JUDGMENT : This criminal appeal has been filed against the judgment and order passed by the learned Sessions Judge, Mahila Neethimandram (FTMC), Tirupur District in S.C.No.54 of 2012, dated 25.8.2014, convicting and sentencing the appellant in the following manner: S. No. Offence for which convicted Sentence imposed 1 Section 306 of the Code 7 years R.I., and to pay a fine of Rs.10,000/- and in default, to undergo 1 year R.I. 2 Section 498-A of the Code 3 years R.I., and to pay a fine of Rs.5,000/- and in default, to undergo 6 months R.I. The above sentences were directed to run concurrently. 2. The case of the prosecution is as hereunder : (i) On 16.9.2007, the appellant (A1) married one Suganthi (since deceased). Accused Nos.2 and 3 are the parents of the appellant. Suganthi was differently abled and this fact was known to the appellant even at the time of marriage. Three months after the marriage, the appellant and Suganthi started living at Ganapathipalayam. (ii) The appellant and his parents caused cruelty to Suganthi by asking her to get dowry to the tune of Rs.2 lakhs from her parents. On 03.2.2010, the appellant forcibly sent Suganthi to her parents' house so as to bring the amount and the parents of Suganthi sought for some time to pay the amount. (iii) It was alleged that the accused persons informed Suganthi that she could not come back to the matrimonial home without dowry and that they caused mental cruelty to Suganthi by pointing out to her physical disability. (iv) The situation became worse and on 05.2.2010, Suganthi committed self immolation by pouring kerosene on herself at the matrimonial home. This incident was said to have taken place at about 11 PM in the night. Thereafter, Suganthi was taken to Coimbatore Medical College and Hospital, Coimbatore and on 06.2.2010 at 9.30 AM, she was declared 'dead'. (v) P.W.1, who is the brother of the deceased, gave the complaint (Ex.P.1) on 06.2.2010 at about 8 PM to the Inspector of Police - P.W.10, who registered the first information report (Ex.P.5) in Cr.No.2 of 2010 for offences under Sections 498-A and 306 of the Indian Penal Code (for short, the Code). The express first information report reached the concerned Court at about 1.40 PM on 07.2.2010. (vi) P.W.12, who is the Investigation Officer, was informed about the registration of the first information report. The express first information report reached the concerned Court at about 1.40 PM on 07.2.2010. (vi) P.W.12, who is the Investigation Officer, was informed about the registration of the first information report. (vii) The information was also sent to the Revenue Divisional Officer (P.W.7) since the death of Suganthi had taken place under suspicious circumstances. P.W.7 went to the Government Hospital, conducted inquest and prepared the inquest report between 10 AM and 12 N on 07.2.2010. He recorded the statements of the appellant, his parents, parents and relatives of the deceased and panchayatdhars. Based on these statements, he gave a report to the effect that the death of Suganthi was not caused due to dowry harassment and that it required further investigation by the Police. The inquest report and the statements of the appellant, his parents, witnesses and panchayatdhars were marked as Ex.P.3 series. (viii) P.W.12, who took up the investigation, went to the scene of crime and prepared the observation mahazar (Ex.P.7) and the rough sketch (Ex.P.8) in the presence of P.W.4 and one Ramasubramaniam. The appellant was arrested on 09.2.2010 at about 7 PM and his confession was recorded in the presence of P.W.5. Thereafter, the appellant was produced before the concerned Court and remanded to judicial custody. (ix) Thereafter, the Investigation Officer took steps to subject the deceased to post mortem and necessary requisition was given. The post mortem was conducted by both P.W.8 and P.W.11. The post mortem report was marked as Ex.P.4 through P.W.8, in which, the following ante-mortem injuries were noted in the body of the deceased Suganthi: "Dermo epidermal infected injuries involving head to foot sparing scalp and upper face, back of left side abdomen and patchy area over genital. The base of the burnt area is reddish in colour. Peeling and blacking of skin noted all over the burnt area in a patchy manner. Total singeing of hairs noted on both axillary hair." (x) P.W.11 gave the final opinion, which was marked as Ex.P.6, as per which, the deceased would appear to have died of burns. (xi) P.W.12 recorded the statements of the witnesses and also the doctors under Section 161(3) of the Criminal Procedure Code (for brevity, the Cr.P.C.). He also collected all the relevant documents and the final report was filed on 23.2.2010 before the Judicial Magistrate, Palladam. (xi) P.W.12 recorded the statements of the witnesses and also the doctors under Section 161(3) of the Criminal Procedure Code (for brevity, the Cr.P.C.). He also collected all the relevant documents and the final report was filed on 23.2.2010 before the Judicial Magistrate, Palladam. (xii) The copies were served on the accused persons under Section 207 of the Cr.P.C., and the case was committed under Section 209 of the Cr.P.C., and made over to the Trial Court. (xiii) The Trial Court framed charges against all the three accused persons for the offences under Sections 498-A and 304B of the Code and under Section 4 of the Tamil Nadu Dowry Prohibition Act (for short, the TNDP Act). The prosecution examined P.W.1 to P.W.12 and marked Ex.P.1 to Ex.P.10. The incriminating evidence that was collected during the course of trial was put to the accused persons when they were questioned under Section 313(1)(b) of the Cr.P.C. However, they denied the same as false. (xiv) The Trial Court, on considering the facts and circumstances of the case and on appreciation of the oral and documentary evidence, came to the conclusion that the prosecution had proved the case beyond reasonable doubts as against the appellant and convicted the appellant for the offences under Sections 306 and 498-A of the Code and accordingly sentenced him. The appellant was acquitted from the charge under Section 4 of the TNDP Act. In so far as the parents of the appellant (A2 and A3) were concerned, they were acquitted from all charges. Aggrieved by the same, the convicted accused has filed this criminal appeal. 3. I have heard the learned Senior Counsel appearing on behalf of the appellant and the learned Government Advocate (Criminal Side) appearing for the respondent. 4. The learned Senior Counsel appearing on behalf of the appellant submitted that the allegations in the final report, based on which, the charges were framed, went completely against the evidence that was deposed by P.W.1 and P.W.2. According to him, there is a complete contradiction between the statements that were recorded by the Revenue Divisional Officer - P.W.7 and the evidence that was deposed by P.W.1 and 2 before the Trial Court. The learned Senior Counsel further submitted that P.W.6, who is the paternal uncle of the deceased, did not even speak about the demand for dowry by the appellant and his parents. The learned Senior Counsel further submitted that P.W.6, who is the paternal uncle of the deceased, did not even speak about the demand for dowry by the appellant and his parents. He also submitted that as per the complaint given by P.W.1, the deceased Suganthi came to his place on 03.2.2010 and informed about the demand for dowry. However, it is clear from the evidence of P.W.1 and P.W.2 that the deceased Suganthi came along with her child and the appellant on 31.1.2010 and stayed with P.W.1 and P.W.2 for two days and that on 02.2.2010, the deceased Suganthi and her child were left in the matrimonial home. According to the learned Senior Counsel, this evidence goes completely contrary to the allegations made in the complaint. 5. The learned Senior Counsel appearing on behalf of the appellant submitted that the inquiry conducted by P.W.7 - Revenue Divisional Officer and the report clearly revealed the fact that there was no dowry demand and that dowry was not the reason for the suicide committed by the deceased. According to him, this has been accepted by the Trial Court and a specific finding has been rendered to the effect that there was no dowry demand. He also submitted that after rendering such a finding, the Trial Court was not right in convicting the appellant for the offences under Sections 306 and 498- A of the Code since the very basis of these offences was demand of dowry. 6. The learned Senior Counsel appearing for the appellant submitted that there was absolutely no proof to show that the deceased was subjected to cruelty by citing her disability and that this was an improvement that was made without any supporting materials. He further submitted that with respect to the reason for the deceased to have committed the suicide, the appellant had explained it to P.W.7 and it is clear that there were some disputes between the appellant and the deceased regarding the inability to arrange money for payment of house rent and to meet other family expenses. 7. The learned Senior Counsel appearing on behalf of the appellant concluded his arguments by submitting that no offence has been made out either under Section 306 or under Section 498-A of the Code and that the Trial Court had given contradictory findings while convicting and sentencing the appellant. 8. 7. The learned Senior Counsel appearing on behalf of the appellant concluded his arguments by submitting that no offence has been made out either under Section 306 or under Section 498-A of the Code and that the Trial Court had given contradictory findings while convicting and sentencing the appellant. 8. In order to substantiate his submissions, the learned Senior Counsel appearing on behalf of the appellant relied upon the following judgments : "(1) Appasaheb & Others Vs. State of Maharashtra [reported in MANU/SC/7002/2007 dated 05.1.2007]; (2) V.Venkataraman Vs. State [reported in MANU/TN/2488/2015 dated 31.7.2015]; (3) Rajasekar Vs. State rep.by the Inspector of Police [reported in MANU/TN/0643/2016 dated 11.1.2016]; (4) Ayyappan Vs. State [reported in MANU/TN/1251/2016 dated 23.1.2016]; (5) Manikandan Vs. State [reported in MANU/TN/1144/2016 dated 16.6.2016]; (6) State of West Bengal Vs. Indrajit Kundu [reported in MANU/SC/1442/2019 dated 18.10.2019]; (7) Shabbir Hussain Vs. State of M.P. [reported in MANU/SC/0969/2021 dated 26.7.2021]; (8) Velladurai Vs. State rep. by the Inspector of Police [reported in MANU/SC/0644/2021 dated 14.9.2021]; (9) Geo Varghese Vs. State of Rajasthan [reported in MANU/SC/0785/2021 dated 05.10.2021]; (10) Mariano Anto Bruno Vs. the Inspector of Police [reported in MANU/SC/1310/2022 dated 12.10.2022]; (11) Parubai Vs. State of Maharashtra [rendered by the Apex Court in Criminal Appeal No.1154 of 2018 dated 10.8.2021]; and (12) Satye Singh Vs. State of Uttarakhand [reported in 2022 LiveLaw (SC) 169]." 9. Per contra, the learned Government Advocate (Criminal Side) appearing on behalf of the State submitted that the deceased Suganthi committed suicide within 2 1/2 years from the date of marriage and hence, the presumption under Section 113-A of the Indian Evidence Act (for brevity, the IEA) would apply to the facts of the present case. According to him, the demand for money to the tune of Rs.2 lakhs to start a business had been established through the evidence of P.W.1, P.W.2 and P.W.6. He further submitted that admittedly, the deceased Suganthi was having physical disability, which was pointed out by the accused persons and that she was insulted and asked to get the amount from her parents. He also submitted that the deceased Suganthi was having a child, who was hardly nine months old at that point of time and that the deceased would not have taken such an extreme step unless she had been subjected to cruelty. 10. He also submitted that the deceased Suganthi was having a child, who was hardly nine months old at that point of time and that the deceased would not have taken such an extreme step unless she had been subjected to cruelty. 10. The learned Government Advocate (Criminal Side) brought to the notice of this Court the fact that the deceased Suganthi committed suicide in the matrimonial house and admittedly, the appellant was present in the house at the time of incident and that the appellant had not given any explanation when he was questioned by pointing out to the incriminating evidence under Section 313 of the Cr.P.C. He submitted that an adverse inference must be drawn against the appellant and that Section 106 of the IEA will come into play in the present case. He concluded his arguments by submitting that the Trial Court had given proper reasons and that the appellant had been rightly convicted and sentenced and there are absolutely no grounds to interfere with the judgment of the Trial Court. Accordingly, he sought for dismissal of this appeal. 11. This Court has carefully considered the submissions made on either side and the materials available on record. 12. The fulcrum of the entire case of the prosecution is built on the allegation of demand for dowry made by the accused persons. The same is apparently evident from the final report and also the charges framed by the Trial Court against the accused persons. 13. P.W.1, who is the brother of the deceased, had spoken about both the arrangements that were made for the marriage as well as the sridhana that was given at the time of marriage between the appellant and the deceased. He had stated that on 03.2.2010, the deceased Suganthi came to his house at Marulpatti from Tirupur, that she was asking for a sum of Rs.2 lakhs as per the request made by the appellant and that he pacified her by saying that he would arrange for the amount after selling the agricultural produce. He would further state that thereafter, on 05.2.2010, he received a call intimating about the self immolation committed by the deceased, visited along with his family and relatives and admitted Suganthi in the Government Hospital at Coimbatore. 14. P.W.2 is the mother of both the deceased Suganthi as well as P.W.1. She almost toes the line of P.W.1. He would further state that thereafter, on 05.2.2010, he received a call intimating about the self immolation committed by the deceased, visited along with his family and relatives and admitted Suganthi in the Government Hospital at Coimbatore. 14. P.W.2 is the mother of both the deceased Suganthi as well as P.W.1. She almost toes the line of P.W.1. However, one crucial factor that was stated by P.W.2 was that the deceased came home along with her husband and child on 03.2.2010. 15. The final report filed by the prosecution and the charges framed against the accused persons proceeded on the basis that the accused persons were torturing the deceased and demanding to bring a sum of Rs.2 lakhs from her parents and that when P.W.1 and P.W.2 sought for some time, the deceased refused to accept the same, but insisted that she must come back to her matrimonial home only with the amount demanded. This evidence was improved subsequently by adding that the accused persons also insulted the deceased by pointing out to her handicap. 16. P.W.1 projected the case as if only the deceased visited his house on 03.2.2010 and was complaining about the demand of Rs.2 lakhs as dowry by the accused persons. Whereas P.W.2 clearly stated in the chief examination that all the three viz. the deceased, the appellant and their child came to her house, that the deceased Suganthi asked for a sum of Rs.2 lakhs as per the request made by the accused and that in turn, the deceased was informed that after the harvest of the corns, the amount would be paid. She would further state that the appellant left to his place the same day and the deceased left after two days. 17. When the statements of P.W.1 and P.W.2 were recorded by the Revenue Divisional Officer - P.W.7, there was not even an allegation of demand for dowry and it was for this reason, P.W.7 had given a clear report stating that dowry was not the reason behind the death of Suganthi. 18. The Trial Court, on appreciation of the oral and documentary evidence and after considering the facts and circumstances of the case, rendered the following finding with regard to the aspect of demand for dowry : OTHER LANGUGE 19. 18. The Trial Court, on appreciation of the oral and documentary evidence and after considering the facts and circumstances of the case, rendered the following finding with regard to the aspect of demand for dowry : OTHER LANGUGE 19. It is, therefore, clear that the prosecution did not make out a case for dowry harassment and that the Trial Court had rightly come to the conclusion after appreciating the available evidence. The charge was framed against the accused persons under Section 498-A of the Code only on the ground that they committed cruelty by making the demand for dowry. 20. The Explanation to Section 498-A of the Code defines the term 'cruelty'. The prosecution was attempting to bring the case under Explanation (b). Hence, to establish the offence under Section 498-A of the Code, in the facts of the present case and based on the charges framed against the accused persons, dowry demand has to be proved. In the absence of the same, the charge under Section 498-A of the Code must fall. This is exactly the reason as to why the accused persons were acquitted by the Trial Court for the offence under Section 4 of the TNDP Act. 21. The charge framed under Section 304B of the Code was also not made out since the demand for dowry was not established. Hence, the Trial Court proceeded to convict the appellant for a lesser offence under Section 306 of the Code. It must be borne in mind that the act of the accused persons, which drove the deceased to commit suicide was the demand for dowry. Therefore, even to sustain the charge under Section 306 of the Code, this crucial factor must be proved by the prosecution. 22. The prosecution probably realized this hurdle and hence, decided to cross that hurdle by improving the case. The improvement that was done by the prosecution was that the accused persons started insulting the deceased Suganthi by citing her handicap/disability. A careful reading of the evidence of P.W.1 and P.W.2 shows that they made a passing remark as if the accused persons were citing the disability suffered by the deceased and were demanding for dowry. 23. The improvement that was done by the prosecution was that the accused persons started insulting the deceased Suganthi by citing her handicap/disability. A careful reading of the evidence of P.W.1 and P.W.2 shows that they made a passing remark as if the accused persons were citing the disability suffered by the deceased and were demanding for dowry. 23. It is quite difficult to accept this stand taken by P.W.1 and P.W.2 since the appellant married the deceased after knowing fully well that she was a differently abled person and they had a child through the wedlock. In fact, during the enquiry by the Revenue Divisional Officer - P.W.7, no such allegation was made and no witness had given a statement before P.W.7 to the effect that the deceased Suganthi was insulted by pointing out to her disability. 24. The ground of cruelty was always projected by the prosecution in relation to demand of dowry. The above attempt made by the prosecution was with a view to bring the case within Explanation (a) to Section 498-A of the Code. This attempt made by the prosecution has not been proved in this case and there is no strong and independent evidence to show that the deceased committed suicide due to mental or physical cruelty meted out to her. 25. This Court wanted to satisfy itself as to why the deceased took the extreme step of committing suicide by self immolation. Unfortunately, the appellant did not give any explanation when the incriminating evidence was put to him while questioning under Section 313(1)(b) of the Cr.P.C. Admittedly, the suicide was committed in the matrimonial home and the appellant was present when the incident took place. Therefore, the appellant ought to have come up with an explanation as to why the deceased took such an extreme step. The conduct of the appellant in not providing an answer, for a fact, which is exclusively within his knowledge, must lead to an adverse inference. 26. In a case based on circumstantial evidence, such non explanation can even lead to the final link in the chain of circumstances and complete the chain resulting in the conviction of the accused persons. In the instant case, the circumstances that were relied upon by the prosecution touched upon the demand of dowry by the accused persons. 26. In a case based on circumstantial evidence, such non explanation can even lead to the final link in the chain of circumstances and complete the chain resulting in the conviction of the accused persons. In the instant case, the circumstances that were relied upon by the prosecution touched upon the demand of dowry by the accused persons. If the story of demand of dowry had been established by the prosecution, the non explanation on the part of the appellant would have proved fatal for the appellant and such a non explanation, by itself, would have been considered as one main link in the chain of circumstances. The law on this issue is too well settled. The prosecution had failed to prove the demand of dowry and as a result, the very foundation of the prosecution case becomes very shaky and therefore, the non explanation on the part of the appellant in not providing an answer as to why the deceased took the extreme step of committing suicide, by itself, cannot lead to the conviction of the appellant for the offences under Sections 498-A and 306 of the Code. 27. In a criminal case, the burden of proof to establish the guilt of the accused beyond all reasonable doubts is always on the prosecution. Section 106 of the IEA is not intended to relieve the prosecution from this primary duty cast upon it. Section 106 of the IEA is an exception to Section 101 of the IEA and it is not attracted unless the initial burden of the prosecution is proved. 28. Useful reference can be made to the judgment of the Apex Court in the case of Sawal Das Vs. State of Bihar [reported in AIR 1974 SC 778 ]. The burden cannot be shifted on the accused by pressing into service the provision contained in Section 106 of the IEA when the prosecution is not able to prove the basic facts as alleged against the accused. 29. Another useful reference can be made to the judgment of the Apex Court in the case of Shambu Nath Mehra Vs. State of Ajmer [reported in AIR 1956 SC 404 ]. 30. There is some indication available in the report of the Revenue Divisional Officer - P.W.7 marked as Ex.P.3 series as to what happened before the deceased took the extreme step of committing suicide. State of Ajmer [reported in AIR 1956 SC 404 ]. 30. There is some indication available in the report of the Revenue Divisional Officer - P.W.7 marked as Ex.P.3 series as to what happened before the deceased took the extreme step of committing suicide. The appellant was examined by P.W.7 during the course of inquiry and recorded his statement. 31. The relevant portion in the statement of the appellant, as recorded by P.W.7, is extracted as hereunder : OTHER LANGUAGE 32. On carefully going through the above extracted portion, it is seen that the appellant was out of job and that there was a dire need for money to meet the family expenses. The deceased was insisting that the rent must be paid and there were other family expenses to be incurred. The appellant was trying to convince her stating that all the problems would be solved once the appellant could settle down in a good job. There were some arguments that took place between the appellant and the deceased on the date of incident. 33. The above statement given by the appellant, was also spoken to by P.W.6, who is the paternal uncle of the deceased, when his statement was recorded by the Revenue Divisional Officer - P.W.7. P.W.7 had also stated in his evidence that there was some misunderstanding between the appellant and the deceased, which led to the unfortunate incident. 34. All these materials would go to show that there was some misunderstanding between the appellant and the deceased since the appellant was not earning nor was placed in any job at the relevant point of time. The Trial Court, after having come to the conclusion that the prosecution did not establish the demand of dowry, proceeded with the case as if there was cruelty against the deceased. 35. To proceed in the said path, once again the Trial Court went back on the issue of demand of money made by the accused persons. More emphasis was laid on the demand of Rs.2 lakhs made by the appellant, which was not able to be met immediately both by P.W.1 and P.W.2. The Trial Court held that since the deceased did not bring the amount demanded by the appellant, she was treated with cruelty and was also insulted by pointing out to her handicap. More emphasis was laid on the demand of Rs.2 lakhs made by the appellant, which was not able to be met immediately both by P.W.1 and P.W.2. The Trial Court held that since the deceased did not bring the amount demanded by the appellant, she was treated with cruelty and was also insulted by pointing out to her handicap. This finding rendered by the Trial Court is without any strong evidence and is based on mere assumption. 36. By continuing further on this wrong footing, the Trial Court ultimately convicted the appellant for the offence under Section 498- A of the Code by fitting the case under Explanation (a) to Section 498-A of the Code. Having arrived at such a conclusion, the Trial Court also convicted the appellant for a lesser offence under Section 306 of the Code as against the charge framed against the appellant for the offence under Section 304B of the Code. 37. The Trial Court proceeded to convict the appellant under Section 306 of the Code since the prosecution had failed to prove the demand of dowry. However, to maintain a charge under Section 306 of the Code, there has to be a clear mens rea on the part of the accused to commit the offence. It requires a direct act on the part of the accused, which leads the deceased to commit suicide finding no such option and the act must be of such a nature reflecting the intention of the accused to push the deceased into such a position that it ends in the commission of suicide. This factor has to be established by the prosecution beyond reasonable doubts and it cannot be a matter of presumption. 38. The prosecution came up with a clear case that the deceased was driven to commit suicide due to demand of dowry. Hence, according to the prosecution, the instigation on the part of the accused persons was for demand of dowry and the cruelty meted out against the deceased on account of the same. Once the story of demand of dowry fails, the instigating factor does not exist and as a result, the offence under Section 306 of the Code cannot be sustained. In view of the same, the conviction and sentence imposed against the appellant for the offence under Section 306 of the Code cannot be sustained. 39. Once the story of demand of dowry fails, the instigating factor does not exist and as a result, the offence under Section 306 of the Code cannot be sustained. In view of the same, the conviction and sentence imposed against the appellant for the offence under Section 306 of the Code cannot be sustained. 39. In the light of the above discussions, this Court holds that the prosecution has not proved the charges under Sections 498-A and 306 of the Code against the appellant beyond reasonable doubts and as a result, the appellant must be acquitted from these charges. 40. For the foregoing reasons, the judgment and order dated 25.8.2014 rendered in S.C.No.54 of 2012 on the file of the Sessions Judge, Mahila Neethimandram (FTMC), Tirupur District is hereby set aside and the criminal appeal is allowed. The appellant was enlarged on bail, by order dated 28.10.2014 in M.P.No.1 of 2014. Since the appellant is acquitted from all charges, the bail bonds executed shall stand cancelled and the fine amounts, if any, paid by the appellant shall be refunded to him.