Karnataka High Court
Prasanna Kumar vs State Of Karnataka on 22 February, 2022
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL No.766/2011
BETWEEN:
PRASANNA KUMAR
S/O CHANNABASAPPA
AGED ABOUT 39 YEARS
RESIDING AT HEDIYALA VILLAGE
H.D. KOTE TALUK
MYSORE DISTRICT
....APPELLANT
(BY SRI. P. MAHESHA, ADVOCATE)
AND:
STATE OF KARNATAKA
BY SARAGOOR POLICE STATION
MYSORE DISTRICT
REPRESENTED BY SPP
HIGH COURT OF KARNATAK
BENGALURU-560 001
.... RESPONDENT
(BY SRI. K. RAHUL RAI, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO SET ASIDE THE ORDER
DTD:29.06.2011 PASSED BY THE I ADDL. DISTRICT AND
SESSIONS JUDGE, MYSORE IN SPL.C.NO.111/2008-
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
P/U/S 138(1)(a) OF THE ELECTRICITY ACT 2003, SECTION 429
IPC AND SECTION 9 READ WITH SECTION 51 OF THE WILD LIFE
(PROTECTION) ACT, 1972.
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THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 11.02.2022, COMING ON FOR
'PRONOUNCEMENT JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
The appellant/accused has filed this appeal under Section 374(2) of Criminal Procedure Code, 1973 ('Cr.P.C' for short) challenging the judgment of conviction and order of sentence dated 29.06.2011 passed by the I Additional District and Sessions Judge, Mysore, in Special Case No.111/2008 ('trial Court' for short) whereby the learned Sessions Judge has convicted the accused/appellant herein for the offences punishable under Sections 138(1)(a) of the Electricity Act, 2003 ('Electricity Act' for short), Section 429 of Indian Penal Code, 1860 ( 'IPC' for short) and Section 9 read with Section 51 of the Wild Life (Protection) Act, 1972 ( 'WLP Act' for short).
2. For the sake of convenience, the parties herein are referred as per original ranking before the trial Court.
3. The brief facts leading to the case of prosecution are that, appellant/accused is the owner of the land bearing Sy. 3 No.15 in Chengowdanahalli bordering Hediyala of H.D. Kote Taluk. He put-up the Solar Fence around the said land. At a distance of 15 meters from the land, there was an electric pole. It is the further case of the prosecution that, on 08.02.2008, PW.1-Sri. B.R. Nagaraju, who was working as Range Forest Officer in Wild Life Range, Beeravalu, received an information that, in the land of the appellant/accused an elephant was lying dead. Immediately, he rushed to the spot along with PW.2- Mahadeva, who was also an officer of the Forest Department and there, they found a female elephant lying dead due to electrocution. He has also noticed that some disconnected electric wires from the near by electric pole were lying there and hence, he lodged a complaint with jurisdictional police at about 1.45 p.m.. On the basis of the said complaint, a case came to be registered in Crime No.13/2008 for offences punishable under Sections 429 of IPC, Section 135 of Electricity Act and Section 51 of WLP Act. Subsequently, charge sheet was submitted for offence under Section 138 of the Electricity Act along with Section 429 of IPC and Section 9 read with Section 51 of WLP 4 Act by the Investigating Officer, after completion of investigation.
4. After submission of charge sheet, cognizance of the alleged offences was taken and the accused appeared through his counsel and was enlarged on bail. The charges framed against the accused were read-over and explained to the accused in respect of offence under Section 138 of the Electricity Act along with Section 429 of IPC and Section 9 read with 51 of WLP Act. The accused pleaded not guilty and claimed to be tried.
5. In order to prove the guilt of the accused, the prosecution has examined Eleven witnesses as PWs.1 to 11 and also got marked Seventeen documents as Exs.P1 to P17 and Two material objects as MOs. 1 & 2.
6. After conclusion of the evidence of prosecution, the statement of accused under Section 313 of Cr.P.C. was recorded and he has denied the incriminating evidence appearing against him in the case of prosecution. He has given explanation that, a high voltage electric wire lying near his land and an iron electric 5 pole is installed near by his land and by the side of electric pole, there is a tree and due to grounding, the elephant died when it came in contact with said electric wire.
7. After hearing arguments and after perusing the oral and documentary evidence, the learned Sessions Judge found that, accused has committed offense under Sections 138(1)(a) of Electricity Act, Section 429 of IPC and Section 51 of WLP Act and accordingly convicted him by imposing fine of Rs.5,000/- for each of offences under Section 138 (1)(a) of Electricity Act, Section 429 of IPC. However, for offence under Section 51 of WLP Act, he imposed imprisonment for three years with fine of Rs.10,000/-. Being aggrieved by this judgment of conviction, the appellant/accused has filed this appeal.
8. Learned counsel for appellant would contend that the judgment of conviction and order of sentence is illegal, erroneous and not maintainable. He would contend that, mahazar witnesses viz., PW.3 and PW.10 have turned hostile and independent witness-PW.8 has also turned hostile. Though there is no serious dispute regarding death of elephant due to 6 electrocution, no material evidence is available to show that, accused has taken illegal electric connection from nearby pole, as he having solar fencing around his land, which only create simple shocks and does not harm the life of any animal. He would also contend that, seizure of MOs. 1 & 2 were not proved in view of hostility of mahazar witnesses and the trial Court has convicted the accused only on the ground that the death of elephant has occurred in his land, but failed to consider the defence that creepers grown in the field have also been spread on the electric pole and the death of elephant must be by coming into contact with high-tension live electric pole, and there is no evidence to show that, accused has taken any unauthorized electric connection and as such, he would contend that the trial Court has committed an error and judgment of conviction is erroneous and perverse. He would also contend that the sentence imposed is also disproportionate to the offences alleged and as such, he would seek for allowing the appeal by setting aside the impugned judgment.
9. Per contra, the learned High Court Government Pleader ('HCGP' for short) would support the judgment of the 7 trial Court contending that, PWs. 1 & 2 have supported the case of prosecution and their evidence is corroborated any other evidence. He would also contend that, hostility of PWs.3 & 10 does not affect the case of prosecution, as there is no reason for discarding the evidence of PWs. 1 & 2, merely on the ground that they are official witnesses. He would also contend that the sentence of imprisonment imposed by the trial Court is also reasonable one and it does not call for any interference and as such, he sought for rejection of the appeal.
10. Having heard arguments and perusing the records, now the following point would arise for consideration:-
"Whether the judgment of conviction and order of sentence passed by the trial Court is perverse, capricious and illegal so as to call for any interference by this Court?"
11. To prove the guilt of the accused, the prosecution has examined in all 11 witnesses. PW.1 is the complainant and PW.2 is an official of Forest Department, who accompanied the complainant. Both of these witnesses have supported the case of prosecution. PWs.3 & 10 are spot mahazar witnesses to 8 Ex.P2, but, both of them have turned hostile. Accordingly, PW.8, who was presented as an independent witness, has also turned hostile.
12. PW.4 is a Veterinary Doctor, who conducted autopsy on the dead body of elephant, while PW.5 is a Village Accountant, who has issued RTC extract in respect of the land of accused. PWs. 6 & 7 are official witnesses, who deposed regarding examination of seized property and availability of electricity during the said period in the said area. PWs.9 & 11 have deposed regarding investigation.
13. It is important to note here that the death of elephant due to electrocution is an undisputed fact. Further, it is also important to note here that the death of elephant has occurred in the land of accused. Further, the fact of existence of electric pole nearby his land is not in serious dispute and the fact of existence of live electric wire in the land of accused is also undisputed, so also existence of solar fencing surrounding land of accused.
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14. The complainant is examined as PW.1 and he deposed that, on 08.02.2008 at about 8.00 a.m. he received a message regarding death of a elephant in the land belonging to accused. Immediately, along with PW.2 he went to the land of accused and there, they found a female elephant lying dead. He has further deposed that, sugarcane crop was grown in the field of accused and solar fencing was put around the field. He has also deposed that, nearby the field there was an electric pole, from which an electric wire had been drawn. He has specifically deposed that, by using aluminum wire, electric connection had been taken unauthorisezdly from electric pole to the fence and when elephant came in contact with electric wire, it died due to electrocution. Though this witness was cross-examined at length, nothing was elicited so as to impeach his evidence.
15. PW.2 is a Forest Official, who also deposed in consonance with the evidence of PW.1-Complainant. He has also specifically deposed regarding existence of electric pole and electric wire had been drawn from nearby electric pole to the fence and also about the existence of aluminum and zinc wire in the field. Further, nothing was elicited in cross-examination of 10 this witness also. PW.5 is Village Accountant and he has stated that, he has issued Ex.P3-RTC extract, which was standing in the name of accused and this fact is undisputed. PW.6 is an engineer attached to CESC and has deposed that, on 17.06.2008, MOs. 1 & 2 were sent to him for examination and on examining the same, he has given report as per Ex.P14 stating that electric current can pass through these wires. On the contrary, PW.7, who is another engineer attached to CESC has deposed that, he has issued Ex.P15 about the supply of electricity in the said area on 07.02.2008.
16. PW.4 is Veterinary Doctor and he deposed regarding conducting autopsy on dead body of elephant, while PW.9 & 11 are Investigating Officers and they have deposed regarding investigation done by them. PWs.3 & 10 are spot mahazar witnesses, while PW.8 is an independent witness. All these three witnesses have turned hostile and denied the case of prosecution. However, PWs. 3 & 10 admitted their signatures on Ex.P2-Mahazar, but, pleaded ignorance regarding contents of Ex.P2. They have not given any explanation as to where they have signed and that clearly disclose that, though they have 11 signed Ex.P2, they are not prepared to explain as to under what circumstances and where exactly they have signed the said document. This clearly disclose that, these witnesses have been own-over and they are intentionally giving false evidence. PW.8, who is an independent witness has also turned hostile.
17. However, it is important to note here that no reason is forthcoming for ignoring the evidence of PWs. 1 & 2. They have categorically deposed regarding existence of electric pole nearby the land of the accused and unauthorized connection of electricity being taken by aluminum and zinc wires. Though accused has taken-up a defence regarding elephant being coming in contact with electricity due to grounding in electric pole, but the same was not substantiated by cross-examining the material witnesses and inconsistent suggestions have been made to witnesses in this regard. It is an undisputed fact that the land in question belongs to accused and though a half- hearted attempt is made to attack the case of prosecution on the ground of delay, but, the same is not substantiated, as PW.1 has received information at 8.00 'O' Clock in morning and immediately, he went to the spot, got verified the information he 12 received and then lodged a complaint at 1.45 p.m. on the same day. Admittedly, the death of elephant in the land of accused is undisputed. Nothing has prevented for accused himself to report this matter to the nearest Police Station or Forest Department. Much arguments have been advanced regarding installation of Solar Fencing and it would only cause light shock, but not death. But, the evidence discloses that from nearest electric pole, electricity connection was given to the Solar Fencing, which has resulted in electrocution to the elephant. The evidence of Medical Officer (PW.4), who conducted autopsy on dead body of elephant, has specifically stated that the death is due to electrocution to the Trunk of elephant.
18. The learned Sessions Judge has convicted the accused for offence under Section 138(1)(a) of Electricity Act on the ground that, value of theft of electricity is unascertained. Further, he has also convicted the accused regarding the act of criminal mischief punishable under Section 429 of IPC.
19. The learned Sessions Judge has also convicted the accused for offence under Section 51 of the WLP Act. Section 51 13 of this Act is a penal provision in respect of contravention of any provision of the Act and Section 9 of the Act prohibits hunting of any wild animal as shown in Schedule - I to IV except provided as under Sections 11 & 12. Further, "hunting" is also defined in Section 2(16) of WLP Act, which includes killing of the wild animals. Hence, offence under Section 51 of the WLP Act is also proved by the prosecution. Hence, the learned Sessions Judge is justified in convicting the accused for the said offence.
20. The learned Sessions Judge has imposed sentence of fine of Rs.5,000/- for each of offences punishable under Sections 138(1)(a) of Electricity Act and Section 429 of IPC with default clauses. Considering the nature and gravity of the said offences, the said sentences do not call for any interference. Further, the State has not challenged the sentence and as such, the question of enhancement of sentence also does not arise at all.
21. For offence under Section 51 of the WLP Act, the learned Sessions Judge has imposed sentence of imprisonment for a period of three years with fine of Rs.10,000/-. As per the proviso (1) to Section 51 of this Act, if the offence is committed 14 in relation of any wild animal specified in Schedule-I or Part-II of Schedule-II, the sentence shall not be less than three years, but which may extend to seven years with fine, which shall not be less than Rs.10,000/-.
22. Admittedly, in the instant case, the death is of an elephant and it comes under Part-I (Mammals) of Schedule-I . Hence, the minimum sentence prescribed is three years with fine of Rs.10,000/- and the learned Sessions Judge has imposed minimum sentence. When the learned Sessions Judge has imposed minimum sentence, question of interference in the said sentence does not arise at all. Under such circumstances, looking to the facts and circumstances, the evidence on record clearly establish that accused did commit the offences as alleged and prosecution has successfully proved the guilt of accused beyond all reasonable doubt. The learned Sessions Judge has also imposed minimum sentence prescribed under Statute and as such, question of interference with the said sentence does not arise at all. The learned Sessions Judge has appreciated the oral and documentary evidence in detail in accordance with law. Hence, the judgment does not suffer from 15 any perversity, illegality or arbitrariness so as to call for interference. Under such circumstances, looking the facts and circumstances, I answer the point under consideration in negative and proceed to pass the following:
ORDER The appeal is dismissed. The judgment of conviction and order of sentence dated 29.06.2011 passed by the trial Court viz., the I- Additional District and Sessions Judge, Mysore, in Special Case No.111/2008, is confirmed.
Sd/-
JUDGE KGR*