N. SOMASHEKAR (DEAD) BY LRS. versus STATE OF KARNATAKA

Citation: [2004] SUPP. 2 S.C.R. 379 · Decided: 06-05-2004 · Supreme Court of India · Bench: DORAISWAMY RAJU · Disposal: Disposed off

Judgment (excerpt)

N. SOMASHEKAR (DEAD) BY LRS. 
v. 
STATE OF KARNATAKA 
MAY 6, 2004 
[DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.] 
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-
A 
B 
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 distin

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