CRL.A.No.255/2011
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8th DAY OF JANUARY 2021
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL APPEAL NO.255 OF 2011
BETWEEN:
KALAPPA
S/O. GHATI CHANNAVERAPPA
AGED ABOUT 49 YEARS
AGRICULTURIST
R/AT ANGALA VILLAGE
GUNDLUPETE TALUK
CHAMARAJANAGARA DISTRICT ... APPELLANT
(BY SRI.Y.S.SHIVAPRASAD, ADV.)
AND
STATE OF KARNATAKA BY
GUNDLUPET POLICE STATION
REPRESENTED BY S.P.P.,
HIGH COURT BUILDING,
BANGALORE - 560 001 ... RESPONDENT
(BY SRI. H.R.SHOWRI, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED
24.01.2011 PASSED BY THE DISTRICT AND SESSIONS JUDGE,
CHAMARAJANAGAR IN SPECIAL CASE NO.6/07 CONVICTING
THE APPELLANT/ACCUSED FOR THE OFFENCE UNDER
SECTION 9 PUNISHABLE UNDER SECTION 51 OF WILD LIFE
(PROTECTION) ACT AND SECTION 135 OF ELECTRICITY ACT.
CRL.A.No.255/2011
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THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Aggrieved by the order of conviction and sentence passed against him for the offences punishable under Section 9 read with Section 51 of the Wild Life (Protection) Act, 1972 and under Section 135 of the Electricity Act, 2003, the second accused in Spl. Case No.6/2007 on the file of the District and Sessions Judge, Chamarajanagar has preferred the above appeal.
2. During night on 28.01.2005 in the land bearing Sy.No.279 of Angala village, Gundlupet Taluk, a female elephant was found dead due to electrocution. The entire land bearing Sy.No.279 measured in all 5 acres 35 guntas excluding 0.8 guntas Kharab land. As per the RTC, the appellant, his brother Channamallappa and Nanjappa @ Shambappa were in possession of 1.38 acres, 1.39 acres and 1.38 acres respectively.
CRL.A.No.255/2011 3
3. PW.7, the then Range Forest Officer, Gundlupet Forest Range filed complaint as per Ex.P5 before PW.10 against the appellant and his brother Shambappa, the Sons of Ghati Chennaveerappa alleging that the accused illegally tapped electricity from the nearby service line of Chescom and made electrical fencing to the land which caused the electrocution of the elephant and consequential death.
4. PW.10 received the said complaint and registered FIR as per Ex.P9 in Crime No.16/2005 for the offence punishable under Section 3, 9, 11, 51 and 55 of Wild Life (Protection) Act and under Section 135 of the Electricity Act. The appellant was shown as second accused in the FIR.
5. On registering the FIR, PW.10 issued requisition to PW.8 - the veterinary doctor to conduct post mortem on the dead body of the elephant. PW.8 conducted autopsy and gave the report as per Ex.P6 CRL.A.No.255/2011 4 stating that the death of the elephant was due to electrocution.
6. Further PW.10 said to have conducted the spot mahazar as per Ex.P3 in the presence of PWs.3 and 4 and during the mahazar seized M.Os.1 to 4 - the wooden pegs, Zinc wire, Aluminium wire and pole used in tapping the electricity from the service line. Then PW.11 conducted further investigation and filed the charge sheet.
7. The trial Court on taking cognizance of the offence framed the following charges against the accused:
"That you the accused being the owners of the land in Sy.No.279 of Angala village, Gundlupet Taluk, caused the death of a wild she-elephant on 28.01.2005 during night hours, by electrocution, namely, you the accused had fenced the said land with zinc wire fencing fixed to the wooden pegs, and had drawn electricity from the electric pole situated on the northern CRL.A.No.255/2011 5 side of the said land, by means of a wire and connected the same to the Zinc wire fencing and the said animal came in contact with the live wire fencing and died due to electrocution; and the said animal being a protected species as prescribed at item No.12B, Schedule I of the WLP Act, 1972 and contravened the provisions of Section 9 of the said Act, and thereby, you committed the offence punishable under Section 51 of the Wild Life (Protection) Act, 1972 and within the cognizance of this Court.
Secondly, on the aforesaid date, time and place, you the accused, with your common intention, committed theft of electricity by dishonestly abstracting the electricity from the electric pole situated on the northern side of your lands, for the purpose of making the zinc wire fencing put all around your land, live and electrified, and thereby, you have committed the offence punishable under Section 135 (1) (a) of the Electricity Act, 2003, r/w Section 34 of IPC and within the cognizance of this Court."
8. To establish its case, the prosecution examined PWs.1 to 12 and got marked Exs.P1 to P8 and CRL.A.No.255/2011 6 Mos.1 to 4. The trial Court on hearing the parties by the impugned judgment and order acquitted accused No.1 and convicted the appellant for the offence under Section 9 read with Section 51 of the Wild Life (Protection) Act and under Section 135 of the Electricity Act.
9. Further the trial Court by the impugned order sentenced the appellant to simple imprisonment of 3 years and fine of Rs.10,000/- for the offence under Section 9 read with Section 51 of Wild Life (Protection) Act and simple imprisonment of six months and fine of Rs.1,000/- for the offence punishable under Section 135 of the Electricity Act with default sentences on the following grounds:
i) The prosecution evidence shows that the land belonged to accused No.1 and the second accused (appellant) was cultivating the same on contract basis;
ii) The evidence of PWs.5 to 7, 9 and 11 shows that the appellant had unauthorisedly tapped electricity CRL.A.No.255/2011 7 from the nearby service line and used that for electrical fencing of the land cultivated by him to protect the crops from wild animals.
10. Sri Y.S.Shivaprasad, learned counsel for the appellant seeks to assail the impugned order of conviction and sentence on the following grounds:
i) Admittedly, the land belonged to accused No.1. Though the prosecution contended that the appellant was cultivating the said land on contract basis, absolutely there was no evidence to prove the same.
ii) PWs.1 and 2 owners of the neighbouring land did not support the theory of second accused cultivating the land of accused No.1.
iii) The evidence of PW.5 was hearsay evidence, Ex.P4 RTC did not relate to the relevant period and the evidence of PW.6 village accountant who issued Ex.P4 was totally bald.
CRL.A.No.255/2011 8
iv) When the trial Court acquitted accused No.1 land owner, it was not justified in convicting the appellant who was admittedly not the owner of the land.
11. Per contra Sri H.R.Showri, learned HCGP seeks to justify the impugned order of conviction and sentence on the following grounds:
i) Ex.P4 and evidence of PW.6 clearly showed that the land belonged to accused No.1. Accused did not dispute the death of elephant in the said land.
ii) The evidence of PW.9 coupled with the sketch drawn by him as per Ex.P8 and report Ex.P7 showed that there was illegal tapping of the electricity for the purpose of electrical fencing of the land.
iii) There was no reason to disbelieve PWs.5 and 7.
12. Having regard to the rival contentions the point that arises for consideration is " whether the Trial court was justified in holding that the appellant/accused No.2 had made electrical fencing of CRL.A.No.255/2011 9 the land in Sy.No.279 by unauthorisedly drawing the electricity from nearby service line and caused death of wild elephant by electrocution ?"
13. As rightly pointed out by the learned HCGP, the accused did not seriously dispute the death of elephant or the scene of offence. As per the evidence of PWs.5, 7 to 9 the elephant was found dead in the land bearing Sy.No.279 of Angala village. It was not the case of the accused that the land bearing No.279 did not belong to them. In Ex.P4 along with the appellant two others were shown as the owners.
14. As per sketch Ex.P8 itself the elephant was lying in the land of accused No.1. It was the specific case of the prosecution itself that the land consisting of scene of offence belonged to accused No.1. When the prosecution claimed that the appellant was cultivating the said land on contract basis, the burden was on the prosecution to prove such cultivation on contract basis.
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15. To prove that fact the prosecution examined PWs.1 and 2 neighbouring land owners but they totally turned hostile. Even Ex.P4 issued by PW.6 did not pertain to the relevant year. The incident took place on 29.01.2005. But Ex.P4 pertained to the years 2003- 2004 which ought to have been issued for the year 2004-2005.
16. The only other evidence relied upon by the prosecution was the evidence of PWs.5 and 7 who state that when they went to the scene of offence the people told them that the elephant had died due to electrocution in the land cultivated by the appellant. But they did not disclose the name of the said informants or the source of such information. Therefore, their evidence in that regard was only hearsay evidence.
17. As per the prosecution itself by the time the charge sheet was filed, it was revealed to PW.11 that appellant was cultivating the land of accused No.1 on CRL.A.No.255/2011 11 contract basis and he had illegally tapped electricity for fencing the land to prevent wild animals. At least at that stage, the Investigating Officer could have transposed accused No.1 as charge sheet witness. Thus, absolutely there was no evidence much less clinching evidence to show that the appellant was cultivating or in possession of the land.
18. On failure to prove the fact of land by the appellant, the next allegation that he had fenced the land by illegally tapping the electricity has no legs to stand. The trial Court in para 26 of the judgment accepts the fact that the land in which the scene of offence situated belongs to accused No.1.
19. Despite Ex.P4 RTC extract and Ex.P8 the sketch not connecting the said land to the appellant, without referring to those documents and only relying on the evidence of PW.7, the trial Court came to the conclusion that the appellant was cultivating the land.
CRL.A.No.255/2011 12
20. The trial Court itself observed that PW.7 in cross-examination stated that at the scene of offence he came to know about accused No.2 cultivating the land on contract basis. However, the trial Court lost sight of the basic principles of law that hearsay evidence is not admissible unless the primary evidence is adduced. Therefore, the impugned order of conviction and sentence is unsustainable. The appeal is allowed.
The impugned order of conviction and sentence passed by the trial Court in Special Case No.6/2007 is hereby set aside.
The appellant is acquitted of the charges for the offences punishable Section 9 read with Section 51 of the Wild Life (Protection) Act and under Section 135 of the Electricity Act.
Fine amount deposited if any, shall be refunded to the appellant.
Sd/-
JUDGE akc