Karnataka High Court
Mallikarjun S/O. Mahadevappa ... vs The State Of Karnataka on 30 May, 2023
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CRL.RP No. 100084 of 2014
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 30TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 100084 OF 2014
BETWEEN:
1. MALLIKARJUN,
S/O. MAHADEVAPPA TIMMAPURMATH,
AGE: 56 YEARS, OCC: SUPERVISOR
AND AGRICULTURE,
Digitally
signed by J R/O. ANJANAYA NAGAR, SECTOR NO. 10,
MAMATHA
J PLOT NO. 17, BELAGAVI.
MAMATHA Date:
2023.06.01
10:34:43
+0530 2. SUNILKUMAR,
AGE: 41 YEARS, OCC: CONTRACTOR,
R/O. HYDERABAD.
3. SHRINIWAS REDDY,
AGE: 56 YEARS, OCC: CONTRACTOR
R/O. HYDERABAD.
...PETITIONERS
(BY SHRI K.L. PATIL & S.S. BETURMATH, ADVOCATES)
AND:
THE STATE OF KARNATAKA,
THROUGH BAGALKOT TOWN P.S.
REP. BY PUBLIC PROSECUTOR
DHARWAD BENCH.
...RESPONDENT
(BY SHRI PRAVEEN K. UPPAR, HCGP)
***
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CRL.RP No. 100084 of 2014
THIS CRIMINAL REVISION PETITION IS FILED U/S 397(1)
READ WITH SECTION 401 CR.P.C SEEKING THAT THE ORDER
OF SET ASIDE THE JUDGMENT AND ORDER DATED 12/03/2014
BY THE LEARNED DISTRICT & SESSIONS JUDGE, BAGALKOT IN
CRIMINAL APPEAL NO.85/2011 ON THE FILE CONFIRMING THE
JUDGMENT AND ORDER PASSED BY LEARNED PRL.CIVIL JUDGE
& JMFC BAGALKOT DATED 22/11/2011 IN C.C.NO.425/2010
CONVICTING THE PETITIONERS UNDER SEC.304 (A) OF IPC.
THIS REVISION PETITION COMING ON FOR FINAL
HEARING AND THE SAME HAVING BEEN HEARD AND
RESERVED FOR ORDER ON 16.03.2023, THIS DAY, THE
COURT, MADE THE FOLLOWING:
ORDER
1. Revision Petitioners/accused Nos. 1 to 3 feeling aggrieved by judgment of first appellate Court on the file of learned District and Sessions Judge, Bagalkot in Crl.A.85/2011, dated 12.3.2014, dismissing the appeal and confirming the judgment of conviction and order of sentence passed by Prl. Civil Judge and JMFC, Bagalkot in CC.No.425/2010, dated 22.11.2011, preferred this Revision Petition.
2. Parties to Revision Petition are referred with their ranks assigned before Trial Court for the sake of convenience.
3. The factual matrix leading to the case of prosecution can be stated in nutshell to the effect that on 6.10.2009 at about 5.45 p.m. two children of complainant Manju and Sandeep had -3- CRL.RP No. 100084 of 2014 gone to Bagalkot Girl's High School ground to play cricket with their friends. While, playing cricket, ball fell into water pond dugged by accused, who have undertaken the work of underground drainage project through Bagalkot Town Development Authority (for short BTDA), Bagalkot. The two sons of complainant went to water pond to pick up the cricket ball and they fell in water pond. Further they died due to drowning. It is further alleged that accused have left open the water pond without adopting safety measures and on account of such actionable negligence of accused, two children of complainant Manju and Sandeep died due to drowning in the water pond. On these allegations, investigation was carried out and charge sheet came to be filed for the offence punishable under Section 304-A of IPC.
4. In response to summons, accused Nos. 1 to 3 have appeared through their counsel and denied accusation leveled against them and contested the matter. The prosecution to prove the accusation leveled against accused, relied on the evidence of PWs.1 to 7 and documents at Ex.Ps.1 to 16. On closure of prosecution evidence the statement of accused under Section 313 of Cr.P.C. was recorded and accused have not lead any defence evidence. The trial Court after having heard -4- CRL.RP No. 100084 of 2014 arguments of both sides and on appreciation of evidence on record, has convicted the accused for the aforesaid offences and imposed sentence as per order of sentence.
5. Revision petitioners-accused have challenged the said judgment of conviction and order of sentence before the first appellate Court in Crl.A.No.85/2011. The first appellate Court, by judgment dated 12.03.2014 has dismissed the revision petition and confirmed the judgment of conviction and order of sentence imposed by the trial Court.
6. Revision Petitioners-accused Nos. 1 to 3 challenged the concurrent finding of both the courts below contending that both courts below have not appreciated legal nuances involved in their proper perspective, which has resulted in miscarriage of justice. The evidence of PWs.1, 3, 5 and 6 are unreliable, since they are interested witnesses. PW.2 Panch witness has admitted in the cross examination that water pit is surrounded by mud and it is of 7 to 8 feet height and entry in the water pit is restricted. The trial Court has committed serious error in believing the evidence of PWs. 5 and 6, who are said to be eye witnesses and playing cricket with sons of complainant and their evidence has been contrary to complaint allegations. The -5- CRL.RP No. 100084 of 2014 approach and appreciation of evidence on record by both courts below are contrary to law and therefore, prayed for allowing the Revision Petition and to set aside the judgment of both the courts below. Consequently to acquit accused Nos. 1 to 3 from the accusation leveled against them.
7. Learned HCGP on notice, has appeared for respondent.
8. Heard the arguments of both sides.
9. On careful perusal of complaint allegations Ex.P. 1 and evidence of PWs. 1 to 6, it would go to show that on 6.10.2009 at about 5.45 p.m. two children of complainant Manju and Sandeep were playing cricket with their friends in Bagalkot Girl's High School ground and ball fell into water pond and both sons of complainant went to pick up the ball, further they fell into water pond and died due to drowning.
10. The evidence of PW.4-Doddabasappa, who worked as Assistant Executive Engineer of BTDA would go to show that tender for construction of under ground drainage was entrusted to Sri.Shriniwas Reddi of Hydrabad representing M/s. Coromandel Prestcrete (Pvt) Ltd., Hyderabad. One B.Sunilkumar-accused No.2 is sub-contractor and Mallikarjun M -6- CRL.RP No. 100084 of 2014 Timmapurmath-accused No.1 is supervisor of contract work entrusted as per agreement Ex.P.8 and Ex.P.10 is work order issued to contractor, the letter of authority is at Ex.P.11. On the basis of said documents and evidence of PW.4, it can be said that accused Nos.1 to 3 have undertaken the work of underground drainage entrusted to Sri.Shriniwas Reddi of Hydrabad representing M/s. Coromandel Prestcrete (Pvt) Ltd.
11. The inquest panchanamas Ex.P.3 and 4 and P.M.Reports- Ex.P.5 and 6 would go to show that two children of complainant Manju and Sandeep died due to asphyxia as a result of drowning. The oral evidence placed on record by prosecution would demonstrate the fact that children of complainant Manju and Sandeep while playing cricket with their friends in Girl's High School ground of Bagalkot, fell into water pond. The two children of complainant Manju and Sandeep went to water pond to pick up the ball, further they fell into water pond and died due to drowning. The mere unfortunate death of two children of complainant Manju and Sandeep no any interference can be drawn that there death was due to actionable negligence on the part of accused, who have undertaken underground drainage work through BTDA, Bagalkot.
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12. The trial Court as well as the first Appellate court recorded finding that accused have failed to cover the water pond with safety measures, further accused have not completed the work within the time fixed by BTDA, Bagalkot. In the present case, prosecution has alleged that accused have failed to cover the water pond with safety measures and work was not completed within the time fixed by BTDA, Bagalkot.
13. On perusal of complaint allegation-Ex.P.1, it would go to show that two children of complainant Manju and Sandeep went to water pond to pick up cricket ball and due to accidental slip they fell in the water pond and died due to drowning. The evidence of PW.1 speaks about PW.6-Naveen Hunsagi informing the complainant that two children of complainant fell into water pond in Girl's School play ground. The evidence of PW.3 merely speaks about coming to the spot after hearing about the incident and found two children of complainant died due to drowning in the water pond.
14. The material witnesses PW.5 and 6, who were playing cricket with two sons of complainant have deposed to the effect that while playing cricket, the ball fell into the water pond situated in the play ground of Girl's High School, Bagalkot, -8- CRL.RP No. 100084 of 2014 further both Manju and Sandeep went to water pond to pick up the ball and due to slip fell down into the water pond and did not get up from the water pond. Therefore, they informed about the incident to complainant. Spot features recorded in the spot panchanama Ex.P.2 would go to show that two sons of complainant went to pick up ball and accidentally fell into water pond. The sketch map as per Ex.P.16 would go to show that water pond is situated western side in the play ground situated behind the Girl's High School, Bagalkot. PW.1 admitted in cross examination that there is a compound wall of 7 to 8 feet height to the western side at the place where the water pond was dugged. PW.2 panch witness to spot panchanama Ex.P.2 admitted in cross examination that there is compound wall of 7- 8 feet situated on four sides of Girl's school and water pond is in the west-south corner. There is compound wall to the western side and thereafter, officers' quarters are situated. PW.2 further admits that, to the east and north sides, there is 7-8 feet height mud heap is situated and the same is also admission of PW.3 in the cross examination, further he claims that heap of mud was only on two sides. PW.5 also admitted in the cross examination that there is big compound wall towards east and west at the place of incident and there is also 7-8 feet height heap of mud. -9- CRL.RP No. 100084 of 2014 If the above referred material evidence are taken into consideration, then it is evident that Girl's school is surrounded by compound wall and there is 7-8 feet height heap of mud and there is no any possibility of public going into water pond, looking to the factual situation of the water pond located in the play ground of Girl's High School, Bagalkot.
15. PW.4 also admits factual situation of water pond in the play ground of Girl's school as referred above. PW.4 has stated in cross examination that he used to make spot inspection to look after the underground drainage work. PW.4 has admitted in the cross examination that it has not been stated in Ex.P.13 that accused have not taken safety measures while carrying out work. The mere non-completion of work within the time fixed does not amount to negligence in attending work.
16. Learned counsel for Revision Petitioners relied on the following judgments to substantiate their claim about required evidence to prove actionable negligence leading to incident in question.
I) Dr.Suresh Gupta Vs. Government of N.C.T. of Delhi, reported in AIR 2004 SC 4091 II) Ambalal D Bhatt Vs. The State of Gujarat, reported in 1972 (3) SCC525
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CRL.RP No. 100084 of 2014III) Kurban Hussein MohamedalliBangawalla Vs. State of Maharashtra, reported in AIR 1965 SC 1616 IV) Syad Akbar Vs. The State of Karnataka, reported in 1980 (1) SCC30 V) Ajay Kharbanda VS. Central Bureau of Investigation, Anti Corruption Branch, reported in MANU/KA/0540/2018 VI) Aneeta Hada Vs. Godfather Travels and Tours Private Limited, reported in 2012 (5) SCC 661 VII) Gokuldas Gurunath Naik and Others Vs. The State of Karnataka, Criminal Petition No. 102169/2021 VIII) Madhav Jagani S/o. Ritesh Jagani Vs. The State of Karnataka and others, Criminal Petition No. 3316/2017
17. The first two citations are on medical negligence. 3rd and 4th judgments are on the point of negligence to avoid probable danger. There cannot be any dispute with regard to proposition of law laid down in the said judgments.
18. Learned counsel for Revision Petitioners relied on the judgments at Sl.Nos.5 and 6 to substantiate his contention that work was entrusted to M/s. Coromandel Prestcrete (Pvt) Ltd, Hydrabad and the same company is not arrayed as party to the proceedings and therefore, accused cannot be prosecuted for the offence alleged against them. The 7th judgment is related to entrustment of work and the criminal proceedings have been
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CRL.RP No. 100084 of 2014quashed. In the present case, the above referred material evidence on record would go to show that two sons of complainant Manju and Sandeep went to water pond to pick up cricket ball, fell into the water pond, which is surrounded by heap of mud and compound wall, further both of them fell into water pond due to accidental slip. The trial Court as well as first appellate court appears to have swayed by the fact that two children of complainant died due to drowning and recorded finding that their death is due to actionable negligence of accused, by over looking the above referred evidence on record. Therefore, in my opinion, the judgment of conviction and order of sentence passed by the trial Court, which is affirmed by first Appellate Court cannot be legally sustained and needs interference of this Court. Consequently, I proceed to pass the following:
ORDER The revision petition filed by revision petitioners/accused Nos. 1 to 3 is allowed.
The judgment of the First Appellate Court on the file of District and Sessions Judge, Bagalkot in Crl.A.85/2011, dated 12.03.2014, confirming the judgment of conviction
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and order of sentence passed by Prl. Civil Judge and JMFC, Bagalkot in CC.No.425/2010, dated 22.11.2011 are set aside Accused Nos. 1 to 3 are acquitted from the charges leveled against them.
Registry is directed to transmit TCRs along with copy of this judgment.
(Sd/-) JUDGE Vb/-