REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NO.1 OF 2002

Basavaraja & Ors. ….Appellants

Versus

State of Karnataka ….Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge 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’).

2. The 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

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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

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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.

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Thereafter, both 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

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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.

3. Learned  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

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death being due to burning and the alleged involvement of the

appellant in the same.   

4. It  was  also  submitted  that  the  parameters  relating  to

appeal  against  acquittal  have  not been  kept  in view by the

High Court.

5. In  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.

6. The charges framed against the appellant read as follows:

“That you 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

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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”

7. In 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?”

8. In  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

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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.   

9. In 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.

10. The bail bonds of the accused persons for grant of bail in

terms of order dated 22.4.2002 stands discharged.

……..…………………..….… ….J.

(Dr. ARIJIT PASAYAT)

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…….…………..……….………..J. (V.S. SIRPURKAR)

……..…………………..….…….J. (G.S. SINGHVI)

New Delhi, September 22, 2008    

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