Karnataka High Court
B P Marappa vs State Of Karnataka on 24 March, 2022
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL No.628 OF 2011
BETWEEN:
B.P.MARAPPA,
S/O LATE PUTTAPPA,
@ DODDA THAMMAIAH,
AGED ABOUT 44 YEARS,
BALLUR HUNDI VILLAGE,
NANJANGUD TALUK,
MYSORE DISTRICT. ... APPELLANT
[BY SRI.M SHARASS CHANDRA, ADVOCATE]
AND:
STATE OF KARNATAKA
BY NANJUNAGUDU POLICE
(REP: STATE PUBLIC PROSECUTOR). ... RESPONDENT
[BY SRI.K.K.KRISHNA KUMAR, HCGP]
----
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., PRAYING TO SET ASIDE THE ORDER DT:30.5.11
PASSED BY THE I ADDL.DIST., AND S.J., MYSORE IN
SPL.C.NO.101/08 - CONVICTING THE APPELLANT/ACCUSED FOR
THE OFFENCE P/U/S 138(1)(a) OF THE ELECTRICITY ACT 2003,
SEC.429 IPC AND SEC.9 R/W SEC.51 OF THE WILD LIFE
PROTECTION ACT. AND THE APPELLANT/ACCUSED IS SENTENCED
TO PAY A FINE OF RS.10,000/- FOR THE OFFENCE U/S 138(1)(a)
OF THE ELECTRICITY ACT 2003 AND IN DEFAULT OF PAYMENT OF
FINE TO UNDERGO S.I. FOR 6 MONTHS;
AND THE APPELLANT/ACCUSED SENTENCED TO PAY FINE OF
RS.10,000/- AND IN DEFAULT OF PAYMENT OF FINE TO UNDERGO
S.I. FOR 6 MONTHS FOR THE OFFENCE P/U/S 429 IPC.
AND THE APPELLANT/ACCUSED IS FURTHER SENTENCED TO
UNDERGO R.I. FOR 3 YEARS AND TO PAY A FINE OF RS.10,000/-
2
AND IN DEFAULT OF PAYMENT OF FINE TO UNDERGO R.I. FOR 6
MONTHS FOR THE OFFENCE P/U/S 9 P/U/S 51 OF THE WILD LIFE
PROTECTION ACT.
THIS CRIMINAL APPEAL COMING ON FOR HEARING
THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the accused feeling aggrieved by the Judgment and order of conviction and sentence passed by the I Additional District and Sessions Judge, Mysore, in Spl. Case No.101/2008, wherein, he has been convicted and sentenced for the offences punishable under Section 138(1)(a) of the Electricity Act, 2003, Section 429 of IPC and Section 9 read with Section 51 of the Wild Life (Protection) Act, 1972.
2. Heard both sides and perused the material on record.
3. It is the case of prosecution that the accused has unauthorizedly drawn electricity connection to the fence put up by him around his land bearing 3 Sy.No.91/6 P-2 of Naganapura village, Hullalli Hobli, Nanjangud Taluk. On 24.11.2007, a female elephant came in contact with the said fencing and died due to electric shock.
4. Charges were framed against the accused for offences punishable under Section 9 r/w Section 51 of the Wild Life (Protection) Act, 1972, Section 429 IPC and Sections 39 and 44 of Indian Electricity Act, 2003.
5. In order to bring home the guilt of the accused, the prosecution got examined 15 witnesses and got marked 18 documents.
6. The Trial Court has come to the conclusion that the accused is guilty of offences punishable under Section 138(1)(a) of the Electricity Act, 2003, Section 429 of IPC and Section 9 read with Section 51 of the Wild Life (Protection) Act, 1972.
7. PW1, in his complaint, has stated that on 24.11.2007, a forest Guard by name Sri K.Mohammad- 4 PW2 along with other staff while on patrolling duty at Hedeyala Wild Life Range, noticed a dead elephant in land bearing Sy.No.91/6 P-2 of Naganapura Village, Hullalli Hobli, Nanjangud Taluk. He informed the matter to him and immediately he went to the spot and noticed that the elephant had died due to electric shock. He conducted spot mahazar as per Ex.P2. The photographs taken were marked as Exs.3 to 9.
8. PW1 has deposed in consonance with the complaint averments and his evidence is corroborated by the evidence of PW2. PWs.3 to 8 have turned hostile and their evidence is not helpful to the prosecution case. However, there is no dispute with regard to death of the elephant due to electric shock. PW10-Doctor who conducted necropsy over the dead elephant has opined that the death was on account of electrocution and shock. The post mortem report is marked as Ex.P.14.
9. It is contended by the learned counsel for the appellant that the prosecution has not placed any 5 material to show that the accused has drawn unauthorized electric connection to the fencing put around his land and therefore, he has contended that the death of the elephant is nothing to do with electrical fencing alleged to have been erected by the accused. The said contention cannot be accepted. It is no doubt true that the aluminium wire or the ACSR wire alleged to have been used by the accused are not seized. However, the prosecution has got examined PW9-photographer. The photographs are marked as Exs.3 to 9, which shows that an electricity connection was taken by the accused and the wire was connected to the fence erected around his land. The same is not disputed. PW9 has not been cross-examined. Further, PW11 namely Junior Engineer, CESC, has given his report as per Ex.P15 stating about the electric supply as well as the electric connection given to the fencing put around the land of the accused. Hence, the findings recorded by the Trial Court for convicting the appellant- accused for the offence punishable under Section 6 138(1)(a) of the Electricity Act, 2003 and Section 429 of IPC does not call for any interference.
10. Under Section 55 of the Wild Life (Protection) Act, 1972, no court shall take cognizance of any offence under the Act, except on a complaint of the officers mentioned therein. Admittedly, in the instant case, cognizance is not taken on the basis of a complaint. On the other hand, it is on the basis of the charge sheet filed by the police. In that view of the matter, the conviction and sentence passed against the accused for the offence punishable under Section 9 read with Section 51 of the Act cannot be sustained. Hence, the following:
ORDER i. The appeal is partly allowed.
ii. The Judgment and Order passed by the I Additional District and Sessions Judge, Mysore, dated 30.05.2011 in Spl.Case No.101/2008 in so far as convicting and sentencing the accused / appellant for the 7 offence punishable under Section 9 r/w Section 51 of Wild Life Protection Act, 1972 is hereby set aside.
iii. The conviction and sentence for the offences punishable under Section 138(1)(a) of the Electricity Act 2003 and Section 429 IPC is hereby confirmed.
Sd/-
JUDGE TL