Karnataka High Court
Shivalingayya Shadaksharayya ... vs The State Of Karnataka, on 25 August, 2015
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25th DAY OF AUGUST 2015
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP D.WAINGANKAR
CRIMINAL REVISION PETITION NO.2260 OF 2011
BETWEEN:
1. SHIVALINGAYYA SHADAKSHARAYYA HIREMATH,
AGE: 48 YEARS,
OCC: K.E.B.EMPLOYEE,
AT POST: KADAMPUR, TQ: MUNDARGI,
DIST: GADAG.
2. SHADAKSHARAYYA SHIVALINGAYYA HIREMATH,
AGE: 19 YEARS, OCC: STUDENT,
AT POST: KADAMPUR, TQ: MUNDARGI,
DIST: GADAG.
... PETITIONERS
(By Sri: B V SOMAPUR, ADV.,)
AND
THE STATE OF KARNATAKA,
THROUGH MUNDARGI POLICE,
REP. BY STATE PUBLIC,
PROSECUTOR, CIRCUIT BENCH,
DHARWAD.
... RESPONDENT
(BY SRI:SHIVAPRABHU HIREMATH, AGA)
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THIS CRIMINAL REVISION PETITION IS FILED U/S 397
R/W SEC 401 OF CR.P.C SEEKING THAT THE JUDGMENT AND
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ORDER PASSED BY THE LEARNED SESSIONS JUDGE, GADAG
IN CRL.A.NO.11/08 DATED 19.08.2011 AND THE JUDGMENT
AND ORDER PASSED BY LEARNED CIVIL JUDGE (JR.DN.),
JMFC, MUNDARGI IN C.C NO.61/06 DATED 07.02.2008, BE
SET ASIDE.
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED FOR ORDERS, THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:-
ORDER
By judgment dated 7.2.2008 in C.C.No.61/2006 on the file of Civil Judge(Jr.Dn.) & JMFC, Mundargi, both the accused-father and son have been convicted for the offences punishable under Sections 427 and 431 IPC. Crl.A.No.11/2008 filed by them before the Sessions Judge, Gadag came to be dismissed on merits by judgment dated 19.8.2011.
2. Questioning the legality and the correctness of the judgment passed by the Magistrate and confirmed by the Sessions Judge, this revision is preferred. -3-
3. I have heard both the learned counsel for the petitioners-accused and the learned Government Pleader. Perused the records.
4. The case of the prosecution is that on 10.10.2005, the petitioners-accused drilled the main water supply pipe installed by Karnataka Water Supply and Drainage Board(KWSDB) to supply drinking water to Gadag-Betgeri City from Tungabhadra river. The accused drilled and connected another PVC pipe so as to take the water supply clandestinely to their landed properties and thereby both the accused caused loss to the tune of Rs.80,000/- to KWSDB. During the course of his duty, PW-2 who was working as Assistant in the Department of Water supply noticed the same. He passed on the information to his superior officer, who inturn came to the spot and got confirmed the illegal connection taken by the accused. PW4-Assistant Engineer. Water Supply Department lodged a complaint before Mundargi police station, which came to -4- be registered in Cr.No.11/2008 for the offences punishable under Sections 427, 431, 506 r/w 34 IPC. A spot panchanama was drawn in the presence of the panchas. The Investigation Officer recorded the statement of the witnesses and upon completion of investigation, filed chargesheet against both the accused for the aforesaid offences.
5. The accused having denied the accusation, the prosecution examined in all eight witnesses to prove the charges as PWs-1 to PW-8, Ex-P1 to P10 were marked. The learned Magistrate on appreciation of evidence held that the charges under Sections 427 and 451 r/w 34 IPC are established and thereby both the accused have been convicted for the offences punishable under Sections 427, 431 IPC and have been sentenced to undergo imprisonment for one year and to pay fine of Rs.2,000/- each for the offence punishable under Section 427 of IPC and to undergo imprisonment for one year and to pay fine of -5- Rs.2,000/- each for the offence punishable under Section 431 of IPC apart from directing to pay fine amount of Rs.50,000/- under Section 357 of Cr.P.C. The criminal appeal No.11/2008 filed by them came to be dismissed on merits by judgment dated 19.08.2011. Therefore, this revision petition.
6. Heard both the learned counsels. Perused the records.
7. The learned counsel for the petitioners would submit that there is inordinate delay in lodging the complaint. Though, the alleged offence said to have taken place on 10.10.2005, the compliant came to be lodged on 25.10.2005. It is also submitted that no material has been seized from the possession of these accused persons. No evidence has been placed to show that the land of the petitioner is situated nearby pipeline, the evidence of the witnesses who supported the prosecution case is full of contradictions, which goes to the very root of the case. It is -6- further submitted that during the pendency of this revision petition the accused No.1 died on 17.12.2014 and that the accused No.2 being the son is in no way concerned to this case and that he has been falsely implicated just to harass him, since he is a college going student. For all these reasons, the learned counsel sought to set aside the order passed by both the Courts below and to acquit the accused of all charges leveled against them.
8. Per contra, the learned Government Advocate would submit that all the witnesses examined by the prosecution are the official witnesses. They are no reason whatsoever to depose or give false evidence or to depose against the interest of the petitioners without there being any reason. The learned Government Advocate would submit that the learned Magistrate on proper appreciation of evidence has rightly convicted them, while acquitting them for the offence punishable under Section 506 of IPC, which has been rightly confirmed by the learned Sessions -7- Judge and that this being the revision petition, re- appreciation of evidence is not permitted. For these reasons, the learned Government Advocate has sought for dismissal of the appeal.
9. Out of the 8 witnesses examined by the prosecution, PW-1, PW-6, PW-7 and PW-8 have turned hostile to the prosecution case. Therefore, their evidence is not helpful to the prosecution to establish the charges. The other witnesses who supported the case of the prosecution are PW-2, PW-3, PW-4 and PW-5. PW-2 - Basappa Hanamantappa Kalakannavar was working as assistant in the office of Karnataka Water Supply Department. His evidence is that he was required to supervise the pump house for the supply of water from Kadampur to Gadag for a distance of about one-kilometer. When he along with others came near the Garden land of One Badami, they observed the leakage of water from main pipe line and when they went on closer inspection, they found that -8- another pipe that was affixed to the main pipe, so as to take water supply to the agricultural field and that the pipe was taken to a distance of about 10 to 15 meters. Though, this witness has been examined at length, from the evidence of this witness, it is clear that the main water supply pipe belongs to Water Supply Department, which is meant for supply of water to Gadag - Betageri Town, it was drilled and another pipe was affixed to take water supply clandestinely. But there is no concrete evidence to show that it was taken by the accused. The best person to speak about the same could have been Badami, whose land is situated abutting the main pipeline. But he has not been examined for the reason best known to the prosecution. The Investigation Officer has also not produced RTC extract of the land of Badami, so as to know whether his land is really situated nearby the spot of the alleged incident. No efforts have been made to cite the Village Accountant as one of the witnesses.
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10. PW3 - S.B.Siddanayak is the Executive Engineer in Water Supply Department. His evidence is that PW2 was working as Assistant to supervise after the water supply pipeline, which is meant for the supply of the water to Gadag-Betageri town. His further evidence is that on 10.10.2005 at about 2:30 p.m., he received an information that water was inundated in the land of accused No.1, so he suspected that the water must have been taken from the main supply. In order to examine the same, he rushed to the spot. On inspection, he saw that another PVC pipe was connected to the main pipeline. In order to know from where the water flows, they started digging at various places and ultimately, they came to know that a PVC pipe was affixed to the main water supply pipeline underground to take water supply clandestinely to the agricultural land. A photograph was taken. He deposed that in order to set at right, it requires Rs.80,000/-. The suggestion made to him in the cross-examination that on account of the negligence
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of the departmental person, the water was flowing into the agricultural land has been denied by him.
11. PW4 - Asif Iqbal Kalil, working as Assistant Engineer in the Water Supply Department was in-charge of that area. He went on record to depose that he received a report that by the side of the main water supply pipe of the department, the water was inundated in the agricultural land. Therefore, he went to the spot and observed that the supply of water was being taken illegally from the main pipeline.
12. PW5 - B.K.Basavarajappa, who is also Assistant Executive Engineer, working in Urban Water Supply Board. He has also given evidence more or less in conformity with the evidence given by other official witnesses. PW6 - Manjunath Halappa Talwar, is a pancha to the spot panchanama - Ex.P9, who turned hostile to the case of the prosecution, so also PW7 - Ramesh Ramappa Adimani. PW8 - Shivakumarswamy Channabasayya Hiremath is
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another pancha, he also turned hostile to the prosecution case.
13. Apart from the oral evidence, the documents that were marked are Ex.P1-Spot Mahazar, Exs.P2 to P6- photographs of the spot, Ex.P7 - VCD, Ex.P8 - complaint, Exs.P9 and P10 are the statement of PW6 and PW7 respectively. Thus, the Police have not seized so called PVC pipe said to have been affixed clandestinely so as to take water into their land by the accused. The Police have also not produced the RTC extract of the landed property of the accused so as to know whether the landed property of the accused are situated in and around the place where the water supply pipe said to have been drilled. Though, it is stated in the evidence that the water supply pipe abuts the land of Badami, the said Badami has not been cited as witness nor the record of right, extract of Badami's land has been secured by the Investigating Officer and produced. From the oral evidence of the witnesses
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examined on behalf of the prosecution at the most it can be said that the water supply pipe for the supply of water to Gadag-Betagei town was drilled and the PVC pipe was affixed so as to take water for the purpose of agricultural land clandestinely. But the alleged pipe was affixed by the accused to the main water supply pipe and whereby the water supply was taken to the land of the accused. There is no satisfactory evidence nor it is even proved that the accused are owning the agricultural lands in the said village. The village accountant would have been the best person to speak whether the landed properties of the accused are situated nearby the spot of incident and whether the water that was inundated in a land belonging to the accused. In the absence of evidence in that regard, it was not proper on the part of the Magistrate and the learned Sessions Judge to come to a conclusion that it is the accused who drilled whole to the main water supply pipe and by affixing another pipe, they had taken water supply to their agricultural land. Moreover, the accused
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No.2 is none other than the son of accused N.1, he was college going boy at the time of incident and that he has been unnecessarily made as accused along with his father. Further during the pendency of this appeal, accused No.1 Shivalingayya died on 17.12.2014, as could be seen from the death certificate issued by Gadag-Betageri City Municipality, which has been produced by the counsel for the appellant. Since, the evidence to connect the accused to the crime in question is totally lacking, this Court is left with no other choice than to set aside the judgment of conviction and sentence passed by the Magistrate and confirmed by the learned Sessions Judge. Accordingly, I pass the following:
ORDER
(i) The criminal revision petition is allowed.
(ii) The judgment of conviction and sentence dated 7th February 2008 passed in C.C.No.61/2006 on the file of the Civil Judge (Jr.Dn.) and JMFC, Mundargi, which has been confirmed in Crl.A.No.11/2008 on the file of the District and
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Sessions Judge by order dated 19th August 2011 is hereby set aside.
(iii) The petitioner No.2/accused stands acquitted of all charges leveled against him, since the revision petition filed by the petitioner No.1/accused stands abated on account of his death.
Sd/-
JUDGE *mn/- & Vnp*