Karnataka High Court
R Shivakumar vs The State Of Karnataka on 13 July, 2018
Author: K.Somashekar
Bench: K. Somashekar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JULY, 2018
BEFORE
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
CRIMINAL APPEAL NO. 1175 OF 2010
C/W
CRIMINAL APPEAL NO. 1220 OF 2010
IN CRIMINAL APPEAL NO. 1175 OF 2010
BETWEEN
R. SHIVAKUMAR,
S/O RAJASHETTY @ PAPER RAJAPPA,
AGED 55 YEARS,
NO.25, 9TH CROSS, K.P.WEST,
BENGALURU - 560 020.
... APPELLANT
(BY SRI. C.H. JADHAV, SR. COUNSEL)
AND
THE STATE OF KARNATAKA
(BY CHAMARAJANAGARA P.S.)
BY ITS STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 560 001.
... RESPONDENT
(BY SRI. S. VISHWAMURTHY, HCGP)
THIS CRL.A. IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION DATED. 25/29.10.2010 PASSED BY THE
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DISTRICT AND SESSIONS JUDGE, CHAMARAJANAGAR
IN SPL.C.NO. 8/2005 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 39 OF INDIAN
ELECTRICITY ACT, 1910 AND SEC. 9 PUNISHABLE
UNDER SECTION 51 OF WILD LIFE (PROTECTION) ACT.
THE APPELLANT/ACCUSED IS SENTENCED TO PAY A
FINE OF RS. 4,000/- IN DEFAULT OF PAYMENT OF FINE
HE SHALL UNDERGO SIMPLE IMPRISONMENT FOR ONE
MONTH - FOR THE OFFENCE PUNISHABLE UNDER
SECTION 39 OF INDIAN ELECTRICITY ACT, 1910. THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
SIMPLE IMPRISONMENT FOR THREE YEARS AND PAY A
FINE OF RS. 10,000/- IN DEFAULT OF PAYMENT OF
FINE HE SHALL UNDERGO SIMPLE IMPRISONMENT FOR
TWO MONTHS - FOR THE OFFENCE PUNISHABLE
UNDER SECTION 9 PUNISHABLE UNDER SECTION 51
OF WILD LIFE (PROTECTION) ACT. THE
APPELLANT/ACCUSED PRAYS THAT HE BE ACQUITTED.
IN CRIMINAL APPEAL NO. 1220 OF 2010:
BETWEEN
R. RAMAMOHAN
ALIAS MOHAN KUMAR,
AGED ABOUT 40 YEARS,
S/O RAJASHETTY ALIAS PAPER RAJAPPA
CHIKKANGADI BEEDI
CHAMARAJANAGAR TOWN.
... APPELLANT
(BY SRI. R.D. RENUKARADHYA, ADVOCATE FOR M/S P.
NATARAJU ASSOCIATES.)
AND
STATE OF KARNATAKA,
BY CHAMARAJANAGAR EAST POLICE,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
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HIGH COURT BUILDING,
BANGALORE.
... RESPONDENT
(BY SRI. S. VISHWAMURTHY, HCGP)
THIS CRL.A. IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION DATED 25/29.10.2010 PASSED BY THE
DISTRICT AND SESSIONS JUDGE, CHAMARAJANAGAR
IN SPL.C.NO. 8/2005 - CONVICTING THE APPELLANT/
ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 39 OF INDIAN ELECTRICITY ACT, 1910 AND
SEC.9 PUNISHABLE UNDER SECTION 51 OF WILD LIFE
(PROTECTION) ACT. THE APPELLANT/ACCUSED IS
SENTENCED TO PAY A FINE OF RS. 4,000/0- IN
DEFAULT OF PAYMENT OF FINE HE SHALL UNDERGO
SIMPLE IMPRISONMENT FOR ONE MONTH - FOR THE
OFFENCE PUNISHABLE UNDER SECTION 39 OF INDIAN
ELECTRICITY ACT, 1910. THE APPELLANT/ACCUSED IS
SENTENCED TO UNDERGO SIMPLE IMPRISONMENT
FOR THREE YEARS AND PAY A FINE OF RS. 10,000/- IN
DEFAULT OF PAYMENT OF FINE HE SHALL UNDERGO
SIMPLE IMPRISONMENT FOR TWO MONTHS - FOR THE
OFFENCE UNDER SECTION 9 PUNISHABLE UNDER
SECTION 51 OF WILD LIFE (PROTECTION) ACT. THE
APPELLANT/ACCUSED PRAYS THAT HE BE ACQUITTED.
THESE CRIMINAL APPEALS COMING ON FOR
FINAL HEARING, THIS DAY, THE COURT DELIVERED
THE FOLLOWING:
JUDGMENT
As both these appeals arise out of a common judgment, they are taken up for hearing together and are disposed of by this common judgment.
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2. Crl.A.1175/2010 has been preferred by the accused No.1 and Crl.A.No.1220/2010 is filed by accused no.2 praying to set aside the judgment of conviction and order of sentence dated 25/29.10.2010 passed by the District and Sessions Judge, Chamarajanagar, in Special Case No.8 of 2005 convicting the accused for the offences punishable under Section 39 of Indian Electricity Act, 1910 and Section 9 punishable under Section 51 of the Wild Life (Protection) Act. Under the said judgment the accused were sentenced to pay fine of Rs.4,000/- each, in default to undergo SI for one month for the offence under Section 39 of Indian Electricity Act, 1910 and were sentenced to undergo SI for 3 years and to pay a fine of Rs.10,000/- each, in default to undergo SI for two months for the offence under Section 9 punishable under Section 51 of the Wild Life (Protection) Act.
3. Factual matrix of the appeals are as follows:
Accused no.1- Shivakumar and Accused no.2 -
R.Rama Mohan @ Mohan Kumar being the owners of agricultural land bearing S.No.6, 8 and 12 of Hongalawadi village, in furtherance of their common intention, fenced :5: their land with zinc wire and gave unauthorized power connection to the said zinc wire fencing by illegally and dishonestly abstracting the electrical energy from the supply line, in order to protect their sugarcane crop from wild animals. On 5.6.1998, a female elephant came in contact with the said live zinc wire fencing, and died. Thereby, the accused have committed the offences punishable under Sections 39 of Indian Electricity Act, 1910 read with Section 34 of IPC and under Section 9 of Wild Life (Protection) Act read with Section 429 of IPC.
4. In pursuance of filing of the complaint as per Ex.P5, crime came to be registered and thereafter the IO who has taken up the investigation, laid charge sheet against the accused for the aforesaid offences. The accused pleaded not guilty but claimed to be tried.
5. In order to establish the guilt against the accused, the prosecution in all examined PWs. 1 to 11 and Ex.P1 to P10 and MO.1, 15 wooden pegs and MO.2, Zinc wire, were marked. Subsequent to the closure of the evidence, the incriminating statement of the accused under Section 313 :6: Cr.P.C. was recorded where accused denied the truth of the prosecution adduced and they did not come forward to adduce any defence evidence. The Trial Court, on hearing the arguments of both the counsel for the parties, by the impugned judgment convicted the accused for the offences punishable under Section 39 of Indian Electricity Act, 1910 and under Section 9 punishable under Section 51 of the Wild Life (Protection) Act. It is this judgment which is under challenge in these appeals.
6. Heard Sri C.H.Jadhav, learned Sr.counsel for the appellant in Crl.A.No.1175/2010 and Sri R.D.Renukaradhya, for M/s.P.Nataraju Associates for the appellant in Crl.A.No.1220/2010 and perused the entire records.
7. The learned counsel for the accused / appellants at the inception of the arguments has taken me through provisions of Section 55 of the Wild Life (Protection) Act, 1972 which reads as thus:
55. Cognizance of offences. -No court shall take cognizance of any offence against this Act except on the complaint of any person other than-- :7:
(a) the Director of Wild Life Preservation or any other officer authorised in this behalf by the Central Government; or [(aa) the Member-Secretary, Central Zoo Authority in matters relating to violation of the provisions of Chapter IVA; or] [(ab) Member-Secretary, Tiger Conservation Authority; or (ac) Director of the concerned tiger reserve; or]
(b) the Chief Wild Life Warden, or any other officer authorised in this behalf by the State Government [subject to such conditions as may be specified by that Government]; or [(bb) the officer-in-charge of the zoo in respect of violation of provisions of section 38J; or]
(c) any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint to the Central Government or the State Government or the officer authorised as aforesaid.]
8. As per Section 55 of the Act, the complaint has to be filed by the competent authority as specified therein. In this case, the RFO has filed the complaint as per Ex.P5. Subsequently, PW.6, Shivaswamy being the PSI has investigated the case and laid the charge sheet against the accused. It is contrary to the mandate of Section 55 of the Act in respect of taking cognizance of offences. It is held that no court shall take cognizance of any offence against this Act except on the complaint of any person other than specified under this Section. Hence, the entire proceedings has been vitiated. Without appreciating the mandatory :8: provisions as specified under this Section, the court below by believing the evidence of prosecution witnesses has convicted the accused for the aforesaid offences.
9. Further it is contended that independent material witnesses examined by the prosecution have not supported the case of prosecution and thereby rendering the entire case of the prosecution not credit worthy. It is submitted that prosecution has failed to establish the scene of offence as to where exactly the baby she Elephant had died, when both the accused had divided their share in the properties, the sketch and mahazar are different. Hence, the judgment passed by the court below is unsustainable.
10. It is further submitted that when the evidence of PW.2 indicates that only on the basis of the information given by the villagers, case was registered against accused no.1 and it was also admitted that the land where the electric pole was fixed and electrical energy was drawn to zinc wire fencing belong to accused no.2, the court below has committed serious error in convicting the accused. :9:
11. Further it is contended that the zinc wire would melt if power is given and the hook alleged to have been used for drawing unauthorized power is not seized and hence there was suspicion about the case of the prosecution and the benefit of doubt that arises in this case ought to have been given to the accused. In the absence of the evidence of panch witnesses regarding illegal abstraction of electrical energy the presence of artificial means to extract electrical energy is not proved and consequently, the court below ought to have acquitted the accused of the offences alleged against them.
12. Further, it is strenuously contended that the boundaries of the land mentioned in the spot mahazar Ex.P1 and the rough sketch Ex.P.4 differ from each other and the prosecution has failed to prove that the said land belongs to the accused.
13. Learned counsel for the appellants placed reliance on a order dated 07.11.2014 passed by this court in Crl.P.No.4968/2014 wherein this court held that the Magistrate can only take the cognizance of the offence only if the complaint is strictly in compliance with Section : 10 : 55 of the Wild Life (Protection) Act. The present case also come under similar footing. On all these grounds urged, the learned counsel for the appellants/accused pray for re-visiting the impugned judgment of conviction and sentence by re-appreciating the entire evidence in a proper perspective, since the Court below has committed an error in arriving at the conclusion that the prosecution has proved the guilt of the accused beyond all reasonable doubt. Hence, it is prayed that the impugned judgment of conviction and sentence held by the Court below in Special Case No.8/2005 be set aside by allowing this appeal.
14. Per contra, learned HCGP for the State submits that the entire evidence adduced by the prosecution and the circumstances under which the elephant has died, goes to show that the elephant died due to electrocution in the land of the accused who had fenced their land with zinc wire and had given unauthorized power connection to the said zinc wire fencing from the main KEB service line and the elephant which came to eat the sugar cane, died due to electrocution. The prosecution has rightly proved : 11 : the guilt of the accused persons beyond reasonable doubt. Even though there are some inconsistencies and contradictions in the evidence of the prosecution witnesses, they do not go to the root of the matter. The court below after looking into the totality of the circumstances, has rightly convicted the accused persons under Section 39 of Indian Electricity Act, 1910 and under Section 9 punishable under Section 51 of the Wild Life (Protection) Act. Hence, on these grounds, learned HCGP seeks dismissal of the appeals as devoid of merits by confirming judgment of conviction and sentence passed by the Court below in Spl.C.No.8 of 2005.
15. Having regard to the contentions taken by the learned counsel for the appellants, it is relevant to take note of the evidence of the prosecution witnesses. PW.2- complainant was the RFO at the relevant point of time. He has deposed that he had given complaint to the Chamarajanagar East Police as per Ex.P5 and informed the junior engineer of KPTCL. On 6.6.1998, himself, PSI, Junior Engineer of KEB and veterinary doctor and other villagers went to the spot where the elephant had died. : 12 : After verification of the land, mahazar was conducted as per Ex.P1 and 15 wooden poles and 30 feet zinc wire as per MO.1 and 2 were seized. PW.2 after receiving the message about the death of the elephant went to the spot and after coming to the conclusion that the elephant died after coming into contact with the live zinc wire fencing of that land, gave complaint to the police.
16. PW.5 is the Forester working in K.Gudi Range in 1998. He has deposed that on 5.6.1998, CW.5 came and informed him at about 4 p.m. that an elephant was dead in the land of the accused and he visited the spot along with C.W.9, PW.11 and CW.5. He saw the dead elephant and the elephant had died due to electrocution. Then, he informed PW.2 - RFO about the incident and the RFO came to the spot along with him and mahazar was conducted and report as per Ex.P5 was prepared and handed over the same to Chamarajnagar Police.
17. PW.11 is the Forest Guard working at Attagulipura. He has deposed that on 6.6.1998, one Chikkalingaiah - forest watcher came and informed him that in the land of one Rajappa, an elephant was lying : 13 : dead. He informed the same to the Forester and the police came to the spot, mahazar was conducted and zinc wire and wooden pegs used for fencing the land were seized.
18. PW.1 is the Junior Engineer of KPTCL. He has deposed that on 5.6.1998, he received phone message from the forest officials regarding the death of the elephant, at about 4.45 PM. Next day, he went to the spot along with forest officials and PSI. The dead elephant was lying near the zinc wire fencing and they inspected the spot and found IP set and also drawing of power line from KPTCL without connecting to the meter. The wire was connected with zinc wire to facilitate flow of current through zinc wire to enable any living being coming in contact with the live wire, will die. After inspection, they removed the unauthorized connection and the articles used and mahazar was drawn as per Ex.P.1 and he gave a report as per Ex.P3 and the sketch as per Ex.P4.
19. PW.9 is the KPTCL Lineman who disconnected the power supply from the pole. He noticed that the land was fenced with zinc wire by using the pole by using hook. On the instruction of PW.1, he disconnected the power : 14 : supply from the pole. The elephant was dead and its trunk was lying on the zinc wire fencing and it had sustained injuries.
20. It is relevant to note here that PW.3 and PW.4 who are the spot mahazar witnesses have not supported the case of the prosecution. They had deposed that they have not seen the elephant dead in the land at Hongalavadi village due to electrocution. They were treated as hostile to the case of the prosecution.
21. PW.8 is the owner of the adjacent land and he has also not supported the case of the prosecution. He has not deposed anything about the fencing of the land by the accused and giving unauthorized power connection to the said fencing and about the death of the elephant. The court below has failed to note that the boundaries of the land mentioned in the spot mahazar Ex.P.1 and the rough sketch Ex.P.4 differs from each other and the prosecution has failed to prove that the said land belongs to the accused.
22. The court below has failed to notice that as per the RTC extracts, Ex.P.7, Ex.P.8 and Ex.P.9, the total : 15 : extent of land is 17 acres and the father of the accused - Paper Rajappa was owning 60 acres of land in different survey numbers and it is not possible to fence the said land of 17 acres by using 30 feet of zinc wire and 15 wooden pegs seized by the police. The prosecution has failed to establish the identity of the land. In the cross- examination of the PW.11 he has deposed that the fencing was done using stone pillars to the entire land. But the court below erred in opining that the accused cannot be allowed to take the defence of stray evidence of the PW.11 and get over the case.
23. The court below also erred in taking into consideration that the zinc wire would melt if power is given and the hook alleged to have been used for drawing unauthorized power, is not seized and hence there is suspicion about the case of the prosecution and the benefit of doubt that arises in this case, ought to have given to the accused. The Trial court having held that the hook used to take power connection from the pole, is not seized, committed error in holding that the zinc wire and : 16 : the wooden pegs are seized by the police and they are at MOs.1 and 2.
24. According to the mandatory provision of Section 55 of the Wild Life (Protection) Act, 1972, the competent authority ought to have filed the complaint against the accused, but the same has not been followed in stricto senso. In this case, the RFO has filed the complaint as per Ex.P5. Subsequently, PW.6, Shivaswamy being the PSI has investigated the case and laid the charge sheet against the accused. Therefore, it is contrary to the mandate of Section 55 of the Act in respect of taking cognizance of offences. It is held that no court shall take cognizance of any offence against this Act except on the complaint of any person other than specified under this Section. The court below misdirected as well as misread the entire evidence of the prosecution witnesses including the witness of PW.10 who is the veterinary doctor. Hence, the entire proceedings has been vitiated. Without appreciating the mandatory provisions as specified under this Section, the court below by believing the evidence of prosecution witnesses has convicted the accused for the : 17 : aforesaid mentioned offences. Hence, in these appeals, it requires reappreciation of entire evidence on record and also intervention of the impugned judgment of conviction held by the Court below.
25. This court in Crl.P.No.4968/2014 vide order dated 07.11.2014 has held that the Magistrate can only take the cognizance of the offence only if the complaint is strictly in compliance with Section 55 of the Wild Life (Protection) Act. The present case also come under similar footing. The PSI is not authorized to do so as contemplated under Section 55 of the Act. He is neither entitled to file any report before any court of law nor he can seek the permission of Magistrate to convert the said charge sheet into a complaint under Section 2(d) explanation is concerned, as held by this court in the case referred above.
26. The court below has given much credentiality to the evidence of PW.1, 2, 5, 9 and 10 and 4, but failed to give credentiality to the evidence of PW.4 and 8. The entire approach of the court below while considering the case of the appellants is erroneous and thereby has reached to : 18 : the wrong conclusion and the same has resulted in miscarriage of justice to the case of accused.
For the foregoing reasons, the appeals deserve to be allowed. Consequently, the judgment of conviction and order of sentence dated 25/29.10.2010 passed by the District and Sessions Judge, Chamarajanagar in Special Case No.8/2005 is hereby set-aside. The accused are hereby acquitted for the offences alleged against them. Bail bonds stand cancelled. If any fine amount is deposited, the same shall be returned to the accused on proper identification and in accordance with law.
Sd/-
JUDGE dkb