D. Jayana v. State of Karnataka
DR. ARl.llT PASAYAT, J. 1. Challenge in this appeal is
E the order passed by a Division Bench of the Karnataka High
Court upholding the conviction of the appellant for offences
punishable under Section 304 Band 498 A of the Indian Penal +.
Code, 1860 (in short 'IPC). Learned 1st Additional Sessions "'
Judge, Chitradurga had imposed life sentence for the first
F 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 A 1 and A3 and A4 •
G 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 -L- •
for 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
H 34. Only present appellant was guilty of offences punishable
D. JAYANA v. STATE OF KARNATAKA 981
[DR. ARIJIT PASAYAT, J.]
under Sections 3048 & 498A IPC. The trial court placed A
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 8
respect of offence punishable under Section 498 A IPC. The
sentences were directed to run concurrently.
2. In support of the appeal learned counsel for the appellant
submitted that for substantiating commission of an offence C
under Section 3048 dowry death has not be established.
Section 3048 was introduced w.e. f. 19.11.1986.
Simultaneously Section 1138 of the Indian Evidence Act, 1872
( in short the 'Evidence Act') was introduced. Presumption is
available to be drawn under Section 1138, if the evidence in
that regard is established. It is to be noted that the High Court D
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 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 E
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 F
goes to show that the offences relatable to Section 3048 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 3048 was that of a G
nE)ighbour 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 3048 IPC. In that view
of the matter we set aside the conviction so far it relates to H
, A Section 3048 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 Section3048,
the evidence is not sufficient. The appeal is allowed to the
aforesaid extent. It is stated that the appellant has already
B 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.
R.P. Appeal partly allowed.
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