STATE OF KARNATAKA Vs. N SOMASHEKAR

JUDGEMENT

(1.) THIS is an appeal against acquittal preferred by the State. The accused, who was the Deputy Commissioner of Police I, mysore City, was prosecuted for the offences under Sections 341, 302, 201 and 506, Indian Penal Code. The Trial Court in sessions Case No. 101 of 1991 on the file of the First Additional sessions Judge, Mysore, by its judgment dated 30th November, 1993, acquitted the accused of all the charges. Being aggrieved by the order of acquittal, the State has preferred this appeal.

(2.) THE prosecution case is that on 7-4-1991 in the afternoon, the accused along with his wife Shamanthakamani-C. W. 41 and her two young sons had come to the Lalitha Mahal Palace 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 the deceased was present in the swimming pool. Since the deceased Sathyadev was an unauthorised user of the swimming pool, the accused asked P. W. 13-swimming attendant to remove the said deceased Sathyadev, from the swimming pool. After instructing P. W. 13 thus, the accused and his wife went to the dressing room to change into their swimming costume. Shamanthakamani-C. W. 41 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-C. W. 41. The accused abused the deceased and gave three blows to the deceased. One blow landed on the mouth of the deceased, one blow on the shoulder of the deceased and a third blow which was given in karate style landed on the left neck of the deceased. Sathyadev fell dead in the swimming pool. P. W. 13, who was the swimming attendant rushed towards the pool and wanted to save the deceased. The accused restrained P. W. 13 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. This is one limb of the prosecution case.

(3.) THE other limb of the prosecution case is that P. W. 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 Lalitha mahal Palace Hotel Swimming Pool. 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 P. W. 34 that somebody had drowned in the swimming pool. He went to a nearby nursing home and was not able to find a doctor; he therefore went in the accused's car to bring a doctor, who was P. W. 20-Dr. Vishnumurthy. Dr. Vishnumurthy-P. W. 20 came in the accused's car to the swimming pool followed by P. W. 34 in his motor cycle. When P. W. 34 went to the swimming pool, he saw the accused and his wife C. W. 41 and the children of the accused and P. W. 13 swimming pool attendant. He also saw p. W. 27 and his son P. W. 29 at the swimming pool. He saw the deceased and noticed that he had only an underwear on him. The accused asked Dr. Vishnumurthy-P. W. 20 to examine the deceased. The Sub-Inspector-P. W. 34 reported before the accused at the swimming pool. The accused told P. W. 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, Criminal procedure Code and to prepare inquest panchanama". P. W. 34 asked the accused who should give the complaint. The accused retorted as to why he was in such a hurry and that mrs. Mallik-P. W. 4, the manager of the hotel would give the complaint. The accused told P. W. 34 to draw the inquest mahazar. In the meanwhile, apart from Dr. Vishnumurthy-P. W. 20, one another Dr. Ammanna (not examined) came there. He also pronounced that the deceased was dead. P. W. 34 wanted to ask the accused more details about the incident. However, as the accused started shouting at P. W. 34, he did not ask more questions. P. W. 34 immediately drew the inquest mahazar. According to P. W. 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. P. W. 34 objected to the inquest being prepared without the deceased being identified. The accused was unrelenting. The accused directed that the inquest be prepared and the dead body be sent to the mortuary and identification of the deceased be done on the next day. P. W. 34 has categorically stated that the entire inquest on the dead body of the deceased was done as per the directions of the accused. P. W. 34 also stated that 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 P. W. 34. About that time, Dr. Shenoy-P. W. 32, also arrived on the direction of the accused. P. W. 32-Dr. Shenoy also examined the deceased and pronounced the deceased dead. P. W. 34 further stated that the accused specifically asked that his presence or the presence of his family members should not be shown at the time of drawing of the inquest proceedings. He further stated that till the completion of the inquest proceedings, accused remained there and was giving "directions and assistance". It was indeed the accused, according to P. W. 34, 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 P. W. 34 a little later from the Manager's (P. W. 4) room. When P. W. 34 went there, he was given a complaint. It contained Mrs. Mallik's (P. W. 4) signature. On the basis of this complaint, P. W. 34 registered a U. D. R. case in Cr. No. 17 of 1991 under Section 174, criminal Procedure Code.