KUMAR RAJARATNAM, J. ( 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. 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. 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. 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. ( 4 ) P. W. 34 then went to the tailor's shop and managed to get the name of the deceased and with the help of the tailor, he traced the mother of the deceased. P. W. 1 is the mother of the deceased. P. W. 1 sent her younger brother P. W. 3 and the sister of the deceased P. W. 2 to identify the deceased. P. Ws. 2 and 3 identified the deceased and after the post-mortem examination they brought the dead body of the deceased to the house and the cremation took place subsequently. ( 5 ) ALL the while P. W. 1, the mother of the deceased and her close relations were under the impression that the deceased died due to drowning on 7-4-1991. It was only on 20-4-1991 they read in the local news papers that the deceased was murdered, anxious to get justice, P. W. 1 got a complaint written by her daughter P. W. 2 and lodged a complaint through her younger brother P. W. 3. Ex. P-1 is the complaint given by P. W. 1. This is the second limb of the prosecution case. ( 6 ) THE third limb of the prosecution case wrests in a large measure on the evidence of the doctor, who conducted the post-mortem examination, P. W. 32. P. W. 32 is Dr. Panduranga shenoy. He stated that he knew the accused personally and that he had seen him at the swimming pool on previous occasions. He further stated that he was asked to come to the swimming pool and he noticed that the accused and some other people were standing near the swimming pool. P. W. 32 is Dr. Panduranga shenoy. He stated that he knew the accused personally and that he had seen him at the swimming pool on previous occasions. He further stated that he was asked to come to the swimming pool and he noticed that the accused and some other people were standing near the swimming pool. P. W. 32 asked the accused what had actually happened. The accused told P. W. 32 that somebody had come and jumped into the swimming pool and a dead body was brought to the surface. The body was kept covered in a white sheet. Dr. Shenoy-P. W. 32 removed the sheet and noticed that the tongue was protruding a little and that the deceased was only wearing an underwear. He also noticed all parts of the body externally were normal. P. W. 32 also told the accused that no opinion can be given without conducting the post-mortem examination. P. W. 32 also stated that he saw the accused giving directions to the Sub-Inspector of Police-P. W. 34 as to how to conduct inquest proceedings. P. W. 32 conducted the post-mortem examination on the next day i. e. , 8-4-1991 between 11 a. m. and 1-30 p. m. ( 7 ) P. W. 32-Dr. Shenoy noticed the following:"right upper central incisor tooth seen dislocated and socket filled with blood clots. Reddish fluid discharge present from nose and mouth". On closer examination, he found the following external injuries;" (1) There was a small abrasion of 0. 25 cm. diameter over the left side of the nose. (2) Abrasion 1 x 0. 5 cm. over left molar eminence". On dissection, he found the following internal injuries:"the left side of the neck and left lobe of thyroid gland was found contused and surrounding areas up to the carotid body were found infiltrated with black coloured blood. Laryngeal cartillages intact. The vertebral column and spinal cord were intact. All the other internal organs were intact and congested. The lungs showed pulmonary asdema. The right chamber of the heart contained fluid blood. A loose tooth was found inside the mouth which fitted into the lost socket of right central incisor. The stomach contained full of undigested biriyani and meat pieces. There was no unusual smell". All the other internal organs were intact and congested. The lungs showed pulmonary asdema. The right chamber of the heart contained fluid blood. A loose tooth was found inside the mouth which fitted into the lost socket of right central incisor. The stomach contained full of undigested biriyani and meat pieces. There was no unusual smell". He gave probable cause of death as follows:"death was due to cardiac arrest as a result of vagal inhibition consequent upon the injury sustained to left side of the neck. He also stated that "external injuries (1) and (2) were simple in nature. The loss of tooth is a grievous injury. A tooth can be lost by a hit from the fist but there will be some associated injuries. I did not find any injury on the mouth". At paragraph 16 of his testimony, he (P. W. 32) stated as follows:"the injury sustained on the left side of the neck is sufficient to cause death in the ordinary course of nature. If a person directly falls into the water, such injury could not be caused. Abrasions cannot be caused if a person directly falls into the water". He also stated that hard hitting by any object such as side of a hand can produce vagal inhibition. He further stated at paragraphs 19 and 20 of his testimony, as follows:"19, A person falling into water for any reason will try to save himself by clutching any article that comes to his hand and if there are no articles he will catch hold of water itself and that condition is called as cadavertic spasm. At the time of conducting post-mortem examination, I think the hands were not clenched as otherwise I would have noted it in my report". "20. Generally we find froth coming from nose and mouth in all cases of drowning. But in some cases this sign will be absent. In the instant case, there was no froth from the nose and mouth". ( 8 ) THE fourth and final limb of the prosecution case lies in the testimony of P. W. 41. P. W. 41-Suresh Naidu was the Detective inspector, COD. He took over further investigation in this case on 10-5-1991 from Nazarabad Police Station. In the instant case, there was no froth from the nose and mouth". ( 8 ) THE fourth and final limb of the prosecution case lies in the testimony of P. W. 41. P. W. 41-Suresh Naidu was the Detective inspector, COD. He took over further investigation in this case on 10-5-1991 from Nazarabad Police Station. P. W. 41 was entrusted with the investigation since it was felt that the investigation was being derailed by the accused and his subordinate P. W. 34-Ganesh, the Sub-Inspector of Police, Since the earlier investigation was trying to shield the accused, the investigation was handed over to the COD. It is only after the investigation was handed over to the COD, the real picture emerged. ( 9 ) IT can safely be stated that the COD had literally reinvestigated the matter all over again. As stated earlier, the prosecution case, according to the inquest report was, that the deceased got drowned in the swimming pool while jumping into the swimming pool. However, the post-mortem report indicated that the deceased died as a result of vagal inhibition on account of assault. ( 10 ) THE investigation was now sought to be put back on track. ( 11 ) IT is in these circumstances, P. W. 41 the Detective inspector COD, took up further investigation. P. W. 41 was able to trace the three eye-witnesses, who were present, in the swimming pool at the time of the occurrence. The three eye-witnesses were P. Ws. 27, 28 and 29. All these witnesses admittedly were examined after COD took over the investigation on 10-5-1991. ( 12 ) THE first witness to be examined by the COD was P. W. 27-Elisha Andrews on 11-5-1991. Then on 12-5-1991 P. W. 29-Ajay was examined and on 3-6-1991 P. W. 28-Srikanth was examined. ( 13 ) WE have to bear in mind that the alleged occurrence took place on 7-4-1991 and the eye-witnesses were examined almost one month later by the COD. We are referring to this aspect at the outset because it was submitted by the defence that these witnesses were procured to suit the case of the prosecution after cod took over the investigation. It is, in these circumstances that we have to carefully consider the testimony of P. Ws. 27, 28 and 29 along with the medical evidence. ( 14 ) WE now proceed to consider their evidence. It is, in these circumstances that we have to carefully consider the testimony of P. Ws. 27, 28 and 29 along with the medical evidence. ( 14 ) WE now proceed to consider their evidence. P. W. 27-Elisha andrews was aged about 15 years old. He knew the accused, his wife and his two sons. On the date of the occurrence i. e. , on 7-4-1991, at about 2-45 p. m. the wife of the accused C. W. 41 telephoned to the mother of P. W. 27 and requested P. W. 27 to come and swim with the children of the accused. P. W. 27 went to the house of the accused and was sent to the swimming pool along with the two sons of the accused in a tempo. On the way, they also picked up Ajay-P. W. 29. They went to Lalitha Mahal palace Hotel Swimming Pool and they changed into their swimming trunks. When they were on the shallow side of the pool, they saw some foreigners swimming. Suraj and Sujay (sons of accused), Ajay-P. W. 29 and P. W. 27 were playing games like picking up coins on the shallow side of the swimming pool. P. W. 13 the coach was also there standing outside the pool. After sometime a stranger (deceased) came from rear entrance and talked to P. W, 13 the coach. P. W. 27 saw the stranger removing ins clothes "then and there" and kept it on a chair and entered the shallow side of the swimming pool with his underwear. The stranger said that he did not know swimming and that he would learn swimming by beating his legs on the shallow side. P. W. 27 and P. W. 29 and Suraj swam to the deeper side. The stranger was still on the shallow side. After sometime he saw the accused, his wife coming near the swimming pool. P. W. 13 welcomed them and took them to the dressing room. At that time, the accused asked P. W. 13 to send that stranger out. So saying the accused went to the dressing room. ( 15 ) IN the meanwhile, the wife of the accused changed into her swimming costume and entered the shallow side of the pool. She was also "leg beating" and was also "tutoring" her son Sujay. At that time, the accused asked P. W. 13 to send that stranger out. So saying the accused went to the dressing room. ( 15 ) IN the meanwhile, the wife of the accused changed into her swimming costume and entered the shallow side of the pool. She was also "leg beating" and was also "tutoring" her son Sujay. P. W. 27 noticed that the deceased was sniggering at the wife of the accused in an awkward manner. P. W. 27 also did not like the way the deceased was sniggering at the wife of the accused. He also told P. W. 29 " he is a bad boy man". The accused entered the pool and swam on the deeper side. He heard a splash and he turned. The accused was in a 'serious mood'. The accused swam to the deeper side and climbed the ladder. At that time P. W. 13 was shouting "he is drowning sir". Accused held P. W. 13 saying "you keep quite man". ( 16 ) P. W. 27 does not speak about the assault on the deceased. However, he saw the deceased sniggering at the wife of the accused. He also heard a splash. He also stated after sometime, the accused came to the tea lounge and told him that we should not tell anything about the incident and we should say that a man came from tennis court side and jumped to the swimming pool. P. W. 27 admits that as he was frightened he did not tell to the local police about the incident. It is only after COD took over the investigation, he plucked up courage, to speak about the incident. ( 17 ) WE now come to the testimony of P. W. 28-Srikanth. P. W. 28 was also aged about 14 years and was studying in IX Std. in a local convent. He also knew a little swimming. He knew the accused and his sons Suraj and Sujay. On 7-4-1991 P. W. 28 had gone to the swimming pool to become a member of the club. He met P. W. 13 the coach and asked for a form. P. W. 13 promised that he would give a form within a day or two. He sought permission of P. W. 13 to swim for sometime. P. W. 13 permitted him. He met P. W. 13 the coach and asked for a form. P. W. 13 promised that he would give a form within a day or two. He sought permission of P. W. 13 to swim for sometime. P. W. 13 permitted him. He changed his dress and jumped into the shallow side of the pool. After sometime, he noticed that four boys had come to the pool. He identifies P. Ws. 27 and 29. He stated that the boys were playing with coins in the pool. He also joined them. Thereafter he noticed that the deceased had come to the pool and sat on the chair. After sometime that the deceased had changed his dress and kept his clothes on the chair and got into the pool. The deceased did not know swimming. Holding the hands of P. W. 28 the deceased did 'leg beating'. After about half an hour, the accused and his wife came to the swimming pool from the dressing room got into their swim suits. The wife of the accused was on the shallow side. Her son was playing with his mother on the shallow side. Other boys were on the deeper side. P. W. 28 stated that the deceased was laughing at the wife of the accused. The accused also observed that the deceased was laughing at his wife. Accused went and stood near the deceased. He questioned the deceased as to why he was sniggering at his wife. The deceased stated that he was only laughing at the children. The accused angrily retorted as to who allowed him to come into the swimming pool. The deceased replied that P. W. 13 the coach had permitted him to swim. Accused was enraged and gave a blow on the face of the deceased. The accused attempted to give a second blow. The deceased avoided it and it fell on his shoulder. The accused finally gave a third blow on the left neck of the deceased with his right hand, in a slanting position. The deceased fell on his back. This witness saw the occurrence from a distance of 10 ft. He noticed that the deceased was drowning. In the meanwhile, P. W. 13 came from the dressing room and told the accused that 'he is drowning sir'. The accused held Uthappa's (P. W. 13's) hand and told him to keep quite. The deceased fell on his back. This witness saw the occurrence from a distance of 10 ft. He noticed that the deceased was drowning. In the meanwhile, P. W. 13 came from the dressing room and told the accused that 'he is drowning sir'. The accused held Uthappa's (P. W. 13's) hand and told him to keep quite. Accused asked all of them to come out of the pool. After changing the dress in the dressing room he stayed at the hotel for 15 minutes. He noticed that the deceased had been placed on the surface. He learnt that three persons jumped into the pool and removed the body. Three persons pressed the back of the body of the deceased but water did not come out of the mouth and nose. This witness was in a frightened mood. He went to his grandmother's house at Mandya and stayed there for a month. He came back to Mysore only in june. Then the COD Inspector came to his house and recorded his statement. Since he was in a frightened mood, he did not tell about the incident to any one. ( 18 ) WE now come to the testimony of P. W. 29-Ajay. P. W. 29 is a child witness aged about ten years. He was studying in V standard. He was administered oath by the Trial Court after being satisfied that the witness could differentiate between truth and falsehood. ( 19 ) P. W. 29 knew the children of the accused. He also knew p. W. 27 and was able to recognise P. W. 28. He went to the swimming pool along with the children of the accused in a police van. He also knew P. W. 13 the coach. He noticed that the deceased had come there and sat on a chair. The deceased removed his clothes and got into the shallow side of the pool. At that time the accused and his wife came to the pool, in their swimming dress. P. W. 29 noticed that the deceased was laughing at the wife of the accused. The accused who was also swimming abused the deceased and gave him three blows. The deceased fell into the water. He also stated that when P. W. 13 tried to rescue the deceased, the accused restrained P. W. 13. He was also warned by the accused not to speak about the incident. The accused who was also swimming abused the deceased and gave him three blows. The deceased fell into the water. He also stated that when P. W. 13 tried to rescue the deceased, the accused restrained P. W. 13. He was also warned by the accused not to speak about the incident. Since he was frightened, he did not tell anybody as to what had happened at the swimming pool. He was told by the accused to say that "a man had come and jumped into the water". It is only after the COD took over the investigation, he got the courage to speak the truth. ( 20 ) THESE witnesses were subjected to elaborate cross-examination. However, these witnesses withstood the cross-examination. Therefore, in this case, we have: (1) earliest part of the investigation done by P. W. 34, the local Sub-Inspector of Police. P. W. 34 conducted the inquest and finding of the inquest was that the death was due to drowning; (2) we have the testimony of the doctor P. W. 32 and the post-mortem report Ex. P-42. The opinion of the doctor was that the death was due to cardiac arrest as a result of vagal inhibition consequent upon the injury sustained to left side of the neck; (3) we have the further investigation done by the COD p. W. 41; and (4) consequent to the investigation done by P. W. 41, we have testimony of the eye-witnesses P. Ws. 27, 28 and 29. ( 21 ) IN the light of the above case of the prosecution, we shall now deal with the defence theory that the accused came and jumped into the swimming pool and had drowned. ( 22 ) IN trying to appreciate the 'drowning theory' of the defence we have to bear in mind the post-mortem report and the injuries sustained by the deceased. If the medical testimony supports the theory of drowning, we may safely discard the testimony of the eye-witnesses of P. Ws. 27 to 29 as being contrary to the medical evidence. ( 23 ) IF however, the post-mortem report and the opinion of the doctor P. W. 32 that the death of the deceased was due to assault which resulted in vagal inhibition can be relied upon then the testimony of P. Ws. 27 to 29 assumes importance. 27 to 29 as being contrary to the medical evidence. ( 23 ) IF however, the post-mortem report and the opinion of the doctor P. W. 32 that the death of the deceased was due to assault which resulted in vagal inhibition can be relied upon then the testimony of P. Ws. 27 to 29 assumes importance. ( 24 ) P. W. 32, the doctor no doubt did not see any external injuries on the deceased at the swimming pool. He stated that he only made a "naked eye examination" and stated that a detailed examination can only be made at the mortuary. It is only on the next day, he conducted the post-mortem examination. On examination, he noticed that the right upper central incisor tooth had been dislocated and socket was filled with blood clots. He also noticed that reddish fluid discharge present at the nose and at the mouth. He also noticed two external injuries (1) a small abrasion of 0. 25 cm. diameter over the left side of the nose and (2) an abrasion 1 x 0. 5 cm. diameter over left moral eminence. ( 25 ) ON internal examination, he noticed that the left side of the neck and left lobe of thyroid gland was found contused. He also noticed that a loose tooth was found inside the mouth which fitted into the socket of right central incisor. He gave a categorical opinion that the death was due to cardiac arrest as a result of vagal inhibition consequent upon the injury sustained to the left side of the neck. He also stated that "the tooth can be lost by a hit from the fist but there will be some associated injuries". He also stated that if one knuckle of the fist hits exactly on a tooth, that tooth gets dislocated without causing injury to the lips, provided the lips are spared. He further stated that the internal injury on the left side of the neck could be caused by a fist or karate blow. He stated that the injury sustained on the left side of the neck is sufficient to cause death in the ordinary course of nature. ( 26 ) MORE importantly, he stated as follows:"if a person directly falls into the water, such injury could not be caused. An area of contusion is equivalent to the area of the force applied generally. He stated that the injury sustained on the left side of the neck is sufficient to cause death in the ordinary course of nature. ( 26 ) MORE importantly, he stated as follows:"if a person directly falls into the water, such injury could not be caused. An area of contusion is equivalent to the area of the force applied generally. Abrasions cannot be caused if a person directly falls into the water. Outstretched finger nails can cause abrasions on the cheek as mentioned in the post-mortem report. Time of death was 18 to 24 hours prior to post-mortem examination. Last meal might have been taken 2 to 21/2 hours earlier to his death". He also stated that he did not see any signs of drowning on the dead body. The doctor-P. W. 32, however, admitted in evidence that if a person jumps into the water, vagal inhibition can take place if his stomach hits the water. The doctor-P. W. 32 also stated that he did not conduct any test to rule out drowning since he diagnosed that the death was due to injury to the left side of the neck and also because there were no signs of drowning. He clearly ruled out the drowning theory in his testimony at paragraphs 19 and 20. ( 27 ) THE testimony of the doctor-P. W. 32 at paragraphs 19 and 20 reads thus:"19. A person falling into water for any reason, will try to save himself by clutching any article that come to his hand and if there are no articles he will catch hold of water itself and that condition is called as cadavertic spasm. At the time of conducting post-mortem examination, I think the hands were not clenched as otherwise, I would have noted it in my report". "20. Generally we find froth coming from nose and mouth in all cases of drowning. But in some cases this sign will be absent. In the instant case, there was no froth from nose and mouth". ( 28 ) WE had to deal with the testimony of the doctor at some length since the Trial Court has acquitted the accused on the basis of the doctor's testimony. ( 29 ) BEFORE the COD took over the investigation on 10-5-1991, p. W. 32, the doctor received a requisition from P. W. 34 the local sub-Inspector, on 11-4-1991. Ex. ( 29 ) BEFORE the COD took over the investigation on 10-5-1991, p. W. 32, the doctor received a requisition from P. W. 34 the local sub-Inspector, on 11-4-1991. Ex. P-43 (a) is the opinion given by the doctor on the basis of the questions asked by P. W. 34. This opinion which we shall refer, to immediately was on the basis of hypothetical questions put to the doctor by the local sub-Inspector-P. W. 34. The doctor-P. W. 32 resiling from his earlier post-mortem report stated that the injury in the post-mortem report over the neck, tooth, left side of the nose and cheek may be caused by a person coming into contact with hard and rough surface such as sides of the swimming pool or water pipes inside the edge. The opinion of the doctor is Ex. P-44. It was made out by the defence that this opinion fits in with the defence theory of drowning. However, the doctor admitted fairly that this opinion was based on the description furnished by P. W. 34 without inspecting the swimming pool. ( 30 ) NOW we come to the opinion of the doctor after the COD took up investigation. The doctor reverted back to his original theory that the death was due to assault when questioned by the cod. Ex. P-46 is the final opinion given by the doctor to the cod. Ex. P-46 in our opinion is terribly important since Ex. P-46 has been given by the doctor after visiting the swimming pool. ( 31 ) IN Ex. P-46 the doctor has stated as follows:" 1. The external and internal injuries noted in the post-mortem report could not have been caused to the deceased by falling into a swimming pool of such a nature as described above. (emphasis supplied) 2. The external and internal injuries were fresh in nature. 3. In a living person if a tooth is broken, clotting of the blood takes place inside the socket within 2 to 3 minutes. Hence, there was no fresh bleeding at the time of post-mortem examination. 4. The internal injuries on the left side of the neck was fatal injury. Such injury could be caused by a blow with the side of a hand. 5. The internal injury on the left side of the neck could cause the death of a person in the ordinary course of nature. 6. 4. The internal injuries on the left side of the neck was fatal injury. Such injury could be caused by a blow with the side of a hand. 5. The internal injury on the left side of the neck could cause the death of a person in the ordinary course of nature. 6. Time lapsed between the infliction of the injury on the neck and death was almost instantaneous. 7. The viscera was preserved for chemical examination to rule out alcohol injestion or consumption of drugs, poison etc. 8. On a thorough macro-scopic examination, the internal organs were healthy and did not disclose any disease process. Ex P-46 is the opinion furnished by me under my signature and seal. Its contents are correct. External and internal injuries were ante-mortem in nature". ( 32 ) WE are constrained to extract the opinion of the doctor at ex. P-45 since it was strenuously submitted by the defence that the doctor has stated that these injuries could be caused if a person comes into contact with a water pipe inside the swimming pool. We have to bear in mind that the water pipe theory to explain the injuries was given on the basis of hypothetical questions furnished by P. W. 34, the Sub-Inspector of Police, who was trying to help the accused. P. W. 34 as stated earlier is the person, who conducted the inquest on the directions of the accused. ( 33 ) IN the light of the opinion (Ex. P-45) given by the doctor after the COD took over the investigation and after inspecting the swimming pool, the opinion given by the doctor that the injuries could be caused by coming into contact with a water pipe inside the swimming pool as per Ex. P-43 pales into insignificance. The opinion in Ex. P-43 was an opinion given in answer to the hypothetical questions by P. W. 34. ( 34 ) WE have the post-mortem report and the final opinion of the doctor after COD took over the investigation under Ex. P-46. We have extracted the final opinion of the doctor at Ex. P-46, only to emphasise that not much reliance can be placed on Ex. P-43. ( 35 ) P. W. 32 the doctor was cross-examined at length in the trial Court. All kinds of theories were put to the doctor. P-46. We have extracted the final opinion of the doctor at Ex. P-46, only to emphasise that not much reliance can be placed on Ex. P-43. ( 35 ) P. W. 32 the doctor was cross-examined at length in the trial Court. All kinds of theories were put to the doctor. We do not propose to deal with the entire cross-examination which runs into several pages. We shall deal with only the relevant portion in the cross-examination. In the cross-examination the doctor p. W. 32 stated that if a brush comes into contact with a single tooth, it can dislodge the tooth. The doctor further stated that it would be difficult to make out whether the injuries were ante-mortem or post-mortem unless histo chemical examination is done. ( 36 ) IN other words, an impression was sought to be created that the injuries could be post-mortem and could be caused when the body was being removed from the swimming pool. With regard to the injury on the neck, the doctor stated at paragraph 40 of his deposition as follows:"40. Hypothetically if a person is being pulled upwards by two persons standing in the water with their feet not touching the bottom of the pool and pushing the man upwards supporting his buttocks on the ladder of the swimming pool and two persons on the surface of the pool hold his hands and drag him upwards and in the process the head which is not supported leans on either side and comes in contact with the ladder or rungs, it is likely that such injury found on the neck could be caused. Hypothetically if a person who is supposed to have died in the water is brought to the surface and made to lie with his face downwards and if a hefty man gives first-aid by putting one hand over the other and pressing the back of the chest of the man, and in that process his hand slides and makes the impact on the left side of the neck such an injury as I found on the neck of the deceased could be caused. In that process of giving first-aid if the head is forcibly pressed against the granite stone and if there is any protruding part in that granite stone, which presses over a single tooth, the tooth can get dislodged, but there will be other injuries over the mouth. Hypothetically if face is turned upwards and artifical respiration was given by pressing the front of the chest and if the hands slide on the left side of the neck, such an injury as I found on the neck of the deceased could be caused". ( 37 ) IN the light of these hypothetical answers to hypothetical questions given by the doctor-P. W. 32, the State sought to treat the doctor as hostile to the prosecution. An application was made by the State seeking leave of the Trial Court to treat the doctor as a hostile witness. The Trial Court refused to treat the doctor as a hostile witness. We shall leave it at that. ( 38 ) EVEN with regard to vagal inhibition the doctor stated that if a person jumps into the water and the stomach hits the water vagal inhibition can be caused. At paragraph 60 he stated as follows:"60. When a person jumps into water and there a sudden splashing of water to the pit of the stomach or sudden entry of water into the middle ear and sudden entry of water into the larynx can cause vagal inhibition. have prepared a post-mortem report and I have given three opinions (one to the S. I. of Police, Nazarabad, and two opinions to the COD) and I also gave a statement before the COD". ( 39 ) TO sum up the defence theory on the basis of the cross-examination of the doctor it was submitted: (1) vagal inhibition can be caused if a person jumps into the pool and the stomach hits the water; (2) loss of tooth can be caused while combing for the deceased in the pool or while bringing the deceased out of the swimming pool or while trying to give first aid to the "deceased". ( 40 ) ON the basis of certain admissions made by the doctor to hypothetical questions posed by the defence Counsel it was strenuously submitted that drowning cannot be ruled out. ( 41 ) WE have given our anxious consideration to the testimony of the doctor-P. W. 32 given in cross-examination. ( 40 ) ON the basis of certain admissions made by the doctor to hypothetical questions posed by the defence Counsel it was strenuously submitted that drowning cannot be ruled out. ( 41 ) WE have given our anxious consideration to the testimony of the doctor-P. W. 32 given in cross-examination. We have before us the original post-mortem report Ex. P-42. We also have the final opinion of the doctor-Ex. P-46 given after inspecting the swimming pool. We also have the testimony of the doctor to the effect that the death was not due to drowning. The doctor has stated in his chief examination that he did not notice any cadavertic spasm at the time of conducting the post-mortem, cadavertic spasm occurs when a person falls into the water and he tries to save himself from drowning. If a person is trying to save himself from drowning there will be manifestation of clenched fist as the deceased would want to clutch to any article that comes in his way. The doctor did not notice that the fists were clenched at the time of post-mortem examination. He has stated so categorically at paragraph (19) of his testimony. At paragraph (20) of his testimony the doctor has stated that if a person is drowned, froth will be found coming out from the nose and mouth. In the instant case, he noticed that there was no froth from the nose and mouth. ( 42 ) EVEN the final opinion, after the COD took up investigation, has categorically ruled out the drowning theory. The doctor in his final opinion at Ex. P-46 has stated that the internal and external injuries were ante-mortem. In the light of the post-mortem report, Ex. P-43 and the final opinion of the doctor at Ex, P-46 and his testimony in Court (notwithstanding the statements made by the doctor in cross-examination to hypothetical questions) we are of the firm opinion that the drowning theory cannot be accepted by any stretch of imagination. ( 43 ) THE theory that the injuries were post-mortem and not ante- mortem will have to be rejected outright as such injuries can never be caused while removing the body from the swimming pool. ( 43 ) THE theory that the injuries were post-mortem and not ante- mortem will have to be rejected outright as such injuries can never be caused while removing the body from the swimming pool. The theory that the deceased suffered vagal inhibition because the stomach came into contact with the water while he was jumping into the swimming pool, cannot be accepted as it is totally contrary to the post-mortem report and final opinion of the doctor-P. W. 32 at Ex. P-46. ( 44 ) IT is amazing how the Trial Court on the basis of conjectures and theories had come to the conclusion that the deceased had died because of drowning and not because of the injuries sustained by him. ( 45 ) WE are unable to understand if the Trial Court got carried away by the defence theory in the cross-examination or because the Trial Court was not able to bring into focus the post-mortem report and the final opinion of the doctor. But alas one thing is clear on a re-appraisal of the evidence the theory that the deceased jumped into the pool and died due to drowning cannot bear the close scrutiny of the post-mortem report and final opinion of the doctor. ( 46 ) HAVING ruled out the drowning theory we will have to consider carefully the testimony of the eye-witnesses P. Ws. 27 to 29. While passing we would like to make a brief mention about the testimony of P. W. 13-Uthappa, swimming coach, who was also an eye-witness and who has been treated as hostile by the prosecution. ( 47 ) WE shall take up the evidence of P. W. 13. P. W. 13 was the swimming pool coach at the relevant time. His job among other things was to keep swimming pool clean. His testimony was that he knew the accused who was the Deputy Commissioner of police, Mysore. He was coming to the hotel along with his family as a VIP member. Accused was coming regularly to the swimming pool with his two children 8 to 9 years old. He used to teach his children swimming. He also knew P. W. 28, who had also come to learn swimming. He saw P. Ws. 27 to 29 at the pool at the relevant time. Accused was coming regularly to the swimming pool with his two children 8 to 9 years old. He used to teach his children swimming. He also knew P. W. 28, who had also come to learn swimming. He saw P. Ws. 27 to 29 at the pool at the relevant time. He also admits that the deceased sathyadev had come to the swimming pool and Sathyadev requested P. W. 13 to teach him swimming. He also noticed the hoys P. Ws. 27 to 29 were swimming. He met the accused and his wife. They were also in their swimming costume. ( 48 ) AFTER this, P. W. 13 did not support the prosecution. He stated that he heard children shouting uncle, "that some one was drowning and drowning". He noticed that the accused and his wife were on the shallow side of the water. He saw the hair of a person going into the deep. P. W. 13 asked the accused what had happened. He noticed that the accused was in a frightened mood. The accused answered stating that somebody came running and jumped into 10' deep side and never came out, P. W. 13 could not jump into the pool to save the deceased since he had an injury on his finger. Therefore, he cried 'bachao, bachao'. Hearing the cries, one chatri from the maintenance section came and jumped into the pool after removing his dress. The other staff of the hotel also came. The staff of the hotel got into the water and searched for the body. ( 49 ) THEREAFTER the accused asked P. W. 13 to bring a rope and the long PVC pipe brushes and the accused with the help of the staff of the hotel brought the body of the deceased to the surface of the pool with his face upwards. The people near the pool tried to resuscitate the deceased. No water came from the mouth of the deceased. The accused asked P. W. 13 to call for a doctor. P. W. 13 also saw the accused directing the Sub-Inspector of police P. W. 34 to register a case. P. W. 4 the lady Manager asked p. W. 13 to give a report of the accident. P. W. 13 gave a report mentioning the presence of the accused, his wife and children. P. W. 13 also saw the accused directing the Sub-Inspector of police P. W. 34 to register a case. P. W. 4 the lady Manager asked p. W. 13 to give a report of the accident. P. W. 13 gave a report mentioning the presence of the accused, his wife and children. He wrote a report put his signature and gave it to Mrs. Mallik the manager-P. W. 4. Mrs. Mallik wrote the report and gave it to the accused. However, the accused stated that a fresh report should be written excluding the names of the accused and his family members. Accused tore the first report and another report was prepared deleting the names of the accused and his family members. ( 50 ) IT is brought out in evidence that a statement was recorded from P. W. 13 by the Magistrate under Section 164, Criminal procedure Code. In Court at one point of time during examination-in-chief, P. W. 13 stated that his statement given before the Magistrate was true. However, in his cross-examination, he stated that the statement before the Magistrate was not voluntary. ( 51 ) WE therefore, have to take his testimony as a whole made in Court. In that view of the matter, no reliance can be placed on the evidence of P. W. 13 as an eye-witness. However, we may safely rely on the evidence of P. W. 13 to the extent that he speaks about the presence of the accused, his wife, his children and P. Ws. 27 to 29 being present at the time of the occurrence. This piece of evidence of P. W. 13 is relied upon only to cross-check the presence of P. Ws. 27 to 29 at the place of occurrence and for no other purpose. ( 52 ) WE shall now deal with the submissions of the learned counsel for the accused Mr. Samba Murthy. It can be summed up as follows: (I) The eye-witnesses P. Ws. 27 to 29 cannot be believed as they were examined after a lapse of time when the cod took over investigation; (II) The doctor-P. W. 32 has given some support to the drowning theory and that should be accepted to give the accused the benefit of doubt; (III) There are no corresponding external injury on the neck which caused vagal inhibition. ( 53 ) WITH respect to delay in examining the eye-witnesses, we will have to determine, (a) whether they were present at the swiming pool at the relevant time; (b) if they were indeed present, whether they were speaking the truth. P. W. 13 the swimming coach speaks of the presence of P. Ws. 27 to 29. They are all natural witnesses, who had come for a swim that afternoon. P. Ws. 27 to 29 were sternly warned by the accused that they should not talk to any person about the incident. They were obliged to state by the accused that a person came and jumped into the swimming pool. It is in the testimony of these eye-witnesses that they plucked up courage to speak the truth only after COD took over investigation. We may point out that p. W. 27 does not even speak about the assault. He only heard a "splash" and he saw the deceased drowning. If he was tutored, then certainly he would have been made to speak about the assault as well. ( 54 ) P. WS. 27 to 29 are children. There is absolutely nothing in the cross-examination to discredit their testimony. Indeed, P. Ws. 27 and 29 have been close to the accused and his children. We hold that their testimony has a ring of truth. The evidence of p. W. 34 the local Sub-Inspector clearly indicates that the accused had a strangle-hold on the investigation and the inquest was monitored by the accused. In these circumstances, it would have been practically impossible for P. W. 34 to record statements of P. Ws. 27 to 29. P. W. 34 was under the control of the accused and even if P. Ws. 27 to 29 wanted to speak the truth, neither the accused nor P. W. 34 was prepared to record their correct statement during inquest. It was only after the independent COD stepped into the picture, the investigation proceeded in accordance with law. Therefore, we do not find any ground to reject the testimony of P. Ws. 27 to 29. ( 55 ) WE now come to the other submission of the learned counsel for the accused, i. e. , whether the medical testimony supports the drowning theory. We shall first deal with the neck injury. No doubt there was no external injury on the neck of the deceased which caused vagal inhibition. 27 to 29. ( 55 ) WE now come to the other submission of the learned counsel for the accused, i. e. , whether the medical testimony supports the drowning theory. We shall first deal with the neck injury. No doubt there was no external injury on the neck of the deceased which caused vagal inhibition. The corresponding internal injury was that the left side of the neck and the left lobu of thyroid gland was found contused and the surrounding areas upto the carotid body was found infiltrated with black coloured blood. ( 56 ) IN common parlance the deceased died of heart failure stimulated by the injury on the neck. P. W. 32 clearly states that if a person directly falls into the water such an injury could not be caused. He further stated that abrasions cannot be caused if a person directly falls into the water. In his opinion the death was due to cardiac arrest as a result of vagal inhibition consequent upon injury sustained to left side of the neck. ( 57 ) IF a person is assaulted on the neck, vagal inhibition can be caused without an external injury. It was stated by one of the eye-witnesses P. W. 28 that the assault was like a karate blow. If the assault is by a stretched palm and if the side of the palm hits the neck, it is possible to cause vagal inhibition without a corresponding external injury. We may at this stage, refer to taylor's Medical Jurisprudence, in the 12th Edition at page 217, the learned Author has stated as follows:"wounds-A wound may be defined as damage to living tissue. The injury may be visible externally but this is not essential as serious and fatal internal injuries may be inflicted in the absence of any external mark of violence". P. W. 32 as stated that vagal inhibition can take place from a stimulation given to a trigal area; simple stimulation can cause vagal inhibition. On hitting by any object such as a side of the hand can produce vagal inhibition. If that was the categorical opinion of the doctor, we have absolutely no doubt that a blow given on the neck in a karate style could cause vagal inhibition without a corresponding external injury. ( 58 ) WE shall now deal with the injury which resulted in the dislocation of the tooth. If that was the categorical opinion of the doctor, we have absolutely no doubt that a blow given on the neck in a karate style could cause vagal inhibition without a corresponding external injury. ( 58 ) WE shall now deal with the injury which resulted in the dislocation of the tooth. The tooth was found inside the mouth at the time of the post-mortem. The corresponding external injuries are the two abrasions on the side of the mouth. We have referred to the two abrasions sustained by the deceased in the earlier part of our judgment. The doctor has categorically said that an injury with a knuckle on the tooth can be caused without any external injury to the lips provided the person who is hit, does not open his mouth and if the hit is not directly on the lips. ( 59 ) CERTAINLY the dislocation of the tooth cannot be caused while jumping into the pool. Realising this difficulty it was submitted by the defence Counsel that the tooth was lost while the attendants of the swimming pool retrieved the body from the pool. It was also suggested that the tooth could have been lost while combing for the body in the swimming pool. Such a suggestion is inconsistent with the medical testimony. We cannot allow our imagination to run riot. Any defence theory must be consistent with the medical evidence. To say that the tooth was lost while retrieving the body from the swimming pool defies logic. It is clear that the tooth was dislocated on account of the blow which the deceased suffered while being hit on the face. ( 60 ) IT was further submitted that the two external abrasions were caused by the attendants while trying to resuscitate the deceased. Even this theory is totally hollow and without substance. ( 61 ) FINALLY, we come to the visible signs on the deceased to rule out the drowning theory. The perusal of the evidence of the doctor-P. W. 32, indicates that the hands were not clenched. No water came out of the mouth or nose while trying to resuscitate the deceased. There was also no froth from the mouth of the deceased. None of the manifestation necessary to substantiate the drowning theory was present. We have no hesitation in ruling out the drowning theory. No water came out of the mouth or nose while trying to resuscitate the deceased. There was also no froth from the mouth of the deceased. None of the manifestation necessary to substantiate the drowning theory was present. We have no hesitation in ruling out the drowning theory. ( 62 ) WE feel that the opinion of the doctor that the deceased died of a vagal inhibition on account of the assault on the neck and that the tooth was dislocated on account of the blow received on the face cannot be faulted. The doctor at Ex. P-67 in his final opinion has stated as follows:"external and the internal injuries noted in the post-mortem report could not have been caused to the deceased by falling into swimming pool". ( 63 ) WE are satisfied that the doctor's evidence fully corroborates the evidence of the eye-witnesses that the deceased died as a result of blows sustained by him while in the swimming pool. We are satisfied that the prosecution has proved beyond any reasonable doubt that the accused assaulted the deceased with his hands because he was annoyed that the deceased sniggered at his wife P. W. 41. ( 64 ) THE Trial Court has committed grave error in acquitting the accused. It has misdirected itself on the medical evidence and got carried away by assumptions and theories based on hypothetical answers to hypothetical questions without any relevance to the facts of the case. The medical evidence and the testimony of P. Ws. 27 to 29 stares in the face of the Trial Court only to be ignored. The Trial Court in discarding the evidence of the three eye-witnesses was palpably wrong, ( 65 ) WE are deeply conscious that we are dealing with an appeal against acquittal and that if two views are possible the benefit of doubt must go to the accused. Equally, there is no immunity to an erroneous order from appellate scrutiny. Supreme Court in a number of pronouncements has used expressions, such as "substantial and compelling reasons" and "strong reasons" before an appeal against acquittal can be allowed. At this stage, we may refer to the judgment of the supreme Court in State of U. P. v Krishna Gopal and Another , which has dealt with the vexed questions of the power of the appellate Court in an appeal against acquittal. At this stage, we may refer to the judgment of the supreme Court in State of U. P. v Krishna Gopal and Another , which has dealt with the vexed questions of the power of the appellate Court in an appeal against acquittal. M. N. Venkatachaliah, J. , (as he then was), speaking for the Bench, held at paragraph 13 as follows :"13. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to proof is an exercise particular to each case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and commonsense. It must grow out of the evidence in the case. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust commonsense and ultimately, on the trained intuitions of the judge". There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust commonsense and ultimately, on the trained intuitions of the judge". (emphasis supplied) ( 66 ) HAVING regard to the above said principles in an appeal against acquittal, we have no hesitation to hold that the judgment of the Trial Court is perverse, palpably erroneous and contrary to law. ( 67 ) WE consequently hold for the above said reasons that the prosecution has proved beyond reasonable doubt that the deceased died as a result of the assault sustained by him at the swimming pool. We also hold that it was the accused and the accused alone who assaulted the deceased in the circumstances stated above. ( 68 ) WE shall now deal with each charge against the accused. The most serious charge is one under Section 302, Indian Penal code. From the way the incident took place and in the circumstances of the case, it would be difficult to sustain the charge against the accused under Section 302, Indian Penal code. No doubt, the deceased died due to cardiac arrest as a result of vagal inhibition consequent upon injuries sustained to the left side of the neck and that the injury was sufficient in the ordinary course of nature to cause death. However, in the facts and circumstances of the case, it would be difficult to hold that the accused had the necessary mens rea to cause the death of the deceased. As stated earlier, A single blow by hand on the neck of the deceased caused triggered vagal inhibition which resulted in cardiac arrest. From the materials on record it would be difficult to hold that the accused had the intention to kill the deceased. As stated earlier, A single blow by hand on the neck of the deceased caused triggered vagal inhibition which resulted in cardiac arrest. From the materials on record it would be difficult to hold that the accused had the intention to kill the deceased. Admittedly, (I) No weapon was used to assault the deceased; (II) The accused was sufficiently agitated by the conduct of the deceased in mocking at his wife dressed in a swimming suit in the presence of his children; (III) The deceased was an unauthorised user of the swimming pool and had jumped into the pool with just wearing his underwear; (IV) There was absolutely no cause for the accused to murder the deceased except to teach the deceased a lesson to behave decently; (V) There was no corresponding external injury in the neck to determine how forceful the blow was and if the blow was of a sufficient force, there would have been a corresponding external injury like a contusion; (VI) There was a rush of blood and the accused appears to have lost his sense of balance on seeing his wife being sniggerded. ( 69 ) THE learned Additional State Public Prosecutor has relied on a judgment of the Supreme Court in Gokul Parashram Patil v state of Maharashtra. This was a case where the accused attacked the deceased with a knife giving the deceased a single blow above the left clavicle. The autopsy surgeon certified that the superior veaacava was cut and the injury was sufficient in the ordinary course of nature to cause death. The Supreme court held that it would be too much to say that the accused knew that the superior venacava would be cut as a result of that wound and even a medical man perhaps may not have been able to judge the location of the superior venacava with any precision. The Supreme Court in the said case held that the accused can only be held guilty under Part II of Section 304, Indian Penal code. ( 70 ) FOLLOWING the dicta of the Supreme Court in the said case and for the reasons stated above, we hold that the accused is guilty only under Section 304, Part II, Indian Penal Code under the second charge. ( 71 ) THE third charge relates to an offence under Section 201 of the Indian Penal Code. ( 70 ) FOLLOWING the dicta of the Supreme Court in the said case and for the reasons stated above, we hold that the accused is guilty only under Section 304, Part II, Indian Penal Code under the second charge. ( 71 ) THE third charge relates to an offence under Section 201 of the Indian Penal Code. The charge related to giving false information to the swimming pool authorities and to the subordinate officers to get a case of unnatural death registered against the deceased. We have, no hesitation for the reasons stated above that the accused was guilty in screening himself to escape prosecution by giving false information. The conduct of the accused in trying to hijack the inquest proceedings and in trying to subvert the preliminary investigation is writ large in this case. P. W. 34 has clearly stated that the original complaint was torn and a fresh complaint was prepared by deliberately removing the name of the accused and his family. The accused had with the help of P. W. 34 manipulated the inquest report to make it appear as if it was a case of suicide. The accused being a senior Police Officer at Mysore had an enduring control over the investigation in the early stages. P. W. 34 was also under the control of the accused. It was only after the independent detective agency-the COD stepped into the case, the investigation proceeded in accordance with law. Yet another example of the accused screening the evidence can be found in the testimony of P. W. 32, the doctor. P. W. 32 stated that he was sent for and the car of the accused had hrought him to the swimming pool. The accused was pressing the doctor to give opinion that the deceased died of drowning by jumping into the pool. The anxiety of the accused to screen the evidence at the earliest opportunity is clearly established; The accused was a powerful man in the police and none spoke against him. When he himself was caught in the incident, he tried to extricate himself by hook or crook. He tried to influence Iftekar mohammed, Inspector of Police, P. W. 39, P. W. 34 (Sub-Inspector of Police), P. W. 4 (the manager of the hotel) and P. Ws. 27 to 29 (the eye-witnesses ). He tried his best to damage the investigation. When he himself was caught in the incident, he tried to extricate himself by hook or crook. He tried to influence Iftekar mohammed, Inspector of Police, P. W. 39, P. W. 34 (Sub-Inspector of Police), P. W. 4 (the manager of the hotel) and P. Ws. 27 to 29 (the eye-witnesses ). He tried his best to damage the investigation. It was a diabolical attempt on the part of the accused to suppress the truth. His conduct was reprehensible and unbecoming of a Senior Police Officer. We shall say no more and hold the accused guilty under Section 201 of the Indian Penal code under the third charge. ( 72 ) THE first charge is under Section 341 of the Indian Penal code. The allegations against the accused was that he wrongfully restrained P. W. 13 the swimming coach from saving the deceased. On close examination of the materials before us, it would be difficult to hold that the accused had wrongfully restrained P. W. 13 the swimming coach. It was elicited from the cross-examination of P. W. 41 the Investigating Officer of the cod that P. Ws. 27 to 29 did not state anything about the accused holding the hand of P. W. 13 and restraining him. Since the statements of P. Ws. 27 to 29 at the earliest opportunity did not refer to this incident, it would be difficult to hold that the accused committed an offence of wrongful restraint punishable under Section 341 of the Indian Penal Code. We, therefore, acquit the accused under Section 341, Indian Penal Code under the first charge. ( 73 ) THE fourth charge against the accused appears to us to be superfluous. The charge relates to criminal intimidation against p. W. 39-Iftekar Mohammed-one of the Police Inspectors and is one under Section 506 of the Indian Penal Code. Since the accused has been found guilty under Section 201, Indian Penal code, we do not propose to convict the accused for an offence under Section 506, Indian Penal Code. Consequently the accused is acquitted under Section 506, Indian Penal Code as well. We find the accused guilty under Section 304, Part II and 201, indian Penal Code. ( 74 ) WE heard the accused on the question of sentence. It was submitted that the accused was a young and an able Officer. Consequently the accused is acquitted under Section 506, Indian Penal Code as well. We find the accused guilty under Section 304, Part II and 201, indian Penal Code. ( 74 ) WE heard the accused on the question of sentence. It was submitted that the accused was a young and an able Officer. He has two young children and a wife to care for and it was submitted that the accused should be dealt with leniently. We have given our careful consideration to this aspect of the matter on the question of sentence. ( 75 ) NO doubt, the future of the accused as a Police Officer is now snuffed out by his senseless act. He would loose his reputation in Society. He has two young children to care for. It is also common ground that the accused was a good Officer. In the facts and circumstances of the case, we feel that the ends of justice will be met if the accused is sentenced to undergo rigorous imprisonment for three years and also liable to pay a fine. ( 76 ) NO amount of money can ever compensate the anguish of a mother, who lost her son. P. W. 1, the mother of the deceased comes from a lower middle class society. Indeed she was a reluctent participant in the trial since she stated stoically that what has happend is happend and nothing can bring her son back. The Courts are increasingly moving towards the theory of 'victimology'. We do not come across many cases for action in tort. The accused is fairly well off. We feel that the ends of justice will be met if the accused is also sentenced to pay a fine of Rs. 1,00,000/- in default to undergo rigorous imprisonment for six months. The fine shall be paid within eight weeks from the date of the receipt of the order in the Trial Court, failing which, the default sentence shall come into play. On payment of the fine, the Trial Court shall disburse the amount as compensation to P. W. 1 and report compliance. ( 77 ) WE also hold the accused guilty under Section 201, Indian penal Code and sentence him to undergo rigorous imprisonment for one year. On payment of the fine, the Trial Court shall disburse the amount as compensation to P. W. 1 and report compliance. ( 77 ) WE also hold the accused guilty under Section 201, Indian penal Code and sentence him to undergo rigorous imprisonment for one year. ( 78 ) IN the result, we convict the accused for an offence under section 201, Indian Penal Code and sentence him to undergo rigorous imprisonment for one year. We also convict the accused for an offence under Section 304, Part II, Indian Penal Code and sentence the accused to undergo rigorous imprisonment for three years and sentence the accused to pay a fine of Rs. 1,00,000/- in default to undergo rigorous imprisonment for six months. We hereby acquit the accused for the offences under Sections 341 and 506, Indian Penal Code. The sentences of imprisonment shall run concurrently and the accused shall be entitled to set off for the period in confinement during investigation. The accused shall surrender and serve the remaining portion of the sentence. ( 79 ) BEFORE we part with this case, we place on record the assistance rendered by Mr. Koti, the Additional State Public prosecutor. The dextrity and forensic skill with which he conducted the case was of immense help to the Court. Mr. D. Ashokan, the special Public Prosecutor, who conducted the trial has also done a good job in bringing out all the relevant materials before the Trial Court. We also place on record the assistance rendered by the learned Counsel for the accused Mr. N. Samba murthy and Mr. C. G. Sundar. --- *** --- .