Dastgirsab Babasab Nadaf & Others vs State Of Karnataka

Rajendra Badamikar, J

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.

For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial Court.

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.

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.

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.

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.

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.

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.

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.

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?"

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:

(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.

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.