Vs. State of Karnataka  Insc 381 (6 May 2004)
Raju & Arijit Pasayat. Arijit Pasayat, J.
(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.
prosecution version is essentially as follows:
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.
swimming pool is attached to a posh five Star Hotel known as Lalitha Mahal
Palace Hotel, situate in Mysore.
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.
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 accused restrained him by holding his hand.
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
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).
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".
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.
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.
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 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.
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').
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
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.
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.
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.
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 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.
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.
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.
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.
execution in accordance with law can be levied by PW-1 if the fine amount is
not deposited within four months from today.
appeal is accordingly finally disposed of.