REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 79 OF 2003
D.JAYANA ... Appellant(s)
Versus
STATE OF KARNATAKA ... Respondent(s)
JUDGMENT
Dr.ARIJIT PASAYAT,J.
Challenge in this appeal is the order passed by a Division Bench of the
Karnataka High Court upholding the conviction of the appellant for offences
punishable under Section 304 B and 498 A of the Indian Penal Code, 1860 (in short
‘IPC). Learned 1st Additional Sessions Judge, Chitradurga had imposed life
sentence for the first offence but no separate sentence was imposed for the later
offences. The appellant A-1 is the husband of Rekhamma (hereinafter referred to as
the ‘deceased’). The marriage between A-1 and the deceased took place on
27.3.1991. Accused No. 2 Gangama is the mother of A1 and A3 and A4 were the
brothers and A5 is the sister of the accused. The trial court held that out of the five
accused persons who faced trial for
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alleged commission of offences punishable under Section 304, 498A read with
Section 34 IPC and Sections 3, 4 and 6 of the Dowry Prohibition Act (in short ‘DP
Act’) read with Section 34. Only present appellant was guilty of offences punishable
under Sections 304B & 498A IPC. The trial court placed reliance on the prosecution
evidence as tendered and held that the accusations were clearly made out so far as
the present appellant is concerned. In appeal, the High Court while maintaining the
conviction reduced the sentence to seven years and the High Court also imposed
sentence of three years in respect of offence punishable under Section 498 A IPC.
The sentences were directed to run concurrently.
In support of the appeal learned counsel for the appellant submitted that
for substantiating commission of an offence under Section 304B dowry death has not
be established. Section 304B was introduced w.e.f. 19.11.1986. Simultaneously
Section 113B of the Indian Evidence Act, 1872 ( in short the ‘Evidence Act’) was
introduced. Presumption is available to be drawn under Section 113B, if the
evidence in that regard is established. It is to be noted that the High Court held that
the there was no proof of any demand of dowry to bring in application under the DP
Act. The High Court held that the view of the trial court in that regard
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was not correct. Even though there was no challenge by State questioning the
acquittal of offence relatable to Sections 3, 4 and6 of the DP Act, the High Court
found that the prosecution has proved the charges imposed against the accused in
relation to the said offence. Having done so, the High Court did not impose any
sentence in respect of the offence relatable to the DP Act. Learned counsel for
the appellant submitted that the factual scenario goes to show that the offences
relatable to Section 304B are not established. Learned counsel for the respondent on
the other hand submitted that in view of the Explanation (a) and (b) of Section
4908A IPC, cruelity has to be clearly established. The only evidence relatable to
Section 304B was that of a neighbour who was examined after about two months of
the alleged date of occurrence. Though the evidence appears to be sufficient to bring
in application of Section 498A, there is definite inadequacy to attrach Section 304B
IPC. In that view of the matter we set aside the conviction so far it relates to Section
304B IPC and maintain that in relation to Section 498A IPC. It is to be noted that
there is sufficient evidence relating to demand of dowry though for the purpose of
Section304B, the evidence is not sufficient. The appeal is allowed to the aforesaid
extent. It is stated that the appellant has already
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suffered custody of about three and half years. That being so, the appellant need
not surrender to custody. The bail bonds furnished to give effect to the order dated
20.01.2009 shall stand discharged.
……………….J.
(Dr. ARIJIT PASAYAT)
………………..J.
((ASOK KUMAR GANGULY)
New Delhi,
May 06, 2009.