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2020 DIGILAW 535 (KAR)

Syed Fazal S/o Syed Jabbar v. State of Karnataka

2020-02-25

K.SOMASHEKAR

body2020
JUDGMENT : This appeal by the accused is directed against the judgment of conviction dated 08.04.2011 and order of sentence dated 04.06.2011 rendered by the trial Court in Special Case No.14/2006 whereby the appellant is convicted for the offence punishable under Section 304 of IPC besides Section 135(1)(a) of the Electricity Act, 2003. 2. The accused is sentenced to undergo imprisonment for a period of five years and shall pay fine of Rs.5,000/- for the offence punishable under Section 304 of IPC and in default he shall suffer further imprisonment for a period of two months. Accused shall pay fine of Rs.10,000/- for the offence under Section 135(1)(a) of the Electricity Act, 2003 and in default to suffer further imprisonment for a period of four months and both sentences are directed to run concurrently. 3. The order regarding sentence has been passed by the trial Court on 04.06.2011, but the judgment of conviction has been passed by the trial Court on 08.04.2011. In the operative portion of the order regarding sentence, it has been mentioned that accused shall suffer imprisonment for a period of five years and sentenced to pay fine of Rs.25,000/- for the offence under Section 304 of IPC and in default, accused shall suffer further imprisonment for two months. Accused shall pay fine of Rs.10,000/- for the offence under Section 135(1)(a) of the Electricity Act, 2003, in default shall suffer further imprisonment for a period of four years. Out of fine amount, if deposited by the accused, amount of Rs.30,000/- shall be disbursed to the legal heirs of the deceased namely Malligamma. 4. Heard learned Counsel for appellant and learned High Court Government Pleader appearing for respondent State. 5. The brief factual matrix of the case of the prosecution is that the complainant was doing coolie work along with three other women. On 21.10.2005, all the four women including deceased Malligamma had gone to the agricultural land to cut and accumulate the grass for selling. At about 10.00 a.m. while they were proceeding, the deceased Malligamma had come in close contact with zinc wire and wooden pegs laid down in the land at the bund area belonging to one Ghazal. Due to electrocution, the deceased Malligamma succumbed at the scene of crime. Lakshmamma also states that, Gowramma who was going behind her when tried to caught hold of deceased Malligamma she also sustained electric shock. Due to electrocution, the deceased Malligamma succumbed at the scene of crime. Lakshmamma also states that, Gowramma who was going behind her when tried to caught hold of deceased Malligamma she also sustained electric shock. After Gowramma recovering from the said electric shock, they informed the same to the villagers. The said incident occurred due to accused dishonestly and illegally connecting the zinc wire fence to his land with power supply line and tapping the energy to make the said wire fencing live. Therefore, she lodged the complaint to the police to take action against the accused. 6. On the basis of the complaint lodged by Lakshmamma, Crime No.203/2005 came to be registered against the accused by Chamarajanagar East Police Station for the offence punishable under Section 304 of IPC and Sections 39 and 44 of the Indian Electricity Act, 1910. After investigation, police laid charge sheet against accused for the offence punishable under Section 304 of IPC and Section 135(1)(a) of the Electricity Act, 2003. After securing the accused, charges were framed against the accused for the aforesaid offences. Accused did not plead guilty but claimed to be tried. Subsequently, in order to establish the case against the accused, the prosecution examined PWs.1 to PW.11 and got marked documents at Exs.P1 to Ex.P8. Material objects were also got marked as MO.1 to MO.3. 7. Subsequent to closure of evidence of prosecution, Accused was examined as required under Section 313 of Cr.P.C for enabling incriminating statement appearing against him wherein, the Accused declined the truth of evidence of prosecution adduced so far and examined himself as DW.1 and got marked Exs.D1 to Ex.D3 as contemplated under Section 233 of Cr.P.C. 8. After hearing both sides, the trial Court on appreciating the evidence adduced by the prosecution and taking into consideration the available materials on record, convicted the accused for the aforesaid offences. Assailing the said order of conviction and sentence, the accused is before this Court in this appeal, by urging various grounds. 9. After hearing both sides, the trial Court on appreciating the evidence adduced by the prosecution and taking into consideration the available materials on record, convicted the accused for the aforesaid offences. Assailing the said order of conviction and sentence, the accused is before this Court in this appeal, by urging various grounds. 9. Sri Y.S.Shiva Prasad, learned Counsel for the appellant seeks to assail the judgment of conviction and order of sentence on the following grounds: (i) The judgment of conviction and sentence passed by the trial Court suffers from infirmities; (ii) The trial Court solely depending on the evidence of PW9 Dr.Kantharaju who conducted postmortem of the deceased and opined as per Ex.P6 – PM report that death is due to electrocution, held that the appellant is responsible for the said act. But there is no ingredient to constitute the offence under Section 304 of IPC and no material document to state that the said act was done by the accused; (iii) The evidence of PW.1complainant is not trustworthy as she is not aware who wrote the complaint and she has not even gone to the police station and contents of the complaint. It is the contention of appellant that even though she was reluctant to sign the complaint but the police persuaded her and then got her signature on it. Similarly in respect of Ex.P2 – spot mahazar, she admits that she is not aware as to who handed over material objects to the police and she is unable to name who were the panchas to the spot and she even does not know the name of the owner of the land. Moreover, it is also elicited that the said land belongs to one Ghazal of Chamarajanagar and does not stands in the name of Syed Fazal;. (iv) It is further contended that the trial court failed to appreciate the fact that from the evidence of PW.2 – Kamalamma, it is elicited that she does not know the name of accused present before the Court and she did not give any statement to the police and not aware of the name of the person to whom the land belongs. Similarly, PW.3 who is the injured witness has stated that she is does not know the name of the accused and one Ghazal is the owner of the land. Similarly, PW.3 who is the injured witness has stated that she is does not know the name of the accused and one Ghazal is the owner of the land. Further, as per Ex.P4 – RTC extract issued by PW.5 – The village accountant has stated that the owner and the cultivator of the land in question is one Syed Asamathulla. Similarly, PW.6 who was examined as attestee to Ex.P2 states that he is not aware of the survey number of the land admits that Ex.P2 – Mahazar it is stated as land belongs to one Ghazal. These material contradictions have gone unnoticed of the trial court while rendering the impugned judgment. (v) The trial Court has also failed to take note of the fact that PW.7 who is adjacent owner of the land has not seen the accused in the said land and also not aware of the properties seized by the police; (vi) The trial Court has further failed to appreciate the fact that, from the evidence of IO – PW.11 who admits that from the entire investigation records it reveals that the name of the accused is mentioned as Ghazal whereas in the RTC, cultivator’s name is shown as Syed Ghazal Ferulla. Therefore, the evidence of the Investigating Officer also raises doubt as he has not verified the ownership of the land in dispute where the said incident has occurred; & (vii) Further, it is contended that DW.1 who was examined on the part of Defence who has spoken and produced a sale deed marked as Ex.D1 and Ex.D4 RTC collected and produced by the police does not belongs to him. But Ex.D3 is a petition filed by PW.3 for claims against Syed Ghazal only and not from accused Syed Fazal. Therefore, it is contended that the trial Court erroneously misconceived the facts and failed to appreciate the available evidence on record and has ordered conviction and sentence. On all these grounds, learned counsel for the appellant prays to allow the appeal by setting aside the impugned judgment rendered by the trial Court. In support of his arguments, learned counsel for the appellant has placed reliance on a judgment of this Court in Crl.A.No.1353/2005 disposed on 24.11.2011. He submits that the said decision is identical to the case on hand. In support of his arguments, learned counsel for the appellant has placed reliance on a judgment of this Court in Crl.A.No.1353/2005 disposed on 24.11.2011. He submits that the said decision is identical to the case on hand. In the said decision, while allowing the appeal, conviction of the accused under Section 304(2) of IPC was setaside observing that when the evidence does not prove the charge for the offence punishable under Section 304 II of IPOC, the findings of the trial Court are not based on any evidence are perverse findings and same are required to be setaside. Based on the above said reliance, it is contended that there is no corroborative evidence on the part of the prosecution to show that the land belongs to the accused where the dead body of Malligamma was lying. 10. On the other hand, Sri M.Divakar Maddur, learned High Court Government Pleader supports the impugned judgment of conviction and order of sentence on the following grounds: (i) The trial Court has rightly passed the impugned judgment of conviction and order of sentence based on the oral and documentary evidence available on record; (ii) The trial Court relying upon the evidence of the material witnesses held that the land belongs to the accused and the theory put forth by the accused that the land belongs to Syed Gazan Farulla and not the accused does not find any merit. The said contention is evident from the power connection given to the pump house situated in the said land; (iii) The trial Court relying upon the testimony of PW.10 the Executive Engineer held that the accused has taken unauthorized power connection to the Zinc wire fencing for the purpose of protecting the crop from wild animals and Malligamma died due to electrocution; & (iv) The accused has not brought out any contradiction or inconsistency in the evidence of material witnesses. Under the said circumstances, the trial Court was justified in convicting the accused for the above offences. Thus, on all these grounds, he sought for dismissal of the appeal. 11. Under the said circumstances, the trial Court was justified in convicting the accused for the above offences. Thus, on all these grounds, he sought for dismissal of the appeal. 11. Having heard learned Counsel for the appellant and learned HCGP, the question that arises for determination in this appeal is whether the accused was held responsible for cause of death is the vital aspect that requires to be considered and also facilitated by the prosecution to constitute the offence under Section 304 of IPC and also the ingredients of offence under Section 135(1)(a) of the Electricity Act, 2003. 12. In order to arrive at the conclusion to answer the above point, it is just and necessary to have a glance at the evidence available on record. 13. PW.1 Lakshmamma has stated that she has given complaint at Ex.P1 to the police station stating that on the fateful day at about 10.00 a.m. she along with Kamalamma, Gowramma and the deceased Malligamma as usual went near the land of the accused to cut the grass. When the deceased tried to cross the Kalli fence, adjacent to that, there was a zinc wire fence. She came in contact with zinc wire put around the land and sustained electric shock and succumbed at the scene of crime due to electrocution. PW.3 Gowramma tried to hold the deceased and she also sustained electric shock. PW.1 further states that they saw the deceased falling down due to electrocution. Later, PW.3 Gowramma informed to the villagers and in this connection, PW.1 lodged the complaint. 14. In the cross-examination of PW.1, she states that she cannot say the boundaries of the place of incident as stated in spot mahazar said to have been drawn by the investigating officer as per Ex.P2 in the presence of PW.6, PW.7 and PW.8. She does not know the neighbouring land owners of the place of incident. She also states that she has not gone to the police station and she does not know who wrote the complaint and the contents of the complaint. She has stated that she was reluctant to sign the complaint, but the police persuaded her to sign the complaint. She further states that she has forgotten the name of the owner of the land. She also states that she does not know who handed over the wooden pegs and the zinc wire to the police. She has stated that she was reluctant to sign the complaint, but the police persuaded her to sign the complaint. She further states that she has forgotten the name of the owner of the land. She also states that she does not know who handed over the wooden pegs and the zinc wire to the police. She cannot say the number of wooden pegs seized by the police. But, however, nothing worth was elicited to prove the case of the prosecution. 15. PW.2 Kamalamma has spoken about the occurrence of the incident on the fateful day as reiterated by PW.1. However, during the course of cross-examination, she states that the police have recorded her statement and have taken her signature. She states that she does know the name of the accused. She also states that she has not stated to the police the name of the person to whom the land belonged to. She states that kalli fence around the land is about 2 feet and there is no water flowing canal. She states that PW.3 went to the village and informed the villagers about the incident. She states that she sustained electric shock, but did not sustain external injuries on her person. Except this, nothing worth was elicited to prove the case of the prosecution. 16. PW.3 Gowramma has stated in her evidence regarding the incident that occurred on the fateful day at about 10.00 a.m when she along with PW.1, PW.2 and the deceased Malligamma were going near the land of one Muslim person, Malligamma sustained electric shock due to coming into contact with zinc wire fence and fell down and succumbed due to electrocution. She further states that she also sustained electric shock to her left leg when she tried to rescue the deceased. She states that she got herself admitted to the hospital. In her cross-examination she states that she was admitted to the hospital for about 20 to 30 days. She states that she has forgotten the name of the accused and states before the police the name of the accused and the owner of the land as Ghazal. She further states that she has not filed any case for compensation against the owner of the land. She states that the height of the kalli fence was around 67 feet. She states that she has forgotten the name of the accused and states before the police the name of the accused and the owner of the land as Ghazal. She further states that she has not filed any case for compensation against the owner of the land. She states that the height of the kalli fence was around 67 feet. But having gone through this evidence it appears that it is of no aid to the case put forth by the prosecution. 17. PW.4 M.Krishna is signatory to the inquest mahazar as per Ex.P3. He states that on the dead body there were burnt injuries caused due to electrocution and the police observed the dead body and conducted the inquest mahazar and took his signature. 18. PW.5 C.Nagaraj, Village Accountant on the requisition of Chamarajanagar East Police had issued RTC as per Ex.P4 with regard to Survey No.354/2 of Haradanahalli village showing entry regarding owner and cultivator of the land. He states in the crossexamination that he do not know for what purpose the police obtained the RTC. As per the said RTC the owner and the cultivator of the land is one Syed Asmath ulla. 20. PW.7 – Mahadevappa is the adjacent land owner who has subscribed his signature at Ex.P2 and Ex.P2(b) is his signature. In the cross-examination he has sated that one Muslim whose name he does not know was cultivating the said land and the police after writing the mahazar came to his land and took his signature. He do not know the contents of the said mahazar and he do not know the survey number of the said land and he has not seen the accused in the said land. The said witness was treated as hostile to the case of prosecution. 21. PW.8 D.Somanna, Police Sub-Inspector has stated that he registered the case, visited the spot and drew spot mahazar as per Ex.P2, conducted inquest over the dead body as per Ex.P3 and recorded the statements of witnesses, gave requisitions to the Tahsildar to issue RTC, Executive Engineer, CHESCOM to furnish the report. He visited the hospital and recorded the statement of PW.3 and handed over further investigation to CW.19. The testimony of PW.8 is regarding the procedure he had followed during investigation. He visited the hospital and recorded the statement of PW.3 and handed over further investigation to CW.19. The testimony of PW.8 is regarding the procedure he had followed during investigation. In the cross-examination, it is elicited from this witness that in the complaint, FIR and mahazar the name of the accused is shown as Ghazal. He further states that he has not obtained any document to show the said land belongs to the accused. 22. PW.9 Dr.Kantharaju working as Surgeon/Senior Medical Officer in General Hospital, Chamarajanagar has stated that on 21.10.2005 he received a requisition from Chamarajanagar East police to conduct the postmortem on the dead body of Smt.Malligamma in Chamarajanagar Hospital Mortuary. On the same day, he conducted autopsy over the dead body between 5.00 p.m. to 7.00 p.m. and noticed that on the right fore head, right side face and near right ear a burnt injury measuring 6 inch x 3 mm, on right thigh, a burnt injury measuring 1 inch in length and 3 mm in width and also noticed 12 blebs over right leg, abdomen, neck, chest from which skin can easily be peeled off and opined that death is due to electrocution and gave postmortem report as per Ex.P6. However, nothing was elicited in the cross-examination in support of the case of the defence and has denied the suggestion that at the instance of the police, he had issued postmortem report as per Ex.P6. 23. PW.10 K.Ramachandra, Executive Engineer, CHESCOM states that Chamarajanagar East Police requested to give certain clarification by furnishing the sketch. Thereafter he visited the spot and furnished the sketch and states that power connection given to the pump set installation bearing R.R.No.CIP1824 stands in the name of Krishnaswamy Goundar. He further states that if any person come into contact with electric zinc wire would die. 24. PW.11 N.Kumar Aradhya, Police Sub-Inspector, Kollegala Town police station states that he took up further investigation and filed the charge sheet to the Court showing accused as absconding. 25. The trial Court has considered the evidence of PW.9 who conducted autopsy over the dead body of the deceased and issued postmortem report as per Ex.P6 to convict the accused. But that factum of postmortem report is not sufficient to arrive at a conclusion that accused is responsible for the death of the deceased and sustained injuries on her person due to electrocution. But that factum of postmortem report is not sufficient to arrive at a conclusion that accused is responsible for the death of the deceased and sustained injuries on her person due to electrocution. There is no dispute about death of the deceased Malligamma where she was lying at the scene of crime by electrocution. PW.3 who got admitted to the Government Hospital and took treatment for a period of 20 to 30 days, but no injury certificate has been issued by the Doctor in this regard. 26. PW.1 – Lakshmamma had filed a complaint as per Ex.P1. The complaint was received by PW.8 being PSI and based on her complaint the case was registered in Cr.No.203/2005 for the offence under Sections 304 of IPC and Sections 39 and 44 of Indian Electricity Act, 1910. Spot mahazar was conducted as per Ex.P2. M.O.1 – zinc wire, M.O.2 – 7 wooden pegs and M.O.3 – switch were seized. But after investigation, the charge sheet was laid under Section 304 IPC and section 135(1) of Electricity Act, 2003. In order to substantiate its case, the prosecution examined several witness as PWs.1 to 11, but PWs.1 to 3 are the vital witnesses on the part of the prosecution to prove the factum of Ex.P1 – complaint and so also of the scene of crime whether it belongs to accused or some other person. But Ex.P4 – RTC issued by the Tahsildar in respect of Sy.No.354/2 whether this property belong to accused or any other person is the vital point to be established by the prosecution. But the prosecution case is that the incident had occurred in sy.no.354/2 but DW.1 who is arraigned as accused has stated in his evidence that said land does not belong to him and it belongs to one Syed Gazan Farulla. Ex.D1 is the sale deed which is produced by him to show the same and he has also produced Election Identity card as per Ex.D2 which shows the name of the accused as Syed Fazal. Ex.D1 is the sale deed which is produced by him to show the same and he has also produced Election Identity card as per Ex.D2 which shows the name of the accused as Syed Fazal. Inspite of this evidence on record, even though the trial Court observed that it is the burden of the prosecution to show that the accused is called both as Syed Fazal and Syed Gazan Farulla, but went on to hold that prosecution has been able to establish that the accused caused the death of Malligamma by fencing his land with zinc wire and giving unauthorized power connection to the said zinc wire fencing knowingly, that if any person or wild animal come in contact with the said electrified fencing would die. But the prosecution has not put forth positive evidence to show that the accused was cultivating the land in the said survey number. Even the trial Court has not appreciated the evidence in a proper perspective to come to the conclusion that the land belongs to the accused and does not belong to one Gazal as stated in the complaint. But this glaring contradiction has not been appreciated by the trial Court to hold that the accused is responsible for the death of deceased. 27. Learned counsel for the appellant has filed a memo along with a copy of orders in respect of P.Mis.No.04/2008 and P.Mis.No.5/2008. One Puttarangaiah being the husband of deceased Malligamma had initiated proceedings in P.Mis.4/2008 seeking compensation due to her death. After registration of the petition, he filed memo seeking withdrawal of the petition as not pressed and the petition came to be disposed of as not pressed. PW.3 Gowramma had initiated proceedings under in P.Misc.5/2008 seeking compensation due to sustaining electric shock and injuries. But subsequent to registration of the case in P.Misc.5/2008, she filed a memo in the aforesaid petition and the said petition came to be disposed of in terms of the memo. 28. PW.8 who conducted spot mahazar in the presence of eye witnesses did not made any endeavour to collect the sample of maize crop which is said to have been found in the scene of crime whereby the accused had laid the electrical wire on the bund area in order to protect his crop from the intruders/wild animals. 28. PW.8 who conducted spot mahazar in the presence of eye witnesses did not made any endeavour to collect the sample of maize crop which is said to have been found in the scene of crime whereby the accused had laid the electrical wire on the bund area in order to protect his crop from the intruders/wild animals. But this vital evidence on the part of the prosecution has not been appreciated by the trial Court but had given more credence to the evidence of PWs.1 to 3 as they were the eye witnesses. Further, Ex.P4 RTC extract would clearly reveal that the land does not belong to the accused and so also putting living zinc wire fencing in order to protect the maize crop from the animals. The investigating Officer has also not made out any endeavour to collect the documents pertaining to the original owner of the land and also in whose name the electricity installation is made at the scene of crime. This aspect of the evidence has not been considered by the trial Court and in this appeal, it needs to be reappreciated in its entirety, if not, certainly it would lead to miscarriage of justice. There being no evidence in proof of complicity, the conviction of the accused for the above offences is unsustainable. 29. It is relevant to note here that initially the case was registered in Crime No.203/2005 for the offences punishable under section 304 IPC beside Sections 39 and 44 of Electricity Act. It is relevant to refer ingredients of Section 304 IPC which states “Punishment for culpable homicide not amounting to murder”. Part (I) defines if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death. Part (II) defines, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. Therefore, Section 304(I) and (II) it shall be read together the necessary requirement either Part I or Part II is required to be established by the prosecution in order to secure conviction for the said offence. Therefore, Section 304(I) and (II) it shall be read together the necessary requirement either Part I or Part II is required to be established by the prosecution in order to secure conviction for the said offence. But there are contradictions in the evidence of prosecution witnesses in respect of occurrence of the incident and also causing for the death of the deceased and the same is unsustainable. 30. Section 134 (1) (a) of the Electricity Act, 2003 defines, “Whoever, dishonestly, (a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier as the case may be.” But in the instant case, there was a power connection given to the pump set installation in the name of Krishnaswamy Goundar. If any person come in contact with electrified zinc wire would die. But no sketch was prepared and there is no reference in report at Ex.P7 issued by PW.10 – Executive Engineer of CHESCOM. In his evidence he has stated in the cross examination that he has not furnished the extract from his office to show that there was power supply in that area on the fateful day and he do not know in whose name the said land stands. Even the prosecution has not facilitated the evidence in respect of length of the zinc wire used by the accused to draw the living wire with connection of pump set to the scene of crime as where the dead body of Malligamma was lying. 31. There is no dispute about death of Malligamma as per PM report – Ex.P6 issued by PW.9 – Doctor who conducted autopsy over the dead body. But the accused had intention or knowledge to cause the death of deceased is a vital requirement to convict him under Section 304 IPC and so also, 135(1)(a) of the Electricity Act. Though the prosecution has examined in all PWs.1 to 11 but mainly concentrated on the evidence of PWs.1 to 3 as they are the eye witnesses to the incident and that they were accompanied the said Malligamma on the said day. But at a cursory glance of this material evidence, it is found that there are inconsistencies and contradictions and the evidence of the prosecution does not corroborate with each other. But at a cursory glance of this material evidence, it is found that there are inconsistencies and contradictions and the evidence of the prosecution does not corroborate with each other. Mere because PW.8 said to be the IO conducted the spot mahazar and inquest over the dead body, it cannot be the reason to hold conviction against the accused, unless there is positive, consistent and corroborative evidence to probabalise that accused had caused the death of the deceased. The genesis of the offence which lugged against the accused itself has not been established by the prosecution by putting forth positive evidence. When the evidence does not prove the charge for the aforesaid offences, the findings of the Trial Court are unsustainable and bad in law. The prosecution has failed to establish the ingredients of the aforesaid Sections by putting forth the cogent and consistent evidence in order to prove the same. There is no specific evidence to prove that the incident was caused by the accused and so also, that the land in question belongs to the accused. Under the above facts and circumstances of the case, in this appeal, the impugned judgment needs interference and the appellant who is the accused deserves for acquittal. Accordingly, for the aforesaid reasons and findings, I proceed to pass the following: ORDER Criminal appeal filed by the appellant/accused is hereby allowed. Consequently, the judgment and order of conviction and sentence rendered by the District and Sessions Judge, Chamarajanagar in Spl.Case No.14/2006 dated 08.04.2011 is hereby set aside. The appellant/accused is acquitted of the charges leveled against him. If the accused has executed any bail bond with surety, the same stands cancelled.