Bangalore District Court
State By Puttenahalli vs Smt.Selva on 10 April, 2023
IP
KABC030702742019
NAIK
Digitally signed
by I P NAIK
IN THE COURT OF THE 30 ADDL.CHIEF Date: 2023.04.10
TH
METROPOLITAN MAGISTRATE, BENGALURU
15:15:34 +0530
Dated: This the 10th day of April, 2023
:Present: Sri. I.P.Naik, B.A., LL.B.(Spl),
30th ACMM, Bengaluru
Judgment U/s.355 of Cr.P.C.
C.C.No. 29632/2019
Date of Offence 25.11.2018
Complainant State by Puttenahalli, Police Station
V/s.
Accused Smt.Selva,
S/o.Nagaraj,
Aged about 54 years,
R/at.1/152, Ground Floor,
4th Cross, Venkatadri Layout,
B.G.Road,
Bengaluru City.
Offences U/s.338 of IPC.
Plea Recorded on 30.01.2022 and accused
has abjured guilty.
313 Statement recorded on: On 27.09.2023
2 C.C.No.29632/2019
Final Oder Accused is Convicted
Date of Order 10-04-2023.
*****
JUDGMENT
The PSI of Puttenahalli, Police Station has filed charge sheet against accused persons for the offences punishable U/s.338 of IPC.
2. The factual matrix of the case are as follows:
It is alleged that, House bg.No.1/152, situated at 4 th Cross, Venkatadri Layout, Bannerghatta Road, within the territorial limits of Puttenahalli Police Station, 1st floor of the said building having balcony, CW2 Nameeth is tenant of 1st floor building belongs to accused. On 25.11.2018, CW2 ordered for food through Swiggy App. At about 3.00pm food delivery boy called the CW2 in order to show his building CW2 contacted with him through mobile from left side and from his right hand he was making signal by waving at that time, he was electrocuted by the electric wire. The BESCOM authorities laid 11-Kv Electric wife near the balcony of the building belonged to the accused . When CW2 waved his hands through balcony, at that time, he was electrocuted in the said incident and 3 C.C.No.29632/2019 he sustained grievous injuries to his right hand and both eyes. After incident with help of CW3 to CW7, CW2 was shifted to St.John Hospital for treatment.
3. In the year 2003, accused constructed ground floor by obtaining permission from the Town Municipal authority, Bommanahalli, in the year 2003. As per the approved plan and permission. Further, without obtaining approved plan and license accused has constructed 1st and 2nd floor in the year 2013. Further, the accused has not received NOC Certificate from the BESCOM while constructing 1st and 2d floor which is near the 11-Kv Power lane, as per the rules constructing building, shall have 1.2 mtrs away from the 11-Kv electrical wire. The accused constructed 1 st and 2nd floor without living 1.5 mtrs from the 11-Kv Electrical lane. She has not provided proper safety measure to the tenants. Due to this illegal act, CW2 sustained grievous injury and became permanent handicapped. The incident has occurred due to negligent and illegal act. Hence, accused is charge sheeted. 4 C.C.No.29632/2019
4. In this regard, father of the CW2, CW1 lodged the complaint, before CW13-HC. Based on the complaint, CW13 registered the case against the accused in Cr.No.309/2018 and forwarded the FIR to this court. On 13.01.2019, CW14 PSI- rushed to the spot and conducted SO mahazar in the presence of witnesses. On 20.03.2019, he has obtained wound certificate from the St.John Hospital and also taken photographs of the spot. Then, he has submitted requisition to the BESCOM in respect of the report for the alleged incident. Further, he has lao received report from the BESCOM and collected the rent documents. After completing other formalities, IO has submitted charge sheet against the accused.
5. During crime stage, accused voluntarily appeared before this court and got enlarged on regular bail. By considering the charge sheet and other materials, this court taken cognizance for the alleged offence punishable U/s.338 of IPC and ordered to 5 C.C.No.29632/2019 register the case against the accused in Register-III. In pursuant to the summons, accused appeared through her counsel.
6. The Plea has been read over and explained to the accused in the language known to her, she pleaded not guilty and claimed to be tried, hence, the prosecution is called upon to prove its case.
7. In order to prove the guilt of the accused person, prosecution has examined 8 witnesses as PW1 to PW8 and 13 documents are got marked as Ex.P.1 & P.13. In order to secure CW4 to 7 & 9 issued Summons, NBW and Proclamation. But the concerned police failed to secure these witnesses. Finally this court opined that, there is no meaning in reissuing of Summons, NBW and Proclamation. Accordingly, prayer of learned Sr.APP is rejected and CW4 to 7 & 9 are dropped and statement of accused u/S.313 of Cr.P.C. is dispensed with.
6 C.C.No.29632/2019
8. Thereafter statement of accused recorded U/s.313 of Cr.P.C, the accused person denied the incriminating evidence. Initially accused sought to lead defence evidence. Later, her counsel submitted that, there is no defence evidence. During cross- examination of PW6 one document is got marked at Ex.D.1 on behalf of the accused.
9. Heard both the side and perused the material evidence on record.
10. The following points would arise for my consideration:
1. Whether the prosecution proves beyond reasonable doubt that, accused obtaining permission from the BBMP and BESCOM she has constructed 1st and 2nd floor and due to her negligence PW3 got electrocuted and sustained grievous injuries and thereby committed an offence punishable under Section 338 of IPC and within my cognizance.?7 C.C.No.29632/2019
2. What order.?
11. My findings on the above points are as follows:
Point No.1 : IN THE AFFIRMATIVE
Point No.2 : As per final order
......................... for the following.., REASONS
12. Point No.1:- The learned Sr.APP urged that, in this case, prosecution proved the negligence on part of the accuse due to her negligence in construction of the house and not provided safety measures to tenant PW3 Nameeth sustained injuries and he has lost his right hand due to electrocution. The prosecution successfully proved the guilt of the accused persons beyond reasonable doubt. Based on the oral and documentary evidence. Hence, prays to convict the accused in accordance with law.
13. As against this, the learned counsel for the accused urged that, Ex.D.1 got marked during the cross-examination of PW6-Venkatesh Saagar, who is AEE-BESCOM J.P.Nagar, S-14,. 8 C.C.No.29632/2019 According to recitals of Ex.D.1 the BESCOM has permitted to construct 4 floors building infavour of the accused on 04.05.2013. Accordingly, she constructed building in property. At the time of taking rent the said building, PW3 and his wife has verified the balcony and terrace. This fact is elicited from the mouth of PW3 during cross-examination. PW3 further, stated that, prior to the incident he has 3-4 times ordered for online food.
14. The concerned authorities have not provided safety measures ie., at the time of lying of the 11Kv power lines in front of house belonged to the accused. Due to negligence of the PW3, he said incident has occurred. Further, there is no dispute in respect of electrical wires are lying in one transformer to another form in cross way. Thereafter, they have put it straight.
15. By considering this aspect, it reveals that, the incident has occurred due to negligence on the part of the PW3. There is no negligence on the part of the accused. Hence, prays to acquit the accused from the alleged offences.
9 C.C.No.29632/2019
16. At the time of recording the evidence, due to oversight, the first information is marked through PW3. According to prosecution case, father of PW3, Anil Kumar lodged the complaint before the CW5 HC-Chikkmariyappa.
17. PW3 Nameeth is injured person in the alleged incident. He specifically stated that on 25.11.2018 he has ordered for Pizza through Online at about 3.00pm, the delivery boy came to the house belonged to the accused. The said delivery boy called him for identification of the said place at that time, PW3 came to the balcony and started waving his hands for identification, at that time, his hands came in contact with the 11Kv electrical wires and he was electrocuted and immediately he was hanging on the balcony. He was unconscious. Immediately his wife and other person came to his held and admitted him to the Appollo Hospital, Bannerghatta Road. The said hospital authorities have referred him to St.John Hospital. Immediately, PW3 shifted to St.John Hospital. 10 C.C.No.29632/2019 In this regard, his father has lodged complaint which is marked at Ex.P.2.
18. Further, stated that, on 13.01.2019 police came to the spot and conducted SO mahazar. The alleged incident has occurred due to accused has constructed house within 2 and 2 ½ away from the 11Kv wire, which was inoculated. At the time of construction of the house of the accused accused has not obtained NOC from the BESCOM. According to BESCOM Rules, building should be constructed one and half mts away from the 11Kc wires. Further, stated that, in balcony, accused has not provided safety measures, for this reason, alleged incident has occurred.
19. During his cross-examination, he stated that, on 10.05.2018, he has entered into agreement of rent with the accused, at the time of entering into the agreement of rent, he has inspected the balcony and terrace. At that time, he has observe regarding electrical wires and also he is aware about the live electrical wires.
11 C.C.No.29632/2019
20. Further, in this cross-examination he stated that, in front of house of the accused, electrical wires were installed in a cross manner and while accused constructed the house they have put in straight line. Further, he stated that, he was standing in the balcony 2 to 3 inches away from the grills. Further, he opined that, he would have collected the food ordered from the ground floor also. After the incident. He is working as Assistant Manager at Miling Procession Products Company. Further, he stated that, he has information regarding constitutions of the building to be away for one and half meters from the 11Kv through his counsel and from searching through Google.
21. PW4-Smt.Sonica who is none other than wife of the PW1. She has deposed that, on 25.11.2018 at about 3.00pm, she was engaged in cleaning clothes at that time, she heard sound. Immediately, she came to the balcony and saw that her husband was hanging. Thereafter, after some time he has fallen on the ground. Immediately, she has screamed and neighbours have 12 C.C.No.29632/2019 shifted her husband to the Apollo Hospital, Bannerghatta Road. The said incident has secured due to the negligence and not providing safety measures by the accused and she has illegally constructed the balcony.
22. Inspite of providing one hour time, accused have not chosen to cross-examined the PW4. Therefore, oral testimony of PW4 is unchallenged.
23. PW2 Syed Kareem who is residing in the front house of the accused. He has not aware about the accused. But he deposed that, his house is situated at Venkatadri Layout, J.P.Nagar. During one and half year back, on Sunday, at about 3.00pm to 3.30pm he heard sound at that time one day Cricket was going on between India and Australia. Immediately, he came from the house and saw that PW3 was hanging at balcony grill and he also heard burning smell. Immediately, himself and two others took the PW3 Nameeth and admitted to Apollo Hospital in car. Due to the burn injuries, the said Apollo Hospital authorities have referred him to St.John 13 C.C.No.29632/2019 Hospital. Thereafter, they have shifted the Nameeth to St.John Hospital.
24. PW2 specifically stated that, the alleged incident has occurred due to balcony was constructed very near to the 11Kv electrical wires.
25. During his cross-examination he stated that, the electrical wires are straight. Further, he stated that, Nameeth was aware about if he waves his hands it may touch the electrical wires. Further, he stated that, building is within 3 to 4 feet from the electrical wires. Further, he stated that the incident has occurred due to negligence of Nemeeth. Rest of the aspect is not aware to PW2.
26. PW7 stated that, police came to the house of PW3 situated at Venktadri layout and drawn the mahazar due to electric wire incident has occurred. This evidence is also unchallenged one. 14 C.C.No.29632/2019
27. PW1 Dr.Betti Albart deposed that on 25.11.2015 at about 4.40pm, Nameeth was admitted to Hospital due to he had sustained burn injuries in the electrocution incident. On examination she has found injuries as follows:-
15% 3rd degree deep electrical burns over right upper limb, left hand, right lower abdomen and bilateral grain.
Injury 1 is grievous and fresh."
Further, she opined that, she has treated the burn injuries based on the Rules of 9 burns.
28. PW5 is initially investigating officer he deposed that, on 5.12.2018 at bout 3.15pm he has received the complaint from CW1 and registered the case in Cr.No.309/2018 and forwarded the FIR to this court.
29. PW8-PSI Raghu Naik stated that, on 13.01.2019, he has rushed to the spot and conducted the mahazar. Thereafter, he has 15 C.C.No.29632/2019 collected the wound certificate from PW1 and photos from the PW3. Thereafter, he has sought for report from the BESCOM regarding reasons for electrocution incident.
30. PW6-AEE of J.P. Nagar BESCOM-
S-14 by name Venkatesh Saagar stated that, on 06.02.2019, as per the instructions of his higher officer, he has gone to the spot and verified the spot. He is aware that, on 25.11.2018 Nameeth has sustained injuries due to electrocution. When Nameeth was taking food from Swiggy delivery boy. The 11Kv electrical wires are laid in the year 2009. Accused got electrical connection in the year 2005. In the year 2015 accused constructed 1 st and 2nd floor. As per the Rules she was required to construct 0.9 mts away from the 11Kc wire connection. In order to construct the house away from the 11Kv live wires they have to obtain for extension of the building.
31. According to their official records, accused constructed 1st and 2nd floor extension without informing to their office. In this regard, he has submitted detail report Ex.P.2 to the IO. 16 C.C.No.29632/2019
32. During cross-examination, he stated that, house of the accused is situated 3 feet away from the 11Kv wires. Accused got electrical connection to the ground floor after that, 11kc wires are laid. Further, he has deposed that one Apartment is situated in front of the house of the accused which is away 300mts. Further, he denied in respect of laying wires in cross line. Further, he stated that 11Kv are laid with the prevision of their higher authority. At that time, they have taken precautionary measures and they have not put pipes to the 11kv wires. Further, he stated that, pipes can be put only to the capacity of 230 Watts only.
33. Further, stated that, they are not providing power connection to illegally constructed houses.
34. Further, PW6 is cross-examined on 10.08.2022, at that time, he admitted regarding NOC issued from their office dated 05.04.2012 which has confronted to him said document is got marked at Ex.D.1. According to to Rules, their office has issued 17 C.C.No.29632/2019 NOC for construction of the 4 floor building. Further, he deposed that, after the incident, they have laid wires in ground. At that time of the incident, such facilities were not available to the BESCOM authorities. After collecting report from the BESCOM IO submitted charge sheet against the accused.
35. In this case, the oral testimony of PW4, PW5 and PW8 are unchallenged one. By considering the contentions of both parties, I have carefully examined the oral testimony of prosecution witnesses and documents. By considering the oral testimony of PW1, accused has not disputed inrespect of PW3-Nameeth sustained injury and has permanently lost his right hand. At the time of recording evidence of PW3 this court observed that, right hand of the PW3 is permanently cut above elbow. So one thing is clear from the prosecution records that, Nameeth sustained electrical burnt injuries due to electrocution on 25.11.2018 at about 3.00pm.
18 C.C.No.29632/2019
36. By considering the oral testimony of PW2 and PW4 it reveals that, these witnesses are not eye witnesses to the alleged incident. They have rushed to the spot immediately after the incident, at that time, injured Nameeth was hanging at the balcony grills due to electrocution. PW2 in his cross-examination stated that, the electrical incident has occurred due to negligent on the part of the injured person ie., Nameeth.
37. In this case, PW6 not disputed in respect of NOC issued infavour of the accused as per Ex.D.1. According to Ex.D.1 the BESCOM has issued permission to construct 4 floors building on 04.05.2013.
38. In this case, most important facts is elicited from the mouth of PW3 during his cross-examination, who is injured and eye witnesses to the alleged incident and who was tenant under the accused. This fact is not at all disputed by the accused. Further, by considering the cross-examination, it reveals that, PW3 entered into agreement of rent on 10.05.2018 a the time of taking the house 19 C.C.No.29632/2019 on rent he has verified the 1 st floor including the balcony and terrace. Further, at that time, he is also aware about the live electrical wires laid near the balcony. Before the said incident he has 3 to 4 times ordered online food. Further, he opined that, if he had got down from the 1st floor and collected the food at the ground floor, this alleged incident would not he happened. So by considering all these aspects, PW3 is fully aware about the 11Kv line laid near the balcony of the accused.
39. The learned counsel for the accused rightly argued on what are the precautionary measures taken by the PW6. But one thing is very important in this case, which reads thus:-
"ನಿಡಿ-1 ರಲ್ಲಿ ನಾಲ್ಕು ಮಹಡಿಗೆ ವಿದ್ಯು ತ್ ಸರಬರಾಜಿಗೆ ಮಂಜುರಾತಿ ಎಂದು ಬರೆಯಲಾಗಿದೆ. ನಿಡಿ-2 ರ ನಿಬಂಧನೆಗಳು ಆರೋಪಿಯು ಉಲ್ಲಂಫಿಿಸಿಲ್ಲ 2 ಅಡಿ ಕಟ್ಟ ಡವನ್ನು ಮುಂದಕ್ಕೆ ಕಟ್ಟಿರುವ ಬಗ್ಗೆ ಏನಾದರೂ ಕ್ರಮ ತೆಗೆದುಕೂಂಡಿದ್ದೀರಾ ಎಂದರೆ ಸಾಕ್ಷಿದಾರರು ಘಟನೆಯಾಗುವವರೊ ಅದು ನಮ್ಮ ಗಮನಕ್ಕೆ ಬಂದಿಲ್ಲ ಎಂದು ನುಡಿದಿರುತ್ತಾರೆ."
40. By considering the suggestions made by the accused at the time of cross-examination of PW3, PW6, I have relied on very recent Judgment of Hon'ble Supreme Court of India, 20 C.C.No.29632/2019 CRIMINAL APPEAL NO. 1910 OF 2010 DTD 29/03/2023 BALU SUDAM KHALDE AND ANOTHER VERSUS THE STATE OF MAHARASHTRA .
38. Thus, from the above it is evident that the suggestion made by the defence counsel to a witness in the cross-examination if found to be incriminating in nature in any manner would definitely bind the accused and the accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client.
39. Any concession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law. As a legal proposition we cannot agree with the submission canvassed on behalf of the appellants that an answer by a witness to a suggestion made by the defence counsel in the crossexamination does not deserve any value or utility if it incriminates the accused in any manner.
40. It is a cardinal principle of criminal jurisprudence that the initial burden to establish the case against the accused beyond reasonable doubt rests on the prosecution. It is also an elementary principle of law that the prosecution has to prove its case on its own legs and cannot derive advantage or benefit from the weakness of the defence. We are not suggesting for a moment that if prosecution is unable to prove its case on its own legs then the Court can still convict an accused on the strength of the evidence in the form of reply to the suggestions made by the defence counsel to a 17 witness. Take for instance, in the present case we have reached to the conclusion that the evidence of the three eyewitnesses inspires confidence and there is nothing in their evidence on the basis of which it could be said that they are unreliable witnesses. Having reached to such a conclusion, in our opinion, to fortify our view we can definitely look into the suggestions made by the defence counsel to the eyewitnesses, the reply to those establishing the presence of the accused persons as well as the eyewitnesses in the night hours. To put it in other words, suggestions by itself are not sufficient to hold the accused guilty if they are incriminating in any manner or are in the form of admission in the absence of any other reliable evidence on record. It is true that a suggestion has no evidentiary value but this proposition of law would not hold good at all times and in a given case during the course of cross-examination the defence counsel may put such a suggestion the answer to which may directly go against the accused and this is exactly what has happened in the present case.
21 C.C.No.29632/2019
41. The principle of law that in a criminal case, a lawyer has no implied authority to make admissions against his client during the progress of the trial would hold good only in cases where dispensation of proof by the prosecution is not permissible in law. For example, it is obligatory on the part of the prosecution to prove the post mortem report by examining the doctor. The accused cannot admit the contents of the post mortem report thereby absolving the prosecution from its duty to prove the contents of the same in accordance with law by examining the doctor. This is so because if the evidence per se is inadmissible in law then a defence counsel has no authority to make it admissible with his consent.
42. Therefore, we are of the opinion that suggestions made to the witness by the defence counsel and the reply to such suggestions would definitely form part of the evidence and can be relied upon by the Court along with other evidence on record to determine the guilt of the accused. 43. The main object of cross-examination is to find out the truth on record and to help the Court in knowing the truth of the case. It is a matter of common experience that many a times the defence lawyers themselves get the discrepancies clarified 18 arising during the cross-examination in one paragraph and getting themselves contradicted in the other paragraph. The line of cross-examination is always on the basis of the defence which the counsel would keep in mind to defend the accused----------------------------------------------------"
The above suggestions is put forth by the learned counsel for the accused to the tenant of the accused. PW6 stated that, accused not violated the conditions of Ex.D.1 NOC issued by the BESCOM. The very next sentence is most import in this case. Accused constructed two feet extension building without the knowledge of the BESCOM. This is most important facts lead to negligence on the part of the accused. Being responsible person she has take minimum care of their life and to the life of tenants. Based on these suggestions, it is clearly that, the alleged incident has occurred due to illegally 22 C.C.No.29632/2019 construction of 2 feet extended building without the knowledge of the BESCOM. This aspect is proved by the prosecution based on the oral testimony of PW6 only. By considering all these aspect it is held prosecution has successfully proved the guilt of the accused beyond reasonable doubt for the offence punishable U/s.338 of IPC. Accordingly, Point No.1 is answered in the Affirmative.
42. Point No.2: In this case, prosecution proved the guilt of the accused beyond reasonable doubt. Therefore, proceed to pass the following:-
ORDER The powers conferred upon me U/s.255(1) of Cr.P.C, accused is convicted for the offence punishable U/s.338 of IPC., and sentenced to pay fine of Rs.2,000/-, in default of payment of the fine amount, accused shall undergo S.I for 60 days.
Bail bond executed by the accused hereby stands canceled.
By considering the present incident, working capacity of PW3 and loss of his right hand, accused is directed to pay amount of Rs.50,000/- as compensation to the PW3, U/s.357 of 23 C.C.No.29632/2019 Cr.P.C. law laid down by the Hon'ble Apex Court in Ankush Shivaji Gaikwad Vs. State of Maharashtra,[(2013) 6 SCC 770] (Dictated to the Stenographer and after corrections made by me and then pronounced by me in the Open Court on this the 10th day of April, 2023).
(I.P Naik.) 30 A.C.M.M., B'lore.
th ANNEXURE
1. LIST OF THE WITNESS EXAMINED FOR THE PROSECUTION:
P.W.1 : Dr.Betti Alban
P.W.2 : Syed Kareem
P.W.3 : Nameeth
P.W.5 : Sonica
P.W.6 : Chikka Mariyappa
P.W.7 : Venkatesh Saagar
P.W.8 : Babanna Kulal
P.W.9 : Raghu Naik A.R
2. LIST OF THE DOCUMENTS MARKED FOR THE
PROSECUTION:
Ex.P.1 : Wound Certificate
Ex.P.2 : Complaint
Ex.P.3 : Mahazar
Ex.P.4 to 10 : 7 Photos
Ex.P.11 : FIR
Ex.P.12 : Explanation
Ex.P.13 : Report
24 C.C.No.29632/2019
3. LIST OF THE WITNESS EXAMINED AND DOCUMENTS
MARKED FOR THE DEFENCE:
Ex.D.1 : Permission from BESCOM
4. LIST OF THE MATERIAL OBJECTS MARKED FOR THE
PROSECUTION
NIL
(I.P.Naik)
30th Addl.C.M.M., B'lore.
25 C.C.No.29632/2019
Judgment pronounced in Open Court vide separate:-
ORDER The powers conferred upon me U/s.255(1) of Cr.P.C, accused is convicted for the offence punishable U/s.338 of IPC., and sentenced to pay fine of Rs.2,000/-, in default of payment of the fine amount, accused shall undergo S.I for 60 days.
Bail bond executed by the accused hereby stands canceled.
By considering the present incident, work of the Pw3 and loss of his right hand, accused is directed to pay amount of Rs.50,000/- as compensation to the PW3.
(I.P.Naik) 30th Addl.C.M.M., B'lore.26 C.C.No.29632/2019