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2023 DIGILAW 32 (KAR)

Venkatesh v. State of Karnataka

2023-01-04

SHIVASHANKAR AMARANNAVAR

body2023
JUDGMENT/ORDER 1. This appeal is preferred against the judgment and order dtd. 27/6/2011 passed by the I Addl.District and Sessions Judge, Mysore in Spl.Case No.76/2008. Vide impugned judgment appellant / accused has been convicted and sentenced for the offence punishable under Sec. 138(1)(a) of the Electricity Act, 2003, Sec. 429 of IPC and Sec. 9 read with Sec. 51 of the Wild Life (Protection) Act. 2. Heard both sides and perused the material on record. 3. Brief facts of the case of the prosecution are that: The accused has a land in Doddabaragi of H.D.Kote Taluk. On 5/1/2008, PW.1 and PW.2 working in the Forest Department were on patrolling duty in Chikkabaragi forest area. Doddabaragi is within the limits of Chikkabaragi forest area. They found eagles flying over the land of the accused and when they went to the place where eagles were flying, they found a dead elephant. It had died due to electrocution. It was lying in the land of the appellant/accused. Sugarcane was grown in that land. Fence has been put up around the land and electric connection was taken to the fence from an electric pole. On seeing this, they passed the information to PW.10, Assistant Conservator of Forests who went to the spot and observed all these things and gave complaint to Saragoor police. 4. The complaint was lodged as per Ex.P7 on the basis of which case was registered against appellant / accused in Crime No.1/2008. On completion of investigation, charge sheet was filed. Appellant / accused was charged for the offences punishable under Sec. 135 of the Electricity Act, 2003, Sec. 429 of IPC and Sec. 51 of the Wild Life (Protection) Act. 5. In order to prove the guilt of the accused, prosecution got examined PWs.1 to 11 and got marked Exs.P1 to P8 and M.Os.1 to 3. 6. The trial Court has found the appellant / accused guilty for the offence punishable under Sec. 138(1)(a) of the Electricity Act, 2003, Sec. 429 of IPC and Sec. 9 read with Sec. 51 of the Wild Life (Protection) Act. 7. 6. The trial Court has found the appellant / accused guilty for the offence punishable under Sec. 138(1)(a) of the Electricity Act, 2003, Sec. 429 of IPC and Sec. 9 read with Sec. 51 of the Wild Life (Protection) Act. 7. The trial Court has observed that the act in taking electricity connection to the fence and thereby allowing the elephant to get killed is an offence of mischief punishable under Sec. 429 of IPC and it also amounts to hunting which is defined in Sec. 2(16) of the Wild Life (Protection) Act and Sec. 9 of the Act prohibits hunting of any wild animal as specified in Schedule I Part I of the Act and therefore, the accused has violated Sec. 9 punishable under Sec. 51 of the Act. 8. Insofar as charged offence under Sec. 135 of the Electricity Act is concerned the trial Court has come to the conclusion that the accused has taken electricity connection from the electric pole to the fence unauthorisedly and therefore, he has committed the offence under Sec. 138(1)(a) of the Act and not under Sec. 135 of the Act, since it is not a case of theft of electricity. 9. Learned counsel for the appellant contended that the elephant was found dead during rainy season and due to rain, the main electric wire getting disrupted and elephant coming into contact with the said wire cannot be ruled out. He contends that the prosecution has not established the offence committed by the accused would fall under Sec. 9 r/w Sec. 51 of the Wild Life (Protection) Act, since this is not a case of hunting and on the other hand, even according to prosecution the elephant died due to electrocution. It is his contention that to attract the definition of hunting, there should be an element of mensrea which is absent in the instant case. He, therefore, contends that the evidence on record is not sufficient to hold accused guilty and seeks to set aside the impugned judgment. 10. The learned High Court Government Pleader has contended that the elephant died in the land of accused and the oral and documentary evidence clearly established that the accused had put up fence around his land and drawn electricity connection unauthorisedly from the electric pole. 10. The learned High Court Government Pleader has contended that the elephant died in the land of accused and the oral and documentary evidence clearly established that the accused had put up fence around his land and drawn electricity connection unauthorisedly from the electric pole. She contends that the elephant has come into contact with the said electric wire and died and therefore, the ingredients of the offence for which the trial court has convicted the accused are clearly made out. 11. P.W.10 is the Assistant Conservator of Forests and he is the first informant. Complaint is marked as Ex.P.7. He has stated that on receiving the information about the death of elephant, he visited the spot and examined the elephant and observed that it died due to electrocution. Ex.P.3 is the post mortem report. The autopsy was conducted by the Veterinary doctor - P.W.5, who has stated that the elephant died due to electrocution. Further, from the spot M.Os. 1 to 3 i.e., aluminium wire, binding wire and 3 wooden poles were seized under Ex.P4 - Mahazar. The evidence of P.W.10 is supported by the evidence of P.W.1 and 2 who were Forest Guard and Forest Watcher who informed P.W.10 about the elephant lying dead in the land of accused. P.Ws.6 and 7 are the witness to Ex.P.4 under which M.Os. 1 to 3 were seized. Though P.Ws.6 to 8 have been treated as hostile by the prosecution but their evidence clearly disclose that the land in question belongs to the accused and he had grown Sugarcane in the said land and he had fenced the land with aluminium wire. 12. From the evidence and material on record there is no scope to doubt that the accused had drawn electric connection unauthorisedly using aluminium wire and connected it to the fence erected around his land and an elephant coming into contact with the said electric fence, died due to electrocution. 13. 12. From the evidence and material on record there is no scope to doubt that the accused had drawn electric connection unauthorisedly using aluminium wire and connected it to the fence erected around his land and an elephant coming into contact with the said electric fence, died due to electrocution. 13. In the Wild Life (Protection) Act , 1962 the definition of 'hunting' is provided under Sec. 2(16) which is as under: "hunting", with its grammatical variations and cognate expressions, includes,-- (a) killing or poisoning of any wild animal or captive animal and every attempt to do so; (b) capturing, coursing, snaring, trapping, driving or baiting any wild or captive animal and every attempt to do so; (c) injuring or destroying or taking any part of the body of any such animal or, in the case of wild birds or reptiles, damaging the eggs of such birds or reptiles, or disturbing the eggs or nests of such birds or reptiles; 14. The learned counsel for the appellant has contended that as per the dictionary meaning, the act of 'hunting' is the act of chasing wild animal for sport or for food and it means to chase or search the animal for the purpose of catching or killing. He contends that, it is not the case of prosecution that the accused had any intention to kill the elephant. On the other hand, it is alleged, the accused has put up a fence around his land to protect his crops. Therefore, he contends that the element of mensrea is necessary to attract an offence under sec. 9 of the Wild Life (Protection) Act, which is absent in the present case. 15. As per sec. 9 of the Wild Life (Protection) Act, no person shall hunt any animal specified in Schedules I, II, III and IV except as provided under Sec. 11 and 12 . Sec. 11 and 12 provides permission under certain cases to hunt such animal or cause such animal to be hunted. A reading of the above provisions would give an indication that a person who is accused of hunting an animal should have mensrea and he should have an intention to kill, capture or injure the said animal. 16. Sec. 11 and 12 provides permission under certain cases to hunt such animal or cause such animal to be hunted. A reading of the above provisions would give an indication that a person who is accused of hunting an animal should have mensrea and he should have an intention to kill, capture or injure the said animal. 16. In the case on hand, it is not alleged by the prosecution that the electric fence was put up around the land of the accused to hunt or kill any animal. Mere knowledge of such animal being killed is not enough to attract Sec. 9 of the Act. Hence, it cannot be said that the prosecution has been able to establish the offence punishable under Sec. 9 r/w Sec. 51 of the Wild Life (Protection) Act. 17. Another aspect is that, under Sec. 55 of the Wild Life (Protection) Act, 1972, no Court shall take cognizance of any offence under the said Act, except on the complaint of any person other than the officers mentioned therein. Admittedly in the instant case, cognizance is taken on the basis of charge sheet filed by the police and not on a complaint, which is defined under Sec. 2(1)(d) of Cr.P.C. Even on the said ground the conviction of the appellant under the provisions of the Wild Life (Protection) Act cannot be sustained. 18. Sec. 429 of IPC provides punishment for committing mischief by killing, poisoning, maiming or rendering useless, any elephant, camel, horse, mule, buffalo, bull, cow or ox, whatever may be the value thereof, of any other animal of the value of fifty rupees or upwards. 19. The definition of 'mischief' under Sec. 425 of IPC includes, committing the act with intention or knowledge. In the case on hand, it cannot be said that there was any intention on the part of the accused to cause the death of elephant but he had knowledge that by putting up such an electric fencing by taking unauthorized connection, he would cause the death of animal etc. Therefore, the offence committed by the accused would clearly attract the offences punishable under Sec. 138(1)(a) of Electricity Act, 2003 and Sec. 429 of IPC and not under Sec. 9 r/w Sec. 51 of the Wild Life (Protection) Act. Hence, the following: ORDER Appeal is partly allowed. Therefore, the offence committed by the accused would clearly attract the offences punishable under Sec. 138(1)(a) of Electricity Act, 2003 and Sec. 429 of IPC and not under Sec. 9 r/w Sec. 51 of the Wild Life (Protection) Act. Hence, the following: ORDER Appeal is partly allowed. The conviction and sentence of the appellant / accused for the offence punishable under Sec. 9 r/w Sec. 51 of Wild Life (Protection) Act is hereby set aside. The conviction and sentence for the offence punishable under Sec. 138(1)(a) of the Electricity Act and under Sec. 429 of IPC are confirmed and the sentence is modified. The accused is sentenced to pay fine amount of Rs.30,000.00 (Rupees Thirty Thousand Only) and in default of payment of fine, he shall undergo rigorous imprisonment for a period of 6 months.