Karnataka High Court
The State Of Karnataka vs Sri N P Madappa on 11 June, 2018
Author: K.Somashekar
Bench: K. Somashekar
:1:
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JUNE, 2018
BEFORE
THE HON'BLE MR.JUSTICE K. SOMASHEKAR
CRIMINAL APPEAL NO. 852 OF 2010
BETWEEN
THE STATE OF KARNATAKA
BY NANJANGUD RURAL POLICE.
... APPELLANT
(BY SRI. K. NAGESHWARAPPA, HCGP.)
AND
SRI. N.P. MADAPPA,
S/O PUTTASWAMAPPA,
R/O NAGANAPURA VILLAGE,
HULLAHALLI HOBLI,
NANJANGUD TALUK,
MYSURU DISTRICT.
... RESPONDENT
(BY SMT. NAGAVEENA B.M., ADVOCATE FOR
SRI. P. MAHESHA, ADVOCATE.)
THIS CRL.A. IS FILED UNDER SECTION 378(1) & (3)
CR.P.C PRAYING TO GRANT LEAVE TO FILE AN APPEAL
AGAINST THE JUDGMENT DATED 20.03.2010 PASSED
BY THE I ADDITIONAL SESSIONS AND SPL. JUDGE,
MYSURU IN SPL. CASE NO. 74/2006 - ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE
:2:
PUNISHABLE UNDER SECTION 135 OF ELECTRICITY
ACT AND SEC. 429 OF IPC. THE SPP/STATE PRAYS
THAT THE ABOVE ORDER MAY BE SET ASIDE.
THIS CRL.A. COMING ON FOR HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the appellant / State against the judgment of acquittal passed by the I Additional Sessions and Special Judge, at Mysore, in Special Case No.74/2006 dated 20.03.2010 acquitting the accused for the offences punishable under Section 135 of the Electricity Act and Section 429 of the IPC. The same has been challenged in this appeal urging various grounds.
2. The case of the prosecution is that Sri. D.K. Mahadevaiah who was working as Range Forest Officer of Hediyala Range had lodged a written complaint on 14.07.2006 at 12.00 noon with Nanjangud Rural Police against the accused stating :3: that on 13.07.2006 a female wild elephant died in the land belonging to the accused with burn injuries on its trunk. His complaint was that the elephant had died due to electrocution, which was on account of the accused having illegally fenced his land with unauthorized electric connection. On receiving information about the death of an elephant, the complainant - Range Forest Officer had visited the spot and noticed that the agricultural land belonging to the accused was surrounded by fence with un- authorized electric connection. He also observed the foot prints of the elephant upto the fence from the spot where the elephant had fallen. It is due to the doubt that arose that the complainant had lodged a complaint stating that the wild elephant had come into contact with the fence with electric connection, was thrown back to the spot and had died due to electrocution. Therefore, the complainant had :4: requested the police to initiate legal action against the accused.
3. On receipt of the complaint, crime came to be registered by recording an FIR as per Exhibit P-11. Subsequently, the Investigating Officer visited the spot and drew up a spot mahazar as per Exhibit P-14, recovered wild wood poles and the zinc wire which were used for drawing up of the fence, recorded the statements of various witnesses and after completing investigation, filed a charge sheet against the accused for the offences punishable under Section 135 of Electricity Act and Section 429 IPC. The Trial Court then had framed charges against the accused for the aforesaid offences and the accused appeared before the Court and pleaded not guilty for the charge levelled against him and claimed to be tried. The prosecution in order to prove its case had examined P.Ws 1 to 13 and marked Ex.P.1 to P.11 and M.Os 1 and 2. Subsequent to recording the incriminating :5: statement under Section 313 Cr.P.C., the Trial Court heard the arguments advanced by the Prosecutor and the counsel for the accused and ultimately acquitted the accused. It is this judgment which has been challenged by the State in this appeal.
4. Heard the arguments of the learned SPP for the State and the learned counsel for the accused. The point that would arise for consideration in this appeal is, "Whether the judgment of acquittal passed by the Trial Court in Spl.Case.No.74/2006 dated 20.03.2010 would call for interference?"
5. The learned SPP for the State during the course of his arguments has taken me through the evidence of PW-7, PW-9 and PW-13.
PW-7 D.K. Mahadevaiah is the Range Forest Officer who had filed the complaint as per Exhibit P-7. Based on the complaint, PW-13 had conducted a spot :6: mahazar as per Exhibit P-4. PW-9, a Forest Officer is said to be the person who had first visited the spot on 13.07.2006 and found that a female elephant had died in the land belonging to Madappa. He had noticed burn injuries on its trunk and bleeding from its mouth and accordingly had informed the same to PW-7. PW-8 is said to be the Doctor who conducted autopsy over the dead body of the elephant and issued post-mortem report as per Exhibit P-8. PW-10 Srinivas is the Junior Engineer who visited the scene of crime on 14.07.2006 at 12 noon, who has stated in his evidence that the scene of offence belonged to Madappa S/o. Puttaswamappa and that there was a pump house in the said land which had electric connection provided through the Department and that there was a fence surrounding the land with G.I. wire.
PW-2 has given information about that incident as he filed a complaint as per Exhibit P-7. On visiting the said place, he has given a report as per Exhibit P- :7:
9. This witness was also subjected to cross- examination. But, nothing has been elicited to disbelieve the facts at Exhibit P-9 of the report issued by him relating to the supply of electricity in his pumphouse and also there was a fencing with GI wire put around.
PW-13 said to be the Investigating Officer who laid a charge-sheet against the accused on the basis of the complaint filed by PW-7 as per Exhibit P-7. He recorded the FIR as per Exhibit P-11 and conducted spot mahazar as per Exhibit P-4 on the same day i.e., on 16.07.2006 at about 2.30 p.m. During the course of the spot mahazar, he had seized 13 wild wooden poles and zinc wire used in commission of the offence by accused which are marked as MOs 1 and 2. During the course of investigation, he had recorded the statements PW-s 1, 2 and 3. The prosecution has relied upon the evidence of PW-7, PW-9, PW-13. Their :8: evidence is placed on record to hold that the prosecution has proved the guilt of the accused. The learned SPP submits that when there is ample evidence by way of recovery of wild poles, GI wire, etc., used in commissioning illegal electricity connection to the fence of the accused resulting in the death of the elephant, the Trial Court ought to have convicted the accused based on the recovery made from his land. But however, he submits that the Trial court has not appreciated the entire evidence on record in a proper perspective and the same is reflected in the evidence of PW-7 as per Exhibit P-7. The Trial Court has further failed to appreciate the evidence of PW-5 to PW-13 wherein they have supported the case of the prosecution. Therefore, the judgment of the Trial Court requires to be set aside. Without appreciating the entire evidence on record relating to the evidence under Section 135 of the Electricity Act and Section 429 IPC, the Trial Court has misdirected and misread :9: the entire evidence that is evidence of PW-7, 9 and 13, who are material witnesses for the prosecution. There is also failure to appreciate the entire evidence on record including the evidence of PW-8 the Doctor who conducted an autopsy and issued a post-mortem report as per Exhibit P-8 which reveals that the death of the elephant was due to electrocution. On all these grounds urged by the learned SPP for the State, he seeks to reverse the acquittal judgment rendered by the Trial Court in Special Case No.74/2006 dated 20.03.2010.
6. Per contra, the learned counsel for the respondent - accused in this appeal contends that the Trial Court has appreciated the evidence on record in a proper perspective and has come to the right conclusion that the accused has not committed the offences as alleged and has acquitted the accused, which judgment needs no interference. : 10 :
He submits that the Trial Court has rightly observed that PW-7 being the Range Forest Officer who had lodged the complaint as per Exhibit P-7, had no due authorization from the State Government to initiate such proceedings. He had not produced any material before court to prove that PW-7 in the capacity of a Range Forest Officer had the authorization to file such a complaint.
It is upon the complaint the case came to be registered as per Exhibit P-11. Subsequently, PW-13 Investigating Officer is said to have conducted spot mahazar as per Exhibit P-4 in the presence of PW-4, 5, 7, 13, whereas PW-4 and 5 did not support the case of the prosecution and the same has been seen in their evidence itself. PW-1 to 5 have turned hostile and they have not supported the case of the prosecution and the same can be seen in their evidence itself. The only evidence which the prosecution has relied upon is PW-7, 9 coupled with : 11 : PW-13. PW-7 in his complaint as well as examination stated that there was unauthorized electric connection to the fence on 13.07.2006 when he visited the spot. But PW-7 in his cross-examination had stated that on 13.07.2006 when he visited the spot, he saw zinc wire but did not see any wooden poles. PW-9 who had visited the spot on 13.07.2006 also has stated in his evidence that the electric connection which was given to the fence was already removed. Further, the wild wooden poles and zinc wire were also removed but that there were traces seen at the spot. Hence, due to the several inconsistencies noticed by the Trial Court, the learned counsel for the respondent - accused submits that the Trial Court has rightly acquitted the accused, which judgment does not call for any interference.
7. On hearing the learned counsel for the appellant - State as well as the learned counsel for the respondent - accused and on a careful : 12 : consideration of the material on record, I find that the following facts need to be taken into consideration before arriving at a conclusion.
Firstly, all the independent witnesses namely, PW-1 to PW-5 have turned hostile. It is wholly the official witnesses PW-7 and PW-9 who have supported the case of the prosecution. PW-7 is the Range Forest Officer who had filed the complaint as per Exhibit P-7. As per the complaint of PW-7 as well as his examination-in-chief, he had stated that there was unauthorized electric connection to the fence of the accused as on 13.07.2006 when he visited the spot. But however, in his cross-examination, he had stated that the wooden poles and zinc wire were removed on 13.07.2006 itself but that there were traces of planting the poles. Further, he had also stated that he had seen the foot prints of the wild elephant till the fence. However, there is no material placed such as any photographs to evidence the fact that really there : 13 : were foot prints of the elephant seen till the fence and also to evidence the presence of traces of planting the poles.
Further, the Doctor PW-8 who had conducted post mortem had deposed to the effect that the death of the wild elephant was due to electric shock. However, he has not at all spoken regarding the possibility of the said elephant which was subjected to electric shock having been thrown back to a certain distance and then having died. The said possibility has only been spoken by PW-7. Hence, it is impossible for the court to come to a conclusion that the elephant had been thrown back to a distance only due to electric shock and then had died, only on surmises. Hence, the entire case of the prosecution rests on mere circumstantial evidence.
Moreover, though the spot sketch has been drawn indicating the distance between the fence and : 14 : the GI wire alleged to have been connected with unauthorized electric connection, the meter number of the irrigation pump set and any other particulars have in fact not been provided by the prosecution, for this court to come to a conclusion that the accused had in fact connected his fence with illegal electric connection. Though the wire, wooden poles and zinc wire have been produced in the case, the same were not recovered from the fence where they were said to have been lodged but they were recovered from the sugarcane field where it was said to be hidden. Hence, it does not conclusively establish the fact that the same were used by the accused to fence his land with illegal power connection. The case of the prosecution has consequently not been proved beyond all reasonable doubt. It is due to the said reason that the court below had acquitted the accused. I find no illegality in the judgment rendered by the court below which calls for any interference.: 15 :
Hence, the appeal is dismissed. The point framed by this court is thus answered in the negative. As a result, the judgment passed by the I Addl. Sessions and Special Judge, Mysore in Special Case No.74/2006 is hereby confirmed.
Sd/-
JUDGE KS