Allowed

S K Bellappa v. the State of Karnataka

Karnataka HC9 Dec 2021CRL.A/258/2011

Case brief

AI extract

What is this about?

This criminal appeal was heard on final hearing where the court set aside the conviction and sentence of the appellant. No substantive legal principles or case law were applied as the decision is based on the procedural context of filing an appeal against a wrong order.

What did the court decide?

Set aside the judgment and order of conviction and sentence; acquit the appellant; cancel bail bond and refund fine.

S K Bellappa Vs the State of Karnataka — Constitutional and Fundamental Rights | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF DECEMBER, 2021

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BEFORE:

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THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ

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CRIMINAL APPEAL No.258 OF 2011

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BETWEEN:

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

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

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AND:

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

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

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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.

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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

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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.

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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.

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I have heard the learned counsel for appellant

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and the learned HCGP for Respondent/State and perused the material on record.

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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

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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.

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Charges were framed against accused Nos.1 and 2 for offence punishable under Sections 304 r/w 34

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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.

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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.

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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

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connection to the said zinc wire and causing the death of Nagappa.

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According to prosecution, the incident has

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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

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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.

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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.

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Smt. Mahadevamma [C.W.2] has been examined as P.W.2 but, she has not supported the case

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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.

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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.

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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.

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

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

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mahazar under which accused No.1 is said to have

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produced 4 wooden pegs and zinc wire. However, they have turned hostile and not supported the case of the prosecution.

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

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that the wild boar died of electrocution.

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PW 9 is the PSI, who received the complaint

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

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P.W.10 is the doctor who conducted autopsy

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

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P.W.11 is the Investigation Officer, who filed charge-sheet.

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To establish that deceased died due to electrocution, the prosecution is relying on the Postmortem Report marked as Ex.P9 and the evidence of the

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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.

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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.

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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

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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.

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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

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contact with the said electric fencing which was put up around the land of accused No.1.

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According to prosecution, one Mahadevamma-

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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.

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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

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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

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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.

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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

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impugned Judgment is liable to be set aside.

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Accordingly, the following:

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ORDER

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Criminal Appeal is allowed.

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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.

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Fine amount if any deposited, shall be refunded to the appellant/accused.

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Sd/JUDGE

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Ksm*

S K Bellappa v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

S K Bellappa v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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