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2020 DIGILAW 263 (KAR)

R. C. Manjunatha v. State Of Karnataka

2020-01-29

MOHAMMAD NAWAZ

body2020
JUDGMENT Mohammad Nawaz, J. - This appeal is filed by accused No.1, against the Judgment and Order of conviction and sentence dated 02.02.2019/05.02.2019 passed by the Court of Principal Sessions Judge, Shivamogga in Sessions Case No.125/2017, convicting him for the offences punishable under Sections 498(A) and 304(B) of IPC and Sections 3 and 4 of Dowry Prohibition Act, 1958 [hereinafter referred to as 'D.P. Act' for short]. 2. Heard Sri. P.B.Umesh, learned counsel appearing for the appellant and Sri. K.Nageshwarappa, learned HCGP appearing for the respondent/State and perused the trial Court records. 3. The factual matrix of the prosecution case is as under: The first informant is a resident of Thyavarekoppa village in Shivamogga Taluk. She was residing along with her husband and two sons. Her daughter Sowmya [deceased] was given in marriage to one C.R.Manjunatha [accused No.1] about 1 year 2 months prior to the date of incident i.e., on 28.10.2012. They had a daughter aged about 21/2 years. Accused Nos.2 and 3 are the parents of accused No.1. The accused were giving physical and mental harassment to Sowmya and she was informing the same, whenever she was visiting her parents house. In this regard, the accused were advised. When the first informant's husband died, the accused persons did not allow Sowmya to visit her parental house to see her father. When Sowmya went to her parents house for the death ceremony of her father, the accused persons abused her for attending the ceremony and gave physical as well as mental torture to her and told her to commit suicide by consuming poison. Unable to tolerate the said torture meted to her, she consumed poison on 04.12.2013. She was shifted to Nanjappa Hospital in Shivamogga and from there to Kasturba Hospital, Manipal, wherein she died on 15.12.2013 at about 6.15 a.m, while undergoing treatment. It is the case of the prosecution that accused No.1 being the husband and accused Nos.2 and 3 being the parents-in-law of Sowmya subjected her to physical and mental cruelty stating that at the time of marriage, sufficient dowry was not given as demanded and that she is not good looking. It is the case of the prosecution that accused No.1 being the husband and accused Nos.2 and 3 being the parents-in-law of Sowmya subjected her to physical and mental cruelty stating that at the time of marriage, sufficient dowry was not given as demanded and that she is not good looking. When her father died, they did not allow her to see the dead body of her father and they abused her and told her not to enter the house as she had attended the ceremony against their wish and instigated her to die by consuming poison. It is the further case of the prosecution that accused Nos.1 to 3 demanded 15 tholas of gold as dowry at the time of marriage and received 25 grams of gold and after the marriage, they were giving physical and mental harassment to Sowmya stating that sufficient gold was not given as dowry. On account of the physical and mental harassment, Sowmya committed suicide by consuming poison. Hence, the accused committed offences punishable under Sections 498(A), 304-B r/w. 34 of IPC and under Sections 3 and 4 of the D.P. Act. Charges were framed against accused Nos.1 to 3 for the aforesaid offences for which they pleaded not guilty and claimed to be tried. To bring home the guilt of the accused, the prosecution got examined P.Ws.1 to 9 and got marked Exs.P1 to 14. The learned Sessions Judge by Judgment and Order dated 02.02.2019/05.02.2019 passed in S.C. No.125/2017 acquitted accused Nos.2 and 3 of the charged offences and convicted and sentenced accused No.1 for the offences punishable under Sections 498(A) and 304(B) of IPC and Sections 3 and 4 of the D.P. Act. 4. Assailing the aforesaid Judgment and Order of conviction and sentence passed by the trial Court, the learned counsel appearing for the appellant has contended that there is an inordinate delay in lodging the complaint. Though the incident has taken place on 04.12.2013, however, till her death on 15.12.2013, no complaint was lodged. He submits that even though MLC was received from the hospital on the very same day i.e., 04.12.2013, there is no attempt made by the police to either record the statement of Sowmya or the statement of the first informant. The averments made in the First Information Report is on account of deliberations. He submits that even though MLC was received from the hospital on the very same day i.e., 04.12.2013, there is no attempt made by the police to either record the statement of Sowmya or the statement of the first informant. The averments made in the First Information Report is on account of deliberations. There are material discrepancies in the evidence of the prosecution witnesses viz., P.Ws.1, 3 to 5 which go to the root of prosecution case. The prosecution witnesses have made improvements amounting to material omission. Hence, the interested testimony of the said witnesses cannot be relied upon. In the complaint at Ex.P1, there is no allegation of demand or acceptance of dowry. There is no evidence to show that soon before her death, Sowmya was subjected to cruelty by the accused demanding dowry. The prosecution witnesses have admitted that all the expenses of the marriage were met by the accused. When Sowmya gave birth to her daughter, the delivery charges as well as hospital expenses were met by the accused. Sowmya was not interested in accused No.1 and her mother was interested in getting her daughter married to her brother. Sowmya was also depressed on account of the death of her father and for all these reasons, she has committed suicide and not on account of any ill-treatment or harassment given by the accused. Learned counsel for the appellant further submits that the learned Sessions Judge without properly considering the contradictions and discrepancies in the evidence of the prosecution witnesses and also without considering the defence taken by accused No.1/appellant, convicted him based on the interested testimony of the prosecution witnesses. Accordingly, he seeks to allow the appeal by setting aside the Judgment and Order of conviction and sentence passed by the trial Court. In support of his contention, the learned counsel has placed reliance on the following decisions: 1) [ Raman Kumar Vs. State of Punjab, (2009) AIRSCW 3598 ] . 2) [ Nachhatar Singh and Anr. Vs. State of Punjab, (2011) AIRSCW 1946 ] . 3) [ M.Mohan Vs. State, (2011) AIRSCW 1601] . Per contra, learned HCGP has contended that Sowmya has committed suicide within 7 years from the date of marriage and the prosecution witnesses have clearly deposed that accused were subjecting her to cruelty for not bringing sufficient dowry at the time of marriage. State of Punjab, (2011) AIRSCW 1946 ] . 3) [ M.Mohan Vs. State, (2011) AIRSCW 1601] . Per contra, learned HCGP has contended that Sowmya has committed suicide within 7 years from the date of marriage and the prosecution witnesses have clearly deposed that accused were subjecting her to cruelty for not bringing sufficient dowry at the time of marriage. Accused No.1 was demanding additional dowry in the form of gold and he was giving physical and mental harassment to the deceased. In the further statement of P.W.1, recorded on 20.03.2014, she has stated about the demand and acceptance of dowry by the accused. The accused were also not allowing Sowmya to visit her parents house and when she had attended the death ceremony of her father, the accused abused her physically and mentally, on account of which she committed suicide. He submits that the husband of the first informant died in an accident about 15 days prior to the date of incident and therefore, she was in a depressed state of mind. Hence, no complaint was lodged immediately. Though in the FIR there is no mention of demand and acceptance of dowry, in the deposition of P.W.1, she has clearly stated about the same. He submits that after appreciating the evidence of P.Ws.1, 3 to 5, the learned Sessions Judge has rightly held that soon before her death, Sowmya was subjected to cruelty by accused No.1. Hence, he submits that the prosecution has established the guilt of accused No.1/appellant beyond all reasonable doubt. Accordingly, seeks to dismiss the appeal. 5. Having given my anxious consideration to the submissions made by the learned counsel on either side and having perused the material on record, the following points arise for my consideration: 1) Whether the prosecution has established the guilt of appellant/accused No.1 for the charged offences under Sections 498(A), 304(B) of IPC and Sections 3 and 4 of the D.P. Act. 2) Whether the Judgment and Order of conviction and sentence passed by the trial Court requires any interference? 3) What order? 6. Initially, charges were framed against accused Nos.1 to 3 for the offence punishable under Sections 498(A), 306 r/w. 34 of IPC and under Sections 3 and 4 of D.P. Act. 2) Whether the Judgment and Order of conviction and sentence passed by the trial Court requires any interference? 3) What order? 6. Initially, charges were framed against accused Nos.1 to 3 for the offence punishable under Sections 498(A), 306 r/w. 34 of IPC and under Sections 3 and 4 of D.P. Act. Subsequently, on 27.08.2018, altered charges were framed for the offences punishable under Sections 498(A) and 304(B) r/w. 34 of IPC and under Sections 3 and 4 of the D.P. Act. 7. In order to establish the guilt of the accused, the prosecution in all examined P.W's 1 to 9 and marked Exs.P1 to 14. The defence of the accused was one of total denial and he denied all the incriminating evidence appeared against him while he was examined under Section 313 of Cr.P.C. He has stated that they were on cordial terms. P.W.1 was intended to get the marriage of her daughter Sowmya performed with her brother. Due to mental shock on account of her father's death, Sowmya died. 8. The learned Sessions Judge after considering the evidence and material on record, found accused Nos.2 and 3 not guilty and acquitted them. However, convicted accused No.1/appellant for the charged offences. 9. P.W.1 is the mother of deceased Sowmya and she is the first informant. In her evidence, she has stated that prior to the marriage, the accused demanded 30 grams of gold. They gave 25 grams of gold including one bracelet and ring for accused No.1 and ear-stud for her daughter. After the marriage, the accused started harassing her daughter. For about 3 months, the accused looked after their daughter properly and thereafter, the accused were not sending their daughter to the house of her parents. The accused were harassing her stating that if accused No.1 had married some other girl, he would have got more dowry. They were insisting her to bring more gold and giving her torture. A finger ring weighing 5 grams was given to accused No.1. Even thereafter, the accused were giving torture to Sowmya and she was informing about the harassment over phone. After about one year, Sowmya delivered a female baby. P.W.1 has further stated that her husband met with an accident and he was in the hospital for about 10 days taking treatment as an in-patient. Even thereafter, the accused were giving torture to Sowmya and she was informing about the harassment over phone. After about one year, Sowmya delivered a female baby. P.W.1 has further stated that her husband met with an accident and he was in the hospital for about 10 days taking treatment as an in-patient. When her husband was in the hospital, the accused did not send her daughter to the hospital. After the death of her husband, the daughter had visited the house. Thereafter, accused No.1 took her back to his house. After 16th day, during the death ceremony, accused No.1 had brought Sowmya to her house and after the function, she was taken back on the same day. Her daughter consumed poison on the very same day. The accused took her daughter to Nanjappa Hospital and from there to Manipal Hospital for treatment. When she went to Manipal Hospital, her daughter was not in a position to speak. After about 13 days, her daughter died in the hospital. Thereafter, she lodged the complaint as per Ex.P1. 10. P.W.2 is the panchwitness to the inquest mahazar-Ex.P4 and spot mahazar-Ex.P5. He has stated that he came to know that the deceased had visited the house of her parents for obsequies ceremony of her father and the accused took her back by assaulting her and therefore, she had committed suicide. 11. P.W.3 is the brother of deceased. He has stated that at the time of marriage, accused persons demanded 40 grams of gold. 25 grams gold was given to accused No.1. A chain weighing 15 grams and a bracelet weighing 10 grams were given to him. To his sister ear-studs and 'jumki' [hangings] were given. For about 2 months the accused looked after Sowmya properly and thereafter they started giving physical and mental harassment demanding dowry. He has stated that when accused No.1 visited his house for Deepavali festival, a finger ring weighing 5 grams was given to him. On 19.11.2013 his father died in a road traffic accident. When his father was in the hospital, accused persons did not allow his sister to visit her father. After the death of his father, his sister herself came to the house. Accused No.1 picked up quarrel with his sister. On 19.11.2013 his father died in a road traffic accident. When his father was in the hospital, accused persons did not allow his sister to visit her father. After the death of his father, his sister herself came to the house. Accused No.1 picked up quarrel with his sister. On the 16th day of his father's death, his sister visited their house and at that time, accused No.1 picked up quarrel with her and abused her as to why she has come without informing his parents and then he took his sister back. On the same day, she committed suicide. 12. P.W.3 has deposed that when he went to the hospital, Sowmya was not in a position to speak. She survived till 15.12.2013 and on the early hours, she died. Thereafter, he took his mother to the Police Station and lodged the complaint. 13. P.W.4 is a person known to the father of Sowmya. He has deposed that Sowmya was given in marriage to accused No.1. At the time of the marriage, P.W.3 gave 25 grams of gold to accused No.1 as well as 'jumki' and 'bendole' to the girl. After the marriage, Sowmya was residing in her matrimonial house with accused No.1 and his parents. In the matrimonial house there used to be quarrel between Sowmya and her husband and he had pacified the quarrel. He says that his land is situated near the parental house of Sowmya. They were quarrelling because sufficient dowry was not given. He was advising the father of Sowmya not to quarrel. He was also advising the accused. Sowmya's father died in an accident and during obsequies ceremony, accused No.1 quarreled with Sowmya and he abused and told her that if he assault her, nobody will ask him. Thereafter, accused No.1 took Sowmya to his house and later he came to know that Sowmya had consumed poison and she has been admitted to Manipal Hospital. 14. P.W.5 is the uncle of the deceased. He has deposed that marriage of Sowmya was performed with accused No.1 in the year 2012. At the time of marriage 25 grams of gold ornaments were given. To the bridegroom, a finger ring, a bracelet, a neck chain and household articles were given and to the bride ear-studs and a neck chain were given. After the marriage, Sowmya went to Chennahalli i.e., the house of accused. At the time of marriage 25 grams of gold ornaments were given. To the bridegroom, a finger ring, a bracelet, a neck chain and household articles were given and to the bride ear-studs and a neck chain were given. After the marriage, Sowmya went to Chennahalli i.e., the house of accused. The accused were picking up quarrel with her for petty reasons and they were harassing her telling her to bring gold. She was informing him about the same. He was advising the accused and accused No.1 was telling him that he would look after her properly. However, he was giving harassment to Sowmya. After about 11/2 years, his brother met with an accident. The accused did not send Sowmya to see her father. When his father died, all the accused had visited the house and they went back on the same day. During obsequies ceremony, all the accused visited the house. In the evening, the accused quarreled with Sowmya and took her on the same night. He came to know that Sowmya had consumed poison and she was shifted to hospital. After about 15 days, she died in the hospital. 15. P.W.6 is the Tahsildar, who conducted inquest mahazar, marked as Ex.P4. 16. P.W.7 is the doctor, who has conducted the postmortem examination over the dead body and issued postmortem report marked as Ex.P7. 17. P.W.8 is the Police Sub-Inspector. He received the written complaint from P.W.1 and registered a case against the accused persons in Crime No.342/2013 and issued FIR-Ex.P9 to the jurisdictional Court. Thereafter, he requested the Tahsildar to conduct the inquest panchanama. He has stated that on 17.12.2013 accused No.1 was produced before him and he arrested him and produced him before the Court. On 19.12.2013, he visited the spot and prepared mahazar at Ex.P5. Ex.P12 is the rough sketch. He has stated that on 24.12.2013 accused Nos.2 and 3 appeared before him with an order of anticipatory bail. 18. P.W.9 is the Investigation Officer, who took over investigation from P.W.8 and recorded the further statement of the witnesses and after receipt of post-mortem report at Ex.P7 and after completion of investigation filed charge-sheet. 19. Ex.P1 is the complaint lodged by P.W.1. It is stated therein that accused Nos.1 to 3 were harassing Sowmya from the date of her marriage stating that she is a misfortune to their family and that she is not good looking. 19. Ex.P1 is the complaint lodged by P.W.1. It is stated therein that accused Nos.1 to 3 were harassing Sowmya from the date of her marriage stating that she is a misfortune to their family and that she is not good looking. It is also stated that when the husband of P.W.1 died, Sowmya was not allowed to see the dead body. In spite of that Sowmya had visited her house to see the dead body of her father. When Sowmya returned to their house after obsequies ceremony of her father, accused Nos.1 to 3 abused her saying that in spite of telling her that she should not go, she has visited her parents house and therefore, she should not come to their house and she should consume poison and die. 20. P.W.7 is the doctor, who conducted the postmortem examination. He has stated that after post-mortem, there was no contents of organophosphorus found in the stomach contents. He has stated that in view of the treatment and survival period after damaging the body, poison gets removed from the body. After consuming poison, death can occur at any time and it depends upon the treatment given and the quantity of poison consumed. According to P.W.7, on external examination he has found 7 injuries which are noted in the post-mortem report-Ex.P7. 21. P.W.6 is the Taluka Executive Magistrate. He has conducted the inquest mahazar and issued report as per Ex.P4. He has stated that it appeared to him that the deceased committed suicide by consuming poison. 22. Deceased Sowmya committing suicide by consuming poison on 04.12.2013 is not seriously disputed. The case of the prosecution is that she committed suicide on account of the physical and mental torture meted to her by the accused. 23. It is not the case of the prosecution that the injuries found on the person of Sowmya [deceased] was caused by the accused. In so far as injury No.1 is concerned, in Ex.P7 it is stated as under: "Circular shaped partially healed wound with brownish black scab with unaffected normal central portion, over an area of 4 x 4 cm and thickness being 1.2 cm., was present over front of the chest in its upper aspect on the left side, situated 7 cm., inner to the shoulder tip." P.W.7 has stated that as per FSL report, the presence of organophosphorous was found in the stomach wash. The patient survived for 12 days. Therefore, after post-mortem, in the stomach and stomach contents, organophosphorous was not found. In view of the treatment period, after damaging the body poison gets removed from the body. P.W.7 has not stated anything about injury no.1 in his evidence. He was also not subjected to cross-examination by the defence. 24. In so far as injury Nos.2 to 7 are concerned, the trial Court at para 40 of the Judgment has stated that as noted, six external injuries are mentioned as 'multiple needle puncture marks'. The deceased was provided major medical treatment during 11 days. It is observed by the trial Court that on careful seeing of injury Nos.2 to 7, it is clear that multiple needle puncture marks were found on both forearm in its lower aspect and both elbows and both inguinal region. At the time of treatment, when at one place nerves were blocked, the doctors have tried to treat through other nerves. Therefore, there are multiple needle punctures in six parts of the body of deceased. 25. Sowmya had consumed poison on 04.12.2013 at about 6.00 p.m. in the house of the accused. The evidence on record go to show that accused persons have admitted her to Nanjappa Hospital. On 05.12.2013 as per the doctors advise, Sowmya was shifted to Kasturba Hospital, Manipal and she died on 15.12.2013 at about 6.15 a.m. in the hospital. 26. P.W.8 is the PSI of Kumsi Police Station. In the cross-examination, he has admitted that prior to the death of Sowmya, they received MLC from Nanjappa Hospital on 04.12.2013 at about 7.15 p.m. Though he admits that he received the said MLC., however, strangely, P.W.8 did not act upon the said MLC received by him from the hospital. It was his responsibility to immediately visit the hospital and to either record the statement of the victim after confirming her condition from the concerned doctor to give the statement or to record the statement of any other person connected with the case who could have thrown light giving the first hand information of the incident. P.W.8 has failed to perform his duty as a Police Officer. P.W.8 has failed to perform his duty as a Police Officer. It is only on the next day, the victim was shifted to Manipal Hospital for better treatment and there was no impediment for P.W.8 to visit Nanjappa Hospital immediately after receipt of the MLC or to visit Manipal Hospital to get the earliest information possible. To say the least, the said inaction on the part of P.W.8 has resulted in failure on the part of prosecution from obtaining information about the incident at the earliest point of time. 27. According to P.W.1, after receiving the intimation that her daughter has consumed poison, she went to Manipal Hospital. Her daughter was not in a position to speak. At the time she visited the hospital, accused No.1 was present. She remained in the hospital for about 5 days. Thereafter, she did not visit the hospital. When she was in the hospital, she did not lodge any complaint against the accused thinking that her daughter will survive. She has admitted that from the date of marriage till her daughter expired, neither she nor her daughter have lodged any complaint against the accused. 28. P.W.3 has stated in his evidence that after receiving the information about the incident, he went to Nanjappa Hospital at about 8.00 8.30 hours and since his sister was not in the hospital, he went to Manipal Hospital, wherein she was admitted in ICU. She was not in a position to speak. He has admitted in the cross-examination that after seeing his sister in the hospital, he has not lodged any complaint to the Police. 29. The fact remains that even though Sowmya consumed poison on 04.12.2013 and she was admitted in the hospital and even though her parents and her brother visited the hospital, they did not lodge any complaint against the accused persons till 15.12.2013. Even in the complaint lodged on 15.12.2013 by P.W.1 i.e., mother of Sowmya marked as Ex.P1, she has not stated that, at the time of marriage the accused demanded and accepted dowry. What is stated in Ex.P1 is that 'after the marriage, all the accused were giving physical and mental harassment to Sowmya stating that she is a bad omen and misfortune to their family. What is stated in Ex.P1 is that 'after the marriage, all the accused were giving physical and mental harassment to Sowmya stating that she is a bad omen and misfortune to their family. The accused did not allow her to visit her parents house to see the dead body of her father and in spite of that she visited the house. During the obsequies ceremony of her father, accused persons abused her saying she has visited her parents house in spite of telling her not to visit. Therefore, she consumed poison and died'. It is only on 20.03.2014 i.e., after a lapse of 21/2 months when her further statement was recorded, P.W.1 has stated that accused persons demanded 15 tholas of gold and 25 grams of gold was given to them and the accused were ill-treating Sowmya to bring gold as demanded, from her parents house. Such statement of the complainant was obviously recorded after P.W.9 took over investigation from P.W.8. 30. Though in the further statement of the complainant, it is stated that accused demanded 15 tholas of gold at the time of the marriage, in the evidence before the Court P.W.1 has stated that prior to the marriage, accused demanded 30 grams of gold and 25 grams gold was given. P.W.3 is the brother of Sowmya. He has stated that at the time of the marriage, the accused demanded 40 grams of gold. P.W.4 has not stated that the accused demanded any gold at the time of the marriage. P.W.5-uncle of the deceased though stated that at the time of marriage 25 grams of gold was given and for the bridegroom 1 ring, 1 bracelet, a chain and other household articles were given, he has not stated that the accused demanded dowry in the form of gold at the time of marriage. Hence, the case of the prosecution that the accused persons demanded dowry in the form of gold from the parents of Sowmya at the time of marriage cannot be accepted in view of inconsistency and discrepancy in the evidence of the prosecution witnesses. 31. P.W.1 has stated in the cross-examination that she did not lodge any complaint because she was in the hospital hoping that her daughter would survive. 31. P.W.1 has stated in the cross-examination that she did not lodge any complaint because she was in the hospital hoping that her daughter would survive. However, even after she died, when P.W.1 lodged the complaint, she has not stated anything about the accused demanding or accepting dowry or that the accused were ill-treating Sowmya to bring additional dowry. When P.W.1 has lodged complaint stating several other facts, nothing prevented her to state in the complaint about the accused giving physical and mental harassment to Sowmya insisting her to bring gold or demanding dowry in the form of gold. 32. P.W.3, the elder brother of Sowmya, in his crossexamination he has stated that the accused were wealthy and the marriage expense was met by them. He has admitted that during Sowmya's delivery, the entire hospital expenses were met by the accused. He has admitted that because the accused were good people and they were financially sound, his father gave Sowmya in marriage with accused No.1. 33. It is the case of the prosecution that Sowmya was subjected to physical and mental cruelty by the accused and she was not allowed to visit her father when he met with an accident. During the obsequies ceremony, on the 16th day i.e., on 04.12.2013, she visited the house of her parents and at that time, accused No.1 quarreled with her and abused her saying that she has visited her parents house without taking permission and he took her back. On the same day, she committed suicide. 34. P.W.1 has stated that when her husband was in the hospital, accused No.1 did not bring Sowmya to the hospital. When her husband died, her daughter herself came to her house and after funeral, accused No.1 took her back. On the 16th day, accused No.1 brought her daughter and after the function in the evening he took her back. On the same day, she consumed poison. P.W.1 has neither stated that accused No.1 has quarreled with Sowmya questioning her as to why she has come to her parents house without permission nor she has stated that accused No.1 dragged her and took her back to his house. However, P.Ws.3 to 5 have stated so. It is elicited from P.W.4 that he has not stated the said fact before the Police and for the first time he is stating so before the Court. However, P.Ws.3 to 5 have stated so. It is elicited from P.W.4 that he has not stated the said fact before the Police and for the first time he is stating so before the Court. Even P.W.5 has stated in the cross-examination that he has not stated before the Police that on the date of obsequies ceremony of Sowmya's father, the accused quarreled with her, assaulted and took her to their house. 35. To hold that the accused have committed dowry death, the prosecution has to establish that the death of a woman has occurred otherwise then under normal circumstance, within 7 years of her marriage and it should be shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband in connection with for any demand of dowry. 36. In RAMAN KUMAR VS. STATE OF PUNJAB [supra] it is held that expression "soon before her death" would normally imply that interval should not be much between cruelty or harassment concerned and death in question. In NACHHATAR SINGH AND ANR. VS. STATE OF PUNJAB [supra] it is held that cruelty meted out must be of such nature as would drive a person of common prudence to commit suicide. 37. In the present case, as discussed, the prosecution has failed to prove that the accused demanded and accepted dowry at the time of marriage and even subsequent to the marriage, they were harassing Sowmya to get additional dowry. The evidence of the prosecution witnesses is not consistent in this regard. In the first information report there is no mention as to the accused demanding or accepting dowry or subjecting Sowmya to cruelty for not bringing sufficient dowry and also demanding additional dowry after the marriage. Even the date on which Sowmya committed suicide, she had visited her parents house. It is not the case of the prosecution witnesses that accused No.1 picked up quarrel with the deceased and abused or assaulted or dragged her back to his house stating that she has not brought sufficient dowry. In the absence of specific evidence or averments, it cannot be held that the accused quarreled with the deceased or abused her or that she was subjected to cruelty for the purpose of dowry. In the absence of specific evidence or averments, it cannot be held that the accused quarreled with the deceased or abused her or that she was subjected to cruelty for the purpose of dowry. Under Section 113-B of the Evidence Act, only if it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. 38. The learned Sessions Judge was not proper in holding that to fulfill the conditions of Section 304-B of IPC that soon before the death there was harassment or cruelty by accused No.1, it is proved from the evidence of P.Ws.1 and 3. It is observed by the trial Court that even though P.Ws.1 and 3 have referred accused Nos.1 to 3, but specific allegations are against accused No.1 alone. However, the evidence of the prosecution witnesses are not sufficient to hold that accused No.1 was giving cruelty to Sowmya, demanding her to bring additional dowry in the form of gold and on account of the said cruelty meted to her, she committed suicide. 39. Admittedly, the death has taken place in the house of the accused. Corresponding burden lies on the inmates of the house to cogently explain how the incident has taken place. In the case on hand, immediately after the incident, accused No.1 and others have shifted Sowmya to the hospital. It is not the case of the defence that accused No.1 was not present in the house at the time of incident. 40. As per Ex.P7-post mortem report, Sowmya had sustained a circular shaped partially healed wound with brownish black scab with unaffected normal central portion, over an area of 4 x 4 cm and thickness being 1.2 cm., was present over front of the chest in its upper aspect on the left side, situated 7 cm., inner to the shoulder tip. 40. As per Ex.P7-post mortem report, Sowmya had sustained a circular shaped partially healed wound with brownish black scab with unaffected normal central portion, over an area of 4 x 4 cm and thickness being 1.2 cm., was present over front of the chest in its upper aspect on the left side, situated 7 cm., inner to the shoulder tip. Learned counsel for the appellant submits that when the trial Court has come to the conclusion that other injuries mentioned in post-mortem report are multiple needle punctures, the trial Court was not proper in coming to the conclusion that the above injuries substantiate the evidence of P.Ws.1, 3 to 5 that the incident has happened in the house of P.W.1 when Sowmya came to attend the obsequies ceremony of her father. He submits that the age of the injuries are not mentioned and none of the witnesses have stated that Sowmya sustained such injuries at the hands of accused No.1. The fact remains that the said injuries have been mentioned in the post-mortem report marked at Ex.P7 through doctor-P.W.7 and the said doctor has not been crossexamined. Though it cannot be said from the evidence adduced by the prosecution that the accused have subjected Sowmya to cruelty for dowry and soon before her death, she was subjected to cruelty for dowry in connection with marriage, however, the evidence of the prosecution witnesses and the material on record go to show that Sowmya committed suicide on account of the wilful conduct of the accused/appellant which was of such a nature that is likely to drive her to commit suicide. Though the accused has taken a defence that Sowmya was not interested in the marriage and that P.W.1 wanted to get the marriage performed with her brother and also that Sowmya committed suicide because she was under depression on account of her father's death, the same is not established. The suggestion put to the witnesses have been denied and there are no other cogent evidence to accept the defence of the accused. 41. The learned HCGP submits that the accused had abetted Sowmya to commit suicide and therefore, Section 306 of IPC is attracted. However, in the decision relied upon by the learned counsel for the appellant in the case of M.MOHAN Vs. 41. The learned HCGP submits that the accused had abetted Sowmya to commit suicide and therefore, Section 306 of IPC is attracted. However, in the decision relied upon by the learned counsel for the appellant in the case of M.MOHAN Vs. STATE [supra] it is held that there has to be clear mens rea to commit the said offence and without positive act on the part of the accused to instigate or aid in committing suicide, the conviction cannot be sustained. 42. For the reasons stated supra, I am of the view that the prosecution has failed to establish that the appellant/accused No.1 has committed an offence punishable under Sections 304(B) of IPC and under Sections 3 and 4 of the D.P. Act. However, from the evidence of the prosecution witnesses as discussed, it is established that the appellant/accused No.1 has committed the offence punishable under Section 498(A) of IPC. The points raised are answered accordingly. Hence, the following: ORDER The appeal is allowed in part. The Judgment and Order dated 02.02.2019/05.02.2019 passed in S.C. No.125/2017 on the file of the Court of Principal Sessions Judge, Shivamogga, convicting and sentencing the appellant/accused No.1 for the offence punishable under Sections 304(B) of IPC and under Sections 3 and 4 of the D.P. Act is hereby set aside. The conviction and sentence passed against accused No.1 for the offence punishable under Section 498(A) of IPC is confirmed. The accused is entitled for set off for the period of detention already undergone by him, if any.