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2011 DIGILAW 188 (KAR)

State of Karnataka v. Venkatappa

2011-02-17

K.N.KESHAVANARAYANA, MANJULA CHELLUR

body2011
Judgment : 1. This appeal by the State is directed against the judgment and order dated 11.9.2006 passed by the I Additional District & Sessions Judge and Presiding officer, Fast Track Court-II, Kolar in S.C. No.65/2000 acquitting the respondents-accused Nos.1 and 2 of the charges leveled against them for the offences punishable under Section 304, IPC and under Section 39 of the Indian Electricity Act r/w Section 379 of IPC. 2. The case of the prosecution in brief, is as under: Accused No.1-Venkatappa is the owner of Mango grove in Survey No.56/2000 of Sagarasanahalli in Kamasamudram Hobli, Bangalore Taluk measuring about 1 ½ acres. He had fenced the said land with barbed wire. He had also unauthorisedly abstracted electricity from the nearby pole erected by the Electricity Board by connecting a live wire from the transmission line to the barbed wire fencing in order to protect the mango grove from wild animals. Accused No.2-Thimmappa lent a helping hand to accused No.1 in connecting the live wire to the barbed wire fencing. While connecting the live wire to the barbed wire fencing, the accused had the knowledge that if any one comes in contact with the said live wire, it is likely to cause their death or such bodily injury likely to cause death of said person. At about 5.00 a.m. on 14.5.1999, when one Chikka Muniyappa and his wife Rajamma were proceeding near the said land of accused No.1 along with their daughter PW-3 Nagarathnamma in order to go to Kuppam Shandi, chikka Muniyappa and his wife Rajamma came in contact with the said barbed wire fencing which had been connected to a live wire, a result both of them got electrocuted and died at the spot. On hearing the cry of PW-3, PW-1-Basappa came near the scene of occurrence, saw both the deceased persons lying dead and he removed connecting live wire. Thereafter, he lodged a complaint as per Ex.P-1 before the jurisdictional Police, based on which a case was registered and investigation was taken up. During investigation, the Investigating Officer held inquest over the dead bodies and subjected them to post-mortem examination. PW.12-Dr. Rajiv, who conducted the post-mortem examination on the dead bodies, opined that the death of the deceased persons was due to Cardio respiratory failure as a result of electric shock. During investigation, the Investigating Officer held inquest over the dead bodies and subjected them to post-mortem examination. PW.12-Dr. Rajiv, who conducted the post-mortem examination on the dead bodies, opined that the death of the deceased persons was due to Cardio respiratory failure as a result of electric shock. During investigation, the accused persons were apprehended, statements of witnesses were recorded and after completing investigation, charge-sheet came to be filed. 3. On committal of the case to the Court of Sessions, the accused persons pleaded not guilty for the charges leveled against them and claimed to be tried. The prosecution in order to bring home the guilt of the accused persons, examined PWs.1 to 12, placed reliance on documentary evidence Exs.P.1 to P.11 and produced material objects 1 and 15. The defence of the accused was one of total denial and that of false implication. 4. After hearing both sides and on assessment of oral as well as documentary evidence, the learned Sessions Judge by the judgment under appeal, acquitted both the accused of the charges leveled against them holding that the prosecution has failed to prove the guilt of the accused. Aggrieved by the said judgment of acquittal, the State is in appeal before this Court. 5. We have heard G.M. Srinivasa Reddy, learned High Court Government Pleader appearing for the appellant-State and Sri. B.Anand, learned counsel appearing for the respondents-accused. We have perused the records, scrutinized the oral and documentary evidence and carefully read the judgment under appeal. 6. In the facts and circumstances of the case, the point that arise for our consideration is: “Whether the judgment under appeal calls for interference by this Court? 7. The evidence of PW.12-Dr. Rajiv, which has not been seriously challenged in the cross-examination, establishes that he conducted post-mortem examination on the dead bodies of two deceased persons namely Chikka Muniyappa and his wife Rajamma and he was of the opinion that the death of both the persons was due to Cardio respiratory failure as a result of electric shock. The evidence of PWs.1 and 3 would also establish that the two deceased persons died on account of electrocution. There is no serious challenge to their evidence in this regard. The perusal of the records indicates that the accused has not seriously disputed the fact that both the deceased persons died on account of electrocution. The evidence of PWs.1 and 3 would also establish that the two deceased persons died on account of electrocution. There is no serious challenge to their evidence in this regard. The perusal of the records indicates that the accused has not seriously disputed the fact that both the deceased persons died on account of electrocution. Therefore, the Court below is justified in holding that the two deceased persons died on account of electric shock. 8. Now the next question required to be considered is, “Whether the accused in any way, were responsible for the death of two deceased persons?” 9. There is no serious dispute that accused No.1 was the owner of the land bearing Survey NO.56/2000 of Sagarasanahalli in Kamasamudram Hobli, Bangarpet Taluk. However, the accused has disputed the case of the prosecution that he had erected barbed wire fencing around his land and to that barbed wire fencing, he had connected a live electric wire from the nearby electric pole and thereby allowed flow of electricity in the barbed wire erected around the land. In order to prove this fact, the prosecution has relied on the oral evidence of PWs.1 and 3. However, the learned Sessions Judge on appreciation of evidence has found that the case of the prosecution ha snot been prove satisfactorily. The learned Sessions Judge has summed up his reasonings as under. “18. xxxxx Firstly, it is for the reason, that it is in evidence that the accused No.1 had fenced 1 ½ acres of his mango grove with barbed wire in two lines to the wooden poles erected at a distance of one mola (1 ½ feet) in order to prevent trespass from pigs. That being so by giving any amount of margin with regard to the space between two poles. It is for common sense that 13 poles would not cover to fence an area of 1 ½ acres. It is not the prosecution case or the version of Ex.P.5 spot mahazar that there was some more wooden poles left at the place itself and the 13 poles seized thereunder were for sample only. Secondly, among the 13 poles at Mos.3 to 15, but for one or two as described in Ex.P.5 mahazar itself are all of jungle wood with irregular size and shape. Secondly, among the 13 poles at Mos.3 to 15, but for one or two as described in Ex.P.5 mahazar itself are all of jungle wood with irregular size and shape. Further, it is also important to note that, none of them bear any signs of their fixing to the earth let apart with barbed wire. Therefore, it is rather hard to believe that these were the materials used to fence around with barbed wire and to make them live with electricity. Thus, it shakes the very genesis of the prosecution. Thirdly, PW-3 in her cross-examination has deposed in unequivocal terms that it was her brother one Nagabhushan (not PW-5 Nagabhushan) who produced the clubs Mos.3 to 15 to police. That Nagabhushan is neither cited nor referred to in Ex.P.5 mahazar or examined even at the trial. Therefore, the evidence of PW.3 also rather weighs much against the prosecution on the veracity of its charge. Fourthly, the barbed wire at MO.1 seized from the place under Ex.P5 mahazar though is of some length, which is neither stated in Ex.P.5 mahazar nor by the witness who have adopted to it. But the fact remains that it may be of 50 to 60 feet only. Hence, obviously it cannot cover an area of 1 ½ acres of land in two-lines. Again it is not the prosecution case or the version of Ex.P.5 mahazar that some ,ore length of that wire was left at the place itself and the MO.1 seized was for sample. Fifthly, according to the prosecution the wire at MO-2 is the one which was used to connect electricity to the barbed wire of the fence from nearby transmission pole. There is no positive and cogent evidence to say that the length of this wire which is not mentioned in Ex.P.3 mahazar was sufficient to connect the barbed wire fence from the line of the erected electric pole. On the other hand what is pertinent to note that PW-8 in cross-examination ha specifically admitted that this wire cannot contact conduct volts of electricity and in such an event it would burn. That being so, again the prosecution case is disarmed by any positive evidence relied upon by it. On the other hand what is pertinent to note that PW-8 in cross-examination ha specifically admitted that this wire cannot contact conduct volts of electricity and in such an event it would burn. That being so, again the prosecution case is disarmed by any positive evidence relied upon by it. Of course, the prosecution has elicited in the re-examination of PW-8 that white and blue coloured wire at MO.2 can conduct 440 volts of electricity, but he has also stated further that, wire was there at the spot itself. If this evidence is to be believed, the prosecution case that it was seized from the house of accused No.2 under Ex.P.5 mahazar would be falsified. Again his further re-examination would reveal that, he has not verified whether that wire was sufficient to connect the lines from the electric pole to the barbed wire fence at the spot. Thus, it further deepens the suspicion in the prosecution case.” 10. Having read the oral evidence of the witnesses placed on record, we are of the opinion that the reasonings adopted by the learned Sessions Judge as extracted above, cannot be termed as perverse or illegal. Even according to the prosecution, the land measure about 1 ½ acres. In order to erect barbed wire fencing around this extent of land in two lines, the barbed wire produced before the Court as per MO.1 was not sufficient. It is not the say of the Investigating Officer that only part of barbed wire found there was seized. Therefore, thee is reasonable doubt as to whether MO.1 was the barbed wire used to fence the land in question. The live wire said to have been connected to the barbed wire from the nearby electrical pole is produced and marked as MO-2. It has come in the evidence of PW-6-Munivenkatappa the meter reader of the Electric Supply Company that the wire Mo.2 does not with stand 440 Volts of electrical powers. Therefore, MO.2 could not be used to connect the barbed wire with the nearby electric pole, as the same would have burnt the moment it was connected. It is also not established as to whether the length of the wire produced as MO.2 was sufficient to connect the live wire and the barbed wire fencing. Number of poles produced before the Court were only 13 whereas the total extent of the land was 1 ½ acres. It is also not established as to whether the length of the wire produced as MO.2 was sufficient to connect the live wire and the barbed wire fencing. Number of poles produced before the Court were only 13 whereas the total extent of the land was 1 ½ acres. This shows that all the poles have not been seized. According to the prosecution, MO-2 was seized from the house of accused No.2 under Mahazar Ex.P.3. However, according to the evidence of PW.8, the said wire was lying at the spot itself. Thus there is serious doubt a to the recovery of MO-2 from the house of accused and for its user for connecting the barbed wire fencing with the live wire. Having regard to the nature of the evidence placed on record, in our opinion, the findings recorded by the learned Sessions Judge are sound and reasonable. We find no perversity or illegality in the judgment of the Court below warranting interference by this Court. In this view of the matter, we find no merit in the appeal,. Accordingly, the appeal is dismissed.