Basavaraja & Ors.
Vs. State of Karnataka  INSC 1606 (22 September 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1 OF 2002
Basavaraja & Ors. ....Appellants Versus State of Karnataka ....Respondent
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a Division Bench of the Karnataka High
Court setting aside the acquittal of the appellant as was recorded by learned
Sessions Judge, Chitradurga in SC No.82 of 1994. The trial court had acquitted
the appellants for charge of commission of offence punishable under Section 302
read with Section 34 of the Indian Penal Code, 1860 (in short the `IPC').
prosecution case in a nutshell is as follows:
On 30.4.1994 at about
1 p.m. the appellant herein had assaulted one Smt. Umadevi (hereinafter
referred to as `deceased') with an intention to cause her death, dragged her
inside the cattle shed, where the accused No.2 poured kerosene oil on her
person and accused No.1 set fire to her after lighting a match stick as a
result of which, the said Smt. Umadevi sustained burn injuries and died. The
incident in question took place in the house of the accused No.4. The deceased
Smt. Umadevi had been married to the accused No.1. Thus, the accused No.1 is
the husband of the deceased Smt. Umadevi. The accused No.3 Sarmangalamma had
been married to the complainant-PW 1 Virupakshappa. Both the marriages were
performed at the same place and at the same place. The accused No.l was not
willing to lead a marital life with the deceased Smt. Umadevi on the ground
that she was ugly to look at and was of unsound mind. Likewise, the accused
No.3 Sarmangalamma was also not willing to live with the complainant PW. l
practically on the same grounds. Many panchayats were held in this connection
to bring cordiality between the above said two spouses. The accused Nos. 1
&, 2 are the brothers and accused No.3 is their sister. The accused Nos.4
& 5 are the parents of the accused Nos.1 to 3. The deceased Smt. Umadevi was
the youngest sister of PW.2.
Both PW1 and Al had
refused to stay with their respective spouses and even police had been
approached and the PSI of the local police station had persuaded them to settle
the matter but nothing useful came out. All these accused persons were residing
together in the same house. The deceased Umadevi had been telling to PW-3
Jayamma, the wife of PW.2, whenever she used to go to the house of Umadevi,
that she was being ill-treated and assaulted by the accused on the ground that
she was ugly to look at and was also of unsound mind. The deceased was also
telling to her that she is not being provided with proper and adequate food in
the house of her in laws. On the date of the incident, both PWs. 2 & 3 had
gone to the house of the deceased at about 11 a.m. in the morning and when they
tried to enter into the house, they were prevented from doing so. The accused
persons A4 and A5 pushed them out of the house and the A1 and A3 had assaulted
the deceased who was crying for help from inside the house. The accused No.5
had bolted the front door from inside. Thereafter both PWs.2 & 3 went near
the cattle shed, on the northern side of the house and saw what was going on
inside the house. The accused No. 3 told her brother accused No.2 to finish off
the deceased and accordingly, the accused No.2 poured kerosene oil and the
accused No.l set fire to her. The accused Nos.4 & 5 had abetted the other
accused to finish off the deceased. The incident in question happened in the
cattle shed of the house of the accused persons. The said house of the accused
persons where the incident in question took place, was located in a very
isolated place, away from the village habitation. The cattle shed was filled
with smoke and the deceased fell on the ground after sustaining the burn
injuries. On seeing this ghastly incident both PWs.2 & 3 went into the
village habitation and requested the villagers to come to the house of the
accused persons, but no one obliged them by saying that their relationship with
the villagers is not good and cordial.
PWs.2 & 3 returned back to their village at about 10 p.m. and informed the
said occurrence to all their relatives. Thereafter, the complainant PW-1 along
with few others visited the house of the accused persons by traveling in a
tractor belonging to one Panchaiah. The dead body of the deceased Umadevi was
lying in the cattle shed. It was completely charred. The inquest proceedings on
the dead body of the deceased were held by the Tehsildar. The cattle shed,
where the incident in question had occurred, formed part of the house belonging
to the accused persons and they were in possession thereof.
The trial court found
that the evidence of the Doctor PW 7 belied the version of PWs. 2 & 3.
There was considerable delay in lodging the FIR and the evidence of PWs. 2
& 3 was not reliable and cogent. Accordingly as noted above acquittal was
directed. In appeal filed by the State, the High Court felt that the evidence
of PW 7 did not rule out the veracity of the evidence of PWs. 2 & 3. There
was no serious contradiction between the evidence of PWs. 2 & 3 on one hand
and PW 7 on the other. There was no unexplained delay in lodging the FIR.
The occurrence took
place at 11 AM on 30.4.1994 and the FIR was lodged at 11.45 PM as spoken by
PWs. 2 & 3. Though PW 8 in his cross examination disclosed that the father
of the deceased stated that he had come to know about the death at 6 PM as to
why no complaint was lodged immediately, the High Court did not attach much
importance to the said evidence. Accordingly, the trial court was not justified
in directing the acquittal.
counsel for the appellant submitted that the High Court erroneously held that
the evidence of PW 7 was not in serious contradiction with the evidence of PWs.
2 & 3. It was pointed out that the charge as framed indicated that the
cause of death was due to burning after pouring kerosene, but the evidence of
PW 7 indicated that the death was due to asphyxia as a result of smothering. In
the examination under Section 313 of the Code of Criminal Procedure, 1973 (in
short the `Code') question nos. 61 and 62 relate to the cause of death being
due to burning and the alleged involvement of the appellant in the same.
was also submitted that the parameters relating to appeal against acquittal
have not been kept in view by the High Court.
support of the appeal learned counsel for the respondent-State submitted that
the ocular evidence has to get primacy other medical evidence. Merely because
some hypothetical opinion was given by the PW 7, that cannot be a ground to
doubt the veracity of the evidence of PWs 2 & 3. It was also submitted that
there was no delay in lodging the FIR.
charges framed against the appellant read as follows:
accused Nos. 1 to 5 in furtherance of common intention of you all, on 30.4.1994
at about 1.00 p.m. near the house of you A1 malige Basappa situated in Sasalu
village of Holalkere Taluk, assaulted Umadevi with the intention of causing her
death and dragged T.
Umadevi inside the
cattle shed and you accused No. 2 Prabhudev poured kerosene oil on her and you
accused No.1 set fire to her 7 with the help of match stick and on account of
which she sustained burn injuries and died and as such you all accused persons
have committed the offence of murder punishable under Section 302 read with
Section 34 IPC"
the examination under Section 313 of the Code the following questions were put
to the accused persons:
"61. He has
further stated that the said injuries were post mortem in nature and bloody
forth was oozing from both the nostrils and tongue was partially protruding and
cheeks clenched and swollen and teeth were intact and rigor mortis was well
established all over the body. What have you got to say?
62. He has further
stated that the death was on account of asphyxia as a result of smothering and
the death was about 6 and 36 hours prior to the conducting of post mortem
examination and that Ex.P6 is the post mortem report in this behalf. What have
you got to say?"
the post-mortem report also the Dr. PW 7 has categorically stated that the
death was due to smothering.
The evidence of the
Doctor clearly shows that the burns were not anti-mortem in nature and were
post mortem. This part of the evidence of the doctor has not been shaken. In
fact, we are dismayed to find that the charges were framed on totally unfounded
premises and even in the examination under Section 313 of the Code, with
reference to the evidence of PW 7 it was stated that the death was due to
smothering. If that to be so, the question of the accused persons having caused
the death by burning does not arise. Such casual framing of charge and
examination under Section 313 of the Code is a disturbing feature.
view of what has been stated, the inevitable result is that the appeal has to
succeed, the conviction as recorded by the High Court is set aside.
bail bonds of the accused persons for grant of bail in terms of order dated
22.4.2002 stands discharged.
(Dr. ARIJIT PASAYAT)
..........................................J. (V.S. SIRPURKAR)