Karnataka High Court
Nooralachari vs State By Saragoor Police Station on 15 March, 2022
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO.715 OF 2011
BETWEEN:
NOORALACHARI
S/O LATE GOPALCHARI
AGED ABOUT 43 YEARS
R/AT DADADAHALLI VILLAGE
H.D. KOTE TALUK
MYSORE DISTRICT
... APPELLANT
[BY SRI Y.D.HARSHA, ADVOCATE]
AND:
STATE BY SARAGOOR POLICE STATION
REPRESENTED BY SPP
HIGH COURT BUILDING
BANGALORE
... RESPONDENT
[BY SRI.R.D.RENUKARADHYA-HCGP]
THIS CRIMINAL APPEAL IS FILED U/S.374(2) OF CODE OF
CR.P.C., PRAYING TO SET ASIDE THE ORDER DT:23.06.11 PASSED
BY THE I ADDL.DIST., AND S.J., MYSORE IN SPL.C.NO.112/08 -
CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCE P/U/S
138(1)(A) OF THE ELECTRICITY ACT 2003, SEC.429 IPC AND
SEC.51 OF WILD LIFE (PROTECTION) ACT AND ETC.
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THIS CRIMINAL APPEAL IS COMING ON FOR HEARING, THIS
DAY THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal is preferred against the judgment and order dated 23.06.2011 passed by the court of I Additional District and Sessions Judge At Mysore in Spl.Case No.112/2018.
Vide impugned judgment the accused/appellant has been convicted and sentenced for offence punishable under Section 138(1)(a) of the Electricity Act 2003, Section 429 IPC and Section 9 r/w Section 51 of Wild Life (Protection) Act.
2. Heard both sides and perused the material on record.
3. Brief facts of the prosecution case are that:
The land of the accused bearing Sy.No.34 is situated at Dadadahalli, Beddalapura, H.D.Kote talluk. He had grown Sugarcane and Tobacco in the said land. He had drawn electric connection unauthorisedly using aluminium wire, from the pump house situated in the 3 land to the solar fence put up by him around his land. P.W.2 who is working as forest watcher in the Maleyur forest range, while on patrolling duty on 30.07.2008, noticed a male elephant lying dead in the land of the accused. He informed the same to P.W.1-Range Forest Officer working in Range Forest Office, Malayur. P.W.1 visited the spot and found that the elephant died on account of coming into contact with the solar fence put up around the land of accused.
4. The complaint was lodged as per Ex.P.1 with Saragoor Police on the basis of which case was registered against the accused/appellant in Cr.No.131/2008. On completion of investigation charge sheet was filed. The appellant was charged for offences punishable under Section 429 of IPC, Section 135 of the Electricity Act, 2003 and Section 51 of Wild Life (Protection) Act.
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5. In order to prove the guilt of the accused, prosecution got examined P.Ws.1 to 11 and got marked Exs.P.1 to 19 and M.Os.1 to 4.
6. The Trial Court has found the accused guilty for the offence punishable under Section 138(1)(a) of the Electricity Act, 2003 and Section 429 of IPC and Section 9 R/w Section 51 of Wild Life (Protection) Act.
7. The trial Court has observed that the act in taking electricity connection to the fence and thereby allowing the elephant to get killed is an offence of mischief under Section 429 of IPC and it also amount to hunting under Section 2(16) of Wild Life (Protection) Act and Section 9 prohibits hunting of any wild animal specified in Schedule 1 Part I of the Act and therefore, accused has violated Section 9 punishable under Section 51 of the Act.
8. Insofar as the charged offence under Section 135 of the Electricity Act is concerned, trial Court has 5 come to the conclusion that the accused has taken electricity connection from the pump set to the solar fence unauthorisedly and therefore, he has committed an offence punishable under Section 138(1)(a) of Electricity Act and not under Section 135 of the Act, since it is not a case of theft of electricity.
9. The learned counsel for the appellant has contended that the elephant was found dead during rainy season and due to rain, the main electric wire getting disrupted and elephant coming into contact with the said wire cannot be ruled out. He contends that the prosecution has not established that the offence committed by the accused would fall under Section 9 r/w Section 51 of the Wild Life (Protection) Act, since this is not a case of hunting on the other hand, even according to prosecution the elephant died due to electrocution. It is his contention that to attract the definition of hunting, there should be an element of mens-rea which is absent in the instant case. He therefore contends that evidence 6 on record is not sufficient to hold accused guilty and seeks to set aside the impugned judgment.
10. The learned High Court Government Pleader has contended that the elephant died in the land of accused and the oral and documentary evidence clearly established that the accused had put up a solar fence around his land and drawn electricity connection unauthorisedly from the pump set. He contends that the elephant has come into contact with the said electric wire and died and therefore the ingredients of the offence for which the trial court has convicted the accused are clearly made out.
11. P.W.1 is the Range Forest Officer and he is the first informant. Complaint is marked as Ex.P.1. He has stated that on receiving the information about the death of elephant, he visited the spot and examined the elephant and observed that it died due to electrocution. Ex.P.17 is the postmortem report. The necropsy was conducted by the veterinary doctor-P.W.10, who has 7 stated that the elephant died due to electrocution. Further, from the spot M.Os. 1 to 4 i.e., solar wire, aluminum wire, electric main wire and jungle wood pole were seized and photographs as per Exs.P.3 to 9 were taken. The evidence of P.W.1 is supported by the evidence of P.W.2, working as Forest Watcher, who informed P.W.1 about the elephant lying dead in the land of accused. P.W.4 is one of the witness to Ex.P.2 under which M.Os. 1 to 4 are seized. Though P.Ws.5 and 7 have been treated as hostile by prosecution but their evidence clearly disclose that the land in question belong to the accused and he had grown Tobacco and Sugarcane in the said land and he had fenced the land with solar wire.
12. From the evidence and material on record there is no scope to doubt that the accused had drawn electric connection unauthorisedly using aluminium wire and connected it to the solar fence erected around his 8 land and an elephant coming into contact with the said electric fence, died due to electrocution.
13. In the Wild Life (Protection) Act, 1962 the definition of 'hunting' is provided under Section 2(16) which is as under:
"hunting", with its grammatical
variations and cognate expressions,
includes,--
(a) killing or poisoning of any wild
animal or captive animal and every attempt to do so;
(b) capturing, coursing, snaring, trapping, driving or baiting any wild or captive animal and every attempt to do so;
(c) injuring or destroying or taking any part of the body of any such animal or, in the case of wild birds or reptiles, damaging the eggs of such birds or reptiles, or disturbing the eggs or nests of such birds or reptiles;
14. The learned counsel for the appellant has contended that as per the dictionary meaning, the act of 9 'hunting' is the act of chasing wild animal for sport or for food and it means to chase or search the animal for the purpose of catching or killing. He contends that, it is not the case of prosecution that the accused had any intention to kill the elephant. On the other hand, it is alleged, the accused has put up a fence around his land to protect crops. Therefore, he contends that the element of mens-rea is necessary to attract an offence under section 9 of the Wild Life (Protection) Act, which is absent in the present case.
15. As per section 9 of the Wild Life (Protection) Act, no person shall hunt any animal specified in Schedules I, II, III and IV except as provided under Section 11 and 12. Section 11 and 12 provides permission under certain cases to hunt such animal or cause such animal to be hunted. The reading of the above provisions would give an indication that a person who is accused of hunting an animal should have 10 mens-rea and he should have an intention to kill, capture or injure the said animal.
16. In the case on hand, it is not alleged by the prosecution that the electric fence was put up around the land of the accused to hunt or kill any animal. Mere knowledge of such animal being killed is not enough to attract section 9 of the Act. Hence, it cannot be said that the prosecution has been able to establish the offence punishable under Section 9 r/w Section 51 of the Wild Life (Protection) Act.
17. Another aspect is that, under Section 55 of the Wild Life (Protection) Act, 1972, no Court shall take cognizance of any offence under the said Act, except on the complaint of any person other than the officers mentioned therein. Admittedly in the instant case, cognizance is taken on the basis of charge sheet filed by the police and not on a complaint, which is defined under Section 2(1)(d) of Cr.P.C. Even on the said ground the 11 conviction of the appellant under the provisions of the Wild Life (Protection) Act cannot be sustained.
18. Section 429 of IPC provides punishment for committing mischief by killing, poisoning, maiming or rendering useless, any elephant, camel, horse, mule, buffalo, bull, cow or ox, whatever may be the value thereof, of any other animal of the value of fifty rupees or upwards.
19. The definition of 'mischief' under Section 425 of IPC includes, committing the act with intention or knowledge. In the case on hand, it cannot be said that there was any intention on the part of the accused to cause the death of elephant but he had knowledge that by putting up such an electric fencing by taking unauthorized connection, he would cause the death of animal etc. Therefore, the offence committed by the accused would clearly attract the offences punishable under Section 138(1)(a) of Electricity Act, 2003 and 12 Section 429 of IPC and not under Section 9 r/w Section 51 of the Wild Life (Protection) Act.
20. Hence, the following;
ORDER Appeal is partly allowed.
The conviction and sentence of the appellant for the offence punishable under Section 9 r/w Section 51 of Wild Life (Protection) Act is hereby set aside.
The conviction and sentence for the offence punishable under Section 138(1)(a) is hereby confirmed.
The conviction of accused under Section 429 of IPC is confirmed and the sentence is modified.
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The accused is sentenced to pay fine amount of Rs.30,000/- (Rupees Thirty Thousand Only) and in default of payment of fine, he shall undergo rigorous imprisonment for a period of 6 months.
Sd/-
JUDGE BH