LexBASAVARAJA & ORS. versus STATE OF KARNATAKA
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[2008] 13 S.C.R. 777 BASAVARAJA & ORS. v. STATE OF l<ARNATAKA (Criminal Appeal No.1 of 2002) SEPTEMBER 22, 2008 . [DR. ARIJIT PASAYAT,V.S. SIRPURKAR AND G.S. SINGHVI, JJ] Penal Code, 1860: A B s. 302134 - Prosecution of accused persons, 'all mem- C bers of a family, for causing death of wife of one of the ac- cused - Prosecution witnesses stating that accused poured kerosene on the person of victim and set her to fire - Medical evidence pointing out the cause of death as asphyxia by smothering, and bums to be post mortem - Trial Court finding D · evidence of prosecution witnesses not reliable and cogent - Acquittal by trial court - Conviction by High Court - HELD: Evidence of doctor clearly shows that bums· were not ante mortem in nature but were post mortem - Charges framed and examination of accused uls 313 Cr PC was on totally un~ E founded premises - Conviction recorded by High Court set aside - Evidence - Practice and Procedure - Framing of charge - Code of Criminal Procedure, 1973 - s.313, . ' The appellants-accused, two brothers, their sister and their parents, were prosecuted for commission of F offence punishable uls 302/34 IPC on the allegations that they assaulted the wife of A-1, dragged her inside the cattle shed, poured kerosene on her person and set fire to her, causing her death. The trial court found that the evidence of PW-7, the doctor who conducted the autopsy, belied G the version of PWs 2 and 3; that there was considerable delay in lodging the FIR and that the evidence of PWs 2 and 3, the brother and the sister-in-law of the deceased respectively, was not reliable and cogent. Accordingly, it 777 H 778 SUPREME COURT REPORTS A acquitted all the accused. But, the High Court convicted them. In the instant appeal filed by the accused, it was con- tended for the appellants that the charge framed indicated that the cause of death was due to burning after pouring 8 kerosene but the evidence of PW-7, the doctor. indicated that the death was due to asphyxia as a result of smoth- ering; that in the examination of the accused u/s 313 Cr.PC the questions related to the cause of death being due to burning and the alleged involvement of the accused C therein; that the High Court did not keep in view the pa- rameters relating to appeal against acquittal and erred in holding that the evidence of the doctor was not in seri- ous contradiction with that of PWs 2 and 3. D Allowing the appeal, the Court HELD: In the post-mortem report, PW 7 the doctor has categorically stated that the death was due to smoth- ering. The evidence of the doctor clearly shows that the burns were not anti-mortem in nature but were post E mortem. This part of the evidence of the doctor has not been shaken. In fact, the charges were framed on totally unfounded premises and even in the examination u/s 313 of the Code of Criminal Procedure, 1973, with reference to the evidence of PW 7, it was stated that the death was F 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 ex- amination u/s 313 Cr. PC is a disturbing feature. In the cir- cumstances, the conviction as recorded by the High Court G is set aside. [para 8-9] [783-A-E] CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 1of2002 From the final Judgment dated 1.10.2001 of the High Court H of Karnataka at Bangalore in Crl. Appeal No. 7·13 of 1996 BASAVARAJA & ORS. v. STATE OF 779 KARNATAKA K. Rajendra Chowdhary, Rakesh K. Sharma for the Ap- A pellants. San jay R. Hegde and A. Rohan Singh for the Respondents. :) The Judgment of the Court was delivered by Dr. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to B 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.82of1994. The trial court had acquitted the appellants for charge of commis- sion of offence punishable under Section 302 read with Sec- c tion 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 'de- D ceased') with an intention to cause her death, dragged her in- side the cattle shed, where the accused No.2 poured kerosene oil on her person and accused N
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