Kalappa vs State Of Karnataka
2021 Latest Caselaw 465 Kant

                                            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. 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

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

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

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

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

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

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.

CRL.A.No.255/2011

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

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

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