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2024 DIGILAW 290 (UTT)

Chait Ram Goswami v. State of Uttarakhand

2024-04-30

RAVINDRA MAITHANI

body2024
JUDGMENT : RAVINDRA MAITHANI, J. 1. The challenge in this revision is made to the judgment and order dated 20.09.2011, passed in Criminal Revision No. 3 of 2011, State of Uttarakhand Vs. C.R. Goswami, by the court of District and Sessions Judge, Pauri Garhwal (“the second revision”). By it, an order dated 30.11.2010 of the Trial Court was set aside and the matter was remanded for hearing afresh, in accordance with law. 2. Heard learned counsel for the parties and perused the record. 3. Facts necessary to appreciate the controversy, briefly stated, are as follows: On 29.12.2005, the forest officials found a dead elephant. It was noticed that its trunk had touched the live electric wire that is how the death took place. The Divisional Forest Officer filed a complaint under Section 55 of the Wild Life (Protection) Act, 1972 (“the Act”) against the revisionist, which is basis of Criminal Case No. 310 of 2009, in the court of Additional Chief Judicial Magistrate, Kotdwar, District Pauri Garhwal (“the case”). In the case, on 01.05.2008, the court passed an order that there are sufficient grounds to frame charge under Section 51 of the Act against the revisionist. That order dated 01.05.2008 was challenged by the revisionist in Criminal Revision No. 11 of 2008, Chait Ram Goswami Vs. State of Uttarakhand and Others, in the court of District and Sessions Judge, Pauri Garhwal (“the first revision”). The first revision was allowed on 25.02.2010. The matter was remanded to the court below for deciding the matter afresh. On 30.11.2010, the trial court, after hearing the parties, discharged the revisionist. That order was challenged in the second revision. In the second revision, the court observed as follows: “11. The perigee in law to frame a charge against any person is to see and consider that whether all ingredients of any offence are completed or not, if completed then a change must be framed. The act of the respondent is not covered within the purview of the offence under special act; wild life (protection Act) 1972, but it come within the purview of mischief. Section 425 IPC defines the term “mischief” under the definition of the offence of mischief, their must be an intention or knowledge. The act of the respondent is not covered within the purview of the offence under special act; wild life (protection Act) 1972, but it come within the purview of mischief. Section 425 IPC defines the term “mischief” under the definition of the offence of mischief, their must be an intention or knowledge. If any person does any act with knowledge that he is likely to cause wrongful loss or wrongful damage to any person injuring any property, then if is said that he has committed an offence section 428 IPC also defines mischief by killing or maiming animal of the value of ten rupees. This Section provides as under: Whoever commits mischief by killing maiming or rendering useless any animal or animals of the value of ten rupees or up wards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both” 12. To frame a charge U/s 428, the necessary ingredient must be (1) mischief by killing of any animal, (2) the value of the animal must be ten rupees or upwards. If the above two ingredients are fulfilled the offender should be punished u/s 428 of the Indian penal code. In the present case, the negligent act of the respondent comes within the purview of section 428 IPC, and a sufficient case is made out against the respondent to frame a charge under the said section. Thus in my opinion, the learned lower court has committed infirmity and illegality while passing the impugned order. The said order, therefore deserves to be set aside accordingly.” 4. After making these observations, the revision was allowed and the order dated 30.11.2010 passed in the case was set aside and the matter was remanded to the court below. 5. Learned counsel appearing for the revisionist would submit that no offence under Section 428 IPC is made out. He would submit that no mischief was committed by the revisionist. It is not even the prosecution case. According to the prosecution, it is the case of the negligence only. It is argued that due to rains, the stones and sands got accumulated below the electric line raising the ground level and that is how the elephant came in contract with the live electric wire. There has been no negligence or mischief on the part of the revisionist. 6. It is argued that due to rains, the stones and sands got accumulated below the electric line raising the ground level and that is how the elephant came in contract with the live electric wire. There has been no negligence or mischief on the part of the revisionist. 6. Learned State counsel would submit that there is no perversity or illegality in the impugned order. Therefore, the revision deserves to the dismissed. 7. By the impugned order, an observation has been made that a case under Section 428 IPC is made out against the revisionist. Section 428 IPC provides for punishment in the cases of killing and maiming of animals. Sections 425 and 428 IPC are as follows: “425. Mischief - Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits “mischief.” “Explanation 1 - It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not. Explanation 2 - Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly. 428. Mischief by killing or maiming animal of the value of ten rupees - Whoever commits mischief by killing, poisoning, maiming or rendering useless any animal or animals of the value of ten rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” 8. A bare perusal of Section 425 IPC makes it abundantly clear that the intention and knowledge are two essential ingredients of it with further attributes of wrongful loss or damage to the public or to any other person. 9. Section 428 IPC is punishment for the mischief of a specific kind. It is killing by mischief of an animal. A bare perusal of Section 425 IPC makes it abundantly clear that the intention and knowledge are two essential ingredients of it with further attributes of wrongful loss or damage to the public or to any other person. 9. Section 428 IPC is punishment for the mischief of a specific kind. It is killing by mischief of an animal. Mere killing by negligence or by any other act is not punishable under Section 428 IPC. It has to be read with a word mischief and for attracting the definition of mischief, there should be intention attributed to the person charged for offence relating to the mischief as well as knowledge of the act. 10. In the instant case, it has been the case of the prosecution that the revisionist was negligent in maintaining the electric wire, whereas, it has been the case of the revisionist that the department has never been negligent. It is the nature who raised the platform below the live electric wire, due to which the elephant reached at the platform and his trunk touched the live electric wire. Negligence or an intention or knowledge, both are quite separate. In the instant case, it has not been the prosecution case that the applicant has any intention to kill the elephant or he has any knowledge that by any act attributed to him, the elephant may die. Therefore, there is no ground to frame charge under Section 428 IPC against the revisionist. To that extent, the impugned judgment and order is bad in the eye of law and it deserves to be set aside and the revision allowed. 11. The revision is allowed, accordingly. 12. The impugned judgment and order dated 20.09.2011 is set aside to the extent it observed that the alleged act comes within the purview of Section 428 IPC and remanded the matter for hearing afresh.