JUDGMENT : P.V. KUNHIKRISHNAN, J. 1. The above appeal is filed by the appellant against the conviction and sentence imposed on him by the Additional Sessions Judge, Adhoc-I, Kottayam in Sessions Case No. 295 of 2007. The court below convicted the appellant under Section 304B of the IPC. 2. The prosecution case is that, the wife of the appellant, Mini committed suicide on 23.11.2006 in between 8.15 A.M. and 4.15 P.M. from the house of the accused bearing Door No. IX/335 of Thalayolaparambu Grama Panchayat in Vadayar Village. The appellant married deceased Mini on 26.6.2006. The prosecution case is that the appellant subjected to cruelty by demanding dowry and hence Mini committed suicide. 3. To substantiate the case, prosecution examined PWs. 1 to PW-10. Exts.P1 to P6 are marked on the side of the prosecution. Exts.D1 and D2 are the Exhibits on the side of the defendants. MOs 1 to 15 are the material objects. 4. On going through the evidence and documents, the court below found that, the appellant committed the offence under Section 304B IPC and sentenced him to undergo rigorous imprisonment for seven years. Challenging the conviction and sentence, this Crl. Appeal is filed. 5. Heard the learned counsel for the appellant and the learned Public Prosecutor. 6. The learned counsel for the appellant submitted that, even if the entire allegations against the appellant are accepted in toto, no offence under Section 304B IPC is made out in this case. The learned counsel for the appellant also submitted that, the alleged dowry demand is an embellishment from the side of the prosecution witnesses. According to the counsel, the evidence of PW-1, the brother of the deceased, and PW-8, who is the wife of PW-1, on one side and the evidence of PW-4 on the other side are mutually contradictory. PWs. 1 and 2 deposed that, suicide of Mini was due to demand for dowry and consequential harassment. But PW-4, a neighbour of the deceased, has no such case. The learned counsel also submitted that, on a perusal of the entire prosecution case, the defence case projected is more probable. The appellant filed a statement after his examination under Section 313 Cr.P.C. He submitted that, the deceased committed suicide because of the reason that, PW-1 unnecessarily sent her mother for employment in her old age. The learned counsel also submitted that, on a perusal of the entire prosecution case, the defence case projected is more probable. The appellant filed a statement after his examination under Section 313 Cr.P.C. He submitted that, the deceased committed suicide because of the reason that, PW-1 unnecessarily sent her mother for employment in her old age. It is also the case of the appellant that, the elder brother of PW-1, who died earlier, has wife and children and PW-1 is not looking after the affairs of the wife and children of the elder brother of the deceased. There are other circumstances also made out in the statement and according to the appellant, the suicide is because of those reasons and the appellant and the deceased were residing in his house happily and there was no cruelty against the deceased wife Mini from his side. 7. The learned Public Prosecutor submitted that the Sessions Court considered all the aspects and found that the appellant is guilty under Section 304B IPC. It is also submitted that the marriage between the accused and the deceased was on 26.6.2006 and she committed suicide on 23.11.2006. There is a presumption under Section 113B of the Indian Evidence Act that “when the question is whether a person has committed the dowry death of a woman and 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.” The prosecutor submitted that the conviction and sentence imposed by the court below is correct and there is nothing to interfere in it. 8. The prosecution examined PW-1 to PW-10 in this case as their witnesses. PW-1 is the brother of the deceased Mini who gave Ext.P1 First Information Statement which leads to the registration of the FIR. PW-3 is the Branch Secretary of Pulaya Mahasabha. He was examined to prove the marriage between the appellant and the deceased. He also deposed that there was payment of money and handing over of gold to the accused at the time of marriage from the side of PW-1. PW-4 is a friend of the deceased. She was examined to prove the cruelty. PW-5 is the doctor who conducted the postmortem and Ext.P3 is the postmortem report. He also deposed that there was payment of money and handing over of gold to the accused at the time of marriage from the side of PW-1. PW-4 is a friend of the deceased. She was examined to prove the cruelty. PW-5 is the doctor who conducted the postmortem and Ext.P3 is the postmortem report. PW-6 is the Tahsildar who conducted inquest in the case and Ext.P2 is the inquest report. PW-7 is the Village Officer who prepared Ext.P4 scene plan of the house building of the accused. PW-8 is the wife of PW-1. She was examined to prove the cruelty. PW-9 is the Sub Inspector who registered the FIR. PW-10 is the investigating officer in this case. The prosecution relied the evidence of PW-1, PW-4 and PW-8 to prove the cruelty. PW-1 is the brother of the deceased and PW-8 is the wife of PW-1. It is to be noted that, prosecution witness No. 1, who is the brother of the deceased, gave Ext.P1 First Information Statement. In his First Information Statement, PW-1 has no case regarding the dowry demand or payment of dowry. His case is that, the deceased committed suicide because of the assault of the appellant. He also stated that, there was physical and mental cruelty from the side of the appellant towards the deceased. He specifically stated in the First Information Statement that, the deceased Mini told him that she is afraid of the appellant. But when he was examined before the court, he came up with a new story. According to him, at the time of marriage it was agreed to give five sovereigns of gold to the deceased. But at the time of marriage only 4½ sovereign of gold was given. An amount of Rs. 20,000/- was also paid. The case of the prosecution witness No. 1 is that the appellant physically assaulted the deceased demanding the balance half sovereign of gold. According to PW-1, deceased told him about these facts. The specific case of PW-1 is that there was physical and mental cruelty from the side of the appellant to the deceased demanding the balance half sovereign of gold. The same is the version of PW-8 also, who is the wife of PW-1. PW-8 deposed before the court that, demanding half sovereign of gold, the appellant used to quarrel with the deceased and this fact was conveyed by the deceased to her. The same is the version of PW-8 also, who is the wife of PW-1. PW-8 deposed before the court that, demanding half sovereign of gold, the appellant used to quarrel with the deceased and this fact was conveyed by the deceased to her. She also deposed that, the appellant used to quarrel with the deceased demanding this half sovereign of gold. The prosecution case is that, there was a demand for dowry and the dowry is fixed as five sovereign and Rs. 20,000/-. PW-1 was able to give only 4½ sovereign of gold and Rs. 20,000/-. The further case of the prosecution is that, demanding the half sovereign of gold, there was mental and physical cruelty from the side of the appellant towards the deceased and hence she committed suicide. To attract Section 304B IPC, it should be shown that soon before the death of the deceased, she was subjected to cruelty or harassment by her husband or any relative of her husband in connection with demand of dowry. In this case, the demand for dowry and the consequential harassment was disclosed by PW-1 before the court. The First Information Statement was given on 23.11.2006 at 9.15 A.M. The death was on the previous day. Even on 24.11.2006 i.e. on the next day of the death, the prosecution witness No. 1, who is the brother of the deceased, has no case that, there was cruelty or harassment from the appellant towards the deceased demanding dowry. When demand for dowry, which is the main ingredient to attract Section 304B IPC is not stated in the FI statement and when the same is given before the court for the first time, it is difficult to accept that, there was actual demand for dowry from the appellant towards the deceased. The evidence of PW-1 and PW-8 is only regarding the demand for half sovereign of gold ornament and the deceased died only because of the harassment made by the appellant for this half sovereign of gold. When such a statement is not there in the First Information Statement given on the next day of the suicide, I am not in a position to accept the case of dowry demand of PWs. 1 and 8 which is stated before the court for the first time. Therefore, I reject the evidence of PWs. When such a statement is not there in the First Information Statement given on the next day of the suicide, I am not in a position to accept the case of dowry demand of PWs. 1 and 8 which is stated before the court for the first time. Therefore, I reject the evidence of PWs. 1 and 8 regarding demand for dowry stated by them before the court for the first time, especially when such a statement is not there in the First Information Statement. As far as PW-4, the other witness relied on by the prosecution has no case regarding the demand for dowry. PW-4 is a friend of the deceased and a neighbor of the deceased. In such circumstances, I reject the evidence of PW-1 and PW-8 regarding the demand for dowry. 9. Now what remains is the evidence of PW-4. She deposed before the court that, after the marriage between the appellant and the deceased, the deceased Mini came to her house on one occasion. According to her, this was after two months of the marriage. She deposed, that she is a friend of the deceased Mini. She also deposed that Mini used to share news with her. PW-4 also deposed that, deceased Mini is the friend of his brother’s daughter. PW-4 gave evidence that, when Mini came to her house PW-4 asked her, whether there is any special news. This was asked because, the friend of Mini, who is the daughter of the brother of PW-4, is pregnant, after her marriage. When such a question was put to deceased by PW-4, she stated with tears that, there was perverted sexual harassment from the appellant towards her. She also stated that, the appellant used to come to the bed room with a sex book. He used to compel the deceased for oral sex. If she refused, there was quarrel from the appellant. PW-4 deposed the details of the harassment told by deceased to her. She narrated the details of the sexual harassment faced by the deceased in page 2 of her deposition. On a reading of the evidence adduced by PW-4, it is clear that, all these acts were done without the consent of the deceased Mini. PW-4 deposed the details of the harassment told by deceased to her. She narrated the details of the sexual harassment faced by the deceased in page 2 of her deposition. On a reading of the evidence adduced by PW-4, it is clear that, all these acts were done without the consent of the deceased Mini. According to PW-4, the accused approached her for doing sex with sex books and he compelled her to have oral sex and that the fluid ejaculated in her mouth is asked to wipe out using a towel given to her. He asked her whether she could conceive a child if she swallowed the ejaculated fluid. PW-4 informed Mini that, she don’t have such an experience. The deceased Mini also told her that, she wants to see a doctor for removal of skin from her mouth and the deceased Mini believed that, skin in her mouth were peeled off because, she was compelled to have oral sex and that the accused used to squeeze her breasts causing pain. PW-4 also deposed that, the accused used to show photos in the sex books to Mini and ask her to do like that. If she did not obey him, he will beat her. When she was cross examined she reiterated those versions which were told to her by the deceased Mini about two months before the date of her death. Nothing brought out to show that there is animosity between PW-4 and the accused. 10. It is to be noted that, a reading of the evidence of PW-4 in which she categorically stated the version of the deceased, it amounts to sexual perversion, especially because, all these acts were done without the permission of the deceased Mini. The counsel for the appellant submitted that, several version of PW-4 are not stated by her to the Police. I don’t think that the submission of the appellant is correct. The vital evidence adduced by prosecution witness No. 4 is convincing and there is nothing to disbelieve the evidence of PW-4. The counsel for the appellant submitted that PW-1 and PW-8 has no case regarding the sexual abuse of the appellant towards the deceased. It is to be noted that PW-1 is the brother of the deceased. PW-8 is the wife of PW-1. The counsel for the appellant submitted that PW-1 and PW-8 has no case regarding the sexual abuse of the appellant towards the deceased. It is to be noted that PW-1 is the brother of the deceased. PW-8 is the wife of PW-1. The normal human conduct is that, such types of sexual harassment, if any, will not be divulged by a lady to her own brother and her sister-in-law. At that time, the evidence of PW-4 is important. PW-4 is a close friend of the deceased. After the marriage, the deceased came to the house of PW-4 and the cruelty faced by her is narrated by the deceased to her. The evidence of PW-4 is convincing. This is a normal human conduct to share these type of things to the friends. PW-4 deposed that, the deceased used to share such things to her. The evidence adduced by prosecution witness No. 4 is acceptable regarding the sexual perversion of the appellant towards the deceased. Then the question is, what is the offence committed by the appellant. This will not come within the purview of Section 304B IPC. Section 498A IPC says about the cruelty from the part of husband or relatives. Section 498A along with Explanation (a) and (b) is extracted herein-below: “498A. Husband or relative of husband of a woman subjecting her to cruelty - Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation - For the purpose 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. (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 or is on account of failure by her or any person related to her to meet such demand.” 11. (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 or is on account of failure by her or any person related to her to meet such demand.” 11. As per Section 498A IPC, if the husband or relatives 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. In the Explanation to the Section the cruelty is defined. As per Explanation (a), the cruelty means 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. Clause (b) of Explanation to Section 498A IPC says that cruelty includes 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 or is on account of failure by her or any person related to her to meet such demand. Explanation (b) of Section 498A IPC is not applicable in this case. But the first part of Explanation (a) to Section 498A IPC is applicable in the facts and circumstances of the case, according to me. The first part of Explanation (a) says that cruelty means any willful conduct which is of such a nature as is likely to drive the woman to commit suicide. After the word suicide in Explanation (a) 'or' is used and then it is mentioned “to cause grave injury” and again 'or' is used before the sentence, danger to life, limb or health (whether mental or physical) of the woman. So the first part says that if there is willful conduct which is of such a nature as is likely to drive the woman to commit suicide amounts to cruelty as per Section 498A of IPC. 12. Then the next question is whether sexual perversion from husband can be treated as willful conduct which is of such a nature as is likely to drive the woman to commit suicide. Willful conduct is not defined in the Section. 12. Then the next question is whether sexual perversion from husband can be treated as willful conduct which is of such a nature as is likely to drive the woman to commit suicide. Willful conduct is not defined in the Section. So we have to decide whether sexual perversion from the side of the husband towards his wife, when it is without her consent amounts to willful conduct which is of such a nature as is likely to drive the woman to commit suicide. Admittedly the sexual perversion narrated by PW-4 by the appellant towards his own wife is without the consent of the deceased Mini. If there is sexual perversion which is unbearable and which is of such a nature that, the woman may feel unsecured, the same will amounts to willful conduct which is of such a nature as is likely to drive the woman to commit suicide. There was nobody to the deceased to share these things. Every day the husband is coming with a sex book and asking her to do sexual activities as per sexual books, without her consent and hence doing sexual harassment towards the wife. She is obeying the same because of the threat from the accused. She even stated that, she is afraid of her own husband. 13. In such circumstances, I think sexual perversion by the husband towards his wife, without her consent amounts to willful conduct which is of such a nature as is likely to drive the woman to commit suicide. In this case, the poor lady was keeping this information in her mind and she describes the same only to her friend (prosecution witness No. 4). Prosecution witness No. 4 has no enmity towards the appellant. She deposed what the deceased conveyed about the sexual perversion of the accused to her. It is a clear case of willful conduct which is of such a nature as is likely to drive the woman to commit suicide. 14. This Court in B vs. S 1997 (1) KLT 526 considered the question of cruelty while considering a case under the Indian Divorce Act, 1869. This Court observed that, sex place an important role in matrimonial life. Therefore conduct of one among the parties towards the other in the matter of sex is an important factor in the married life. This Court in B vs. S 1997 (1) KLT 526 considered the question of cruelty while considering a case under the Indian Divorce Act, 1869. This Court observed that, sex place an important role in matrimonial life. Therefore conduct of one among the parties towards the other in the matter of sex is an important factor in the married life. Insistence of unnatural sex, continued compulsion for oral sex, sex through annus causing pain and physical injury to make the wife to concede to such sexual unnatural sex will certainly amounts to cruelty. The relevant paragraph is extracted herein-below: “8. What is cruelty? All kinds of continuous cruel act committed by one against another come within the fold of cruelty. In A vs. B 1996 (1) KLT 275 , this Court held as follows: 10......The legal concept of cruelty which is not defined by statute, is generally described as conduct of such character as to have caused danger of life, limb or health (bodily or mental) or as to give rise to a reasonable apprehension of such danger. The general rule in all questions of cruelty is that the whole matrimonial relations must be considered, that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. It may be mental, such as indifference and frigidity to wards wife, denial of company to her, hatred and abhorrence for wife, or physical like acts of violence and abstinence from sexual intercourse without reasonable cause.” Sex plays an important role in matrimonial life. Therefore, conduct of one among the parties towards the other in the matter of sex is an important factor in the married life. Insistence of unnatural sex, continued compulsion for oral sex, sex through annus causing pain and physical injury to make the wife to concede to such unnatural sex will certainly amount to cruelty. The decision of the Karnataka High Court in Grace Jayamani’s case supports this conclusion.” 15. Of course the above decision is rendered by this Court in a divorce case. But I think the definition of cruelty explained by this Court in the above decision is also applicable, while considering, whether the act of the appellant in this case amounts to willful conduct, which is of such a nature as is likely to drive the woman to commit suicide. But I think the definition of cruelty explained by this Court in the above decision is also applicable, while considering, whether the act of the appellant in this case amounts to willful conduct, which is of such a nature as is likely to drive the woman to commit suicide. Therefore, I am of the firm view that, the appellant committed a willful conduct which is of such a nature as is likely to drive the woman to commit suicide and deceased Mini committed suicide because of the sexual perversion from the side of the appellant. 16. Admittedly there is no charge against the appellant under Section 498A IPC. Section 222 of the Criminal Procedure Code says that when a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence. In this case Section 498A IPC is a minor offence compared to Section 304B IPC. As per Section 113A of the Indian Evidence Act, it is stated that when the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. As far as Section 306 IPC is concerned, it is not a minor offence compared to Section 304B IPC. There is no charge against the appellant under Section 306 IPC. The incident in this case happened on 23.11.2006. About 14 years elapsed. I think, at this distance of time, it is not proper to remand the matter to the lower court directing the accused to face a trial under Section 306 IPC. But as far as Section 498A is concerned, it is a minor offence compared to Section 304B IPC. Section 304B says that, cruelty or harassment by the husband or relatives in connection with any demand for dowry which resulted in the death. But as far as Section 498A is concerned, it is a minor offence compared to Section 304B IPC. Section 304B says that, cruelty or harassment by the husband or relatives in connection with any demand for dowry which resulted in the death. Section 222 Cr.P.C. says that when a person is charged with an offence consisting of several particulars a combination of some only of which constituted a minor offence and such combination is proved but the remaining particulars are not proved he may be convicted of the minor offence. In this case the cruelty of the husband towards the deceased is proved by the evidence of PW-4. The cruelty will come within the meaning of the first part of Explanation (a) of Section 498A of IPC. In such circumstances, even though there is no charge under Section 498A IPC, I can convict the accused under the said Section. 17. Therefore, from the evidence adduced by the prosecution, no offence under Section 304B IPC is made out. But from the evidence adduced by the prosecution, the ingredients of the offence under Section 498A IPC is made out. Even if, there is no charge under Section 498A IPC, in the light of Section 222 Cr.P.C. the court can convict the appellant under the said provision. 18. Hence the conviction entered by the lower court against the appellant under Section 304B IPC is set aside and the appellant is convicted under Section 498A IPC. 19. The next question to be considered is regarding the sentence to be imposed in this case. It is a case where the appellant committed cruelty on a poor hapless lady, within five months after the marriage and the cruelty is sexual perversion without the consent of the deceased. I find that the action of the accused amounts to willful conduct which is of such a nature as is likely to drive the woman to commit suicide. The narration of the incident by PW-4 will show the seriousness of the allegation. The counsel for the appellant pray for leniency in sentence. The counsel for the appellant submits that the appellant had not remarried. He also submitted that the alleged incident happened about 14 years back. He also submitted that he has an aged mother. Considering the entire facts and circumstances, I think rigorous imprisonment for two years with fine will be enough. 20. The counsel for the appellant submits that the appellant had not remarried. He also submitted that the alleged incident happened about 14 years back. He also submitted that he has an aged mother. Considering the entire facts and circumstances, I think rigorous imprisonment for two years with fine will be enough. 20. In the result, this appeal is allowed in part: (i) The conviction and sentence imposed on the appellant under Section 304B IPC is set aside. (ii) The appellant is convicted under Section 498A IPC and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs. 10,000/- (Rupees Ten Thousand only). In default of payment of fine, the appellant will undergo simple imprisonment for six months.