Karnataka High Court
Hulagappa Huded S/O.Bharamappa @ ... vs State Of Karnataka, Rural Police ... on 25 January, 2018
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25TH DAY OF JANUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
CRL. R. P. NO. 2329/2010
BETWEEN:
HULAGAPPA HUDED,
S/O BHARAMAPPA @ HIRE MUDUKAPPA,
AGE: 42 YEARS, OCC.: AGRIL & COOLIE,
R/O HALE GIRE BENEKAL,
TALUK: GANGAVATI,
KOPPAL DISTRICT.
- PETITIONER
(BY SRI J.S. SHETTY, ADVOCATE)
AND:
STATE OF KARNATAKA,
RURAL POLICE STATION,
GANGAVATI REPRESENTED
BY ITS PUBLIC PROSECUTOR.
- RESPONDENT
(BY SRI PRAVEEN K UPPAR, GOVT. PLEADER)
THIS CRIMINAL REVISION PETITION IS FILED U/S
397 R/W 401 OF CR.P.C. AGAINST THE JUDGMENT
DATED 10.07.2008 PASSED BY PRL. JMFC, GANGAVATI IN
C.C. NO. 91/2008 AND AGAINST THE JUDGMENT PASSED
BY THE DISTRICT AND SESSIONS JUDGE, FAST TRACK
COURT-I, KOPPAL IN CRL. A. NO. 12/2008 DATED
16.06.2010 & ETC.
THIS CRIMINAL REVISION PETITION COMING UP
FOR FINAL HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:
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ORDER
This Criminal Revision Petition is filed under Section 397m r/w Sec. 401 of Cr.P.C. against the judgment passed by the learned Presiding Officer, Fast Track Court-I, Koppal, in Crl. A. No. 12/2008 dated 16.06.2010 under which the appeal by the accused- appellant was dismissed by confirming the judgment and order of sentence passed by the learned Prl. JMFC, Gangavathi, in C.C. No. 91/2008 dated 10.07.2008.
2. Brief facts of the prosecution case is as under:
On 03.12.2007 at 2 p.m. the complainant Kaniveppa son of Lingappa, aged 30 years, agriculturist, resident of Hale Hirebenekal, Gangavati, lodged a report wherein it is stated that the accused Hulugappa Huded son of Bharamappa, aged 40 years, residing in front of his house, he was not having electricity connection but had diverted the electricity connection illegally from the electric line and literally committed theft of electricity, despite being warned by the neighbour, i.e., the complainant, thereby asking him not to leave the live :3: electric wire in an abandoned condition and on a particular occasion, the KPTCL people inspected and disconnected the illegal procuring of electricity.
That being the case, on 03.12.2007 at about 7 am, the daughter of the complainant, Kum. Shailaja, aged 4 years, left home for getting milk from the neighbour. As she came to the road, she came into contact with the wire which was nothing but went out of two live wires that was used by the accused, by reason of electric shock, the child died. Upon the complaint filed by the complainant, the matter was investigated and on completion of investigation charge sheet came to be filed wherein it is stated that the accused, on the said date and time was illegally using the electricity.
3. The matter was tried by the learned JMFC, Gangavati and convicted the accused for the offence punishable u/S 304(A) of IPC. Thereafter, the appeal preferred before the learned District and Sessions and Fast Track Court-I at Koppal in Crl. Appeal No. :4: 12/2008, which came to be dismissed confirming the judgment of the trial Court. It is against the said order, this appeal is preferred.
4. Trial Court records are made available.
5. I have heard the submissions of the learned counsel for the petitioner and the learned Govt. Pleader for the respondent-State at length.
6. The question for consideration would be:
Whether the child Kum. Shailaja, aged 4 years, daughter of the complainant died because of contacting electricity through a live wire that was hanging, due to the negligent and unauthorized use of electricity through two live wires straight away drawing the power from the main line?
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7. Learned trial Judge relied on the evidence of PWs.1 to 9 and got marked documents as per Exs.P.1 to P.9 apart from marked MOs 1 to 11. The final report is filed by the Police Inspector for the offence punishable u/S 304(A) of IPC.
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8. Learned counsel appearing for the petitioner would submit that the judgment of the trial Court is not proper nor based upon proper appreciation of evidence and records. So also, the judgment of the appellate Court, which, on reappreciation of evidence, dismissed the appeal confirming the judgment of the trial Court. Hence, sought to allow the appeal.
9. Learned Govt. Pleader supporting the impugned judgments submitted that, PWs.5 and 6 have spoken regarding conducting the mahazar so also seizing the live wires and evidence of PW7 who is a lineman, who also stated that the appellant-accused has not obtained authorized electricity connection but was using the hook for stealing electricity/ power.
10. In the circumstances of the case, learned counsel for the petitioner would submit there is no negligence on the part of the appellant and the learned JMFC and the appellate Court erred in convicting the accused. Further, it was strenuously submitted that offence :6: relating to electricity are tried by the Special Court established under the Electricity Act. The trial of the said offence are lookedafter by the Special Court and JMFC and has no jurisdiction to entertain the matter in order to take cognizance of it. At the same time the learned appellate Judge had no authority or jurisdiction to adjudicate the matter and to confirm the judgment of the trial Court.
11. Learned Govt. Pleader would submit that the matter is related to the death of a minor child and it is evidenced by records and evidence of PWs.5, 6 and 7.
12. In view of the facts of the case, the fact is not in dispute that, due to the electric shock the victim died, as it is not a case which is reported that live electric equipments being touched or they are circuited or the child going to the place which is out of boundary, like the transformer which will have high voltage despite the Board thereon showing "Danger" and the drawing of "skull and two human bones". On the other hand, the :7: victim was walking on the road to procure milk from the neighbouring house, it was in the morning 7 am and the electricity took her life.
13. Under these circumstances, the learned counsel for the petitioner would submit, besides trial being not conducted by the Special Court, there is no evidence either oral or documentary to establish that the house of the accused was there as no RTC extract, house list, etc. are furnished.
14. In this context it has to be observed that the Special Courts are established under the Electricity Act and notifying the territorial jurisdiction and the Special Court for trying the offences relating to theft of electricity and the related manner. In this case it is to be noted that it is not a matter wherein the claim against the Electricity Board must be only through the channel of a Special Court or the complaint by the official competent authority of the complaint should have been filed before the Special Court. The matter :8: that come up before the Special Court are regarding the arrears, back billing, unauthorized drawing of electricity through artificial means from the live and direct line conducting the point for supplying electricity. The known way of stealing electricity is through a hook being hooked to a electric line carrying live electricity. Under the said circumstances, when such an offence is committed under the Electricity Act, the complainant would be the competent authority, who would be Vigilance Squad.
15. Learned counsel for the petitioner wanted to drive a point that the Court of JMFC cannot exercise jurisdiction as to cognizance and trial of the matter. Here, pertaining to the significant matter would be that the complaint is lodged by the father of the victim child. Electricity Act cannot be branded as a copyright holder of electricity so that whenever any electric mischief is caused, invariably it has to be fined under the Electricity Act by the competent authority before the Special Court and not otherwise. The theft of electricity :9: under the Electricity Act regarding the offence and penalty are governed by Chapter 14 of the Electricity Act, 2003, wherein theft of electricity and material punishment of receiving stolen property inference with meter (tampering) negligently and breaking of damaging works are within the whelm of Special Courts. Chapter 15 deals of Constitution of Special Court and the procedure.
16. Further, the said Act provides for compounding of offence more particularly the first offence which could be compounded by the competent authority by paying back billing charges and compounding. Under the back billing charges average electricity considering the average would be calculated on the basis of production and other factor and it is that amount to be paid by the person who stolen the electricity.
Under such circumstances, it is not necessary to go under the banner of Special Court or the Electricity : 10 : Act for everything that connects to the personal right of a private individual.
17. As a matter of fact, death or injury if it is caused under the electricity equipment, then the question of negligence will be claimed for compensation. At the same time when there is theft, the authorities under the Electricity Act would look into it but the matter in concern is the infringement of valuable legal right and taking away the life of a child who never thought about danger and risk to her life, having got up in the morning, supposed on the fate it was waiting for her death. Thus, could be understood if the line is being abandoned to endanger the human life which is not the case here. If the theft of electricity the competent authority to proceed against the person who committed theft. On the other hand, if the act of a person takes away life of an individual, it is not within the jurisdiction of the Special Court.
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18. On the other hand, the tortuous liability arisen out of negligence is compensatory benefit matters on the tortuous liability. However, when the line that was spread and running on the shop, if it is asked to come down in the course of theft of electricity and whether it is used for the purpose of family or otherwise, a person who brings down the danger and it was quite natural for any person to believe and sustain that such a live wire are likely to cause death.
19. Here even if the matter was proceeded it would have been against the provisions of electricity. What was adjudicated by the Court of learned JMFC is determining criminal liability.
20. Thus the learned JMFC had the jurisdiction to exercise the power of adjudication of the dispute. Further, the learned appellate Judge has rightly adjudicated the matter.
It is stated that the petitioner had already committed theft of electricity and it was disconnected by : 12 : the electricity officials. If the connection is not taken under the Electricity Act, it all left to the electricity officials and the decision taken by exercising their wisdom. Just because they have not exercised their right, the rights of the petitioner plugged air tight bringing him to claim against him.
21. The facts, more particularly the conclusion of the prosecution are not disputed. The main contention is on jurisdiction of the trial Court. For the reasons assigned and discussion made above, the trial Court and the appellate Court had full-pledged jurisdiction to try, entertain and decide the matter. There are no irregularities in the judgment and order of both the Courts . There are no grounds to refuse the judgment and order of both the Courts.
22. Learned counsel for the petitioner would submit that substantive imprisonment be reduced and the fine amount may be increased, which, in my opinion, is : 13 : justified. The sentence imposed by the Courts below seems to be exorbitant and requires to be modified.
In view of the aforesaid facts and circumstances of the case, the following order is passed.
ORDER Criminal Revision Petition is partly allowed. The judgment of both the Courts below is confirmed. However, the sentence is modified. The petitioner- accused shall undergo rigorous imprisonment for one year for the offence punishable u/S 304(A) of IPC. The judgment in so far as imposing fine is concerned, is not disturbed.
The trial Court is directed to initiate proceedings regarding serving of sentence by the accused.
Registry to send back the records to the trial Court forthwith.
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Learned Govt. Pleader is directed to collect information as to whether compensation is permissible to the complainant.
Sd/-
JUDGE bvv