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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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