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)

J U D G M E N T

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.