Karnataka High Court
M Nagarajappa vs State By Tarakanamby Police on 17 March, 2020
Equivalent citations: AIRONLINE 2020 KAR 1531, 2020 (4) AKR 348
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF MARCH, 2020
BEFORE
THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL APPEAL No.1095 OF 2010
BETWEEN:
M.Nagarajappa
S/o. Mallappa,
Aged about 41 years,
R/o: Yaraganoor,
Chamarajanagar Taluk & Dist.
...APPELLANT
(By Sri. D.S.Hosmath & Siddaraju, Advocates)
AND:
State by: Tarakanamby Police,
Chamarajanagar Taluk & Dist.
...RESPONDENT
(By Sri. Vinayaka V.S., HCGP)
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C praying to set aside the judgment dt:15.9.2010/
5.10.2010 passed by the Dist. And S.J., Chamarajanagar in
SPl. Case 2/2008 - convicting the appellant / accused for the
offence punishable under Section 135 of Indian Electricity Act
and under Section 51 of the Wild Life Protection Act and
sentenced to pay a fine of Rs.5,000/- in default of payment
Crl.A.No.1095/2010
2
of fine he shall undergo simple imprisonment for 15 days for
the offence punishable under Section 135 of Electricity Act,
2003. and sentenced to undergo imprisonment for three
years and pay a fine of Rs.10,000/- in default of payment of
fine he shall undergo simple imprisonment for thirty days for
the offence under Section 9 punishable under Section 51 of
Wild Life (Protection) Act.
This Criminal Appeal having been heard and reserved
for judgment on 10.03.2020, coming on for pronouncement
this day, the Court delivered the following:
JUDGMENT
Learned District and Sessions Judge at Chamarajnagar (henceforth for brevity hereinafter referred to as "Trial Court") by his order dated 15.09.2010 passed in Special Case No.2/2008 convicted the appellant herein for the offence punishable under Section 135 of the Indian Electricity Act and under Section 51 of the Wild Life Protection Act and Crl.A.No.1095/2010 3 accordingly sentenced him. It is against the said judgment of conviction and order on sentence, the accused has preferred this appeal.
2. The summary of the case of the prosecution in the trial Court is that; on 30.07.2007, the accused has dishonestly abstracted the electrical energy from the electrical pole of CHESCOM and unauthorisedly, given power connection to the zinc wire fencing put around the land bearing Sy.No.76/1 situated at Bommanahalli Village, in order to protect the crop grown by him and an elephant came in contact with the said live wire fencing and died due to electrocution. Thus, the accused committed an offence punishable under Section 135 of the Indial Electricity Act and under Section 51 of the Wild Life Protection Act. The charges were framed accordingly for the said offences.
Crl.A.No.1095/20104
3. Since the accused pleaded not guilty, trial was held by the trial Court wherein, in order to prove the alleged guilt against the accused, prosecution got examined 12 witnesses from PWs.1 to 12 and got marked the documents as Exs.P1 to P13 and material objections at MOs.1 to 5. Neither the accused led any defence evidence nor produced any documents as exhibits from his side.
4. Learned counsel for the appellant / accused in his argument submitted that except official witnesses, all independent witnesses including the neighbouring land owners have not supported the case of prosecution. CW5 who was the informer of the incident to his superior has not been examined by the prosecution. There is discrepancy in the timing at which the respondent police have said to have visited the spot. Crl.A.No.1095/2010 5
5. Learned counsel further stated that even according to PW7, there was no supply of power at the time of incident in the area where the alleged offence is said to have taken place. The wooden poles stated have been seized from the scene of occurrence of offence are admittedly not removed from the place where they are stated to have been fixed. On the other hand, they have been seized from the neighbouring land where the wooden poles and wire bundle are said to have been piled up. Finally stating that the Regional Forest Officer (R.F.O) who is said to have lodged the complaint in the matter cannot file the complaint in the manner as in the case, learned counsel prayed for acquittal of the accused.
6. Learned High Court Government Pleader in his argument submitted that merely because the mahazar witness and neighbouring witness are stated to Crl.A.No.1095/2010 6 have not supported the case of the prosecution, the reliable evidence of the forest officers and the other official witnesses cannot be disbelieved.
Learned counsel also submitted that the alleged incident of death of the elephant due to electrocution in the land of the accused is not in dispute. As such, appreciating the materials in its proper perspective, the trial Court has convicted the accused which does not warrant interference at the hands of this Court.
The points that arise for my consideration are:
(i) Whether the prosecution has proved beyond reasonable doubt that on 30/07/2007, in his land bearing Sy. No.76/1 situated at Bommanahalli village within the limits of respondent - Police Station, the accused has dishonestly abstracted the electrical energy from the electrical pole belonging to Crl.A.No.1095/2010 7 CHESCOM and unauthorisedly supplied the same to zinc wire fencing erected around his land due to which, an elephant came in contact with the said live zinc fencing and thereby the accused has committed an offence punishable under S.135 of the Indian Electricity Act and for the offence punishable under S.51 of Wild Life Protection Act?
(ii) Whether the Judgment of conviction and Order on sentence impugned under this appeal warrants any interference at the hands of this Court?
7. PWs.1 and 2 are the mahazar witnesses. Though the prosecution projected them as witnesses for the mahazar at Ex.P1, whereunder the zinc wire and the wooden poles from the spot of the offence are said to Crl.A.No.1095/2010 8 have been seized, both the witnesses have turned hostile to the prosecution. The prosecution could not get any support from them even after treating them hostile and cross examining them.
8. PWs.3 and 12 are admittedly the adjacent land owners of the land of the accused where the alleged incident is said to have taken place. Both these witnesses except stating that they are the neighbouring land owners of the scene of occurrence, have not supported the case of the prosecution any further. Both have pleaded their total ignorance about the alleged incident. They have not even supported the case of the prosecution on the aspect that the land of the accused was having electrical fencing. After treating them also as hostile, the prosecution could not get any support from them.
Crl.A.No.1095/20109
9. PW4 - Sri.K.Surendra, the Forester in Yelachetty Section of Gundlupet Range has stated that on 31.07.2007 while he was in the camp of Suvarnanagar, at 6.30 am., CW5 - Thimmaiah, the Forest Guard went to him and informed him that one female elephant is dead in the lands of the accused. Immediately, he went to the lands of the accused and noticed that the said land was fenced with the zinc wire using wooden poles to protect the crop and electricity was drawn from the nearby pole unauthorisedly with the zinc wire fence. He also stated that the neighbouring land owners ie., CWs.6, 7 and 8 told him that the accused had given the electricity connection against their advice. The witness stated that he informed about the incident to the R.F.O (CW1) who also came to the spot and after verifying the spot, handed over a complaint in his hand (PW4) to give it to the police station. The witness has identified the zinc wire said to Crl.A.No.1095/2010 10 have been used for fencing and wooden poles at MOs.1 and 2. The witness was subjected to a detailed cross examination wherein he adhered to his original version.
10. PW5 is another pancha to a panchanama at Ex.P3. According to the prosecution, under the said panchanama, said to have been drawn in the house of the accused two bundles of G.I. wire and a bamboo said to have been produced by the accused were seized. The witness except stating that in the said mahazar which is at Ex.P3, police have obtained his signature, has not supported the case of prosecution any further.
11. PW6 Dr.B.V.Shivamurthy, has stated that while working as Assistant Director of veterinary at Gundlupet, at the request of R.F.O (CW1), he has proceeded to the place of offence which was the agricultural land of the accused and noticing that an elephant was dead, when they have inspected the spot Crl.A.No.1095/2010 11 and the dead animal. He conducted the postmortem on the said animal. He has also stated that he noticed a singed burnt mark on the right foot of the elephant and he was of the opinion that the cause of death of the animal is cardiac arrest due to electrocution. He has marked the postmortem report issued by him at Ex.P5. He was also subjected to a detailed cross examination from the accused side.
12. PW7 - Sri.Kiran C., then Section Officer of CHESCOM at Therakanambi has stated that at the request of the respondent - police, he has submitted the particulars about power supply to Bommanahalli I.P.Limits on 30.07.2007 from 7.00 p.m., to 31.07.2007 till 7.00 a.m. He has stated that after verifying, he has given a report as per Ex.P6 stating that there was power supply at that time on that day. He was also Crl.A.No.1095/2010 12 subjected to a detailed cross examination from the accused side.
13. PW8 and PW9 who were also examined by the prosecution projecting them as Panchas to the panchanama at Ex.P3 have not supported the case of prosecution. Like PW5, these two witnesses also have pleaded their ignorance about the alleged seizure said to have been made under Ex.P3.
14. PW10 Sri.H.R.Balakrishnaraju is the Investigating Officer in the case who has stated that while working as PSI in the respondent police station, on 31.07.2007 at about 12.30 p.m., in the afternoon, he received a complaint through a Forester sent by RFO(CW1). After registering the complaint at Ex.P10, he submitted FIR to the Court as per Ex.P10. Then he gave a requisition to the veterinary doctor and CHESCOM Section Officer to come and co-operate in the Crl.A.No.1095/2010 13 investigation. Thereafter, he visited the spot along with CW1 - Section Officer of CHESCOM and veterinary doctor. He observed that an elephant was found dead in the land of the accused. In the presence of panchas, PWs.1 and 2, he conducted mahazar and seized wooden poles, two zinc wire bundles, which mahazar he has identified at Ex.P1. He has also stated that he got the postmortem examination of the deceased animal done and recorded statement of many witnesses on the same day i.e., on 01.08.2007.
15. He has further stated that after receiving the postmortem report, he also recorded the voluntary statement of the accused on 14.09.2007. According to the witness, accused took them to his house at Yeraganahalli village and produced two zinc wire bundles and a bamboo pole with a hook type nail at the top, Crl.A.No.1095/2010 14 which he seized in the presence of panchas by drawing panchanama at Ex.P3.
16. The witness further stated that during the course of investigation, the accused also shown the power connection drawn from the pole, where he had conducted the mahazar in the presence of panchas as per Ex.P4. He also collected the report from the Section Officer, CHESCOM which shows that there was power supply on the date of incident in that area. He also received a report from the Electrical Inspector, Mandya who has stated that the elephant died due to electrocution. After completing investigation, he has filed charge sheet against the accused.
17. PW11 - Sri.B.M.Ravindra Kumar in his evidence has stated that while working as a Range Forest Officer in Gundlupet Range within which the village Bommanahalli was coming under his jurisdiction, Crl.A.No.1095/2010 15 there was a death of an elephant in the land of the accused in which regard he received an information on 31.07.2007 at 7.30 a.m., from PW4 incharge Forester. Immediately, he proceeded to the land and noticed that an elephant was died due to electrocution. He informed his superior Officer ACF and DCF and as per their instructions, he lodged a police complaint which he has identified at Ex.P9. He has also stated that on the same day, at about 12.00 noon the police, CHESCOM Officer (PW7), Panchas came to the spot to whom he showed the spot. All of them noticed burnt injury on the inner portion of the right front leg of the elephant which injury was measuring 5" length and ½" width. According to the said witness, at a distance of 60 feet towards north from the spot, there was a dry well and also a pump house by its side. There was a cement electric pole at a distance of four feet. From the said electrical pole a line was drawn by using wire and a switch was also put to Crl.A.No.1095/2010 16 control it. These people came to know that through the said wire the power connection was drawn to the zinc wire fencing of the land and the elephant had died coming in contact with the said live wire.
18. The witness also stated that the zinc wire fencing was done by using wooden pegs. Those wooden pegs fixed on the eastern side were removed and kept in the neighbouring land. There was mark of hole from where the wooden pegs were removed. On the North and South and also on the Western part of the land, there were some big and small wooden pegs fixed for fencing the land. Witness further stated that in the spot they seized fifteen big poles and forty small wooden pegs. The zinc wire was removed and kept in the neighbouring land. They also seized the said zinc wire. There were marks on the wooden pegs about fixing and removal of the zinc wire. The witness stated that, at Crl.A.No.1095/2010 17 that time, veterinary doctor came and conducted the postmortem on the dead body of the elephant. Police conducted a mahazar in the spot for which mahazar himself and panchas have signed. Witness has identified said mahazar at Ex.P1 and identified the wooden pegs and zinc wire at MOs.1 and 2. He was subjected to a detailed cross examination, wherein he adhered to his original version.
19. The first argument of the learned counsel for the appellant / accused is that except official witnesses, all independent witnesses including the neighbouring land owners have not supported the case of the prosecution. No doubt, it is true that as observed above, the mahazar witnesses ie., PWs.1, 2, 5, 8 and 9 as well the neighbouring land owners who were examined as PWs.1 and 12 have turned hostile and not supported the case of prosecution. Merely because the Crl.A.No.1095/2010 18 independent witnesses are not stated to have supported the case of the prosecution, the evidence of official witnesses cannot be discarded. However, their evidence has to be scrutinized carefully and if they are proved to be trustworthy and reliable, then there would be no bar from believing their evidence. As such, the argument of learned counsel for the appellant / accused that since the mahazar witnesses and neighbouring land owners have not supported the case of prosecution, the evidence of other witnesses cannot be believed, is not acceptable.
20. The next argument of the learned counsel for the appellant is that there was no evidence of electrical supply in the place at the time of incident. In that regard, evidence of PW7 and the Investigating Officer (PW10) are material. Undisputedly, PW7 was working as the Section Officer of CHESCOM at Terakanambi at Crl.A.No.1095/2010 19 the relevant point of time. He has stated that at the request of the complainant - police, he has furnished the particulars about power supply to Bommanahalli I.P.Limits on 30.07.2007.
21. Admittedly, the incident in question has taken place on 30.07.2007 within Bommanahalli village. PW7 has stated that after verifying he gave a report stating that there was power supply from 7.00 p.m. on 30.07.2007 to 7.00 a.m. on 31.07.2007 in Bommanahalli I.P.Limits. He has marked his report at Ex.P6. In his cross examination, he has admitted a suggestion that power supply was not given from their Sub Station. Highlighting the said stray sentence in the cross examination of the witnesses, learned counsel for the appellant submitted that there was no power supply to the place of incident as on the date of incident. Crl.A.No.1095/2010 20
22. Said argument of the learned counsel is not acceptable for the reason that the very same witness has nowhere stated that there was no power supply on the alleged date to Bommanahalli I.P.Limits. He has only admitted a suggestion that to the place of incident power supply was not given by his sub-station. The power supply was not given by his sub-station does not mean, there was no power supply. The very same witness in the very next statement in the cross examination has stated that Bommanahalli I.P.Units comes within his supervision and maintained by them and power supply was given by other power station to Bommanahalli I.P.Limits. Therefore, the statement of this witness that power supply was not given from their sub-station does not mean, there was no power supply to Bommanahalli I.P.Units. But, the said power supply was given from other sub-station and Bommanahalli I.P.Units were being maintained by the office of this Crl.A.No.1095/2010 21 witness, since it was coming under their supervision. As such, this witness as a competent Officer has verified the record maintained by his office and given a report as per Ex.P6 stating that there was power supply in the area of incident as on the date of incident.
23. The next argument of the learned counsel for the appellant is that the cause of death of elephant is not established.
24. It is not in dispute that there was death of elephant in the intervening night of 30.07.2007 and 31.07.2007. The said death was first noticed by PW4 as stated by him. In his cross examination a suggestion made to the witness that when he went to the spot and came to the conclusion that the elephant died due to electrocution was admitted as true by this witness. By making the said suggestion, the accused has admitted Crl.A.No.1095/2010 22 that there was a death of elephant and PW4 has concluded that the said death was due to electrocution.
25. PW6 the veterinary doctor who conducted the postmortem examination of the dead elephant has stated that he observed a singed burnt mark on the right foot of elephant and by the postmortem examination, he opined that cause of death was due cardiac arrest due to electrocution, in which regard, he has issued a postmortem report at Ex.P5. Attempts were made in his cross examination to create a doubt in his opinion about the cause of death of the elephant. Though the witness admitted a suggestion as true that by physical appearance they cannot say the cause of death, he maintained that as there was a singed mark caused by electric shock, he came to the conclusion that death of the elephant was due to cardiac arrest. He has also stated that he was not asserted that the death of Crl.A.No.1095/2010 23 the elephant was due to electrocution. It was suggestive that cause of death of the elephant was due to electrocution.
26. PW11 - Range Forest Officer has also stated that his immediate visit to the spot after getting the information about the death of the elephant has also convinced him that the death of the elephant was due to electrocution which was by electrification of the zinc wire used for fencing the said land, where the incident has taken place.
27. Evidence of PW10 - Investigating Officer is also on the line that his investigation revealed that the death of the elephant was due to electrocution. The report of the Electrical Inspector, Mandya addressed to the Principal Secretary, Department of Energy, Bengaluru which is at Ex.P12 also go to show that the Electricity Department in its enquiry has also held that Crl.A.No.1095/2010 24 the death of the female elephant aged 25 years was due to electrocution. Even the said report also speaks about the injury suffered by the elephant. According to PW6, the singed burnt mark on the right foot of the elephant was suggestive of electrocution. Thus, it is established that the cause of death of the elephant was due to electrocution.
28. It was also the argument of the learned counsel for the appellant that, the Regional Forest Officer who is the complainant in this case is not an authorised Officer under the Electricity Act and also he is not authorised to file any complaint even under the Wild Life (Protection) Act, 1972, as such, the complaint filed by him is not maintainable under S.151 of the Electricity Act. In support of his contention, he relied upon an unreported Judgment of a Co-ordinate Bench of this Court in R. SHIVAKUMAR, S/O RAJASHETTY @ PAPER Crl.A.No.1095/2010 25 RAJAPPA Vs. STATE OF KARNATAKA in Crl.A. Nos.1175/2010 and 1220/2010 decided on 13.07.2018. In the said case wherein also the facts were almost similar and where also, due to illegal zinc wire fencing and by the act of dishonestly abstracting the electrical wire from the supply line in order to protect their sugarcane crop from wild animals, on 05.06.2008 a female elephant having come into contact with said live electrical zinc wire fencing had died. The complaint was filed by the Range Forest Officer. The Court, by observing that under S.55 of the Wild Life Protection Act, a Range Forest Officer cannot file a complaint, set aside the impugned Judgment of conviction challenged before it.
S.55 of the Wild Life Protection Act, 1972 reads as follows:
Crl.A.No.1095/201026
55. Cognizance of offences:- No court shall take cognizance of any offence against this Act except on the complaint of any person other than -
(a) the Director of Wild Life Preservation or any other officer authorized 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 IV A; or] [(ab) Member-Secretary, Tiger Conservation Authority; or (ac) Director of the concerned tiger service; or]
(b) the Chief Wild Life Warden, or any other officer authorized 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 38], 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 authorized as aforesaid.]
29. In the instant case, it is the Regional Forest Officer who has filed the complaint. Learned HCGP during the course of his arguments, placed a copy of the Crl.A.No.1095/2010 27 Notification of the State Government with No.AFD 104 FWL 73, Bangalore dated 16.10.1973 which in its entirety reads as below:
" In exercise of the power conferred by S.55 of the Wildlife (Preservation) Act 1972 (Central Act No.53 of 1972) Government of Karnataka hereby authorizes the following persons to take cognizance of / take note of forest offences against the said Act and file complaints in the Court of Law:
1. All the Forest Officers of and above the rank of a Forester
2. All the Police Officers of and above the rank of a Sub-Inspector of Police and
3. Al the Revenue Officers of and above the rank of a Revenue Inspector By order and in the name of the Governor of Karnataka "Crl.A.No.1095/2010 28
A reading of the above said Notification which has not been disputed by the appellant's side clearly goes to show that all the Forest Officers of and above the rank of Forester are authorised to take cognizance and also take note of the forest offences under S.55 of the said Act. Admittedly in the instant case, complainant is a Range Forest Officer who undisputedly is above the rank of a Forester, as such, he is authorised to take cognizance and take note of the forest offences under the Wild Life Protection Act. As such, the arguments of the learned counsel for the appellant that the complainant in the case had no authority to lodge a complaint under Wild Life Protection Act is not acceptable.
30. S.151 of the Electricity Act reads as follows:
" 151. Cognizance of offences:- No court shall take cognizance of an offence punishable under this Act Crl.A.No.1095/2010 29 except upon a complaint in writing made by Appropriate Government or Appropriate Commission or any of their officer authorized by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be, for this purpose:
[Provided that the court may also take cognizance of an offence punishable under this Act upon a report of a police officer filed under Section 173 of the Code of Criminal Procedure, 1973:
Provided further that a special court constituted under Section 153 shall be competent to take cognizance of an offence without the accused being committed to it for trial.] "
The first proviso to the said section makes it clear that apart from, upon a complaint in writing made by Crl.A.No.1095/2010 30 the Forest Officer of the appropriate commission, even the Court can take cognizance of an offence punishable under the Electricity Act, 2003, upon a report by a Police Officer filed under Section 173 of the Code of Criminal Procedure, 1973.
31. In the instant case, it is the Range Forest Officer who has lodged a complaint to the police about the illegal abstraction of electricity and killing of the elephant by illegally and dishonestly supplying power connection to the zinc wire fencing of the land of the accused. Since proviso to the said Section 151 of the Electricity Act is clear that Court can also take cognizance of the offences punishable under the Act, upon a report of the Police Officer under S.173 of Cr.P.C., the police upon a complaint lodged by a Range Forest Officer have conducted investigation and have filed the charge-sheet against the accused for the Crl.A.No.1095/2010 31 alleged offences. Therefore no error can be found in the Trial Court taking cognizance of the alleged offence. As such, the argument of the learned counsel for the appellant that Range Forest Officer was not a competent authority to file the complaint under Wild Life Protection Act in the instant case and that no cognizance ought to have been taken under the Indian Electricity Act is not acceptable.
32. Lastly, it was the argument of the learned counsel for the appellant / accused that there was no material to prove that the seized materials belongs to the accused since those fencing materials are seized from a neighbouring land, as such, the prosecution has failed to prove that the accused has used those wooden pegs and wire and supplied the electricity to them.
PW4 - the Forester who proceeded to the spot after hearing the information about the incident by daily Crl.A.No.1095/2010 32 wage employee (CW5) has stated that in his visit to the spot from CWs.6, 7 and 8, he came to know that the accused used to give electric connection to the fence with the zinc wire after 6.30 pm., till morning. He has also stated that the accused has grown turmeric and cabbage in the land where the incident has taken place and had used wooden pegs to protect the crop. He has also stated that he saw the zinc wire fencing using the wooden pegs around, the lands of the accused. The said categorical statement was made by the witness in his cross examination also. However, the same remained undenied in his further cross examination.
33. PW11 - Range Forest Officer has stated in his evidence that immediately after he coming to the spot of incident, he noticed a dry well, a pump house and an electrical pole near the land and also drawing the electric line using the wire and a controlling switch to Crl.A.No.1095/2010 33 control it. The witness has stated that the zinc wire fencing was done by using the wooden pegs. However, the wooden pegs fixed on the Eastern side were removed and kept in the neighbouring land. There were marks of holes from where the wooden pegs were removed. Still, on the North and South of the said land and also on the Western part, there were some big and small wooden pegs fixed for fencing the land. The said evidence of the witness that, on the three sides of the land there were wooden pegs and fence, however, on the Eastern side where the incident has taken place, the wooden pegs were removed and kept in the neighbouring land has not been denied in his cross examination. The said witness has also stated that in the spot, they sized 15 big wooden pegs and 40 small wooden pegs and the zinc wire was removed and kept in the neighbouring land.
Crl.A.No.1095/201034
34. In his cross examination also, he has admitted a suggestion that he saw only the mark (hole) of removal of the wooden pegs on the Eastern side of the said land. He has further stated that there were marks of holes of removal of wooden pegs. On seeing those marks he assumed that there were wooden pegs fixed and removed. Thus, this witness made it further clear that he has not only seen the holes, but, he has also seen the wooden pegs and zinc wire, which wooden pegs according to this witness were removed and kept in the neighbouring land. The said statement that they were removed and kept in the neighbouring land has not been denied in the cross examination.
35. On the other hand, in the cross examination of the very same witness, a suggestion was made to the witness that at the time of mahazar, the said poles were removed and seized. The witness has admitted the said Crl.A.No.1095/2010 35 suggestion as true. Therefore, it makes it abundantly clear that after the incident, before the police could come, the wooden pegs and wire which was on the Eastern side of the land of the accused, where the incident has taken place were removed and piled up in the neighbouring land. The evidence of PW11 who is the Range Forest Officer finds no reason to disbelieve the same. Admittedly, there is no enmity between him and the accused. PW11 being a Range Forest Officer is expected to be acquainted with topography of the land under his jurisdiction, the wood and fencing in the nearby lands, as such also, his evidence is reliable.
36. More interestingly, in the cross examination of the very same witness, one more suggestion was made from the accused side suggesting that those poles were not fixed for drawing the power to the zinc wire fencing, but to fix Bidiru Bombe (cane effigy) in order to Crl.A.No.1095/2010 36 scare the wild animals. Witness admitted the said suggestion as true. However, by making the said suggestion, the accused has admitted that those wooden pegs were fixed in the said place. Thus, the seizure of those wooden pegs and the zinc wire and the evidence of PW11 to the effect that there was nearby an electrical pole and a pump house and from a wire, line was drawn with the controlling switch and the line belongs of the accused corroborates the evidence of the Investigating Officer (PW10), who has also spoken that the land of incident belongs of the accused and during investigation he (PW10) seized the wooden pegs and zinc wire by drawing the panchanamas clearly establishes that the death of elephant was due to electrocution by the accused supplying the electricity to the fencing wire to his land.
37. Therefore, it is proved beyond reasonable doubt that the accused has unauthorisedly drawn Crl.A.No.1095/2010 37 electrical energy from the electric pole of CHESCOM and also made unauthorized electric flow into the zinc wire fencing to his land, due to which a female elephant which came in contact with the said electrical fencing on the intervening night of 30.07.2017 and 31.07.2017 electrocuted and succumbed to it. Therefore, the accused has committed an offence punishable under Section 135 of the Indian Electricity Act and an offence punishable under Section 51 of the Wild Life Protection Act, as such, the judgment of conviction passed by the trial Court does not warrant any interference at the hands of this Court.
The Trial Court after considering the nature of offences committed and its criminality, has ordered a proportionate sentence which is not exorbitant, as such, the judgment of conviction and order on sentence passed by the trial Court does not warrant Crl.A.No.1095/2010 38 any interference at the hand of this Court. Accordingly, I proceed to pass the following:
ORDER
(i) The appeal is dismissed.
(ii) Judgment of conviction and order on sentence dated 15.09.2010 passed by the District and Sessions Judge at Chamarajanagar in Special Case No.2/2008 is confirmed.
Registry to send the Lower Court Records along with the copy of this judgment immediately to the concerned Trial Court.
Registry to furnish a copy of this judgment to the accused free of cost, immediately.
Sd/-
JUDGE GH/sac*