S K Bellappa vs The State Of Karnataka
2021 Latest Caselaw 5844 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 9TH DAY OF DECEMBER, 2021

                         BEFORE:

       THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

           CRIMINAL APPEAL No.258 OF 2011

BETWEEN:

S.K. BELLAPPA
S/O. LATE KEMPAPPA
AGED ABOUT 63 YEARS
R/O. B. SHETTAHALLI VILLAGE
GUNDLUPET TALUK
CHAMARAJANAGAR DISTRICT.                    ... APPELLANT

[BY SRI. D.S. HOSMATH, ADVOCATE]

AND:

THE STATE OF KARNATAKA
GUNDLUPET POLICE
CHAMARAJANAGAR DISTRICT.                  ... RESPONDENT

[BY SRI. SHANKAR H.S., HCGP]

                              ***
      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED
07.02.2011/19.02.2011 PASSED BY THE DISTRICT AND SESSIONS
JUDGE, CHAMARAJANAGAR IN SPL.CASE NO.9/2007 - CONVICTING
THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 304 OF IPC AND SECTIONS 135 AND 138 OF THE
ELECTRICITY ACT, 2003 AND THE APPELLANT/ACCUSED IS
SENTENCED TO UNDERGO S.I. FOR ONE YEAR AND ALSO TO PAY A
FINE OF Rs.10,000-00, IN DEFAULT, TO UNDERGO S.I. FOR ONE
MONTH, FOR THE OFFENCE PUNISHABLE UNDER SECTION 304 OF
IPC AND ETC.

     THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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                           JUDGMENT

This appeal is preferred by accused No.1, assailing

the Judgment and Order dated 07/19.02.2011, passed

by the Court of District and Sessions Judge at

Chamarajanagara, in Special Case No.9/2007, whereby

he was convicted for offence punishable under Section

304 of IPC and Sections 135 and 138 of the Electricity

Act, 2003.

2. For offence under Section 304 of IPC., the

appellant has been sentenced to undergo simple

imprisonment for one year and to pay a fine of

Rs.10,000/- in default, to undergo simple imprisonment

for one month. For each of the offence punishable under

Sections 135 and 138 of the Electricity Act, 2003,

appellant has been sentenced to undergo simple

imprisonment for 3 months and to pay a fine of

Rs.2,000/-, in default, to undergo simple imprisonment

for 15 days.

3. I have heard the learned counsel for appellant

and the learned HCGP for Respondent/State and perused

the material on record.

4. In a nut-shell, case of the prosecution is that,

on 28.06.2007, at about 5.00 a.m., deceased Nagappa

came in contact with the live wire electric fencing erected

in the land of accused No.1 in Sy. No.1, situated at

B.Shettalli village, Gundlupet taluk, wherein accused

Nos. 1 and 2 had taken unauthorized power connection

and put up a zinc wire fencing by illegally drawing

electricity from the main supply line and the deceased

died due to electrocution. Further, to cause

disappearance of evidence, accused No.1 along with

accused Nos.2 to 5 shifted the dead body and dumped it

in the neighbouring sugarcane field with an intent to

screen himself from legal punishment and thereby

committed the charged offence.

5. Charges were framed against accused Nos.1

and 2 for offence punishable under Sections 304 r/w 34

of IPC and under Sections 135, 138 of the Electricity Act

r/w 34 of IPC and against accused Nos.1 to 5 under

Section 201 r/w 34 of IPC.

6. Before the trial Court, the prosecution got

examined P.Ws.1 to 11 and got marked Exs.P1 to 11 and

M.Os.1 to 7 to establish the guilt of the accused. The

trial Court has come to the conclusion that there is no

evidence against accused Nos.2 to 5 and they are

entitled for acquittal of the charges leveled against them.

The acquittal of accused Nos.2 to 5 has become final

and there is no appeal preferred by the State.

7. The trial Court was of the view that deceased

Nagappa died in the land of accused No.1 having come

into contact with the electric zinc wire fencing. RTC

extract-Ex.P11 go to show that the land in Sy. No.1

measuring 3 acres 21 guntas belong to accused No.1.

He being the owner of the said land and was cultivating

the said land, is liable for the said act of fencing his land

with the zinc wire and giving unauthorized power

connection to the said zinc wire and causing the death of

Nagappa.

8. According to prosecution, the incident has

taken place at about 5.00-6.00 a.m. on 28.06.2007. The

first informant Mahadevappa is examined as P.W.1. In

the complaint-Ex.P1 lodged by him, he has stated that

on 27.06.2007, in connection with a marriage function,

the groom's side had come to Shettalli village from

Shindanapura village and during night hours, while

playing cards, there was a quarrel. His brother-in-law

i.e., deceased Nagappa, who had attended the said

function had not returned home in the night. On the

next day i.e., on 28.06.2007 at about 6.00 a.m., Smt.

Mahadevamma [P.W.2] noticed the dead body of

Nagappa lying in the land of accused No.1 and he was

informed about it. As such, he went to the said land but,

the dead body was not found there. Thereafter, he

returned to his village and went along with one Mallappa

and while searching, they noticed a wild boar lying dead

in the sugarcane field and also found the dead body of

Nagappa in the sugarcane field, which was covered with

coconut leaves. He suspected that the death was on

account of electrocution.

9. In his evidence, P.W.1 has corroborated the

averments made in the complaint. According to him,

Smt. Mahadevamma [P.W.2] came and told him that the

dead body of Nagappa was lying in the land of accused

No.1-Bellappa. He has stated that when he went to the

said land, he did not notice the dead body and while

searching, noticed a gunny bag in the canal running in

the lands of accused No.1 and found something was

covered with coconut leaves and saw the leg of a person.

They also saw a pig lying dead in the other portion of the

land of accused No.1. Thereafter, matter was informed

to the Police, who came and removed the leaves and

they saw the dead body of Nagappa.

10. Smt. Mahadevamma [C.W.2] has been

examined as P.W.2 but, she has not supported the case

of prosecution. She has completely denied that she saw

the dead body of Nagappa lying in the land of accused

No.1 and then informed to the complainant. She has

also denied that she later came to know that the dead

body was shifted by the accused.

11. P.Ws.3 has deposed in his evidence that

P.W.2 informed P.W.1 that the dead body of Nagappa

was lying in the land of accused No.1. Then he along

with C.W.1 [P.W.1] and C.W.3 went to the land of

accused No.1, but the dead body was not lying there.

On search, they found the dead body in the sugarcane

land of accused No.1, covered with dry sugarcane leaves.

They came to know that he died due to electrocution.

12. P.W.4 has stated that he saw the dead body

of Nagappa in the land of accused No.1. However,

denied that he saw all the accused near the land of

accused No.1 and on seeing him, they got frightened and

went away leaving the bag near the nala.

13. P.W.5 is the witness to inquest mahazar-Ex.P6.

14. P.Ws.6 and 8 are witnesses to Ex.P7-seizure

mahazar under which accused No.1 is said to have

produced 4 wooden pegs and zinc wire. However, they

have turned hostile and not supported the case of the

prosecution.

15. P.W.7 is the Veterinary Officer, who opined

that the wild boar died of electrocution.

16. PW 9 is the PSI, who received the complaint

from P.W.1 and conducted part of investigation.

17. P.W.10 is the doctor who conducted autopsy

and issued Post-mortem Report marked as Ex.P9.

18. P.W.11 is the Investigation Officer, who filed

charge-sheet.

19. To establish that deceased died due to

electrocution, the prosecution is relying on the Post-

mortem Report marked as Ex.P9 and the evidence of the

doctor-P.W.10. As per Post-mortem Report, the death of

Nagappa was due to shock as a result of cardiac arrest

due to electrocution. P.W.10 has stated that on

29.06.2007, he conducted the post-mortem examination

and issued the report as per Ex.P9.

20. From the tenor of cross-examination

conducted by the defence, it can be seen that the

suggestion was that in the marriage function, there was

some quarrel while playing cards and in the said quarrel,

the deceased was assaulted by some persons and his

dead body was thrown near the land of accused No.1.

21. The learned counsel for the appellant has

contended that the prosecution has not established

beyond reasonable doubt that an electric fencing was put

up around the land of accused No.1 and there was

unauthorized electric connection taken from the main

line using a zinc wire and the deceased came in contract

with the said electric fencing and died. He has

contended that the material on record is not sufficient to

hold that there was any negligence on the part of the

accused by putting up an electric zinc wire fencing and

there is no evidence to show that the deceased came in

contact with the said zinc wire and died. He has further

contended that the prosecution has failed to establish

that on the relevant day there was any electric supply

and in this regard, the prosecution has not examined any

witness. He has therefore contended that the findings

recorded by the trail Court that the appellant/accused

No.1 had put up an electric fencing and the deceased

died due to electrocution is erroneous.

22. According to prosecution, accused No.1 was

the owner of the land in question i.e., Sy. No.1, situated

at B.Shettalli village, Gundlupet taluk. The RTC extract

is marked as Ex.P11. The ownership of the land has not

been disputed. The question that remains to be

answered is as to whether accused No.1 had put up an

electric fencing by illegally extracting electricity from the

main pole and the deceased died while coming into

contact with the said electric fencing which was put up

around the land of accused No.1.

23. According to prosecution, one Mahadevamma-

P.W.2 after noticing the dead body lying in the land of

accused No.1 informed the matter to the complainant.

Mahadevamma, who is examined as P.W.2 has turned

hostile. P.W.1 has stated that when he went to the spot,

where the dead body was lying according to

Mahadevamma, he did not notice the dead body. He

went in search along with Mallappa and in the sugarcane

field he found a pig lying dead. In Ex.P1 he has stated

that he returned to the village and informed the matter

to the villagers and thereafter, they went to the land of

Bellappa, wherein, while they were searching, saw the

dead body inside the sugarcane field.

24. Admittedly, there are no witnesses to speak

that the deceased came in contact with electric fencing.

As per prosecution and the charges framed, the dead

body was shifted from the land of Accused No.1 and

dumped in the neighbouring sugarcane filed. P.W.2, who

is alleged to have seen the dead body lying in the land of

accused No.1 has not supported the prosecution case.

Therefore, the evidence to the effect that dead body was

lying in the land of accused No.1 is not satisfactorily

established. There are no witnesses who have seen the

accused persons shifting the dead body from the land of

accused No.1, where the deceased is alleged to have

came in contact with electric fencing. P.W.4 has denied

that he saw the accused persons near the land of

accused No.1. Admittedly, the dead body was not lying

near any electric fencing. None of the witnesses have

stated that they have seen accused No.1 putting any

electric fencing around his land. P.W.1 has not stated

that there was an electric fence put up by accused No.1

around his land. Even though P.W.3 has stated that

around the land of accused No.1 there was a zinc wire

fencing with wooden pegs, the prosecution has not

established that in fact there was electricity supply to the

zinc fencing or that on the relevant day there was

electricity supply/electric supply. Under Ex.P2, M.Os.1 to

5 have been seized. However, there is nothing to show

that the accused had illegally drawn electricity from the

main pole. According to Investigation Officer-P.W.11, 4

wooden pegs and 15 meters zinc wire [M.Os.6 and 7]

were seized at the instance of accused No.2 from his

house under Ex.P7. However, the suggestion put to the

panchwitnesses viz., P.Ws.6 and 8 are that these

material objects were seized at the instance of accused

No.1. Both P.Ws.6 and 8 have turned hostile to the

prosecution.

25. From the above material on record, it cannot

be said that the prosecution has been able to establish

the guilt of the accused beyond reasonable doubt. The

trial Court was therefore not proper in convicting and

sentencing the appellant/accused No.1 for offence under

Section 304 of IPC and Sections 135 and 138 of the

Electricity Act. The reasons assigned by the trial Court

are not in accordance with law and therefore, the

impugned Judgment is liable to be set aside.

Accordingly, the following:

ORDER

Criminal Appeal is allowed.

The Judgment and Order of conviction and

sentence dated 07/19.02.2011 passed against the

appellant/Accused No.1, in Special Case No.9/2007 on

the file of the Court of District and Sessions Judge at

Chamarajanagar, is set aside. He is acquitted of the

offences for which he has been convicted by the trial

Court. His bail bond stands cancelled.

Fine amount if any deposited, shall be refunded to

the appellant/accused.

Sd/-

JUDGE

Ksm*