Karnataka High Court
Siddalingappa vs State By Gundlupet Police on 8 April, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.RP No. 549 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO. 549 OF 2017
BETWEEN:
1. SIDDALINGAPPA
S/O MALLIGAPPA,
AGED ABOUT 46 YEARS,
R/AT B.SHETTIHALLI VILLAGE,
GUNDLUPET TALUK,
CHAMARAJANAGAR DISTRICT-571 124.
2. VENKATESHA
S/O LATE VENKATAIAH,
AGED ABOUT 42 YEARS,
LINEMAN SESCOM, GUNDLUPET,
R/AT KEB QUARTERS,
GUNDLUPET TALUK
CHAMARAJANAGAR DISTRICT-571 124.
Digitally signed
by SHARANYA T
Location: HIGH 3. G.M. SURESH
COURT OF S/O LATE MALLEGOWDA,
KARNATAKA
AGED ABOUT 42 YEARS,
DO.NO.29, 1ST DIVISION,
OOTY MYSURU ROAD,
1ST WARD, NEAR CHECKPOST,
GUNDLUPET TOWN,
CHAMARAJANAGAR DISTRICT-571 124.
...PETITIONERS
(BY SRI JAGADEESH C.M., ADVOCATE)
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CRL.RP No. 549 of 2017
AND:
1. STATE BY GUNDLUPET POLICE
CHAMARAJANAGAR DISTRICT,
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING,
BENGALURU - 560 001.
...RESPONDENT
(BY SRI M.DIVAKAR MADDUR, ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND
SENTENCE PASSED BY THE HON'BLE PRL. DISTRICT AND
SESSIONS JUDGE, CHAMARAJANAGARA IN CRL.A.NO.30/2015
DATED 18.04.2017 FOR THE OFFENCE U/S 304A OF IPC AND
JUDGMENT PASSED BY CIVIL JUDGE AND JMFC, GUNDLUPET IN
C.C.NO.441/2011 DATED 03.12.2015 FOR THE OFFENCE U/S
304A OF IPC AND ACQUIT THE PETITIONERS.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. Heard the learned counsel for revision
petitioners and also the learned counsel for
respondent/State.
2. The factual matrix of case of the prosecution
before the Trial Court that the son of the complainant had
been working since last 10-11 years in CHESCOM as
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Mazdur Gangman. That on 22.05.2010 at about 5.00 p.m.,
the said Prakash had gone to the house of one Ganesh of
Gundlupet Town in order to give electric connection to the
new house constructed by him and she came to know that
said C.Prakash expired due to electrocution. That on
previous day i.e., on 21.05.2010, at about 5 p.m.,
C.Prakash had gone along with Venkatesh (accused No.2)
and they had installed the meter in the said new house
constructed in Gundlupet town and said fact was intimated
to her by son and brother-in-law of owner of the house by
name G.Manju to come on the next day and give
electricity connection. She also came to know that when
deceased C.Prakash and accused No.2-Venkatesh had
gone to give electric connection, one Basavaraju was on
the spot and he intimated to the electric contractor
Sandeep Suresh that the electric accident had occurred
and immediately said Sandeep Suresh came in his jeep
and shifted her son to the hospital. The Jr. Engineer,
CHESCOM i.e., Siddalingappa and Venkatesh and
Contractor and Suresh had intimated the deceased to give
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electric connection and therefore, they are the cause for
death and due to their negligence, they are cause for
electric accident and due to their negligence, the untoward
incident had happened. The Police based on the complaint,
registered the case and filed a Charge sheet. In order to
prove the charges leveled against the accused, examined
PW1 to PW9 and also got marked Ex.P1 to Ex.P6(a). The
Trial Court having considered both oral and documentary
evidence available on record, comes to the conclusion that
victim died on account of electrocution. There is
negligence on the part of the accused Nos.1 to 3. Being a
Engineer, Contractor and also a linemen, they have not
provided proper safety to the victim. He has sustained
burn injuries and succumb to the injuries. The Trial Court
convicted the accused persons for the offence punishable
under Section 304A of IPC and sentenced to undergo for a
period of one year and imposed to pay fine of Rs.10,000/-
and out of that Rs.7,000/- is payable to mother of the
victim and Rs.3,000/- shall vest with the State. Being
aggrieved by the judgment of conviction and sentence of
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the Trial Court, an appeal is filed in Crl.A.No.30/2015. The
appellate Court on re-appreciation of both oral and
documentary evidence available on record, confirmed the
judgment of the Trial Court with modification directing the
accused Nos.1 to 3 to pay compensation amount of
Rs.50,000/- each to the PW1 totally to the tune of
Rs.1,50,000/-, apart from the fine amount already paid to
the tune of Rs.10,000/- and the same is payable within
one month. If they fails to pay the compensation amount,
they are directed to undergo simple imprisonment for a
period of 5 months each and even if they undergo simple
imprisonment for 5 months, it will not absolve them from
paying compensation as provided under Proviso of Section
421 of Cr.P.C. Being aggrieved the said judgment of
conviction, the present Revision Petition is filed before this
Court.
3. The main contention of the counsel appearing
for the revision petitioners that the case of the prosecution
that the revision petitioners have not taken due care while
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deputing the deceased C.Prakash to give electric
connection to the house of PW5-Ganesh and also they
acted negligently. Both the Courts have failed to take note
that prosecution has not proved that the revision
petitioner Nos.1 and 2 have deputed the decease
C.Prakash to give electric connection either by oral or
documentary evidence. The revision petitioner No.2 is a
linemen and it was his bounden duty to give electrical
connection. But, no such instruction was given to the
victim. Even appellate Court also committed an error and
relied upon hearsay evidence. There is no any positive
evidence before the Court with regard to work entrusted to
the victim to give connection. The learned Session Judge
also erred in observing that prosecution has established
that there is direct nexus between the death of the
deceased C.Prakash and the negligent act of the
petitioners. The Appellate Court erred in awarding huge
compensation of Rs.50,000/- to each on the petitioner
even though the prosecution has not proved the guilt of
the accused beyond all reasonable doubt. The very
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approach of both the Trial Court as well as the First
Appellate Court is erroneous.
4. Per Contra, the counsel appearing for the
respondent/State would contend that the evidence of
prosecution is very clear that accused No.2 only took the
victim in order to give electric connection to the house of
the owner and also PW1 categorically deposed that
accused No.2 only in previous day i.e., on 21.05.2010 took
him to the house of CW6 and got installed the meter. On
the next day, he is going to give electric connection to the
house of the CW6, the same came to notice of him
through the CW7 and CW8. It is also her evidence that
while giving electricity connection, her son passed away
and hence she gave the complaint. The PW1 has
supported the case the prosecution.
5. The other witness is PW2 who is the sister of
the victim, his evidence is also very clear that her brother
went to give the electric connection to the house of CW6.
She came to know about that her brother passed away in
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that house. The other witness PW3 is also another sister of
the deceased C.Prakash and she was also not at the spot
and came to know about the death of her brother. The
other witness is PW4 who is the brother-in-law of the
deceased Prakash and he also came to know about the
death of the victim, he went to give connection to the
house of CW6. He says accused No.1 is cause for death of
his brother-in-law. These are the witnesses spoken with
regard to the incident is concerned.
6. In the cross-examination of PW1, it is elicited
that she only gave the complaint in terms of Ex.P1 and
also categorically admits that it is the duty of the accused
No.3 to install the meter and also to give electricity
connection and also admitted in the cross-examination
that it is the duty of the accused No.3 to do the wiring
work and not the job of giving electricity connection and
also admitted that in the cross-examination, she comes to
know about the death of her son.
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7. The other witness PW2 -sister of deceased, in
the cross-examination, she admits that it is the duty of the
accused No.3 only to install the meter and it is the duty of
the Electricity Department to provide electricity
connection.
8. The other witness PW3 who is other sister of
the deceased Prakash, she says that she came to know
about the incident through her mother. The accused No.2
took her brother to give electricity connection to the house
of CW6. This witness was turned hostile in part. In the
cross-examination, she admits that on 21.05.2010 they
went and installed the meter. But, the accused Nos.2 and
3 took her brother and came to know about that they are
going to give electricity connection on the next day to the
house of CW6. In the cross-examination says that she
came to know about regarding her brother left the house
in the evening through her mother. She says that her
brother alone went to the house of CW6 and no one came
and took him. The evidence of PW1 is that accused No.2
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came and took her son. But, PW3 says that he went alone
and no one came and took him.
9. The other witness is PW4 who is the brother-in-
law of the deceased, he was also turned hostile and partly
cross-examined, but he says that accused Nos.1 to 3 are
cause for the death of his brother-in-law. In the cross-
examination, he admits that he cannot tell accused No.1
only given instructions to do that work and even he cannot
say whether people were talking in that regard. He
deposes that when the owner of the building asked him
when the wiring work was done, he informed him that
wiring work was done and he reported that his work was
over and KEB people will give the electric connection.
When he was in the shop, he came to know through his
son Manjunath that two persons came and installed the
meter and left the house stating that they are going to
give electricity connection on the next day. But, he came
to know through his son that lineman fell down from the
electricity pole and immediately he informed the same to
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the accused No.3 and he came and took the injured to the
hospital. He cannot tell who is the cause for death of the
said C.Prakash. He also turned hostile and he was also
cross examined by the prosecution.
10. The other witness is PW6 and he also not
supported the case of the prosecution, he was also cross
examined by Assistant Public Prosecutor by treating him
as hostile. He says that he heard about the sound, he
called him CW6 and contractor came to the spot. He was
taken to the hospital.
11. The other witness is PW7 who is the son of the
owner i.e., PW5, he says in the previous day two persons
were there and out of that one is Venkatesh, he was also
turned hostile and cross examined. He admits that date is
fixed for house warming on 24.05.2010.
12. The other witness is PW8 - Police Inspector who
conducted the investigation. The PW9 is also witness to
the Mahazar i.e., Ex.P2 and he also not supported the case
of prosecution.
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13. Having re-assessed the evidence available on
record, it is clear that one Basavaraju was present at the
spot when the incident was taken place. It is unfortunate
that the prosecution was not examined the said witness in
order to prove the case of the prosecution and also
witnesses who have been examined before the Trial Court,
the PW1, no doubt she is the mother, she was not at the
spot but her evidence is that accused No.2 came and took
her son. But, PW3 evidence is contrary to evidence of PW1
which I have already pointed out while assessing the
evidence of PW1 and PW3. The PW3 says that he went
alone and no one came and took him and also it is
emerged in the evidence that in the previous day, work of
installation of meter was done and they left the place
saying that they are going to give electricity connection on
the next day. But, it is also elicited that job of accused
No.3 is only to do the electrical wiring work, but it is the
duty of the Electricity Department to come and provide
electricity. No doubt accused No.2 is the linemen and his
duty is to provide electricity connection. He was also not
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present at the spot. None of the witnesses speaks about
the presence of the accused No.2 at the spot. Only the son
of the owner speaks about the presence of accused No.2
that at the time of installation of meter, this accused No.2
was present i.e., on the previous day of the incident. Even
owner of the premises also not spoken anything about who
are present at the time of the incident. The prosecution
evidence is contrary to each other. Though the prosecution
examined other witnesses, other than the relatives of the
victim, they have also not supported the case of the
prosecution and they were treated hostile in part. They
speaks only about sustaining of injury by the victim and
how the incident was taken place no evidence. In order to
connect the accused Nos.1 and 3 also in whose presence
they gave an instructions to connect the electricity, none
of the witnesses speaks about the same, merely because
they are the Engineer and Contractor, in the absence of
any positive evidence before the Court that they were
getting the work done through the victim and also given
instructions to provide electricity connection to the said
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house, no material is placed on record. Merely because
accused No.1 is an Engineer and accused No.2 is a
linemen and though it is the job of linemen to provide
electricity service to the house of the owner, but there
must be a positive evidence with regard to the instructions
given by them. Instead of them, the PW3 categorically
says that her brother alone went to the house of the
owner and no one came and took him and also got it done
the work through the victim, there is no evidence on
record. When such being the case, both the Trial Court as
well as the First Appellate Court ought to have considered
the evidence in a proper prospective while convicting
accused persons that too for negligence invoking Section
304A of IPC. The prosecution has to prove the case
through beyond reasonable doubt and not preponderance
of probability. No doubt the death is occurred on account
of electrocution. But, in order to connect and invoke
Section 304A of IPC, ingredients of negligence has to be
proved and the same has not been discussed by both the
Trial Court as well as First Appellate Court. But, the First
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Appellate Court in paragraph No.27 made an observation
that accused No.2 was present at the spot, but no any
material evidence is placed before the Court and also an
observation is made that PW1 to PW7 evidence reveals
that since C.Prakash had claimed live electric pole in order
to give electric connection to the house of PW5 from the
electric wire. This observation is also erroneous and none
of the witnesses speaks about climbing an electric pole by
the victim. Only they came to know about the same and
these witnesses are hearsay witnesses. I have already
pointed out that PW1 to PW4 are witnesses who are
relatives of the victim and they were not at the spot.
There are major contradictions in the evidence of PW1 and
PW3. The First Appellate Court made an observation that
while examining accused Nos.1 to 3 under Section 313 of
Cr.P.C, accused Nos.1 to 3 simply stated and answered all
the questions as false. They have not stated anything
about the incident and one question was posed to them
that whether they have taken any precautionary measures
to prevent the electric accident or they are not responsible
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for the death of the deceased. But, while invoking Section
313 of Cr.P.C, there must be incriminating evidence
against the accused persons. On perusal of the evidence of
prosecution witnesses, there is no any incriminating
evidence except hearsay evidence of witnesses and
witnesses who have been examined before the Court and
none of them have witnessed the incident. When such
being the case, the prosecution has failed to prove the
case against the accused persons beyond reasonable
doubt and the same has not been considered by the Trial
Court as well as the First Appellate Court while convicting
the accused persons for the offence punishable under
Section 304A of IPC. Mere examination of witnesses as
PW1 to PW7 is not enough and there must be a positive
evidence before the Court with regard to how an incident
was taken place and none of these witnesses are
witnessed how an incident was taken place. When such
being the case, the revision petitioners are entitled for
acquittal. Hence, it is a fit case to exercise a revisional
powers since both the Trial Court as well as the First
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Appellate Court fails to consider the evidence available on
record in proper prospective and material evidence
available on record has not been taken note of by the Trial
Court as well as the First Appellate Court. In the absence
of any cognet evidence, both the Courts have committed
an error and hence it requires interference of this Court to
set-aside the order of conviction and sentence.
14. It is important to note that the Trial Court
convicted the accused persons for the offence punishable
under Section 304A of IPC for a period of one year simple
imprisonment and imposed fine of Rs.10,000/-. The First
Appellate Court on re-appreciation of both oral and
documentary evidence available on record, in the absence
of any appeal or revision by the State and even under
Section 372, proviso is made inserting the proviso on
31.12.2009, in an amendment to the Criminal Procedure
amendment Act, 2008 where even provision is made to
the victim shall have a right to prefer an appeal against
any order passed by the Court acquitting the accused or
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convicting the accused for a lesser offence or imposing
inadequate compensation and such appeal shall lie to the
Court to which an appeal ordinarily lies against the order
of conviction of such Court. No such provision is invoked
either by the victim or by the State. When such being the
case, even enhancing the compensation also without any
authority. Hence, it requires interference of this Court.
15. In view of discussions made above, I pass the
following:
ORDER
i) The Revision Petition is allowed.
ii) The judgment of conviction and sentence
passed by the Trial Court in C.C.No.441/2011
dated 03.12.2015 and confirmation made by
the First Appellate Court in Crl.A.No.30/2015
dated 18.08.2017 is set-aside.
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iii) The amount which has been deposited by the
accused persons before the Trial Court is
ordered to be refunded on proper identification.
Sd/-
JUDGE
RHS
