Basavaraja & Ors vs State Of Karnataka

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.

4 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

5 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

6 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

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"

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

8 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)

9 ..........................................J. (V.S. SIRPURKAR)

..........................................J. (G.S. SINGHVI) New Delhi, September 22, 2008

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