Karnataka High Court
B V Nagappa @ Nagamallappa vs The State Of Karnataka on 10 September, 2020
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF SEPTEMBER, 2020
BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL No.194 OF 2011
BETWEEN
B.V. NAGAPPA @
NAGAMALLAPPA,
S/O. LATE VEERABHADRAPPA,
AGED ABOUT 52 YEARS,
OCC: AGRICULTURIST,
R/O. BACHAHALLI VILLAGE,
HANGALA HOBLI,
GUNDLUPET TALUK,
CHAMARAJANAGAR DISTRICT. ... APPELLANT
[BY SRI. K.A.CHANDRASHEKARA, ADVOCATE]
AND
THE STATE OF KARNATAKA,
BY THE POLICE OF
GUNDLUPET POLICE STATION,
CHAMARAJANAGARA DISTRICT. ... RESPONDENT
[BY SRI. ROHIT B.J., HCGP]
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2)
CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED
19.01.2011/05.02.2011 PASSED BY THE DISTRICT AND SESSIONS
JUDGE, CHAMARAJANAGAR IN SPL. CASE NO.38/05 CONVICTING
THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTIONS 304 AND 201 OF IPC AND U/S. 135 OF
ELECTRICITY ACT, 2003.
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THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THROUGH VIDEO CONFERENCE, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the sole accused challenging his conviction and sentence passed in Spl. Case No.38/2005 on the file of the Court of District and Sessions Judge at Chamarajanagar, wherein the learned Sessions Judge by judgment dated 19.01.2011/05.02.2011 convicted him for the offences punishable under Sections 304 and 201 of IPC and under Section 135 of Electricity Act, 2003.
2. Heard the learned counsel Sri. K.A. Chandrashekara appearing for the appellant and Sri. Rohit B.J. learned HCGP for the respondent/State.
3. It is the case of the prosecution that on 18.10.2004, during night hours, the accused fenced his land bearing Sy.No.185 situated at Bachahalli Village, Gundlupete Taluk, with zinc wire and gave unauthorized power connection to the said zinc wire fencing knowing fully well that if any person comes in contact with the said 3 electrified zinc wire fencing, would die. One Smt. Mangalamma came in contact with the said electrified zinc wire fencing and she died due to electrocution. Hence, the accused committed culpable homicide not amounting to murder by causing the death of Smt. Mangalamma by electrocution and thereby committed an offence punishable under Section 304 of IPC. Further, in order to cause disappearance of the evidence and with an intention to screen himself from legal punishment, the accused shifted the dead body of Smt. Mangalamma from the spot and dumped in a ditch in the nearby land and thereby committed an offence punishable under Section 201 of IPC. Further, the accused by drawing the electricity using zinc wire from the main line installed near the pump house of one M. Gurumallappa to the fencing put by him, committed theft of electricity and thereby committed an offence punishable under Section 135 of the Electricity Act, 2003.
4. Before the trial court, the prosecution in order to establish its case, got examined PWs 1 to 14 and got 4 marked Exs.P1 to P14 and M.Os.1 to 6. The defence of the accused was one of total denial. However, he did not choose to lead any evidence on his behalf.
5. Assailing the aforesaid judgment and order of conviction and sentence passed by the trial court, the learned counsel Sri. K.A. Chandrashekara appearing for the appellant has vehemently contended that the impugned judgment and order of conviction and sentence passed by the trial court is contrary to the evidence and material on record. The entire case is based on circumstantial evidence. The material witnesses have not supported the case of prosecution. There is nothing elicited from the mouth of the said witnesses connecting the accused with the alleged offence. He contends that the land in question does not exclusively belong to the accused. There is no reason as to why the co-owner of the land has not been arrayed as an accused. He submits that the panch witnesses to the spot mahazar, Exs.P2, P6 have not supported the prosecution case. Even the witnesses to the seizure of zinc wire etc., from the house of the accused 5 have not supported the prosecution case. He submits that the evidence and material on record are not sufficient to hold that the deceased died on account of any act committed by the accused or that the accused has caused disappearance of the evidence by concealing the dead body. He contends that there are no material to show that the accused has committed theft of electricity. He therefore contends that the impugned judgment and order of conviction and sentence passed by the trial court is liable to be set aside and accordingly, seeks to allow the appeal.
6. Per contra, the learned HCGP has contended that the prosecution has established that the cause of death is on account of electrocution. The accused is the only person who has fenced his land with zinc wire and drawn electricity from the main line from an electric pole situated in the adjacent land. He contends that as per Ex.P2 - spot Mahazar, there are marks showing dragging of the dead body from the land of the accused towards the land where the dead body was found. He contends that M.Os.3 to 6 have been seized from the house of the 6 accused which further strengthens the prosecution case. He contends that the trial court after considering the oral and documentary evidence on record has rightly convicted and sentenced the accused for the charged offence. Hence, seeks to dismiss the appeal.
7. I have perused the entire evidence and material on record as well as the impugned judgment and order of conviction and sentence passed by the trial court.
8. The prosecution has examined P.Ws.1 to 14. Amongst the said witnesses, PWs.2, 4 to 7, 9, 10 & 13 have not supported the prosecution case.
9. It is the specific case of the prosecution that the accused being the owner of land in Sy.No.185 at Bachahalli Village in Gundlupete Taluk, has put a zinc wire fence around his land to protect the crops from wild animals and that he has drawn electricity to the zinc wire from the electric pole installed near the pump house of one M. Gurumallappa for the purpose of charging the zinc wire fencing. Deceased Smt. Mangalamma came in contact with 7 the said electrical fencing and died due to electrocution. Thereafter the accused shifted the dead body in order to cause disappearance of evidence and dumped it in a ditch situated in the land of one Nanjappa.
10. There are no eye witnesses to the incident. Entire case is based on circumstantial evidence. The incident is said to have taken place during night hours on 18.10.2004. PW1 is the first informant. He lodged a complaint as per Ex.P1 after noticing the dead body of his aunt in the morning of 19.10.2004, which was registered by PW14 in Crime No.291 of Gundlupet police station.
11. It is alleged in the complaint that on 18.10.2004, one Kuntappa, son of Siddappa had taken a buffalo and calf belonging to his aunt Smt. Mangalamma for grazing. While returning, the calf was missing, as such his aunt Smt. Mangalamma went in search of the calf at about 6.00 p.m., but she did not return. On 19.10.2004 while searching for his aunt, he came to know that the dead body of his aunt was lying in a 'halla' near the land of the accused. It is alleged in the complaint that the accused 8 had put an electric fence around his land and on account of electrocution, his aunt died and thereafter accused has shifted the dead body and dumped in the 'halla' situated adjacent to the land of the accused.
12. PW1 has reiterated the complaint version in his evidence. He has stated that after lodging of the complaint, the police came to the place where the dead body was lying. Police observed the marks of dragging the dead body from the land of the accused to the halla. The police conducted the spot mahazar as per Ex.P2. The wooden pegs and zinc wire used for fencing the land of accused are marked as M.O.2.
13. PW3 is the brother of deceased Mangalamma. He is an hearsay witness. He came to know about the death of Smt. Mangalamma due to electrocution. He has stated that she sustained electric shock.
14. PW8 is the SDA in the Taluk Office, Gundlupet. He has issued the RTC concerning the land. The same is marked as Ex.P7.
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15. PW11 is the AEE, CESCOM, Gundlupet. He has stated that he examined the zinc wire and gave his opinion stating that the electricity can pass through the said zinc wire and if a person comes in contact with live zinc wire, he may die. His report is marked as Ex.P9.
16. PW12 is the Junior Engineer. He has stated that on 19.10.2004, he went along with the police to the spot and verified the spot. He has stated that there was a zinc wire fencing and in the neighbouring land there was a IP set. Three line zinc wire fencing was done around the land by using wooden pegs. In the upper line of the zinc wire fence, there was a spark mark called 'arc'. He has prepared the spot sketch as per Ex.P10. His report is marked as Ex.P11. He has stated that he came to know that the power connection was taken from the IP set situated in the neighbouring land and given to the zinc wire fencing of the land belonging to the accused.
17. PW14 is the PSI, Gundlupet Police Station. He has received the complaint -Ex.P1 from PW1. He has 10 conducted the investigation and laid charge sheet against the accused.
18. As noted above, there are no eye witnesses to the incident and entire case of the prosecution rest on circumstantial evidence. Accused has totally denied having drawn any electricity to the fencing around his land. He has also denied having committed any offence as alleged by the prosecution.
19. Perusal of Ex.P7, the RTC Extracts issued by PW8, it is clear that apart from the accused, there is one more person by name Basavanna, whose name is found in the RTC Extracts along with the accused as the person in possession of the land. It is not forthcoming as to why the said Basavanna is not arraigned as an accused. There is no investigation in this regard. When the names of two persons are shown as the occupiers of the land and they being in possession of the land in question, the prosecution has not placed any convincing material as to why only the appellant herein is arraigned as an accused. In this regard it is relevant to refer to the cross- 11 examination of P.W.14, wherein he has stated that the land measures about 4 acres 37 guntas and the entire said land does not belong to the accused. 2 persons got shares. One is accused and another is by name Basavanna. He has clearly stated that he has not examined Basavanna and he cannot say which portion of the land has come to the share of the accused.
20. As per the charge, the accused has abstracted the energy from the main line from the electric pole installed near the pump house of CW10 M. Gurumallappa for the purpose of charging the zinc wire fencing put around the land in Sy.No.185 with electricity. According to PW12, the power connection was taken from the IP set situated in the neighbouring land and given to the zinc wire fencing of the land of the accused. It is not specific as to whether the accused has drawn the electricity from the electric pole installed near the pump house of CW10 M. Gurumallappa or the power connection was taken from the IP set situated in the neighbouring land. If the accused has drawn electricity from the IP set installed in the land of 12 M. Gurulingappa, then he is a crucial witness to speak about it. However, CW10 M. Gurumallappa has not been examined. If the accused has drawn electricity from the IP set installed in the neighbouring land, then, it cannot be said that the accused has committed theft of electricity by drawing electricity from the main pole or from the electric pole. Admittedly, there is no action taken by any officials against the accused for committing the theft of electricity.
21. P.W.14 has deposed that after receiving the complaint from P.W.1 he secured the panchas and the CESCOM officials to the spot and conducted a mahazar as per Ex.P6, in the place where the dead body of Mangalamma was lying. Further, he has conducted a mahazar as per Ex.P2 in the presence of panchas and CESCOM officials in the land of the accused where the incident took place and Mangalamma died due to electrocution. According to the prosecution, the accused dragged the dead body of Mangalamma from his land to the nearby land belonging to one Nanjappa and dumped the body in a 'halla'. It is the case of the prosecution that 13 there was dragging mark and also struggling mark near the place where the incident took place. Though P.W.1 has stated that the Police have observed the dragging mark of the dead body, however, strangely P.W.14 has not stated so in his evidence. The panchwitness to Exs.P2 and 6 viz., P.Ws.6 and 7 have not supported the case of the prosecution. Hence, it cannot be held that the prosecution has established that there were dragging marks from the land of the accused till the place where the dead body was found.
22. I have perused the sketch marked as Ex.P10 prepared by P.W.12. The dead body is shown lying at a distance of 250 mtrs. from the edge of the land of the accused. In between the land of the accused and the place where the dead body was lying, there is a 20 ft. width 'halla'. It is difficult to believe that when there is a 'halla' in between the land of the accused and the place where the dead body was found, there could be any dragging marks as stated by the prosecution.
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23. Learned counsel for the appellant would also contend that even according to the prosecution, the land of the accused was covered with solar fencing. Hence, there is no necessity to draw any electricity from the nearby pole. He would draw the attention of the Court to the spot mahazar-Ex.P2, wherein it is stated that the adjacent land owner Gurumallappa had also put a solar fencing around his land. He submits that Ex.P2 clearly states that there is a solar fencing around the land of Gurumallappa, whereas P.W.14 has denied the said fact in his cross-examination, which also creates a doubt in the case of prosecution.
24. Though the prosecution by marking Ex.P12- post mortem report has been able to establish that the death of Mangalamma was on account of electrocution, it cannot be said that the prosecution has established that she died on account of coming into contact with the electrical fencing put around the land of the accused. The seizure of M.Os.3 to 6 viz., cable wire, wooden patti, bamboo pole etc., seized at the instance of the accused from his house itself is not sufficient to hold that the 15 accused has used the said material for fencing his land and he has drawn electricity from the electrical pole situated in the nearby land. The seizure is conducted nearly 40 days after the date of incident. Both the panchwitnesses to the seizure mahazar-Ex.P8 viz., P.Ws.9 and 10 have not supported the case of prosecution.
25. For the foregoing reasons, it cannot be held that the prosecution has established its case against the accused beyond all reasonable doubt. The trial Court without properly appreciating the oral and documentary evidence in its proper perspective has proceeded to convict the accused. The reasons assigned for convicting the accused for the charged offences are not sound and proper. The impugned Judgment and Order of conviction and sentence is therefore not sustainable in law. Accordingly, the following:
ORDER The appeal is allowed.16
The Judgment and Order dated 19.01.2011/05.02.2011 passed in Special Case
No.38/2005 on the file of the Court of District and Sessions Judge, Chamarajanagara, convicting and sentencing the appellant for the offences under Sections 304 and 201 of IPC and under Section 135 of the Electricity Act 2003 is hereby set aside.
The accused is acquitted of the above offences. His bail bonds if any shall stand discharged.
Fine amount if any deposited shall be returned to the accused.
Sd/-
JUDGE Snc/Ksm*