Karnataka High Court
R N Siddappa vs State By Gundlupete Police on 6 March, 2019
Author: John Michael Cunha
Bench: John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF MARCH, 2019
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO.1224/2010
BETWEEN
R N SIDDAPPA
S/O KARIYAPPA @ R N NANJUNDAPPA,
AGED ABOUT 45 YEARS,
R/AT RANGUPURA VILLAGE,
HEGGUR HOBLI, GUNDLUPETE TALUK.
CHAMARAJANAGARA DISTRICT. .. APPELLANT
(BY SRI C M JAGADEESH AND
SRI H.P.VEERABADRASWAMY, ADVS.)
AND
STATE BY GUNDLUPETE POLICE,
GUNDLUPETE TALUK,
CHAMARAJANAGARA DISTRICT
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT BUILDING, BANGALORE. ... RESPONDENT
(BY SRI NASRULLA KHAN, HCGP.)
THIS CRIMINAL APPEAL IS FILED U/S.374(2) CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND
SENTENCE DT.11/21.10.10 PASSED BY THE DIST. AND S.J.
CHAMARAJANAGARA IN SPL.C.NO.36/05-CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 39 & 44 OF
THE INDIAN ELECTRICITY ACT, 1910 AND OFFENCE U/S.9
P/U/S. 51 OF WILD LIFE (PROTECTION) ACT ETC.
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THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
Appellant is convicted for the offences punishable under Sections 39 and 44 of the Indian Electricity Act, 1910 and Sections 9 and 51 of the Wild Life (Protection) Act, 1972. He is sentenced to pay a fine of Rs.3,000/-, in default to undergo simple imprisonment for one month for the offence punishable under Section 39 of Indian Electricity Act, 1910; fine of Rs.2,000/- in default to undergo simple imprisonment for one month for the offence under Section 44 of the Indian Electricity Act, 1910 and to undergo simple imprisonment for 3 years and a fine of Rs.10,000/- in default, to undergo simple imprisonment for two months for the offence under Section 9 and Section 51 of the Wife Life (Protection) Act, 1972.
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2. The Range Forest Officer of Gundlupet Range lodged a complaint before Gundlupet Police alleging that a dead elephant was found in the land of the appellant. Based on the said information, a case in Crime No.209 of 2003 was registered against the appellant under Section 3, 9, 51, 55 of Wild Life (Protection) Act, 1972 and Section 39 and 44 of the Indian Electricity Act. On completion of investigation, charge sheet came to be laid against him. The appellant denied the charges and faced trial.
3. In order to bring home the guilt of the appellant, the prosecution examined as many as 11 witnesses. Amongst them, PW.1 namely Vijaya Kumar was the Range Forest Officer who gave the information with regard to the incident. PW.2 Mallappa was the Forest Guard in Desipura Gasth and PW.3, 4 and 5 are the adjacent land owners. These witnesses have wholly turned hostile to the case of the prosecution. PW.6 was 4 working as Asst.Executive Engineer in MESCOM, Gundlupet. He examined the seized zinc wires and electrical wires namely MOs 1 and 2 and gave his opinion as per Exs.P8 and P9 to the effect that MOs 1 and 2 are capable of conducting electricity.
PW.8 was the Mobile Veterinary Officer in Gundlupet. He conducted the PM examination and issued the report vide Ex.P10. According to him, the elephant died due to shock and the electrocution.
PW9 was the panch witness to the spot mahazar- Ex.P1. This witness is treated as hostile. PW10 is the investigating officer. PW11 is the police constable who scribed Ex.P1-spot mahazar.
4. Considering the above material, the Trial Court was of the opinion that even though the material witnesses examined by the prosecution failed to support the case of the prosecution, yet the prosecution was able 5 to establish the circumstances leading to the seizure of MOs 1 to 3 at the instance of the accused and based on this circumstance, the Trial Court found the accused guilty of the above offences.
5. The learned counsel for the appellant submitted that the trial Court has committed serious error in convicting the appellant for the above offences. The prosecution has failed to prove that the appellant was the owner of the land wherein the corpse of the elephant was found. There is no material to show that the appellant had drawn electricity wire to the fence. The documents produced by the prosecution viz. RTC indicated that the property wherein the corpse was found belonged to the appellant as well as his brother-Nataraj. The evidence collected by the prosecution is not sufficient to make out the ingredients of the offences under Sections 39 and 44 of The Indian Electricity Act, 1910 or under Section 9 of 6 The Wild Life (Protection) Act, 1972. Hence the conviction of the petitioner for the above offences is patently wrong and unsustainable.
6. Referring to Section 55 of the Wife Life (Protection) Act, it is argued that the trial Court could not have taken cognizance of the offence under the provisions of the said Act, except on the complaint lodged either by the Director of Wild Life preservation or any other officer authorized in this behalf or the Member Secretary of the Central Zoo Authority or the Member Secretary, Tiger Conservation Authority or the Director of the concerned tiger reserve or the Chief Wild Life Warden or any other officer authorized in this behalf by the State Government or the officer in charge of the Zoo or any other person who has given notice of not less than 60 days, in the manner prescribed. In the instant case, the prosecution was launched by PW1 without any authority 7 under law and therefore, the entire proceedings initiated against the appellant are vitiated on account of the defective procedure resulting in grave miscarriage of justice and prejudice to the petitioner and thus prayed for setting aside the impugned judgment of conviction and order of sentence.
7. Defending the impugned judgment and order of sentence, the learned HCGP however, argued that the material on record clearly establishes that the petitioner was the owner of the land wherein the corpse of the elephant was found. The opinion regarding cause of death is not disputed. Even though the appellant caused destruction of the evidence of offence, yet, in the course of investigation, the zinc wires and the electric wire as well as wooden pegs used to erect the fence surrounding the land of the appellant were seized at his instance. This circumstance coupled with the RTCs standing in the 8 name of the appellant, clincingly establishes that the elephant died due to electrocution by coming in contact with the fence erected by the appellant. The Trial Court has appreciated this evidence in proper perspective and hence, there is no reason to interfere with the impugned judgment.
8. Considered the submissions and perused the records.
9. The material on record discloses that the corpse of the elephant was found in the land of the appellant on 30.12.2003. According to the prosecution the said elephant had died due to electrocution in the night of 29.12.2003. The post mortem report-Ex.P10 indicates that the elephant died due to electrocution. The findings in the spot panahcnama-Ex.P1 reveal that the elephant had sustained burns on the trunk. As such, there is no 9 dispute with regard to the fact that the elephant died due to electrocution.
10. Charge against the appellant is that elephant came in contact with the zinc wire fence erected by the appellant surrounding his properties. According to the prosecution the appellant had drawn electricity to the live fence from the pump shed situate in his property. But on scrutiny of the evidence on record, I find that the prosecution has failed to produce any convincing evidence to show that the land, wherein the corpse had fallen exclusively belonged to the appellant. In order to prove the ownership of the said land, the prosecution has produced the RTC Ex.P12 of S.No.248 of Rangapura Village which discloses that the said properties stood in the joint names of the appellant and one R.N.Nataraju. As such, there is no clear evidence to show that the 10 incident has taken place in the land exclusively belonging to the appellant.
11. Secondly, the case of the prosecution is that the electricity wire was drawn from the pump shed constructed in the land of the appellant. Even in this regard, the prosecution has not produced any material to show that the appellant herein had taken electricity connection in his name to the said pump shed. The prosecution has not produced any document to show that the installation was standing in the name of the appellant. There is also no evidence as to the distance from the said pump shed to the fence surrounding the property of the appellant. According to the prosecution the land comprised in S.No.248 was measuring 2 Acres 9 guntas, whereas in the course of investigation, a piece of zinc wire measuring 6 meters in length has been seized. It cannot be believed that the land measuring about 2 11 acres 9 guntas would be surrounded with a fence of zinc wire of the length of nearly 20 meters.
12. In the spot panchanama, it is mentioned that during the spot mahazar the investigating officer and the witness did not find any traces of electricity being drawn to the live fence. But interestingly, during the course of investigation, six wooden pegs are recovered at the instance of the appellant. Assuming that the appellant had caused disappearance of evidence of the offence by destroying the remaining wooden pegs or the wire, at least the pits wherein the said poles were erected could have been noticed by the panchas or the investigating officer during the panchanama. The panchanama is silent with regard to any such traces. All these circumstances, therefore, create serious doubt in the case of the prosecution.
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13. On overall consideration of the above facts and circumstances, I find that the prosecution has failed to prove its case beyond reasonable doubt rendering the appellant culpable for the offence charged against him. The Trial Court has recorded the conviction solely on the basis of the recovery of the wooden pegs. But in the absence of any material to show that the said wooden pegs were, in fact, fixed into the boundary surrounding the lands of the appellant and that the appellant had drawn electricity to the fence, it is unsafe to hold that the appellant was responsible for the electrocution of the elephant. Therefore, on reconsideration of the entire material on record, I find that the evidence produced by the petitioner is not sufficient to hold the appellant guilty of the offences either under the provisions of Indian Electricity Act or under the Wild Life (Protection) Act. The prosecution has not produced acceptable material to show that the pump shed found in the property belonged to the appellant. 13 There is no material on record to show that the electric installation was serviced to the pump shed and the said installation is standing in the name of the appellant. There is also no clear evidence to show that the wires were drawn from the said pump shed to the fence surrounding the property of the appellant. In the absence of any such evidence connecting the appellant to the alleged incidence, the conviction of the appellant for the above offences cannot be sustained.
14. Accordingly, the appeal is allowed; The impugned judgment of conviction dated 11.10.2010 and the order of sentence dated 21.10.2010 passed by the District and Sessions Judge, Chamarajnagar in Special Case No.36/2005 are set aside. The appellant is acquitted of all the above charges. The bail bond of the appellant stands cancelled and the sureties are discharged; 14
Fine amount, if any, deposited by the appellant shall be refunded to the appellant.
Sd/-
JUDGE Sk/- rs CT-HR