Karnataka High Court
State Of Karnataka vs Darshan on 20 March, 2023
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CRL.A No. 100185 of 2016
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 20TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO. 100185 OF 2016
BETWEEN:
STATE OF KARNATAKA,
REPRESENTED BY
PSI, KARWAR TRAFFIC POLICE STATION,
Digitally signed by
UTTARA KANNADA DIST.
ANNAPURNA
CHINNAPPA
DANDAGAL
THROUGH THE ADDL. STATE
ANNAPURNA Location: HIGH
CHINNAPPA COURT OF
KARNATAKA,
PUBLIC PROSECUTOR,
DANDAGAL DHARWAD BENCH,
DHARWAD.
Date: 2023.03.21
ADVOCATE GENERAL OFFICE,
11:18:55 +0530
HIGH COURT OF KARNATAKA,
DHARWAD BENCH. ...APPELLANT
(BY SHRI PRAVEEN K. UPPAR, HCGP)
AND:
1. DARSHAN S/O KANTA NAIK,
AGE: 26 YEARS,
R/O: BANGARAPPA NAGAR,
SHIRWAD, KARWAR.
2. VINAY S/O RAVINDRA KAMAT,
AGE:24 YEARS,
R/O: SANIKATTA, GOKARNA,
KARWAR.
3. GURURAJ S/O MARUTI NAYAK,
AGE:26 YEARS,
R/O: MARUTHI NAGAR,
DANDELI. ...RESPONDENTS
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CRL.A No. 100185 of 2016
(BY SHRI A.S. PATIL, ADVOCATE FOR R2 AND R3,
APPEAL AGAINST R-1 ABATED )
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) OF CR.P.C., PRAYING TO GRANT LEAVE TO
APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL
DATED 27.04.2016 PASSED IN CRIMINAL CASE NO.567 OF
2013 BY THE CHIEF JUDICIAL MAGISTRATE, KARWAR, TO SET
ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
27.04.2016 PASSED IN CRIMINAL CASE NO.567 OF 2013 BY
THE CHIEF JUDICIAL MAGISTRATE, KARWAR AND TO CONVICT
THE RESPONDENT / ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 304(A) OF IPC.
THIS APPEAL COMING ON FOR FINAL HEARING AND THE
SAME HAVING BEEN HEARD AND RESERVED FOR JUDGMENT
ON 01.03.2023, THIS DAY, THE COURT, DELIVERED THE
FOLLOWING:
JUDGMENT
Appellant/State feeling aggrieved by the judgment of acquittal passed by Chief Judicial Magistrate, Karwar, in C.C.No.567/2013 dated 27.04.2016, preferred this appeal.
2. Parties to the appeal are referred with their ranks as assigned in the 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 accused No.3 obtained contract from the City Municipal Corporation for maintaining swimming pool at Karwar. Accused Nos.1 and 2 are the trainers appointed by accused No.3 for giving coaching to the public in swimming pool. On 10.04.2011 at 6.15 p.m., -3- CRL.A No. 100185 of 2016 one Laxmidas Premanand Narvekar, son of complainant was undergoing training with accused Nos.1 and 2 in the said swimming pool. Accused Nos.1 and 2 did not provide any safety equipments or made any safety arrangement, due to which said Laxmidas Premanand Narvekar was drowned and died in the said swimming pool. Due to negligence of accused Nos.1 to 3 in maintaining swimming pool and by not taking safety measures, son of complainant Laxmidas Premanand Narvekar died due to drowning in the swimming pool.
4. Accused Nos.1 to 3 were secured before the trial Court and the trial Court after having satisfied prima facie material has recorded substance of accusation for the offence punishable under Section 304-A of IPC. Accused have pleaded not guilty and claimed to be tried.
5. Prosecution in proof of the allegations made against accused, relied on the evidence of PWs-1 to 16, documents Ex.P.1 to Ex.P.28 and got marked M.O.1. Ex.D.1 came to be marked from the defence side. On closure of the prosecution evidence, statement of accused under Section 313 Cr.P.C. came to be recorded. Accused have denied the incriminating -4- CRL.A No. 100185 of 2016 material evidence appearing against them and claimed that false case is filed against them.
6. The trial Court after appreciating the evidence on record acquitted all the accused from the charges levelled against them.
7. Appellant/State questioning the correctness and propriety of findings recorded by the trial Court in acquitting all the accused contended that trial Court has not properly appreciated the evidence of material witnesses PWs-1, 9 and
10. The place of incident and son of complainant, Laxmidas Premanand Narvekar died due to drowning in the swimming pool is not disputed by the defence. Accused Nos.1 to 3 have offered no any explanation about death of Laxmidas Premanand Narvekar due to drowning. The trial Court without assigning any valid reason to disbelieve the evidence of PWs-1, 9 and 10 has recorded improper reasonings in acquitting all the accused. Therefore, prayed for allowing the appeal and to convict all the accused for the offences alleged against them.
8. Accused No.1, died during pendency of the appeal and appeal against accused No.1 is abated by order dated -5- CRL.A No. 100185 of 2016 02.03.2017. Accused Nos.2 and 3 are represented through their learned counsel.
9. Heard the arguments of both sides.
10. The prosecution alleges that on 10.04.2011 at 6.15 p.m., while the son of complainant, Laxmidas Premanand Narvekar was undergoing training of swimming with accused Nos.1 and 2, died due to drowning on account of negligence of accused Nos.1 and 2, since they did not provide safety equipments or made safety arrangements and accused No.3 who has undertaken contract of maintaining the swimming pool has failed to maintain the same. It is on account of negligence of all the accused, son of complainant Laxmidas Premanand Narvekar died due to drowning in the swimming pool.
11. The prosecution mainly relies on the evidence of complainant/PW-1 and two independent witnesses, PWs-9 and 10 to prove the charges leveled against accused. The said evidence is sought to be corroborated by the evidence of PW-7 who has removed the dead body from swimming pool and that of PW-11, the doctor who has conducted autopsy and issued P.M. report as per Ex.P.6, so also the evidence of Investigating Officer, PW-15.
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12. On careful perusal of the charge-sheet materials and the evidence on record, it would go to show that place of incident is the swimming pool at Karwar which comes under the control of City Municipal Council. Accused No.3 has obtained contract for maintaining the swimming pool and documents at Ex.P.9 to Ex.P.25 are relied by the prosecution. The said document speaks about tender process and acceptance of tender by accused No.3 to maintain the swimming pool. Accused No.3 has not denied the fact that he has obtained the contract from City Municipal Council, Karwar, for maintaining swimming pool representing Blue Moon Enterprises Association, Haveri, on the annual quoted amount of Rs.92,190/-. The specification mentioned in the tender speaks as follows:
"Annual operation and maintenance of swimming pool, including cost of electricity charges, water supply charges, chemicals, safety devices, with maintenance of all electrical, mechanical, civil, water supply and plantations, also with providing safety instructors, securities, office management, housekeeping, cleanliness of building and pool, complete as per conditions mentioned in the tender notification for a period of one year."
13. The above referred material placed on record by the prosecution and accused No.3 not denied that he has obtained -7- CRL.A No. 100185 of 2016 contract from City Municipal Council, Karwar, to maintain the swimming pool, would demonstrate the fact that prosecution proved that accused No.3 is contractor representing Blue Moon Enterprises Association and responsible to maintain the swimming pool as per tender notification.
14. The prosecution alleges negligence of accused Nos.1 to 3 in maintaining the swimming pool. The specific allegation against accused Nos.1 and 2 is that they were negligent in attending the trainees and the negligence on the part of accused No.3 is that he did not provide safety equipments and safety arrangements, so also no arrangements were made to drain out swimming pool water. Whether the said negligence alleged by the prosecution is the cause for death of son of complainant Laxmidas Premanand Narvekar has to be appreciated in the light of evidence placed on record by the prosecution.
15. On going through the evidence of PW-1 who filed the complaint Ex.P.1 and that of his wife, PW-8 who accompanied PW-1 to the swimming pool after hearing about the incident is based on the information collected by them from the people assembled at the spot about the cause of death of -8- CRL.A No. 100185 of 2016 their son due to drowning. The evidence of PW-8, wife of the complainant, is only to the effect that she was not allowed to enter the swimming pool and she was informed that body of her son is taken to the hospital. She further deposed that she came to know about lifting the dead body of her son by expert swimmers. Other than this, there is no evidence of PW-8 to speak on the negligence aspect of accused as referred above.
16. PW-1 has deposed to the effect that accused No.1 was a trainer appointed by the contractor/accused No.3 and he received phone call while he was in the house at 6.30 p.m., that his son died in the swimming pool due to drowning. PW-1 further deposed that his son was swimming at a height of 4 feet and accused No.1 has asked him to jump from the height of 14 feet and went away from the place with his mobile. The dead body of his son was removed by expert swimmers and alleging negligence of accused being the cause for the death of his son filed the complaint Ex.P.1. PW-1 has admitted in the cross-examination about Ex.D.1 application, for confronting him during cross-examination with signature of his son. On perusal of the same, it would go to show that the validity of coaching was from 09.03.2011 to 09.04.2011 and the incident took place on 10.04.2011. PW-1 claims that his son had gone for -9- CRL.A No. 100185 of 2016 swimming by taking ticket. However, no any evidence is produced to prove the said fact. PW-1, further admits that he has spoken for the first time before the Court of accused No.1 asking his son to jump from the height of 14 feet. The said fact does not find place either in the complaint Ex.P.1 or any witness have been examined by the prosecution from whom PW-1 collected the said information. PW-1, further admitted that he has not stated the said fact before the police and the evidence of PW-15, Investigating Officer, is silent to that effect. The evidence of PW-9 and PW-10 is also silent to that effect. Therefore, the alleged negligence of accused No.1 in asking son of complainant to jump from the height of 14 feet and he went away with his mobile from the place, is not supported by any evidence on record.
17. PWs-9 and 10 parents of Ritika and Nihal respectively have deposed to the effect that adult swimming pool was not clean and water was contaminated, so also the water was in green in colour. PW-10 claims that the adult swimming pool was not clear and anything fell into the adult swimming pool was not visible. PW-7 who has removed the dead body of Laxmidas Premanand Narvekar from swimming pool has deposed to the effect that due to lack of maintenance,
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CRL.A No. 100185 of 2016the water of swimming pool was polluted and no expert trainers were there to coach the trainees.
18. On the alleged negligence of swimming pool water being contaminated, PW-15 has deposed to the effect that he has collected the swimming pool water at the time of spot panchanama Ex.P.2 in a separate bottle as per M.O.1. The said M.O.1 was sent for District Laboratory for giving the opinion on 17.05.2011. However, M.O.1 was returned that opinion cannot be given, since the water collected in the bottle was sent after more than 24 hours. Therefore, in the absence of any expert opinion regarding contamination of water in the swimming pool and other evidence on record, allegation against accused No.3 that swimming pool water was contaminated and failed to maintain the swimming pool as per tender notification has not been proved by the prosecution.
19. It is also alleged that no any safety equipments and safety arrangements were made for coaching the trainees, further there was no arrangement to drain out swimming pool water. If the spot panchanama Ex.P.2 is perused, then it would go to show that boards have been displayed at difference places of heights and steps have been laid down and the
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CRL.A No. 100185 of 2016electricity facilities also made available. The recitals of spot panchanama Ex.P.2 goes to show that there is big pipe line put up for draining out the swimming pool water. Therefore, the allegation that no safety arrangements were made, so also there were no arrangements made to drain out the swimming pool water, on account of such negligence son of complainant Laxmidas Premanand Narvekar died due to drowning has not been proved by the prosecution.
20. The prosecution relies on Ex.P.26 and Ex.P.27 to prove the negligence of accused No.3 in maintaining the swimming pool as per the terms of tender notification. On perusal of Ex.P.26, it would go to show that on 14.05.2010, the Commissioner, City Municipal Council, Karwar, issued notice to accused No.3 noting the shortcomings and directed accused No.3 to comply the same and thereafter another notice was issued dated 23.09.2010 Ex.P.27 which is in continuation to comply the shortcomings listed as per Ex.P.26. The noted shortcomings Ex.P.26 does not speak anything about the swimming pool water being contaminated and it is unfit for swimming.
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CRL.A No. 100185 of 2016
21. The prosecution relies on the evidence of PW-15 and the document Ex.P.25. The document at Ex.P.25 is a letter issued by Blue Moon Enterprises as to the staff appointed for maintenance of the swimming pool. Indisputably, the name of accused Nos.1 and 2 is not appearing in the said document. PW-8 has also admitted in his cross-examination that name of accused Nos.1 and 2 is not appearing in Ex.P.25. PW-8 claims that the concerned authorities of the swimming pool have not provided information of the coach appointed for training. However, states that he has issued notice but he has not produced the copy of said notice nor any effort has been made to collect the documents to show that accused Nos.1 and 2 were appointed as coaches for training the swimmers.
22. The trial Court has rightly appreciated the material evidence placed before it and arrived to a just and proper conclusion in holding that prosecution has failed to prove the culpable negligence on the part of the accused in drowning the son of complainant Laxmidas Premanand Narvekar died due to drowning. I do not find any justifiable grounds to interfere with the findings recorded by the trial Court. Consequently, proceed to pass the following:
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ORDER The appeal filed by the appellant/State is hereby dismissed.
The judgment passed by the Chief Judicial Magistrate, Karwar, in C.C.No.567/2013 dated 27.04.2016 is confirmed.
Office is directed to transmit the Trial Court records.
(Sd/-) JUDGE Jm/-