Dastgirsab Babasab Nadaf vs The State Of Karnataka
2021 Latest Caselaw 3301 Kant

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

        DATED THIS THE 6TH DAY OF SEPTEMBER, 2021

                         BEFORE

       THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

        CRIMINAL REVISION PETITION NO.2291/2013

BETWEEN:

1.     DASTGIRSAB BABASAB NADAF
       AGE: 53 YEARS
       OCC: SERVICE
       R/O. NAGANUR
       NOW SERVING AT MUDALAGI

2.     RAMESH SAVALARAM TADAVALI
       AGE: 57 YEARS
       OCC: SERVICE
       R/O. GHATAPRABHA
       TQ: GOKAK
       NOW SERVING AT MUDALAGI

                                          ...PETITIONERS
(BY SRI. B.V. SOMAPUR, ADVOCATE)

AND:

THE STATE OF KARNATAKA
REP.BY STATE POLICE INSPECTOR
CIRCUIT BENCH, DHARWAD

(By Sri. RAMESH B. CHIGARI, HCGP)
                                          ...RESPONDENT

     THIS CRIMIANL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C. SEEKING THAT THE
IMPUGNED ORDER PASSED BY THE VII-ADDL. DIST. &
SESSIONS JUDGE, BELGAUM, IN CRL.A.NO.85/2008 DATED
13.09.2013 AND JUDGMENT AND ORDER PASSED BY THE
                                2


ADDL. CIVIL JUDGE (JR.DN.) & JMFC COURT, RAIBAG IN
C.C.NO.141/2003 DATED 26.03.2008 BE SET ASIDE AND THE
ACCUSED/PETITIONERS BE ACQUITTED FROM THE CHARGES
LEVELLED AGAINST THEM.

     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT ON 25.08.2021
COMING ON FOR 'PRONOUNCEMENT OF ORDERS' THIS DAY,
THE COURT MADE THE FOLLOWING:

                            ORDER

This revision is filed by the accused/revision petitioners

under Section 397 r/w. 401 of Cr.P.C. for setting aside the

impugned judgment of conviction and order of sentence

passed by the Additional Civil Judge (Jr.Dn.) and JMFC Court,

Raibag (for short, 'trial Court') in C.C. No.141/2003 dated

26.03.2008 and affirmed by the VII Additional Sessions

Judge, Belgaum (for short, 'First Appellate Court/Sessions

Judge') in Criminal Appeal No.85/2008 dated 13.09.2013, by

allowing this revision and acquitting them of the charges

levelled against them.

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by them before

the trial Court.

3. The brief factual matrix of the case is that, the

complainant (CW.1) and his brothers are residing in the form

houses situated in the land bearing No.67/2 of Murakudi

village; that the deceased Surekha, who was the daughter of

the complainant's brother was given in marriage of Hirenandi

Village of Gokak Taluk; that on 28.12.2002, the said Surekha

had been to Murakudi Village to celebrate fair festival; that

just adjacent to the land of the complainant, the land of his

brother Basappa is situated and in which the HESCOM

authorities have installed Electrical T.C., and through the

said electric T.C., one line proceed towards the land of

Dundappa (CW.19), s/o. Balappa Patil of Marakudi Village. It

is alleged that on 07.01.2003 at about 1.00 p.m., the

accused, which are the line-men of HESCOM of Mudalagi Sub-

Division, went to Marakudi Village with the list of defaulters to

disconnect the electricity power as per the directions of the

higher officials, in respect of those customers who have not

paid arrears of electric bills. The complainant and his brothers

were also defaulters. Thereafter, the accused demanded the

complainant to clear off the electricity bill. But, the

complainant requested the accused not to disconnect the

electricity power to his IP Set bearing R.R. No.259 and he

paid an amount of Rs.1500/- as part payment towards arrears

of electricity bill. The accused have received a sum of

RS.1,500/- from the complainant by passing a valid receipt

and then intimated him that they would proceed to disconnect

electric power to the IP Set of Dundappa CW.19) S/o. Balappa

Patil, who was also a defaulter. It is alleged that the accused

have disconnected the power supply by cutting electricity

wires, which were laid towards the land of said Dundappa and

went away by throwing the cut electricity wires on the

ground. On 08.01.2003 at about 9.30 a.m., the complainant

went to Mudalagi Village to attend his personal work by

instructing his son Manjunath to start IP Set as and when

electricity power supply starts. At about 11.00 a.m., when

complainant was at Madalagi, one Mahadev Maruti Patil met

the complainant and told that his son Manjunath and his

brother's daughter Surekha came in contact with electricity

wire which was thrown by the accused in the land and

succumbed to injures on the spot. The complainant rushed to

the spot and noticed that his son and brother's daughter

Surekha were electrocuted and dead. It is alleged that, they

came in contact with electricity wire cut and thrown by the

accused in the field and in this regard, the complainant lodged

a complaint on 08.01.2003 at about 6.30 p.m. The

Investigating Officer investigated the crime and submitted the

charge sheet against the accused.

4. After the submission of charge sheet, the learned

Magistrate has taken cognizance and issued process against

the accused. The accused appeared through the counsel and

were enlarged on bail. The accusation was also read-over and

explained to them and they pleaded not guilty. Then the

prosecution has examined in all sixteen witnesses as PWs.1 to

16 and got marked seventeen documents at Exs.P1 to P17

and the material objects as MOs. 1 to 9 were also got marked

by prosecution. After conclusion of the evidence of

prosecution, the statement of accused under Section 313 of

Cr.P.C. is recorded to enable them to explain the incriminating

evidence appearing against them in the case of prosecution.

The case of accused is of total denial and they did not choose

to lead any oral or documentary evidence in support of their

defence.

5. Having heard the arguments and on perusing the

oral and documentary evidence placed on record, the learned

Magistrate came to a conclusion that the accused have

committed offence punishable under Section 304-A of IPC and

convicted them by imposing Simple Imprisonment for a period

of three months with fine of Rs.2000/- each with default

clause of Simple Imprisonment for one month, each.

6. Being aggrieved by this judgment of conviction

and order of sentence, the accused have preferred an appeal

before the Sessions Court in Criminal Appeal No.85/2008.

Learned Sessions Judge by judgment dated 13.09.203

dismissed the criminal appeal by confirming the judgment of

conviction and order of sentence passed by the trail Court.

Hence, the petitioners have approached this court by filing

this revision.

7. Heard the arguments advanced by the learned

counsel appearing for the appellant and the learned High

Court Government Pleader (for short, 'HCGP') appearing for

the respondent-State. Perused the records of the trial Court

in detail.

8. Learned counsel for the revision petitioners would

contend that both the Courts below have not properly

appreciated the oral and documentary evidence in detail. It is

contended that the judgments of the Courts below are

contrary to law and evidence on record. It is further asserted

that the allegation of disconnection was on 07.03.2003 and

the incident was occurred on 08.03.2003. He would also

contend that, there is absolutely no direct evidence to show

that anybody has seen the accused disconnecting electricity

by cutting the wire. This material evidence is missing. It is

further asserted that all the witnesses are interested

witnesses and the Investigating Officer was also not

examined. It is further contended that, there is no evidence

regarding negligence on the part of the accused. He would

also invite attention of the Court to Ex.P3, which discloses

that the main LT line wire is lying on the ground and there is

no evidence of cutting wire. Hence, he would contend that

both the Courts below have erred in convicting the revision

petitioners and as such it is sought for allowing the revision by

setting aside the impugned judgment of conviction and order

of sentence passed by the Courts below.

9. Per contra, the learned HCGP has vehemently

contended that, all the witnesses have specifically deposed

that, the accused have cut the electricity wire and there is

sufficient material evidence. He would also contend that the

evidence of PWs.1, 9, 12 cannot be brushed aside and he has

also invited attention of the Court to the evidence of PW.15,

who clearly supported the case of the prosecution and hence,

he would contend that both the Courts below are justified in

convicting the accused and have imposed the reasonable

sentence. Hence, he would contend that the judgments of

conviction and order of sentence passed by the Courts below

do not call for any interference. Hence, he would seek for

rejection of the revision.

10. Having heard the arguments advanced by the

learned counsels appearing on both sides and on perusing

the records, now the following point would arise for my

consideration:-

"Whether both the Courts below have erred in convicting the revision petitioners/accused and the judgments of conviction passed by the Courts below are erroneous, capricious and illegal so as to call for any interference by this Court?"

11. It is an undisputed fact that, on 07.01.2003

around 11.30 a.m., the deceased Manjunath and Surekha had

suffered electrocution and died because of electric shock.

This fact is undisputed. It is also not in serious dispute that

the accused were line-men of HESCOM within the jurisdiction

of the said area and they were entrusted with the work of

disconnection of electricity to the pump-sets of the owners,

who were defaulters. The evidence also establishes that the

accused on 07.01.2003 approached the complainant for

disconnection of electricity power to the IP Set. But, he has

made part payment of Rs.1,500/- as he was a defaulter.

According to the prosecution, then the accused narrated the

fact that they are going to disconnect electricity connection to

the land of CW.19-Dundappa. But, however, it is to be noted

here that there is no direct evidence available in the entire

case of prosecution to show that any of witnesses have seen

the accused disconnecting electricity. The evidence led is that

the accused claimed that they are going to disconnect

electricity to the IP set installed in land of CW.19-Dundappa.

The said Dundappa (CW.19) was not examined as a

prosecution witness. It is not certain whether electricity to his

land was disconnected by the accused or not. This material

evidence is missing.

(1) PW.1-Mahalingappa Ninganna Navi is the

complainant. Admittedly, he is not a witness and he was not

present when the incident has occurred and according to him,

he got information regarding electrocution, from Mahadev

Maruti Patil. PWs.2, 3, 4, 5, 6, 7 & 8 are the mahazar

witnesses.

(2) PW.9 is another witness, who claims that, he is an

eye-witness. This witness claims that, the adjoining the land

of the complainant, the land of Basappa is situated, wherein

T.C. was installed. He has also deposed that, from the said

T.C., electricity was provided to the land of Dundappa

(CW.19). He claimed that, CW.19 has not paid electricity bill

amount. Hence, two middle wires of LT wires were cut, which

has resulted in incident. His evidence discloses that, after

hearing hue and cry, he and CWs. 11 & 13 rushed to the spot

and when they went, they found that both Manjunath and

Surekha were electrocuted and he removed the fuse. But, his

evidence does establish that, he is not an eye-witness for

disconnecting electricity power to the land of Dundappa

(CW.19). He never claimed that he was an eye-witness for

cutting wire. He also admits in cross-examination that on the

Western side of Basappa's land, the land of Dundappa

(CW.19) is situated and from the Well of the land of Basappa

to the land of Dundappa (CW.19), there are three electric

poles. If at all there is disconnection, his land would also lose

electricity and he claims that, he did not enquire about the

reason for disconnection. When he is adjoining land owner, if

there is disconnection by cutting wire, the electric power to

entire area would be disconnected and as such there should

have been some objection from other consumers. It is the

case of the prosecution that, electric wire leading to the IP Set

of Dundappa (CW.19) is alone cut. For disconnecting

electricity connection, normally service wire will be

disconnected and cutting of LT wire does not arise, which is

the story invented by the prosecution. Hence, the evidence of

this witness (PW.9) does not exclusively establish that, in fact

the accused have cut LT Line. If the LT line is cut, then

electricity to entire area would be disconnected and only the

service wire to the IP Set will be disconnected in normal

course. But, the prosecution case is different.

      (3)     PW.10 has turned hostile.


      (4)     PW.12   is    another     witness,   who     claims      that

Manjunath and Surekha were electrocuted in the land of

Basappa and the accused have cut electricity wire. It is

important to note here that, it is not the case of the

prosecution that electric service wire was disconnected. But,

their case is that the main wire itself was cut. In the cross-

examination, he admits that, he does not know personally

regarding disconnection and other things. Further, the

evidence of PW.12 discloses that, he is only a hear-say

witness regarding the accused disconnecting electricity wire

and he is not an eye-witness. If at all, the disconnection of

electricity for IP Set installed in the land of Dundappa (CW.19)

is to be done, the simple way is to disconnect the service wire

and the accused being seasoned line-men working since the

period of 1990 in HESCOM, and it is hard to accept that they

disconnected the main line rather than the service line.

Further, there are no eye-witnesses to show that any of the

eye-witnesses have seen the accused disconnecting the main

LT wire. Further, PW.12 claims that, when he rushed to the

spot, he has removed the fuse. But, PW.9 claims that, he has

removed the wire. This version is also inconsistent.

(4) PW.14 has also claimed that the accused have cut

the wire. But, his cross-examination discloses that he is not

an eye-witness for the accused cutting wire. PW.14 is the

husband of the deceased Surekha and his evidence doe not

help in any way.

(5) PW.15 is the Section Officer. His evidence

discloses that, on 07.01.2003, he has deputed the accused to

Hallur Village for disconnecting electricity to the Pump Sets

in respect of defaulters and later on next day the accused

reported that, in Hallur they disconnected electricity

connection supplied to 4 TC Pump Sets and went back to their

duty to recover the amount. But, later on at 10.30 a.m., he

received information regarding electrocution. His cross-

examination is very much relevant, which throws some light

on the incident. In the cross-examination, he admits as

under:

"WÀl£Á ¸ÀܼÀzÀ°è ¥ÀƪÀðPÉÌ n.¹ EzÀÄÝ C°èAzÀ ¥À²ÑªÀÄzÀ PÀqÉUÉ PÀA§ EzÀÄÝ «zÀÄåvï ¸ÀA¥ÀPÀðzÀ ¸ÀzÀj PÀA§zÀ ¥À²ÑªÀÄ §¢AiÀÄ vÀAwAiÀÄ eÉÆÃqÀuÉAiÀÄ£ÀÄß PÀmï ªÀiÁrzÀÄÝ EvÀÄÛ. £ÀAvÀgÀzÀ PÀA§zÀ°èAiÀÄ vÀAwUÀ½UÉ »A¢£À PÀA§zÀ ¥À²ÑªÀÄzÀ PÀqÉUÉ vÀAwAiÀÄ£ÀÄß PÀmï ªÀiÁrzÀÝjAzÀ ªÀÄÄA¢£À PÀA§PÉÌ «zÀÄåvï ¥Àæ¸ÀgÀt EgÀĪÀÅ¢®è. ºÁUÀÆ vÀÄAqÁV ©zÀÝzÀÝ vÀAwUÀ¼À°è «zÀÄåvï ºÀjAiÀÄĪÀ ¸ÁzsÀåvÉ EgÀĪÀÅ¢®è. ºÀjzÀÄ ©¢ÝzÀÝ vÀAwUÀ½UÉ «zÀÄåvï §gÀ¨ÉÃPÉAzÀgÉ vÀAwAiÀÄ£ÀÄß PÀmï ªÀiÁrzÀÝ PÀA§¢AzÀ ªÀÄÄAzÉ AiÀiÁgÁzÀgÀÆ PÀ¼ÀÄ«¤AzÀ ªÀÄÄRå vÀAwUÀ½UÉ

vÀAwAiÀÄ£ÀÄß ºÁQPÉÆAqÀÄ «zÀÄåvï ¸ÀA¥ÀPÀðªÀ£ÀÄß ¥ÀqÉ¢zÀÝgÉà ªÀiÁvÀæ ºÀjzÀÄ ©zÀÝ vÀAwUÀ½UÉ «zÀÄåvï §gÀÄvÀÛzÉ."

(i) The cross-examination of PW.15 reveals that TC

was situated on the eastern side of the spot of incident and on

the western side, there is a pole. He would also specifically

admit that, electricity of western pole was disconnected and

further admitted that since there is disconnection of wire on

the western pole, electricity line passes further and there is no

possibility of passing electricity in the disconnected or lying

wires. He would also admit that, if electricity is required to

pass in the disconnected wires, they are to be reconnected

illegally, that too by putting a hook and in that event only, the

live electricity passes through disconnected electric wire. His

cross-examination completely falsifies the case of the

prosecution and this statement is not denied by the

prosecution. He has also admitted in his cross-examination

that the incident occurred on 08.03.2003 is not because of

negligence on the part of the accused.

12. It is also important to note here that there are no

eye-witnesses regarding disconnection of electricity by the

accused to the land of Dundappa (CW.19). Further, very

interestingly the said Dundappa himself was not examined by

the prosecution, who was cited as CW.19. He would have

been the best witness to say whether electricity to his IP Set

was disconnected or not and if disconnected, who, where and

when disconnected. If at all electricity to the IP set of

Dundappa is to be disconnected, it will be disconnected only

through service wire, but not in main LT line. But, in the

instant case, the prosecution case reveals that LT Line is

consisting of four lines and two middle wires were cut and

lying on the ground. Evidence of PW.15 discloses that, unless

there is an attempt to connect the wire to take electricity

illegally, passing of electricity does not arise at all. Hence, it

appears that somebody has attempted to get electricity

illegally and in the said process, the wire was cut. Apart from

that, it is also evident that the complainant is a defaulter. It

is also evident that the accused went to his house for

disconnection of electricity to his pump-Set and he paid only

part payment and hence, it can be said that, he was having

some grudge against the accused. There is no evidence to

show that the accused have disconnected electricity to IP Set

installed in the land of CW.19-Dundappa by cutting LT Line.

No eye-witnesses are there in this regard and merely because

the accused have disclosed before the complainant that they

would proceed to cut electricity to the IP Set installed in the

land of Dundappa, it cannot be presumed that they have

committed this offence. The trial Court has given much

importance to the evidence of PWs. 1, 9 & 12. But,

admittedly none of these witnesses are eye-witnesses for

cutting the LT line by the accused. When there are no eye-

witnesses at all and only on presumptions and surmises, the

trial Court has come to a conclusion that the accused have

committed offences while they were discharging their duty in

respect of collecting arrears of electricity bill amount. The

First Appellate Court has also not appreciated the oral and

documentary evidence in detail and in a cryptic way disposed

of the appeal. It is to be noted here that the First Appellate

Court is having more responsibility as it is the Appellate Court

for factual aspect in respect on facts as well as in respect of

law. But, the Appellate Court in a mechanical way by referring

here and there, has upheld the judgment of the trial Court

without analyzing the judgment of the trial Court in detail.

There is no evidence to show that the accused in fact

disconnected electricity and the judgment of both the Courts

below is capricious and erroneous, and as such suffers from

infirmity, which has led to miscarriage of justice. Under such

circumstances, both the Courts below have erred in convicting

the accused. As such considering these facts and

circumstances of the case, I am constrained to answer the

point under consideration in the affirmative and as such, the

revision needs to be allowed. Accordingly, I proceed to pass

the following:-

ORDER

The revision petition is allowed. The impugned judgment of conviction and order of sentence dated 26.03.2008 passed by the trial Court viz. Additional Civil Judge (Jr.Dn.) and JMFC, Raibag in CC No.141/2005 and affirmed by the learned Sessions Judge viz., First Appellate Court by judgment dated 13.09.2008 in Criminal Appeal No.85/2008, are hereby set aside. The revision petitioners/ accused are acquitted of the charges levelled against them.

Sd/-

JUDGE

KGR*