 Siddaiah was abusing. When he tried to pacify the quarrel, the accused started questioning him as to why he should interfere in their affairs and therefore he left the house and reached his house at about 9.00 p.m. 9. When he tried to pacify the quarrel, the accused started questioning him as to why he should interfere in their affairs and therefore he left the house and reached his house at about 9.00 p.m. 9. On the next day, when he went to the house of his daughter, at about 8 a.m. he came to know that his daughter had died. His house is about 200 steps away from the house of the first accused. Nobody was present when he went to the house of the first accused. He went to the said house after the police arrived. The dead body of his daughter was lying in the hall of the house. There was a black mark on her neck. Thereafter he went to Chikkalavadi, which is about 3 km away by walk. He got a complaint written there and thereafter went to the Police Station and gave the said complaint. PW.1 has identified the complaint as per Ex.P1. In the cross-examination, it is elicited that the police informed him that the first accused had given the lock of the house. He has admitted that while stating before police, he has not stated that he has given cash of Rs. 25,000/- and 12 grams of gold to the first accused. It is admitted by PW.1 that appellant and his daughter were only living in the said house and that the other accused namely., A2 to A5 were living separately in another house. It is further admitted by him that when he saw the dead body, the Karimani was on it but the tali was not there. PW.2-Mallesha and PW.4-Mallanna have turned hostile to the case of the prosecution. However, PW.2 has stated that the first appellant and the deceased were staying in the said house and they were cordial. PW.3-Sundramma is an attestor to Ex.P4-Inquest proceedings. PW.4-Mallanna though has turned hostile, has stated that there was fire to the haystack belonging to the accused; a complaint was given by the complainant's side. Thereafter himself and others held a panchayath and sent the deceased Yashoda to the house of accused No. 1. PW.5-Raju is an uncle of the deceased. He has stated regarding payment of dowry. He has further stated that the house of accused No. 1 was in front of a house where they had gone for death ceremony on the night of the incident. PW.5-Raju is an uncle of the deceased. He has stated regarding payment of dowry. He has further stated that the house of accused No. 1 was in front of a house where they had gone for death ceremony on the night of the incident. He has gone to the said house at about 8 O'clock in the night and when he was returning, there was a quarrel going on in the house of first accused. Quarrel means the deceased was asking to release the tali and in this connection other accused were assaulting her. When he along with others went to question the accused, they got enraged over them; on the next day he came to know that Yashoda had died. It is suggested to PW.5 that the deceased had committed suicide by hanging; but the said suggestion has been denied by PW.5. He has stated that the deceased has been killed by squeezing her neck. PW.6-Maraiah is a resident opposite to the house of appellant No. 1. He has stated that two years after the marriage of appellant with the deceased, the accused were harassing the deceased. The accused were also demanding for bringing money. The deceased was also coming to their house and telling them that the accused were harassing her for Dowry. Her father convened a Panchayath and despite such Panchayath accused were again ill treating her. On the date of incident, there was a ceremony in his house and when he went to call the accused; quarrel was going on in the house of the accused. Hence, he came back. On the next day, he came to know that Yashoda had died. In the cross-examination, he has stated that on that day about 20 people had come for dinner to his house. It is suggested to him that he is also a relative of the deceased Yashoda. He has stated that there is no relationship between himself and the deceased. He has further stated that the distance between his house and the house of PW.1 is about one furlong. PW.7-Maramma is the mother of deceased. She has also stated regarding ill treatment and harassment given to her daughter by the accused. It is suggested to her that there was a proposal of marriage of her brother with the deceased Yashoda, which suggestion has been denied by her. PW.7-Maramma is the mother of deceased. She has also stated regarding ill treatment and harassment given to her daughter by the accused. It is suggested to her that there was a proposal of marriage of her brother with the deceased Yashoda, which suggestion has been denied by her. It is also suggested that the marriage of the first accused with Yashoda was a love marriage but the same has also been denied by PW.7. 10. PW.8-Shekara is an elderly person of the village. He has spoken regarding the panchayath held in respect of the understanding between the first accused and the deceased. It is in his evidence that there was a proposal for divorce proceedings between accused No. 1 and the deceased. However, for this, another 15 days time was granted and even before the expiry of the said period of 15 days, Yashoda died. 11. PW.9-Basavaiah, is a neighbour of the accused. He has also stated regarding the harassment given to the deceased prior to her death. He has also spoken regarding the sale/pledge of the tali of the deceased by the first accused. He has also stated that on the night of incident, all the accused were present in the house of accused No. 1 and when he questioned them he was questioned as to what connection he has got with their affair. About five minutes thereafter he heard a sound of screaming by the deceased. However, since they were abused he did not go near the house of the accused. At about 11 O'clock in the night when he went to answer the nature's call there was no sound in the house of the accused. On the next day, police came and found that the deceased had died. In the cross-examination, it is suggested to him that he is deposing falsely at the instance of police. 12. PW.10-Basavaiah is also another neighbour. He has also categorically stated that all the accused were ill-treating Yashoda and thereafter she was sent to her maternal house. She came back after one year. A panchayath was convened. First appellant told before the Panchayath that he does not want the girl [wife]. Thereafter, Panchayath decided that the matter should be settled in the Police Station and thereafter for about 15 days they were cordial. Again they started quarrelling in connection with the tali of the deceased. She came back after one year. A panchayath was convened. First appellant told before the Panchayath that he does not want the girl [wife]. Thereafter, Panchayath decided that the matter should be settled in the Police Station and thereafter for about 15 days they were cordial. Again they started quarrelling in connection with the tali of the deceased. He has stated that on the night of the incident, he also heard the quarrel and that Yashoda was beaten by the accused. On the next day, he came to know that the deceased had died and there was a black mark on her neck. It is suggested to him that he was deposing falsely before the Court, but the same is denied. 13. PW.11-Basavanna is a maternal uncle of the deceased. He has also spoken regarding the ill treatment of the deceased by the accused. He has also stated that on the night of the incident, accused were in the house of the deceased. He heard screaming voice of the deceased. After some time, the said noise stopped. On the next day, Yashoda was found dead in the house. There was a blood clot of about 2 inches on her neck. 14. PW.12-Rangashetty is the village Accountant, who has furnished the particulars of the house. PW.13-M.P.Somaiah is the Tahsildar, who has conducted the Inquest proceedings on the dead body of the deceased. PW.14-Lakshman Ram is the shop keeper, who has stated that first accused No. 1 has brought one tali to his shop; about 2 to 3 months thereafter the police brought the first accused and seized the tali given by the accused as per Ex.P7. He has identified tali as MO No. 6. It is stated by him that accused No. 1 received a sum of Rs. 500/- and pledged tali with him. It is suggested to him that he is deposing falsely at the instance of police. 15. PW.15-M.Jayappa, is the Constable, who has carried the FIR to the Court. PW.16-Mahadevanaika is the Constable, who has apprehended accused Nos. 1 and 2. PW.17-Chikkamadappa is the ASI, who has received the FIR from PW.1 and registered the case and thereafter transmitted FIR to the Court. PW.18-Dr Y.K. Ningaraju was the Doctor at the Kollegal Government Hospital. He has conducted the post-mortem examination on the dead body of the deceased and issued Certificate as per Ex.P10. 1 and 2. PW.17-Chikkamadappa is the ASI, who has received the FIR from PW.1 and registered the case and thereafter transmitted FIR to the Court. PW.18-Dr Y.K. Ningaraju was the Doctor at the Kollegal Government Hospital. He has conducted the post-mortem examination on the dead body of the deceased and issued Certificate as per Ex.P10. He has noticed about 7 visible injuries on the dead body including the ligature mark, which extended from thyroid cartilage till the back side of the ear to an extent of about 14 cm × 21/2 sm. He has opined that the death of the deceased is due to throttling and smothering. In the cross-examination, he has admitted that if there is throttling, there would be nail marks or marks of the fingers. He has admitted that since there is a ligature mark, it could be due to a clot. PW.19-M.Narayana is the IO; about whose investigation, it is mentioned in the earlier part of this Judgment. 16. It is from the above evidence of the prosecution witnesses that the learned Sessions Judge has found the accused guilty of the offences under Sections 498A and 306 of IPC. 17. Heard Sri Hashmath Pasha, learned Counsel for the appellants and Sri G.M. Srinivasa Reddy, learned HCGP for the Respondent/State. 18. Sri Hashmath Pasha, learned Counsel for the appellants submits that the accused were charged for an offence under Section 302 read with Section 34 of IPC. Whereas, they have been convicted for an offence under Section 306 IPC. The ingredients of Section 306 IPC have not at all been averred or proved by the prosecution and the learned Sessions Judge has wrongly convicted the appellants for an offence under Section 306 IPC. There is absolutely no evidence to support the case that the deceased had committed suicide and that the accused have abetted the commission of the said suicide. Hence, the appellants are entitled for an order of acquittal for the said offence. Further, it is the case of the prosecution that A1 was residing with his wife-the deceased Yashoda in the house in which the incident has happened. Whereas, A2 to A4 were residing in a separate house. Therefore, offence under Section 498A of IPC against accused Nos. Hence, the appellants are entitled for an order of acquittal for the said offence. Further, it is the case of the prosecution that A1 was residing with his wife-the deceased Yashoda in the house in which the incident has happened. Whereas, A2 to A4 were residing in a separate house. Therefore, offence under Section 498A of IPC against accused Nos. 2 to 4 is not at all proved since they were neither residing together with the deceased nor there is any allegation that they were ill treating or abusing the deceased at any point of time. Hence, he submits that A1 to A4 are entitled for an order of acquittal of all the charges leveled against them also. 19. Sri G.M. Srinivasa Reddy, learned HCGP for the Respondent submits that though the learned Sessions Judge found the accused guilty of an offence under Section 306 IPC, on the materials on record, it is seen that the appellants were in the house along with the deceased on the date of incident, which has been proved by the evidence of the prosecution witnesses. The deceased had died in the intervening night and PW.1 and others have seen that the dead body of the deceased was in the said house. The dead body was having an injury on her neck. Therefore, it is clear that the deceased had died on account of the act of the accused. The opinion of the Doctor is to the effect that the death is due to throttling and smothering and it is not the case of the prosecution that any other person had intervened in the night. Under the circumstances, it is accused No. 1, who has caused the death of the deceased. He submits that since the accused has been found guilty for an offence under Section 306 IPC, which finding is erroneous, the accused may be convicted for the offence under Section 304 IPC for having caused culpable homicide not amounting to murder and the sentence imposed upon him may be sustained. He also submits that Section 386 Cr.P.C. gives power to the appellate Court to alter the finding in respect of the nature of the offence and also in respect of the sentence but so as not to enhance the same. He also submits that Section 386 Cr.P.C. gives power to the appellate Court to alter the finding in respect of the nature of the offence and also in respect of the sentence but so as not to enhance the same. Hence, he submits that the finding in respect of the death of the deceased may be altered from abetment of suicide to culpable homicide not amounting to murder and suitable sentence may be passed against the appellants. 20. From the evidence of witnesses, so also from the documents produced, it is clear that A2 to A4 were not residing along with A1. Though it is stated that on the night of the incident of accused Nos. 2 to 4 were present in the house of accused No. 1; no specific overt acts are spoken to by the witnesses in respect of the incident in which the deceased had died. Some omnibus statement has been given by the witnesses; as according to them, all the accused were present in the house when the incident was happening in the night of 24.5.2004. It is also very clear that accused No. 1 was staying along with his wife in the newly constructed house which was still to be plastered. Under the circumstances, though the allegations of the ill treatment and harassment have been spoken to by few witnesses, there is no clear, cogent and convincing evidence to prove that accused Nos. 2 to 4 have in fact meted out cruelty or harassment. Witnesses have clearly stated that they were living separately. Under the circumstances, I am of the considered opinion that the learned Sessions Judge has erroneously held that accused Nos. 2 to 4 have committed the offences under Sections 498A and 306 of IPC. 21. So far as Section 306 of IPC is concerned, it is not the case of the prosecution that the accused have abetted the commission of suicide by the deceased. There is no charge for the said offence. In the absence of the specific charge for the offence under Section 306 IPC, since there is no material to hold that the accused have abetted the commission of suicide by the deceased, the accused are entitled for an order of acquittal for the offence under Section 306 IPC. However, the evidence of the prosecution witnesses clearly indicates that accused No. 1 was repeatedly harassing the deceased. However, the evidence of the prosecution witnesses clearly indicates that accused No. 1 was repeatedly harassing the deceased. All the witnesses who have been examined in this case, other than those who are turned hostile have stated that the appellant No. 1 was ill treating the deceased and was quarrelling with the deceased and he has also further pledged the tali of the deceased. Learned Sessions Judge has elaborately discussed the evidence of the witnesses on this aspect and has come to a conclusion that the accused was harassing and ill treating the deceased. On a careful consideration of the materials on record, particularly, the evidence of PWs.1, 5, 6, 7 and others, it is clearly established that appellant No. 1 was harassing and ill treating the deceased after her marriage. Therefore, the definition of Cruelty, which means Wilful Conduct of a person, is clearly attracted to the act of accused No. 1 insofar as the offence under Section 498A of IPC is concerned. Hence, I am of the considered opinion that the learned Sessions Judge has rightly convicted the appellant No. 1 for the said offence. 22. Though it is held that the ingredients of the offence under Section 306 IPC is not attracted in this case, the evidence of witnesses overwhelmingly proves that on the night of the incident, the appellant was present in the house along with the deceased and that there was a quarrel going on between them and after some time there was a screaming voice. It is also in the evidence of the witnesses that the quarrel was in respect of the tali which has been pledged by accused No. 1. Evidence of PW.14 further corroborates that accused No. 1 has in fact pledged the tali with him and that the same was recovered after the death of the deceased. The evidence of witnesses further indicates that on the next day Yashoda was found dead with injuries on her neck. Under the circumstances, it is clear that the accused has caused the death of the deceased in the night of the incident. 23. PW.18-Dr Y.K. Lingaraju, has stated that the death of the deceased is homicidal arising out of throttling and smothering the deceased. 24. Under the circumstances, it is clear that the accused has caused the death of the deceased in the night of the incident. 23. PW.18-Dr Y.K. Lingaraju, has stated that the death of the deceased is homicidal arising out of throttling and smothering the deceased. 24. In view of the evidence of these witnesses, the prosecution has established that the death of the deceased has been caused by appellant No. 1 on the night of incident namely., on 24.5.2004. So far as the nature of offence, which the appellant has committed is concerned, Section 386 of Cr.P.C., states as follows: "386. Powers of the Appellant Court.- After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may- (a) .............................. (b) in an appeal from a conviction- (i) .............................. (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence but not so as to enhance the same." It is the admitted case of the prosecution witnesses that for quite some time, there was a quarrel between the appellant and the deceased. Ultimately, the deceased had died. The evidence of PW.18 indicates that the deceased had died as a result of throttling and smothering. Having regard to the evidence of neighbouring witnesses, who have no axe to grind against the appellant, it is clearly established that it is the appellant and appellant alone, who has caused the death of the deceased by throttling her as a result of the quarrel which took place between them immediately prior to the incident. Under the circumstances, I am of the clear opinion that the act of the accused amounts to culpable homicide not amounting to murder. 25. It is further to be seen whether the appellant had the intention or the knowledge to commit the homicidal death of his wife. It is seen that the incident has happened in the spur of a moment due to the quarrel between husband and wife. 25. It is further to be seen whether the appellant had the intention or the knowledge to commit the homicidal death of his wife. It is seen that the incident has happened in the spur of a moment due to the quarrel between husband and wife. Therefore, though one of the panchayathdar states that the accused has declared that he does not want his wife; at the moment when he committed the throttling, it cannot be said that he had the intention to cause the death of the deceased nor knowledge that by squeezing her neck he would have caused her death. It had started as a quarrel; converted into a physical fight between husband and wife, but unfortunately ended in her death. This finding is derived from the evidence of witnesses, who state that even when they went for dinner, quarrel was going on inside the house between the accused and the deceased. Even when they came back, the quarrel was continuing. If the accused had any intention or knowledge that his act could have resulted in death, he would not have taken such a long time to commit the murder. On the other hand, he would have silently killed her. These circumstances indicate that the incident has happened in the spur of a moment resulted out of voluminous exchange of words. However, having regard to the fact that the deceased died, accused No. 1 is liable to be found guilty for the offences under Sections 304 Part II of IPC. 26. Sri Hashmath Pasha, learned Counsel for the appellants submits that appellant No. 1 was in custody during the trial for about two years and that the said detention may be imposed as sentence for the act done by the accused. It is seen that the accused is a poor villager coming from a very low strata of society. They are eking out their livelihood by coolie work. It is certain that the accused might have realized his mistake in life by being in custody for about two years and it may not be in the interest of justice to send the accused to custody again. However, the complainant deserves to be compensated for the loss of his daughter and therefore balancing the mitigating and aggravating circumstances, the following order is made: ORDER Appeal is allowed in part. However, the complainant deserves to be compensated for the loss of his daughter and therefore balancing the mitigating and aggravating circumstances, the following order is made: ORDER Appeal is allowed in part. The order of conviction and sentence recorded against appellants No. 2 to 4 is hereby set aside and they are acquitted of the offences under Sections 498A and 306 of IPC. The order of conviction recorded against appellant No. 1 for an offence under Section 498A of IPC is confirmed. He is sentenced to undergo R.I. for the period already undergone by him and while keeping the fine in fact. The order of conviction for an offence under Section 306 IPC against appellant No. 1 is altered to the one under Section 304 Part II of IPC and he is directed to undergo R.I. for the period already undergone by him as an under trial prisoner. Acting under Section 357 Cr.P.C., Appellant No. 1 is directed to pay compensation of Rs. 10,000/- to PW.1 or in his absence to PW.7. Both the substantive sentences are directed to run concurrently. Since the accused is deemed to have served the sentence, he need not surrender, but deposit the fine and compensation amount within four weeks from today, failing which, the trial Court is directed to recover the same in accordance with law.