Karnataka High Court
Smt Nanjamma vs The State By Beechanahalli Police on 21 March, 2022
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL No.633 OF 2011
BETWEEN:
SMT.NANJAMMA,
W/O SRI JAYAKUMAR,
AGED ABOUT 50 YEARS,
JAKKALLI VILLAGE,
H.D.KOTE TALUK,
MYSORE DISTRICT. ... APPELLANT
[BY SRI.M.V.CHARATI, ADVOCATE]
AND:
THE STATE BY BEECHANAHALLI POLICE,
H.D.KOTE TALUK,
MYSORE DISTRICT. ... 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:28.05.2011
PASSED BY THE I ADDL. DIST., AND S.J.,MYSORE IN
SPL.C.NO.27/09 - 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 51 OF THE WILD LIFE PROTECTION
ACT. THE APPELLANT/ACCUSED IS SENTENCED TO PAY A FINE OF
RS.5,000/- AND IN DEFAULT TO UNDERGO S.I. FOR SIX MONTHS
FOR THE OFFENCE P/U/S 138(1)(a) OF THE ELECTRICITY ACT
2003.AND THE APPELLANT/ACCUSED IS SENTENCED TO FINE OF
RS.5,000/- AND IN DEFAULT OF PAYMENT OF FINE TO UNDERGO
S.I. FOR SIX MONTHS FOR THE OFFENCE P/U/S 429 OF IPC.
AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I.
FOR 3 YEARS AND TO PAY A FINE OF RS.10,000/- FOR THE
OFFENCE P/U/S 9 PUNISHABLE U/S 51 OF THE WILD LIFE
2
PROTECTION ACT AND IN DEFAULT OF PAYMENT OF FINE TO
UNDERGO S.I. FOR SIX MONTHS.
THIS CRIMINAL APPEAL COMING ON FOR FINAL DISPOSAL
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 dated 28.11.2011 passed by the I Additional District and Sessions Judge, Mysore, in Spl. Case No.27/2009, wherein, she has been convicted and sentenced for the offence 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 side and perused the material on record.
3. The case of the prosecution is that the accused is the owner of land bearing Sy.No.52/113 of Beeramballi village, Antharasanthe Hobli, H.D.Kote Taluk. She has grown sugarcane in the said land and 3 fenced the land with alluminum wire and has given electric connection to the said fencing by drawing electricity unauthorizedly from the power station situated in the land. On 29.10.2008, a female elephant came in contact with the electric fence which was erected around the land of the accused and died due to electrocution.
4. Charges were framed against the accused for offences punishable under Section 135 of the Electricity Act, 2003, Section 429 of IPC and Section 9 read with 51 of Wild Life (Protection) Act, 1972.
5. In order to bring home the guilt of the accused, the prosecution got examined 9 witnesses and got marked six documents, Exs.P1 to 6 and MOs.1 and 2.
6. The Trial Court has come to the conclusion that the accused is guilty of offence under Section 138(1)(a) of the Electricity Act, 2003 and not under Section 135 of the Electricity Act. Further, it has come to the conclusion that though there is no direct evidence, 4 the circumstances point out to the guilt of the accused and the evidence of PW5-Veternary Doctor who has conducted post mortem examination corroborates the other evidence on record and therefore, the prosecution has proved the charge under Section 429 of IPC. Further, observed that by taking unauthorized electricity connection to the fence, the accused is indirectly responsible for killing an elephant and therefore, she has committed the offence punishable under Section 9 read with 51 of the Wild Life (Protection) Act, 1972.
7. The learned counsel for appellant / accused has contended that there is no complaint filed by an Officer notified under the Wild Life (Protection) Act, 1972 and therefore, taking cognizance by the Court is vitiated in view of Section 55 of the of the said Act. He, further contends that from the material on record, it cannot be held that the accused has committed an offence under Section 9 punishable under Section 51 of the Wild Life (Protection) Act. He has also contended that the material 5 on record is not sufficient to hold that the accused is guilty of the offence punishable under the Electricity Act as well as under Section 429 of IPC since the independent witnesses to the spot mahazar i.e., PWs.3, 4 and 9 have turned hostile. Therefore, he contends that the approach of the trial Court and the reasons assigned for convicting and sentencing the accused is not in accordance with law.
8. The learned HCGP has contended that the prosecution has been able to establish the guilt of the accused beyond reasonable doubt in as much as PWs.1, 2, 5 to 8 have supported the case of prosecution and their evidence is sufficient to hold that the accused has committed the offences for which the trial Court has convicted and sentenced. He contends that there is no illegality committed by the trial Court and accordingly, seeks for dismissal of the appeal.
9. PW.2 is the Forest Guard working at Gundre Forest range. He informed about the death of an 6 elephant to PW.1-Range Forest Officer. On receiving the said information, PW.1 along with PW.2 went to the spot and noticed a female elephant lying dead. He lodged the complaint, which is marked as Ex.P1. The Spot Mahazar as per Ex.P2 was conducted and a white insulated wire- MO.1 and Solar wire MO.2 were seized.
10. It is pertinent to see that PW7, the Village Accountant has issued the RTC extract as per Ex.P5 in respect of the land in question. It is nowhere disputed by the accused that she is not the owner of the land. She has also not disputed about the death of elephant due to electrocution in the said land. Further, PW6, Assistant Engineer, CESC, has given a report as per Ex.P4 after examining the white insulated wire and the solar wire and stated about the electricity supply on the relevant date of incident.
11. PW5, is a Veterinary Doctor, who has conducted necropsy over the dead elephant and issued the report. As per Ex.P3, post mortem report, the 7 elephant died due to sudden shock and cardiac arrest by electric current. Hence, the findings recorded by the Trial Court to come to the conclusion that the accused has erected electric fence around her land by taking unauthorized electricity connection, which resulted in the death of an elephant coming into contact with the said electric fence, cannot be found fault with.
11. Under Section 55 of the Wild Life (Protection) Act, 1972, no court shall take cognizance of any offence under the Act, except on the 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 / appellant for the offence punishable under Section 9 read with Section 51 of the Act cannot be sustained. However, for the forgoing reasons, the conviction and sentence passed by the Trial Court for the offences 8 punishable under Section 138(1)(a) of the Electricity Act, 2003 and under Section 429 of IPC is in accordance with law. 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 28.05.2011 in Spl.Case No.27/2009 in so far as convicting and sentencing the accused / appellant for the 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