STATE OF KARNATAKA versus BHASKAR KUSHALI KOTHARKAR AND ORS.

Citation: [2004] SUPP. 3 S.C.R. 635 · Decided: 19-08-2004 · Supreme Court of India · Bench: K.G. BALAKRISHNAN, AR. LAKSHMANAN · Disposal: Appeal(s) allowed
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Judgment (excerpt)

STATE OF KARNATAKA 
A 
v. 
BHASKAR KUSHALI KOTHARKAR AND ORS. 
AUGUST 19, 2004 
[K.G. BALAKRISHNAN AND DR. AR. LAKSHMANAN, JJ.] 
B 
CRIMINAL TRIAL : 
Non-examination of investigating officer-Effect of-Prosecution of 
accused inter alia under s. 304 (Part II) rlw. s.149 !PC-Conviction by C 
trial court-Acquittal by High Court for non-examination of Investigating 
Officer and Head Constable who recorded FIR-Held, as a part of fair trial 
investigating officer should be examined-On facts, as the accused were 
not prejudiced by non-examination of the l.O. and the Constable who 
recorded the FIR, High Court was not justified in reversing the conviction D 
solely on the technical ground-There is very strong and convincing 
evidence to prove that the accused committed the offences-Finding of 
conviction record by trial court restored-Evidence-Appreciation of 
Behari Prasad and Ors. v. State of Bihar, [1996] 2 sec 317 and E 
Bahadur Naik v. State of Bihar, [2000) 9 SCC 153, relied on. 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 
498 of 1998. 
From the Judgment and Order dated 6.8.1996 of the Karnataka High F 
Court in Crl. A. No. 82 of 1995. 
Anil K. Mishra and Sanjay R. Hegde for the Appellant. 
R.S. Hegde, Chandra Prakash, Ms. Savitri Pandey and P.P. Singh for G 
the Resondents. 
The following Order of the Court was delivered : 
The State of Karnataka has filed this criminal appeal challenging the 
acquittal of respondents 1 to 4 for the offence punishable under Section H 
635 
636 
SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R. 
A· 304 Part II read with section 149 IPC and Section 324/148 !PC and Section 
143 IPC. Respondents I to 4 were found guilty by the Sessions Court, 
Karwar and aggrieved by the same they filed criminal appeal before the 
High Court and the appeal was allowed. 
B 
The prosecution case was that the respondents I to 4 along with three 
others went to the residence of deceased Prakash Manjunath Talekar at 
about 7.30 p.m. on 20.9.1993. These respondents and others were armed 
with cycle chains, belts and clubs. Deceased Prakash was dragged out of 
his house by the first respondent and another to a distance of75 feet where 
he was attacked by the accused with belts, cycle chains and clubs. 
C PW-I, Shobha, the wife of the deceased Prakash came to the rescue of her 
husband and she was assaulted by the accused. PW-2 Tarabai who was 
present in the house of deceased at the time of incident was also assaulted 
by the accused. Prosecution alleged that PW-10 Sithabai who was coming 
after attending some function was attacked by these accused on her way 
D to her house. Prakash died about I 0 minutes after the incident. PW-I was 
afraid to go to the police station and on the next day morning she went 
to the nearby police station and gave FI statement. Her statement was 
recorded and the case was registered. 
On the side of the prosecution PW-I to PW-I I were examined. The 
E post mortem of deceased Prakash was conducted by PW-11. There were 
as many as 22 injuries on his body and most of the injuries were abrasions 
and the internal injuries show that there were fractures to the 7th, 8th. 9th 
and I 0th ribs on the left side. There were blood clots surrounding entire 
left kidney. PW-I I who conducted the post mortem deposed that all 
F injuries were ante mortem and that the injured died of shock and 
haemorhage cause due to multiple injuries sustained by him. 
The Sessions court relied on the evidence of PW-I, PW-2 and 
PW-I 0 and held respondents I to 4 guilty. In the appeal preferred by them, 
the learned Judge of the High Court reversed the conviction and sentence 
G solely on the ground that the investigating officer and constable who 
recorded the Fl stateinent were not examined as prosecution witnesses. As 
regards the evidence adduced by eye witnesses, no adverse comments were 
passed by the learned Single Judge. 
H 
The counsel for the State submitted that the acquittal of the accused 
STATE v. B.K. KOTHARKAR 
637 
is not sustainable in law as the accused had not suffered any prejudice A 
because of the non examination of the investigating officer and the 
constable who recorded the FI statement. 
In the instant case, the Sessions Judge issued summons to these two 
witnesses but these police officers did not tum up for giving evidence and B 
Sessions Judge closed the prosecution case as one of the accused had been 
in prison as an under trial for fairly long period. The counsel for the 
resp
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