N. SOMASHEKAR (DEAD) BY LRS.versusSTATE OF KARNATAKA

                N. SOMASHEKAR (DEAD) BY LRS.                            A
                                  v.
                      STATE OF KARNATAKA

                            MAY 6, 2004

        [DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]                       B

      Criminal Procedure Code, 1973-Sections 378 and 386-Appeal
against acquittal-Inteiference by High Court-Scope of-Acquittal by
Trial Court on conjectures and surmises-High Court ordering conviction-
On appeal, Held: Though interference with acquittal order is limited, but C
permissible where evidence has not been properly analysed and acquittal
order based on surmises and conjectures-High Court justified in interfering
and ordering conviction.

     Sentencing-Death of accused-lmpleadment of LRs.-Effect on, D
sentencing and fine-Sentence became unexecutable-Fine of Rs. 1 lac
reduced to Rs. 50000.

      The case of the prosecution was that appellant-accused, a police
official, went for swimming, along with his wife and children where he
found deceased sniggering at his wife. Accused abused him and gave E
3 blows to him, and he fell in the swimming pool. PW-13, the coach
tried to save the deceased, but accused stopped him by holding his
hand. Deceased was found dead when brought out of the pool. Accused
called Doctor and also informed Police Station that someone had
drowned. PW-34 Sub-Inspector reported before the accused at the p
swimming pool. Accused asked him to draw Inquest Mahazar.
Statements were recorded during inquest proceedings as per directions
and assistance of accused. After investigation, accused was charged
under Sections 341, 302, 201 and 507, IPC. Trial Court found him
innocent and acquitted him. In appeal, High Court set aside the G
acquittal and ordered conviction and also imposed fine of Rs. I lac,
which was directed to be paid as compensatio~ to the mother of
deceased. During pendency of appeal before this court, accused died
and his Legal Representatives were impleaded.

     In appeal to this Court, on behalf of the accused it was contended H
                                  379
    380               SUPREME COURT REPORTS [2004) SUPP. 2 S.C.R.
A that the evidence of witnesses recorded under Section 164 Cr.P.C.
    showed that the prosecution was trying to tie down the witnesses; that
    evidence of eye-witnesses and the coach (PW-13) was not properly
    analysed; that delay in recording the complaint indicates the
    prosecution's effort to implicate the accused; thi.t evidence of the child
B   witnesses was not reliable because of their tender age; that the case was
    one of dry drowning and that since the medical evidence and the ocular
    evidence are at variance, the Trial Court was justified in directing
    acquittal.

          State contended that the high police official had taken law into
C his own hands, and had directly interfered with the investigation and
    even monitored it which shows the impropriety in his conduct; that the
    doctor's evidence clearly substantiates the accusations; that the conduct
    of the accused in not trying to save the deceased when he was really
    drowning is significant; that there is no embargo for accepting the
D   evidence of the child witnesses if found to be credible and cogent and
    the acquittal recorded by the Trial Court was based on surmises and
    conjectures and, therefore, the High Court was justified in interfering
    with the acquittal order.

E         Disposing of the appeal, the Court

         HELD : t. 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 conclusions drawn are based on
F   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
    instant case, the evidence clearly established that accused was the
    perpetrator of the crime. The High Court was justified in directing
G   conviction and imposing sentence. [386-B-DI

         2. Recording of the statement of witnesses under Section 164 of the
    Code would not automatically dilute the worth of their evidence. There
    has been sufficient explanation rendered as to why there was delay in
H   recording evidence. A high placed police official was the accused and
             N. SOMASHEKAR v. STATE [PASAYAT, J.)                  381

was participating and was associating himself with the investigation. It A
is unusual that one of the .child witnesses was the son of one of the
investigating officers. The postmortem report 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 B
witnesses would falsely implicate the accused. [385-F-H; 386-A)

     The State of Assam v. Jilkadar Ali, AIR (1972) SC 2166 and
Vishwanath v. The State of Uttar Pradesh, AIR (1960) SC 67, relied on.

      3. Record shows that the accused was giving instructions to C
PW-34 about the manner ofrecording 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. [386-B)

     4. In view of death of the accused, custodial sentence becomes D
unexecutable. Considering this fact, reduction of fine to Rs. 50,000 is
ordered. The other directions regarding disbursement as contained in
the High Court's order remain unaltered. (386-E]

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.                 E
1262 of 1997.

     From the Judgment and Order dated 14.11.1997 of the Kamataka
High Court in Crl. A. No. 584 of 1994.

    Naresh Kaushik, Ms. Shilpa Chohan and Mrs. Lalita Ka)-lshik for the   F
Appellants.

     Siddharth Dave and Sanjay R. Hegde for the Respondent.

     The Judgment of the Court was delivered by
                                                                          G
     ARIJIT PASAYA T, 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 '!PC'). He was acquitted by the Trial Court. He was, however,
convicted by the impugned judgment by a Division Bench of the Kamataka H
    382                SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A 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 20 I !PC. For the first offence the accused was sentenced to
    undergo imprisonment for three years and a fine of Rs. I lakh with default
    stipulation. For the offence relating to Section 20 l !PC, one year rigorous
B   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 I). Said Somashekhar died during pendency of the appeal
    before this Court. In his place, his legal representatives have been
    imp leaded.

c         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
D   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
E   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
F   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 restraifled
G   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
H Police Station, Mysore. On 7.4.1991, while he was at his residence, he got
              N. SOMASHEKAR v. STATE [PASAYAT, J.]                  383

a message that some person has been drowned in the Swimming Pool of A
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 B
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 C
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:-
                                                                           D
              "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 E
  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 ~W-34 to draw the inquest mahazar. In the meanwhile, apart from ')r.
  Vishnumurty (PW-20), another doctor Dr. Ammanna (not examined) came
  there. He also pronounced that the deceased was dead. PW-34 wanted to F
  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 prepar~d without the deceased being G
  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 don~ as per the directions of the. accused.
   When the inquest report was being written, accused went to the South of H
    384                SUPREME COURT REPORTS (2004] SUPP. 2 S.C.R.

A 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
B 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
C 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
D 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
E   under Sections 341, 302, 20 I and 506 !PC. 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
F 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.
G 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
H the swimming coach (PW-13) was not properly analysed.
              N. SOMASHEKAR v. STATE [PASAYAT, J.]                    385

      The fact that the alleged complaint was recorded much belatedly A
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-I. 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 B
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 C
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 it. This itself shows D
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 E
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.
                                                                            F
      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 ofUttar
Pradesh, AIR (1960) SC 67. There has been sufficient explanation G
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
inv'estigating officers. The postmortem report of 8.4.1991 disclosed H
    386                 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A 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
  eyr 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
B 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
C 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
D 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
E   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-I ifthe
    fine amount is not deposited within -four months from today.

           The appeal is accordingly finally disposed of.
F
    D.G.                                                    Appeal disposed of.