Karnataka High Court
Jagannatha @ Muniyappa vs The State Of Karnataka on 16 June, 2020
Author: K.Somashekar
Bench: K.Somashekar
1 R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JUNE, 2020
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL NO.766 OF 2010
BETWEEN:
Jagannatha @ Muniyappa
S/o Late Nanjappa
Age:35 years
Occ: Agriculture
R/o Erandahalli Village
Bidarahalli Hobli
Taluk: Bangalore East
Dist: Bangalore Rural.
...Appellant
(By Sri. Dinesh Kumar .K. Rao - Advocate)
AND:
The State of Karnataka
By Hoskote Police Station.
...Respondent
(By Sri. Rohith .B.J. - HCGP)
This Crl.A. is filed under Section 374(2) of Cr.P.C
praying to set aside the judgment and order of
conviction and sentence dated 23.07.2010 passed by
the I/C. I-Additional District and Sessions Judge and
Special Judge, Bangalore (R) District, Bangalore in
Spl.C. No.102/2006-convicting the appellant/ accused
for the offence punishable under Section 304-A of IPC.
2
This Criminal Appeal coming on for Hearing, this
day, the court made the following:
JUDGMENT
This appeal is directed against the judgment and order of conviction and sentence rendered by the Court of I Addl. District and Sessions Judge, Bangalore rural district, Bangalore in Spl.C.No.102/2006 dated 23.07.2010 convicting the accused for the offence punishable under Section 304-A of IPC and sentenced to undergo simple imprisonment of six months and to pay a fine of Rs.10,000/- and in default of payment of fine, to undergo further imprisonment for one month.
2. The factual matrix of the appeal is as under:
It is stated in the complaint filed by one Dairy Muniyappa that deceased Munikrishna being his son after grazing the cattle while he was returning to his house from the Government land at around 6.30 AM on a path road adjacent to the garden land of accused - Jagannath in Sy.No.41 where he had put barbed 3 fencing to the land and had taken direct electric power from the main line, when the deceased was proceeding, he came into contact with barbed fencing live wire and died due to electrocution on 18.1.2006 at 6.30 a.m. and one dog belonging to Ramanjinappa also died at the spot.
3. In pursuance of the death of deceased -
Munikrishna and also the dog, the father of deceased Dairy Muniyappa filed a complaint before Hosakote Police. Based upon the complaint, the case in Crime No.38/2006 came to be registered for the offences punishable under Section 304, 429 of IPC besides Section 135(E) of the Karnataka Electricity Act. Subsequently, the case was taken up for investigation by the Investigation Officer and after completion of investigation, charge sheet came to be laid against the accused for the offence punishable under Section 304- A, 429 of IPC beside Section 135(E) of the Karnataka Electricity Act, 2003 before the committal court. 4
4. Subsequently the case was committed to the Sessions Court. The charges were framed against the accused for the aforesaid offences where the accused pleaded not guilty but claimed to be tried. Subsequent to recording of the charges, the prosecution in all examined PWs.1 to 10 and got marked several documents as per Exs.P1 to P5 apart from MOs.1 to 3. Subsequently, the incriminating statement appeared against the accused was recorded whereby accused declined the truth of the evidence of the prosecution adduced so far. The accused did not come forward to adduce any defense evidence as contemplated under Section 233 of Cr.P.C.
Thereafter, the trial Court heard the arguments on the part of the prosecution and the defense counsel and after analyzing the evidence of PWs.1 to 10 and so also the documentary evidence, arrived at a conclusion that the prosecution has proved the guilt of the accused under Section 304-A of IPC as incorporated in the 5 operative portion of the order. But held that the evidence placed on record by the prosecution does not disclose the ingredients of Section 429 of IPC which is concerned as to prove that mischief was committed by killing Munikrishna and so also held that accused is not guilty of the offence punishable under Section 135 of the Electricity Act, 2003. It is this judgment which is challenged under this appeal by urging various grounds.
5. Learned counsel for the appellant has taken me through the evidence of PW.7 who is none other than the brother of deceased Munikrishna who has stated in his evidence that his brother was electrocuted in the plantain garden belonging to the accused but his evidence has not been appreciated by the trial Court in a proper perspective manner. Further, PW.8 - Ramanjinappa who gave evidence on the part of the prosecution that he is the owner of the street dog which was also electrocuted. But this evidence on the part of 6 the prosecution not only suffer from full of material contradictions but also suffers with omissions with each other. The trial Court has not appreciated the evidence in a proper perspective manner. Therefore, in this appeal it requires intervention of the impugned judgment of conviction and order of sentence rendered by the trial court, if not, there will be greater injustice to the case of the accused.
6. It is his further contention that the prosecution in all has examined several witnesses. But the evidence of prosecution witnesses are not consistent with each other in respect of offence under Section 304-A of IPC as where the trial Court has held conviction against the accused. But the entire case of the prosecution rests upon the circumstantial evidence of the alleged incident to connect the accused that he was the cause for the death of the deceased - Munikrishna and also the Dog. Therefore, the evidence adduced by the prosecution 7 cannot be believable, reliable and trust worthy to record conviction against the accused.
7. It is further contended by the learned counsel for the appellant that PW.1 was working as a lineman in Avalahalli BESCOM office and was a right person to spell about the electric connection said to be drawn by the accused in order to protect the crops in his land. But he has admitted in his evidence that he is not able to say as to whom the land belonging and who had taken the illegal electricity connection. This material contradiction has not been properly appreciated by the trial Court while arriving at a conclusion that the prosecution has proved the guilt of the accused.
8. PW.7 who was subjected to cross-examination has admitted the main line wire was sagging by touching the trees in the land belonging to the accused. The electric pole was also found to be bent which is clearly mentioned in page 3 of the inquest panchanama. 8 Therefore, there is no documentary evidence like photographs, complaint or panchanama by PW.1 and 2 who are the KEB officials to show that the accused has taken unauthorised connection except the oral testimony of the interested witnesses.
9. It is further contended that the prosecution has failed to prove the guilt of the accused even to the count of Section 429 of IPC regarding mischief in killing Munikrishna and causing for the death of dog belonging to PW.8 - Ramanjinappa. But Ex.P1 - PM report issued by PW.3 - Dr.Srinivas who conducted autopsy over the dead body of the deceased has stated that he found injuries over the body and it is the cause of death. But his evidence runs contrary to the evidence of PW.4 - Adappa who has stated in his evidence that he knew deceased Munikrishna and since four years back one day at around 6.00 AM when he had been to the plantain garden of the accused, Munikrishna was lying dead. At the request made by the police he had 9 subscribed his signature at Ex.P2. The police did not conduct any mahazar in his presence. But the public had disclosed about the death of deceased - Munikrishna due to electrocution. This witness was subjected cross-examination wherein he has specifically stated that he do not know the contents of Ex.P2 - Mahazar conducted by the IO during the course of investigation. He do not know whether the deceased Munikrishna died due to electrocution in the plantain garden belonging to the accused.
10. PW.5 - Ismail who was secured to act as a panch witness has stated in his evidence that he do not know the contents of Ex.P2 - Inquest Mahazar but only subscribed his signature. The prosecution did not prove the fulcrum of Ex.P2 said to have been conducted by PW.10 -Investigating Officer. Therefore, the evidence adduced by the prosecution are found to be inconsistent and contradictory to each other. The same has not been appreciated by the trial Court in a proper 10 perspective manner. Therefore, if the impugned judgment of conviction and order of sentence rendered by the trial Court is not interfered with, certainly there shall be miscarriage of justice to the case of the appellant/accused. The offence even though lugged against the accused in a charge sheet, but the prosecution has not proved the guilt of the accused beyond reasonable doubt. These are all the contentions as taken by the learned counsel for the appellant and seeks for intervention of the impugned judgment of conviction and order of sentence rendered by the Court below.
11. Per contra, the learned High Court Government Pleader has countered to the arguments advanced by the learned Counsel for the appellant by referring to the evidence of PW.1 - Nagaraju and PW.2 - Narayanaswamy Gowda, who are the official witnesses of KEB. It is stated that they went to the scene of crime and seen the dead body of Munikrishna. Thereafter, 11 Sri.Dairy Muniyappa, who is none other than the father of deceased filed a complaint as per Ex.P4. Based upon the complaint, a case came to be registered in Crime No.38 of 2006 for the offences punishable under Sections 304 and 429 of IPC read with Section 135 of the Electricity Act. Thereafter, PW.10 - V.L.Ramesh proceeded for investigation and laid the chargesheet against the accused. During the investigation, he conducted inquest over the dead body of Munikrishna as per Ex.P2 and the dead body was sent to the Government Hospital, Hoskote to conduct autopsy over the dead body. Accordingly, PW.3 - Dr.V.G.Srinivas conducted the autopsy and issued postmortem report as per Ex.P1 who also noted 13 injuries inflicted all over the body. PW.9 - Dr.H.Y.Harish, the Assistant Director conducted the autopsy over the Carcass of brown female dog belonged to PW.8 and issued postmortem report as per Ex.P3. This witness has been subjected to cross examination, wherein, he has specifically stated in 12 his evidence that he conducted autopsy over the street dog belonged to PW.8. Based upon the requisition submitted by the police, PWs.4 to 6 have been subjected to examination of the prosecution in order to conduct inquest over the dead body of Munikrishna as per Ex.P2. Merely because, they did not support the case of prosecution, it does not mean that the entire prosecution is vague. Deceased Munikrishna was electrocuted and the dead body was seen at the scene of offence. PW.3, the doctor who conducted the postmortem report has opined that in all 13 injuries were found on the dead body of Munikrishna. The evidence of PWs.1 and 2 corroborates with the evidence of PW.3 in respect of postmortem report as per Ex.P1. PW.9 who issued the postmortem report in respect of street dog as per Ex.P3 has stated that the cause of death of the dog was due to electrocution. The evidence adduced on the part of the prosecution has been appreciated by the Trial Court and it has rightly come to 13 the conclusion that the prosecution has proved the guilt of the accused beyond all reasonable doubt. The accused is the cause for the death of deceased and also cause for the death of street dog belonged to PW.8. It is stated that the cable used for taking electricity connection was of blue and black colours which is marked as MOS.1 and 2, but the production of MOs.1 and 2 before the Court are not of black colour. The said contention was taken by the Counsel for the accused. But the Trial Court has observed that there is no force in the submission made by the defence counsel that no unauthorized electricity connection has been produced. Probably, the police might not have produced the exact wire seized at the time of conducting mahazar in the absence of witnesses. But this contradiction does not come in the way for proving the guilt of the accused, as the accused is the cause for the death of deceased, wherein, he died due to electrocution and the dead body was lying at the scene of offence in a garden belongs to 14 the accused. PWs.4 and 6 have been subjected to examination on the part of prosecution as they have subscribed their signatures at Ex.P2 on the inquest held over the dead body on 18.01.2006. That the deceased died at about 6.30 a.m. on 18.01.2006. It is stated that the villagers informed PW.7 - Muniraju who is none other than the brother of the deceased about his death. On receiving information about the death of his brother, he went near the garden land belongs to the accused at about 6.45 a.m. and saw the dead body of Munikrishna lying at the scene of offence and he found that he died due to electrocution. The electricity connection was taken by the accused to his garden land. He also found two dogs lying dead at the scene of crime. But PW.9, the doctor has conducted autopsy over the street dog belonged to PW.8 and has issued postmortem report as per Ex.P3. PW.7 has specifically stated in his evidence that he found two dogs died and he has specific information that the electricity connection had been 15 obtained from the main line to the barbed wire fence to the garden land belonged to the accused. On perusal of the entire evidence and also relying on the material placed by the defence counsel, the Trial Court has come to the conclusion that the accused was in possession of plantain garden and he has unauthorisedly taken electricity connection from the main line to the barbed wire fence put around the land. There was a negligence on the part of accused that he did not take proper steps to warn the people about the live wire. The Trial Court has rightly come to the conclusion that the prosecution has proved the guilt of the accused under Section 304-A IPC. Therefore, the appeal does not warrant for any consideration and seeks for dismissal.
12. In these context of the contentions as taken by the learned Counsel for the appellant and also countered by the learned High Court Government Pleader for the respondent-State, it is relevant to state 16 that on 18.01.2006 at about 6.30 a.m., the dead body of Munikrishna was lying near the barbed wire fence put around the land belonged to the accused. Subsequent to the information about the death of Munikrishna, his father Dairy Muniyappa lodged a complaint at about 8.00 a.m. with Hoskote Police Station. Based on the said complaint, crime came to be registered and PW.10 proceeded for investigation and laid chargesheet against the accused after completion of investigation. It is relevant to mention here that, the prosecution has not examined the father of the deceased who lodged the complaint. Moreover, FIR has been lodged for the offence punishable under Sections 304 and 429 IPC and under Section 135 of the Karnataka Electricity Act, 2003. The prosecution did not put forth the evidence relating to why deceased Munikrishna had been near the barbed wire fence that was put around the garden land belonging to the accused on 18.01.2006 at around 6.30 a.m. Whether he had been to the said land for the 17 purpose of grazing cattle or for any other purpose is not forthcoming. This vital part of the evidence has not been properly put forth by the prosecution to prove the guilt of the accused. The inquest over the dead body was done by PW.10 in the presence of PWs.4 and 6, but they did not support the case of prosecution. PW.10 has conducted inquest over the dead body and collected MOs.1 and 2, the cable wire alleged to have been used by the accused to draw the line from KEB to connect to the barbed wire fence put around the plantain garden land belonged to the accused. PW.6 who has been subjected to examination on the part of prosecution, who is a neighbour to the garden land of accused found the dead body of Munikrishna lying on the garden belonged to the accused at around 6.00 a.m. and he has also subscribed his signature at Ex.P2. But the version of these two panch witnesses that they had gone near the garden land at around 6.00 a.m. on 18.01.2006 and found the dead body of Munikrishna has not been 18 seriously challenged by putting them into cross examination. It is the duty of prosecution to cross examine the witnesses to prove the guilt of the accused beyond all reasonable doubt in order to secure conviction.
13. PW.1 - Nagaraju being lineman in Avalahalli BESCOM office and PW.2 - Narayaswamy Gowda working as Assistant Executive Engineer have stated in their evidence that they went to the scene of crime and saw the dead body of Munikrishna and one Dog was also found lying dead. But their evidence is not supported with any other independent witnesses. PW.4 and PW.5 who were subjected to examination relating to the inquest proceedings held over the dead body of Munikrishna by PW.3 being the Doctor who conducted autopsy over the dead body and given post mortem report as per Ex.P1. PW.9 is the Veterinary Officer in the Veterinary Hospital, Hosakote who conducted 19 autopsy over the Carcass of the Dog which was lying dead at the scene of crime by electrocution. PW.10 being the Investigating Officer who drew the inquest mahazar over the dead body of Munikrishna as Ex.P2 in the presence of PWs.4 and 5 and they have subscribed their signature and PW.6 has also subscribed his signature on Ex.P2. But they did not stated in their evidence specifically relating to the fulcrum of the inquest mahazar.
14. PW7 - Muniraju who is none other than the brother of deceased Munikrishna has specifically stated in his evidence that after receiving information about the death of his brother, he went near the scene of offence and found the dead body of his brother and found that his brother had died due to electrocution and he also found two dogs lying dead at the scene of crime due to the electrocution.
15. PW.8 - Ramanjinappa is the owner of the said dog and he was also subjected to examination. But he 20 did not stated in detail in his evidence relating to the allegations made in the complaint filed by Dairy Muniyappa who is none other than the father of deceased Munikrishna. But the evidence of PWs.1 and 2 and so also the evidence of PWs.7, 8 and 10 does not corroborate with any other independent witnesses on the part of the prosecution to arrive at a conclusion that the accused had caused the death of the deceased Munikrishna and also the death of street dog. The entire case of the prosecution is revolving around the circumstantial evidence. The live wire was sagging at the scene of crime and the incident took place on 18.01.2006 in the morning around 6.30 a.m. where deceased Munikrishna who was proceeding in the path way nearby the barbed fencing wire put around the plantain garden of the land belonging to the accused. Therefore, it is said that the reasons assigned in the impugned judgment challenged under this appeal does not have any sound reasons to arrive at a conclusion 21 that the prosecution has proved the guilt of the accused beyond all reasonable doubt. In this appeal, if the impugned judgment is not revisited and re-appreciated, certainly there would be miscarriage of justice to the grave man of the charges. In the instant case, without there being any sound reasons, the trial Court has recorded conviction against the accused for the offence under Section 304-A of IPC, but has acquitted the accused for the offence punishable under Section 429 of IPC and so also, under Section 135 of the Karnataka Electricity Act, 2003. The prosecution was not able to prove the guilt of the accused but could secure conviction only for the offence punishable under Section 304-A of IPC without there being any substantial evidence. Initially, Sri.Dairy Muniyappa, who is none other than the father of the deceased had lodged a complaint in Hoskote Police Station and a case was registered for the offence punishable under Sections 304 and 429 IPC regarding mischief by killing of the 22 persons and so also, Section 135 of the Karnataka Electricity Act, 2003, but the trial court has convicted the accused only for the offence punishable under Section 304-A of IPC though there is no consistent and positive evidence for cause of death of Munikrishna and a street dog.
16. Under Section 151 of the Karnataka Electricity Act, 2003, cognizance can be taken only on a complaint in writing made by the competent authority to initiate action against the culprit. But in the instant case, no complaint has been filed by the competent authority to initiate action against the accused. Based upon lodging of information by Dairy Muniyappa, who is none other than the father of deceased, the crime came to be registered and thereafter proceeded for investigation by PW.10 and laid charge-sheet. One important contradiction that is elicited through the evidence on the part of the prosecution is that, the cable wire used 23 for connecting the electricity was of blue and black colour, whereas MOs.1 and 2 which is produced before this Court are not of black colour. The cable wire said to have been seized by PW.10 during the course of investigation while doing inquest over the dead body as per Ex.P2. Moreover, PWs.4 and 6 have been subjected to examination, but they did not support the case of prosecution.
17. However, in this appeal, the entire evidence on record requires to be re-appreciated, as to whether the Trial Court has appreciated the evidence in a proper perspective or not. If the evidence is not re-appreciated, the impugned judgment of conviction and order of sentence rendered by the Trial Court certainly leads to miscarriage of justice. The ingredients of Section 304-A of IPC very much requires to be established by the prosecution in order to secure the conviction in addition to offence under Section 429 of IPC and so also the 24 offence under Section 135 of the Karnataka Electricity Act, 2003. But as the prosecution failed to establish the guilt of the accused under Section 429 IPC and so also for the offence under Section 135 of the Karnataka Electricity Act, 2003, the same resulted in acquittal of the accused.
Therefore, it is said that there is substance in the contention as taken by the learned counsel for the appellant which calls for interference of the impugned judgment of conviction and order of sentence rendered by the trial court. In terms of the aforesaid reasons, it is held that the prosecution has not adduced any cogent, positive, consistent and acceptable evidence to probabalise that the accused has caused the death of the deceased as narrated in a complaint, beyond all reasonable doubt in order to secure conviction under Section 304-A of IPC. Accordingly, the accused deserves 25 acquittal for the offence punishable under Section 304- A of IPC. Accordingly, I proceed to pass the following:
ORDER The Appeal preferred by the appellant is hereby allowed. Consequently, the judgment of conviction and order of sentence dated 23.07.2010 passed in Spl.C.No.102 of 2006 by the I Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru, for the offence punishable under Section 304-A of IPC, is hereby set aside. The accused is acquitted of the charges leveled against him for the offence punishable under Section 304-A IPC.
If the accused has executed any bail bond, the same shall stand cancelled.
Sd/-
JUDGE DKB/BGN