JUDGMENT : Appeal is directed against the Judgment passed by the learned V Additional District and Sessions Judge, Mysuru, in S.C.No.148/2009 dated 28.10.2010 wherein the accused Nos.1 to 4 faced the trial for the offence punishable under Section 304B, 498A of IPC and Sections 3 and 4 of Dowry Prohibition Act. 2. The accused persons 1 to 4 were acquitted for the offence punishable under Sections 304B read with Section 34 IPC and Sections 3 and 4 of Dowry Prohibition Act and were convicted for the offence punishable under Sections 498A IPC. 3. The complaint marked as Ex.P.1 is filed by one Rajshekar s/o Chikkamadaiah of Chikkanandoddi Village, Malavalli Taluk. His only daughter Roopa was given in marriage 2 years prior to lodging of complaint between Nagesh s/o Somaiah as per the formalities and rituals. At the time of marriage, the groom was given dowry in the form of 5 gms gold finger ring, 10 gms gold neck chain and Rs.25,000/cash and the marriage was performed in the house of the groom at Talkad. Spouses were cordial for few beginning days but there developed a misery and trauma to the daughter of the complainant. In this connection, it is stated that Cheluvamma – mother-in-law, Mahadevamma – sister-in-law were finding fault and torturing the victim for every trivial matter. His daughter used to express her grievances before the complainant and in this connection a panchayat was convened and accused was advised and was asked to look after Roopa as a husband. Despite, the torture and mockery by the accused continued by asking Roopa as to what kind of dowry she had brought and the accused used to compel her that she should bring some more dowry. Her mother-in-law used to tell her that if she dies, she would get a better choice for her son and she was joined in saying so by Somaiah also. On 06.10.2008 at 3.00 PM, the daughter of complainant was reported to have committed suicide by hanging and as it took time for the complainant to arrive from Malavalli, the report was lodged at 10.30 PM. With this a criminal case came to be registered in Crime No.84/2008 for the offence punishable under Sections 304(B) read with Section 34 IPC and Sections 3 and 4 of D.P.Act. With this a criminal case came to be registered in Crime No.84/2008 for the offence punishable under Sections 304(B) read with Section 34 IPC and Sections 3 and 4 of D.P.Act. The necessary formalities of inquest mahazar at Ex.P.2 on 07.10.2008, spot mahazar in the intervening night of 6th and 7th 10/2008 as per Ex.P.8, seizure mahazar as per Ex.P.10 for seizing the gold jewellery produced by A1 dated 7.10.2008. 4. The mahazar for seizing the marriage invitation card and photographs obtained during the engagement as per Ex.P.11 on 18.10.2008 and Ex.P.6 is the post mortem report conducted on the dead body of Roopa dated 7.10.2008 indicating that cause of death was due to asphyxia because of hanging. 5. The final report was submitted against the accused persons for the offence punishable under Sections 304(b), 306, 498A read with Section 34 IPC. 6. Learned trial Judge with the help of oral evidence of PW1, 2 and 13 including the complaint and the documentary evidence from Ex.P.1 to P.16 including P1(a), P1(b), 2a, 2b, 2c, 2d, 6a, 6b, 6c, 7a, 8a, 9a, 10a, 10b, 11a, 11b, 12a, 13a, 14a, 15a, 16a and MOs. 1 to 11. After conclusion of the trial, learned trial Judge found the accused persons guilty for the offences punishable under Section 498A IPC, however found not guilty for the offence punishable under Sections 3 and 4 of the D.P.Act and Section 304B IPC 7. After hearing on sentence, learned Judge sentenced the accused persons 1 to 4 to undergo SI for 2 years and to pay fine of Rs.2500/each in default SI for 4 months. They were given the benefit of set off of the substantial sentence against the period of judicial custody under Section 428 Cr.P.C. 8. PW1–Rajashekar the father of the victim/complainant deposes regarding the marriage of his daughter Roopa with accused No.1 and giving dowry as per the negotiations. Cash of Rs.75,000/and motor cycle was demanded by the accused. The complainant expressing his inability agreed to give 10 gms gold chain, 5 gms gold ring and Rs.25,000/cash and they were given to the hands of two elder sisters of A1 one week prior to the marriage. Accused was also given gold chain worth 10 gms, gold ring of 5 gms and clothes worth Rs.3000/, earrings to his daughter. Accused persons were residing together. Accused was also given gold chain worth 10 gms, gold ring of 5 gms and clothes worth Rs.3000/, earrings to his daughter. Accused persons were residing together. Roopa was threatened that accused No.1 would be going for second marriage if she fails to bring additional dowry and she used to complain to PW1 whenever latter went to her parental house. Further, the evidence of this witness is that his daughter died 2 years subsequent to marriage; His daughter was complaining against all the accused persons and also their harassment and mockery that Roopa had not conceived; They demanded additional dowry including motor cycle, cash otherwise they would perform second marriage to A1, however, the complainant pleaded inability. When this was the state of affairs, on the fateful day somebody telephoned the complainant from Talakad that his daughter was in a critical condition, the complainant along with his wife and son rushed to the spot and found Roopa dead and the death formalities was conducted in the hospital. He denies the suggestions made against his version during cross examination. It is elicited that Ex.P.1 was written by the police. PW2 – Shivamma is the wife of the complainant and mother of deceased Roopa. She deposes about the persons who were present during the matrimonial negotiations and the demand of the accused for cash of Rs.75,000/and motor cycle. However, the complainant’s family could give only items as stated above. She also reiterated the versions deposed by her husband as PW1. PW3 – Umesh is the younger brother of deceased Roopa and in substance he reiterates the evidence given by PWs1 and 2 who are his parents. PW4 - C.M.Chennaiah, is the witness for inquest mahazar – Ex.P.2. He is a circumstantial witness and mentions about the matrimonial negotiations and marriage conducted on 18.05.2006. He further submits that Dhananjaya and Somashekara was also present when Roopa told him that the accused were demanding for more dowry. He further submits that PWs1 and 2 gave what was possible and what was within their reach as dowry during marriage. His further version is that subsequent to marriage the spouses were cordial for one year and thereafter, he does not know as to what happened. He was treated as hostile and denies a suggestion made by the learned SP and also the learned counsel for accused. His further version is that subsequent to marriage the spouses were cordial for one year and thereafter, he does not know as to what happened. He was treated as hostile and denies a suggestion made by the learned SP and also the learned counsel for accused. PW5 - Dr.T.N.Rajanarayan is the Doctor who has conducted postmortem on the body of the victim Roopa. PW6 - Nagaraju is the witness for inquest mahazar, but he turned hostile. PW7 - Nataraju is also the circumstantial witness and he is present at the time of matrimonial negotiations and giving dowry, but he has not seen giving gold chain and gold ring (recovered) from the accused. Mahazar was also conducted in the police station according to this witness. He being cross examined and was treated hostile and was examined. PW8 - C.N.Dhananjay, teacher, is also a circumstantial witness and deposes regarding his presence during matrimonial negotiations. He also endorses the earlier demand for dowry and the items from the accused however, matter getting subsided wherein the complainant requested that they were not able to tender the dowry as demanded by the accused and limited it to paying Rs.25,000/in cash, 5 gms gold ring and 10 gms gold neck chain. He denies the suggestion made against the version in the cross examination. The fact remains that he is another witness cited and examined by the prosecution. PW9 - Mr.Basavaraj – Dy.S.P. has conducted part of investigation. PW10 - Ms.Rekha – Women constable is the one who was the security for the body of deceased Roopa until post mortem was conducted. PW11 - Ms.Savitha – Tahsildar, who has conducted inquest mahazar. PW12 - Mr.Lava – PSI has registered the complaint. PW13 - Ms.Mary Shylaja is the Circle Inspector who has conducted part of investigation. In the over all circumstances of the case, the marriage between Roopa and A1 – Nagesh is not disputed. 9. Learned counsel for the appellants would submit that a stereo typed version of PWs and submissions by themselves prove the unnaturality and unreliability in their versions. He would further submit that there is no concurrent, cogent and reliable material to hold that the accused persons have committed the offence punishable under Section 498A IPC. 10. Learned counsel for appellants would submit that there is no even allegations against the accused Nos.3 and 4 regarding cruelty. He would further submit that there is no concurrent, cogent and reliable material to hold that the accused persons have committed the offence punishable under Section 498A IPC. 10. Learned counsel for appellants would submit that there is no even allegations against the accused Nos.3 and 4 regarding cruelty. He would further submit that there is no allegation against the accused persons regarding either demand for dowry or harassment against her, he treated Roopa with dissatisfaction, tortured and posed cruelty of on Roopa. There is no allegation of cruelty against the accused persons. On the other hand, there was no demand or any portion of the ingredients of the offences punishable under Section 498A IPC. Learned counsel would further submit that accused No.1 without fault of him has suffered judicial custody for four months 14 days and his mother, accused No.3 for 21 days. 11. Learned Government Pleader would refute the claim of the appellant and would submit that the accused persons 1 to 4 had no mercy and humility in favour of Roopa, who was the daughter of an ordinary person coming under lower middle class. They never had the courtesy of offering even average life to Roopa. On the other hand, the complainant was bounced even prior to marriage by demanding and receiving dowry and continued their bad acts but in the form of demanding additional dowry and torture. However, in the circumstances, the marriage between A1 and Roopa had taken place is not in dispute. Both the families being below average class is not in dispute. The unnatural death of committing suicide by hanging on 06.10.2008 is not disputed. The claim of the prosecution is that Roopa was humiliated by the accused, mockered by her issueless ness, status, inability to bring additional dowry and also their proposal and desire of getting a better wife who could afford to pay the required dowry. Learned trial Judge in his judgment has found that accused were not sending Roopa to her parents house and also has confirmed regarding the demand of dowry of Rs.75,000/and the gold ornaments. She was also being illtreated of issueless and was considered infertile. Learned Judge also found the suggestion of the learned counsel that her cousin brother died but she was not taken to the function and this made her to get disturbed. 12. She was also being illtreated of issueless and was considered infertile. Learned Judge also found the suggestion of the learned counsel that her cousin brother died but she was not taken to the function and this made her to get disturbed. 12. In the context of what is stated above, the conduct of PW1 and other witnesses, their version regarding marriage, matrimonial negotiations go in favour of the prosecution to consider that all was not well with the accused. 13. The learned Judge also observed regarding the personal knowledge of the accused. In the circumstances, it is necessary to mention that, unnatural death of Roopa took place in the house of the accused and they stand in position to know and explain what exactly they did know regarding the death of Roopa. In the further circumstances of the case, the character of Roopa was not said to be below average and she has no life threatening or mind disturbing disease nor she had any affairs with others to humiliate the marital life. Atleast, the accused persons should have known, more particularly, the accused No.1 if not all others to tell what abnormality was possessed by Roopa. 14. Here, it is necessary to mention Section 106 of the Indian Evidence Act, 1872 which reads as under: “106. Burden of proving fact especially within knowledge – When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” 15. Suicide is nothing but a platform when a person whether concludes by himself or herself that this planet is no more meant for him or her and the death will be far better than the life and thus without any hesitation resort for the extreme step. 16. No doubt, accused are acquitted for the other offences, more particularly, Section 304B read with Section 34 IPC and Sections 3 and 4 of Dowry Prohibition Act. In this connection, it is to be seen that the charge that is framed for the offence punishable under Section 306 IPC is not leveled against the accused persons. In the operative portion, the accused held guilty for the offence punishable under Section 498A and stood acquitted for the offences punishable under Section 304B read with Section 34 IPC and Sections 3 and 4 of Dowry Prohibition Act. 17. The charge framed was, ‘in furtherance of common intention’. In the operative portion, the accused held guilty for the offence punishable under Section 498A and stood acquitted for the offences punishable under Section 304B read with Section 34 IPC and Sections 3 and 4 of Dowry Prohibition Act. 17. The charge framed was, ‘in furtherance of common intention’. However, Section 34 representing ‘common intention’ is not made out. In this connection, the inference would be that each of the accused would be liable for their particular overtact in the absence of ‘common intention.’ However, in this connection, learned Judge meant that it was the offence punishable under Section 498A IPC as charge was proved and also attracted common intention also. 18. At this stage, learned counsel Sri. H. Mohan Kumar, for the appellant and learned High Court Government Pleader for State would submit that appellant No.2Somanna, S/o Hombalaiah is dead. Their submission is considered and it is taken that accused No.2 is dead and case against him stands abated. 19. There is no reliable version or even contextual inference to hold that accused No.3 and accused No.4 who are appellant Nos. 3 and 4 had animosity and intentionally committed the offence punishable under Section 498A IPC against the deceased. 20. On going through the evidence and materials on record, the submissions of learned counsel for appellants and learned High Court Government Pleader for State, I do not find any infirmity or irregularity committed by the learned Judge in acquitting the accused for the offence under section 304B IPC. 21. The prosecution has not preferred any appeal against the acquittal of the accused Nos.1 to 4 for the offences punishable under Section 304B and under Sections 3 and 4 of Dowry Prohibition Act. At the same time, there is no clinching evidence to hold that the accused No.4 Mahadevamma, sister of accused No.1 and daughter of accused Nos.2 and 3 had any role or caused harassment and cruelty to Roopa. But the instances, way of life, treatment and unnatural death of the victim Roopa finds that accused Nos.1 and 3 invariably committed an offence punishable under Section 498A IPC. The prosecution has proved beyond all reasonable doubt that the accused Nos. 1 and 3 have involved in the offences. 22. But the instances, way of life, treatment and unnatural death of the victim Roopa finds that accused Nos.1 and 3 invariably committed an offence punishable under Section 498A IPC. The prosecution has proved beyond all reasonable doubt that the accused Nos. 1 and 3 have involved in the offences. 22. The learned Trial Judge has acquitted the accused for the offence punishable under Section 304–B IPC which relates to offence of dowry death and charges were not framed for the offence punishable under Section 306 IPC. Regard being had to the fact that the circumstances that reflect and confirmed cruelty as defined under Section 498A IPC would not be of that cruelty and seriousness for the offence punishable under Section 306 IPC. 23. In the instant case, I find that cruelty committed by the accused persons, particularly, by the accused No.1 cannot be considered that it was to the extent of driving Roopa to commit suicide. However, it cannot be concluded that marital life was bed of roses to Roopa. All was not well with her. 24. It is necessary to mention that there is no allegation of marital infidelity or disloyalty or Roopa being a lady having short of required character for marital life and has not suffering with any harmful disease to get fed up. Nodoubt that she stood between the poverty of two families and was hopelessly helpless. Suicide was committed inside the house within two years of her marriage. If not others, the husband in reliable and justifiable terms has to tell what he knows about his wife committing suicide. But it never meant nor were to the level of driving a ordinary person in a similar situation or the victim in the present case to commit suicide. 25. In the circumstances, there is no whisper or suggestion from the accused, except a stray suggestion to the effect that she was not taken to obsequies ceremony of her cousin sister that was attended by accused No.1 alone and that Roopa was suffering from stomach ache. The suggestion of the accused has no relevance and is not supported by any reliable circumstance. In the circumstances, accused, more particularly, accused No.1 fails to explain what made his wife to commit suicide within two years of marriage. The suggestion of the accused has no relevance and is not supported by any reliable circumstance. In the circumstances, accused, more particularly, accused No.1 fails to explain what made his wife to commit suicide within two years of marriage. Thus, I hold, accused No.1/appellant No.1 during his marital period with Roopa did commit cruelty and torture and is guilty of the offence punishable under Section 498A IPC. Thus, I confirm the finding of the Trial Court to the said effect. 26. However, I am of the firm view that accused Nos. 3 and 4 have not forced cruelty to Roopa, to render her life miserable and to develop rejection either in the form of dowry demand or other harassment. Thus, the finding of learned trial Judge against accused Nos. 3 and 4 is liable to be set aside. 27. The offence punishable under Section 498A IPC is only related to cruelty and punishable with imprisonment for 3 years and shall also liable to pay fine. Section 498A IPC reads as under: “498A. 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 fine. Explanation: For the purposes of this Section, ‘cruelty’ means (a) 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) of the woman; or (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 security is on account of failure by her or any person related to her to meet such demand.” 28. The learned Trial Judge has sentenced two years imprisonment for accused No.1. I find that the trial was started and the matter is of the year 2008. In the circumstances, I find that in the ends of justice, it would be fair and proper to sentence the accused No.1 for the offence punishable under Section 498A IPC for imprisonment for a period of 9 months and to pay a fine of Rs.2,500/and he is entitled for benefits under Section 428 of Cr.P.C. 29. In the circumstances, I find that in the ends of justice, it would be fair and proper to sentence the accused No.1 for the offence punishable under Section 498A IPC for imprisonment for a period of 9 months and to pay a fine of Rs.2,500/and he is entitled for benefits under Section 428 of Cr.P.C. 29. In the result, the appeal is allowed in part. Judgment dated : 28.10.2010 passed by the Trial Court in SC No.148/2009, convicting the accused No.1 for the offence punishable under Section 498A IPC is confirmed. However, the sentence is reduced from 2 years to 9 months with the benefit of Section 428 of Cr.P.C. Sofar as the judgment convicting the accused Nos. 3 and 4 for the offence punishable under Section 498A IPC is set aside.