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CASE NO.:

Appeal (crl.) 1262 of 1997

PETITIONER:

N. Somashekar (Dead) by Lrs.

RESPONDENT:

State of Karnataka

DATE OF JUDGMENT: 06/05/2004

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT, J.

One Somashekar (also described as 'accused') was

prosecuted for alleged commission of offences punishable

under Sections 341, 302, 201 and 506 of the Indian Penal

Code, 1860 (in short 'IPC'). He was acquitted by the

Trial Court. He was, however, convicted by the impugned

judgment by a Division Bench of the Karnataka High Court

by revision of the judgment of the Trial court. The High

Court held the accused guilty of offences punishable

under Section 304 (part II) and Section 201 IPC. For

the first offence the accused was sentenced to undergo

imprisonment for three years and a fine of Rs.1 lakh

with default stipulation. For the offence relating to

Section 201 IPC, one year rigorous imprisonment was

imposed. It was directed that in case the fine was

deposited the same was to be treated as compensation to

the mother of the deceased (PW 1). Said Somashekhar died

during pendency of the appeal before this Court. In his

place, his legal representatives have been impleaded.

The prosecution version is essentially as follows:

On 7.4.1991 in the afternoon, the accused along

with his wife Shamanthakamani and her two young sons had

come to the Lalitha Mahal swimming pool for a swim.

This swimming pool is attached to a posh five Star Hotel

known as Lalitha Mahal Palace Hotel, situate in Mysore.

When the accused came to the swimming pool, he noticed

that K. Sathyadev (hereinafter referred to as the

'deceased') was present in the swimming pool. Since the

deceased was an unauthorised user of the swimming pool,

the accused asked Swimming Attendant (PW-13) to remove

the said deceased Sathyadev, from the swimming pool.

After instructing PW-13 thus, the accused and his wife

went to the dressing room to change into their swimming

costumes. Shamanthakamani got into her swimming costume

and entered the swimming pool first. The accused also

came to the swimming pool in his swimming dress and he

noticed that the deceased was sniggering at his wife

Shamanthakamani. The accused abused the deceased and

gave three blows to the deceased. One blow landed on

the mouth, one blow on the shoulder and a third blow

which was given in Karate style landed on the left side

of neck of the deceased, who fell dead in the swimming

pool. PW-13 who was the swimming attendant rushed

towards the pool and wanted to save the deceased. The

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accused restrained him by holding his hand.

Subsequently, others brought the deceased out of the

swimming pool and placed him by the side of the swimming

pool. The deceased was dead when he was brought out of

the pool.

PW-34 was the Sub-Inspector of Police, Law and

Order, Nazarabad Police Station, Mysore. On 7.4.1991,

while he was at his residence, he got a message that

some person has been drowned in the Swimming Pool of the

hotel. He also received a message from the accused that

he should bring a life guard to the swimming pool. In

the meanwhile, the car of the accused also arrived at

the police station. The driver of the car one Chavan

told PW-34 that somebody had drowned in the swimming

pool. He went to a nearby Nursing Home and was not able

to find a doctor and, therefore, went in the accused's

car to bring a doctor, who was Dr. Vishnumurthy (PW-20).

PW-20 came in the accused's car to the swimming pool

followed by PW-34 in his Motorcycle. When PW-34 went to

the swimming pool, he saw the accused and his wife and

the children of the accused and PW-13 swimming pool

attendant. He also saw PW-27 and his son PW-29 near the

Swimming pool. He saw the deceased and noticed that he

had only an underwear on his body. The accused asked Dr.

Vishnumurty (PW-20) to examine the deceased. The sub-

Inspector (PW-34) reported before the accused at the

swimming pool. The accused told PW-34 in Kannada which

translated into English, reads as follows:-

"Look here, see some bastard has

fallen into the water and drowned. Take

the case as per Section 174 Cr.P.C. and

prepare inquest Panchanama".

PW-34 asked the accused who should give the

complaint. The accused retored as to why he was in such

a hurry and that Mrs. Mallik (PW-4), the Manager of the

Hotel would give the complaint. The accused told PW-34

to draw the inquest mahazar. In the meanwhile, apart

from Dr. Vishnumurty (PW-20), another doctor Dr. Ammanna

(not examined) came there. He also pronounced that the

deceased was dead. PW-34 wanted to ask the accused more

details about the incident. However, as the accused

started shouting at PW-34, he did not ask more

questions. PW-34 immediately drew the inquest mahazar.

According to PW-34, it was the accused, who dictated the

inquest mahazar. Even the statements that were recorded

during inquest, were done as per the directions of the

accused. PW-34 objected to the inquest being prepared

without the deceased being identified. The accused was

unrelenting. The accused directed that the inquest

report be prepared and the dead body be sent to the

mortuary and identification of the deceased be done on

the next day. Entire inquest on the dead body of

deceased was done as per the directions of the accused.

When the inquest report was being written, accused went

to the South of the Swimming pool and brought a pant, a

shirt and a pair of chappal kept near a chair. There was

a chit in the pant pocket identifying the deceased as

'Sathyadev' but without any address. However, there was

a tailor mark on the shirt collar which was noted by PW-

34. About that time, Dr. Shenoy (PW-32), also arrived on

the direction of the accused. He also examined the

deceased and pronounced the deceased dead. Accused

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specifically asked PW-34 that his presence or the

presence of his family members should not be shown at

the time of drawing of the inquest proceedings. Till the

completion of the inquest proceedings, accused remained

there and was giving 'directions and assistance'. It was

indeed the accused who brought a white cloth from the

hotel and wrapped the deceased and sent the dead body to

the mortuary for post mortem examination through PC 522.

The accused sent for PW-34 a little later from the

Manager's (PW-4) room. When PW-34 went there, he was

given a complaint. It contained Mrs. Mallik's (PW-4)

signature. On the basis of this complaint, PW-34

registered a U.D.R. case in Cr. No. 17/91 under Section

174 of the Code of Criminal Procedure, 1973 (in short

the 'Code').

On the basis of the challan, investigation was

undertaken and charge sheet was placed against the

accused for commission of offence punishable under

Sections 341, 302, 201 and 506 IPC. The accused pleaded

innocence and false implication at the behest of higher

officials. As noted earlier, the Trial court found the

accused innocent. In appeal, the High Court upset the

judgment of acquittal and directed conviction.

In support of the appeal, learned counsel submitted

that the Trial Court had found several infirmities in

the evidence tendered by the prosecution and had rightly

observed that the medical evidence clearly ruled out the

possibility of any assault having been done by the

accused. The case was one of dry drowning. The

possibility of the injuries having been sustained when

the dead body was being taken out, was not ruled out.

The stand was specifically taken that the death was due

to drowning which was probabilised by the evidence on

record. The doctor's evidence is unsustainable and the

fact that the evidence of some witnesses was recorded

under Section 164 of the Code shows that the prosecution

was trying to tie down the witnesses. The evidence of

so-called eye witness and the swimming coach (PW-13) was

not properly analysed.

The fact that the alleged complaint was recorded

much belatedly clearly indicates the prosecution's

effort to somehow implicate the accused who had fallen

from the grace of higher officials. In fact, the

Commissioner had obtained the complaint from the

deceased's mother i.e. PW-1. Though the incident took

place on 7.4.1991, practically nothing was done till

9.5.1991. Thereafter a different approach was adopted, a

second medical opinion was obtained and the appellant

was falsely implicated. The evidence of the child

witnesses which could not have been accepted as they are

not reliable witnesses because of their tender age was

accepted. Since the medical evidence and the ocular

evidence are at variance, the Trial Court was justified

in directing acquittal, while the High Court, without

taking note of the fact that the view taken by the Trial

Court was a possible view, erroneously directed

conviction.

In response, learned counsel for the State

submitted that the high police official had taken law

into his own hands, and strangely was directly

interfering with the investigation and even monitoring

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it. This itself shows the impropriety in the conduct of

the accused. The position that some of the officials

were showing partisan attitude is of significance,

because of diluting the evidence of the doctor by

seeking answers to hypothetical questions. The doctor's

evidence clearly substantiates the accusations. Presence

of the accused is accepted. The conduct of the accused

in not trying to save the deceased if he was really

drowning is significant. There is no embargo for

accepting the evidence of the child witness if found to

be credible and cogent. The acquittal recorded by the

Trial Court was based on surmises and conjectures and,

therefore, the High Court was justified in its decision.

It needs first to be noted that merely because the

statement of witnesses is recorded under Section 164 of

the Code that does not automatically dilute the worth of

his evidence. (See The State of Assam v. Jilkadar Ali

[AIR 1972 SC 2166] and in Vishwanath v. The State of

Uttar Pradesh [AIR 1960 SC 67]. There has been

sufficient explanation rendered as to why there was

delay in recording evidence. A high placed police

official was the accused and strangely, as noted above,

was participating and was associating himself with the

investigation. It is rather unusual that one of the

child witnesses was the son of one of the investigating

officers. The postmortem report of 8.4.1991 disclosed

commission of a cognizable offence. The distinction

between dry drowning and wet drowning is really of no

consequence, in view of the fact that the eye witness

version is credible and cogent. There is no reason as to

why PWs 28 and 29 would falsely implicate the accused.

It is on record that the accused was giving instructions

to Ganesh (PW-34) about the manner of recording the

inquest report. The evidence also shows that the blow

that was inflicted could cause the injury which is fatal

in the ordinary course of nature to cause death. Though

the scope for interference with the judgment of

acquittal is limited where the evidence has not been

properly analysed by the Trial Court and the conclusions

drawn are based on surmises and conjectures, it is not

only permissible but also desirable that the appellate

court should interfere with the order of acquittal. The

only criterion is that if the view taken by the Trial

Court is reasonable and possible view interference

should not be made. In the case at hand the evidence

clearly establishes that accused was the perpetrator of

the crime. The High Court was justified in directing

conviction and imposing sentence as noted above.

As noted supra, the appellant has died and his

legal representatives have been impleaded. Considering

this fact, which is of some relevance, we direct

reduction of fine to Rs. 50,000/-. The other directions

regarding disbursement as contained in the High Court's

order remain unaltered. In view of the death of the

accused, custodial sentence becomes unexecutable.

However, execution in accordance with law can be levied

by PW-1 if the fine amount is not deposited within four

months from today.

The appeal is accordingly finally disposed of.

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