Madashetty vs State Of Karnataka
2022 Latest Caselaw 3074 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 23RD DAY OF FEBRUARY, 2022

                         BEFORE

    THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

             CRIMINAL APPEAL No.734/2011

BETWEEN:

MADASHETTY
S/O MADASHETTY
AGED ABOUT 55 YEARS
CHIKKABARAGI VILLAGE
H.D.KOTE TALUK
MYSORE DISTRICT
                                           ....APPELLANT
(BY SRI. M. SHARASS CHANDRA, ADVOCATE)

AND:

STATE OF KARNATAKA
BY NANJUNAGUDU POLICE
(REP.:S.P.P.)
                                         .... RESPONDENT
(BY SRI. K.S. ABHIJITH, HCGP)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C. PRAYING TO SET ASIDE THE ORDER
DT:20.06.2011 PASSED BY THE I ADDL. DISTRICT, AND
SESSIONS JUDGE, MYSORE IN SPL.C.NO.77/08, CONVICTING
THE APPELLANT/ ACCUSED FOR THE OFFENCE P/U/S 138(1)(a)
OF THE ELECTRICITY ACT 2003, SECTION 429 IPC AND
SECTION 9 READ WITH SECTION 51 OF THE WILD LIFE
(PROTECTION) ACT, 1972.
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     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 15.02.2022, COMING ON FOR
'PRONOUNCEMENT JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

                             JUDGMENT

This appeal is filed by the accused/appellant under

Section 374(2) of Criminal Procedure Code, 1973 ('Cr.P.C.' for

short) challenging the judgment of conviction dated 20.06.2011

passed by the I Additional District and Sessions Judge, Mysuru

in Special Case No.77/2008, whereby the learned Sessions

Judge has convicted the accused for the offence punishable

under Section 138(1)(a) of the Electricity Act ,2003 ( Electricity

Act' for short), Section 429 of Indian Penal Code, 1860 ('IPC'

for short) and Section 51 of Wild Life (Protection) Act, 1972 (

'WLP Act' for short).

2. For the sake of convenience, the parties herein are

referred with the original ranks occupied by them before the

trial Court.

3. The brief facts of the prosecution case are that, the

accused is the owner of the land in Chikkabaragi of H.D. Kote

Taluk. On 16.03.2008, PW.7-M.Mahadevaiah, working as Forest

Guard was on patrolling duty and when he was proceeding from

Chikkbaragi to Doddabaragi along with CW.3-Devaraju, he

found that some eagles flying over the land of accused and as

such, he went there and found a dead elephant. He also

noticed that the solar fence has been put-up around the land

of the accused and the elephant was lying on the fence. It is

the further case of prosecution that, some burn injuries found

on the body of elephant and from the nearest electric pole

illegal and unauthorized electricity was taken to the solar fence

put-up around the land of accused. After noticing all these

aspects, immediately he informed PW.1-D.K. Mahadevaiah, who

was working as Assistant Conservator of Forests. On getting

said information, PW.1 went to the spot and verified the factual

aspects and having confirmed that the elephant died due to

electrocution, he gave a written complaint to Saragoor Police as

per Ex.P1. Then the Investigating Officer visited the spot,

drawn a mahazar and Veterinary Doctor has also conducted

autopsy on the dead body of the elephant and then after

completing investigation, PW.8-B.L.Raghavendra has submitted

the charge sheet against the accused.

4. After submission of the charge sheet, as there are

sufficient grounds to proceed against the accused, cognizance

of the alleged offences were taken. Initially, the accused was

arrested and produced before the Court and later on he was

enlarged on bail. The prosecution papers were furnished to the

accused.

5. After having heard the arguments advanced by the

learned counsels appearing for the parties on both sides and

perusing the oral and documentary evidence, the learned

Sessions Judge has convicted the accused/appellant herein for

offence under Section 138(1)(a) of Electricity Act, Section 429

of IPC and Section 9 r/w. 51 of the WLP Act, by imposing fine of

Rs.5,000/- each for offences under Section 138(1)(a) of

Electricity Act and Section 429 of IPC, while for offence under

Section 9 r/w. section 51 of WLP Act, he imposed Rigorous

Imprisonment of three years with fine of Rs.10,000/-. Being

aggrieved by this judgment of conviction and order of sentence,

the accused has filed this appeal.

6. Heard the arguments of learned counsel for the

appellant and the learned High Court Government Pleader

('HCGP' for short) for the respondent-State.

7. Learned counsel for the appellant/accused would

contend that the judgment of conviction and order of sentence

is opposed to Law, facts and circumstances of the case. He

would also contend that the learned Sessions Judge has

committed serious error in convicting the accused/appellant

herein. He would further contend that, there is no evidence

placed to show that the land wherein the elephant found dead,

was belonging to accused and in absence of this medical

evidence, the learned Sessions Judge has committed error in

convicting the accused. He would also contend that the

Investigating Officer, who has done major investigation, was

not examined. He would further contend that, no independent

witnesses regarding spot-mahazar have supported the case of

prosecution and the learned Sessions Judge only on

assumptions and presumptions, proceeded to convict the

accused and as such, the judgment of conviction and order of

sentence is perverse and erroneous. Hence he would seek for

allowing the appeal by setting aside the impugned judgment of

conviction and order of sentence.

8. Per contra, the learned HCGP would support the

judgment of conviction and order of sentence. He would

contend that the evidence of PWs. 1, 3, 4 & 5 would support

the case of prosecution and there is no reason for discarding

their evidence. He would also contend that the accused in the

entire trial has nowhere denied the fact that the land in

question belongs to him and now this argument is first time

advanced and when he has admitted that the land belongs to

him during trial, now it should not lie in his mouth, though no

documents have been produced. He would also contend that,

there is no serious dispute regarding the death of elephant by

electrocution and the evidence of PW.3, the Line-man clearly

establish that he has disconnected the electricity to the fence

and his evidence is not impeached. Hence, he would contend

that the learned Sessions Judge has appreciated the oral and

documentary evidence in detail and has rightly convicted the

accused. He would also contend that, he has also imposed the

minimum sentence prescribed under Law and as such, it does

not call for any interference, and therefore, he would seek for

dismissal of the appeal.

9. Having heard the arguments of the learned

counsels on both sides and perusing the oral and documentary

evidence on record, the following point would arise for

consideration:

Whether the judgment of conviction and order of sentence passed by the trial Court is perverse, erroneous and capricious so as to call for any interference by this Court?

10. It is the specific case of prosecution that, on

16.03.2008, in the land of accused, an elephant was found

dead on the solar fencing and the solar fencing was connected

with live electric wire by taking unauthorized electricity from

the nearby electric pole. The prosecution has examined in all

Nine witnesses. PW.1 is the complainant, while PW.2 is the

Photographer as well as mahazar witness. PW.3-Line Man was

present at the time of spot-mahazar. PW.9 is an independent

witness and he has turned hostile.

11. PW.1 is the complainant and he claimed that, he

was working as Assistant Conservator of Forest in Hudiyala Wild

Life Range and PW.7 as well as CW.3 were working as Forest

Guards under him at that time. He deposed that, on

16.03.2008 at 8.30 am., when he was on patrolling duty in

Bailukuppe Forest, he received an information from PW.7 that,

in the land of one Madashetty of Chikkabaragi Village, an

elephant was lying dead due to electrocution and immediately

he went to the spot and found the solar fence having been put

around the land of accused. His further evidence disclose that,

sugarcane crop was grown in that land and a body of elephant

was found on the solar fence on the northern side of the land of

accused. He further deposed that he lodged a complaint with

the jurisdictional police as per Ex.P1 and the police came to the

spot and drew a mahazar as per Ex.P2. The police seized

electric wire which was used for taking unauthorized electric

connection and also a portion of wire put-up as fence and the

said properties are marked as MOs.1 and 2. His evidence

further disclose that PW.2-Jaffar has snapped the photographs

as per Exs. P3 to P13 at the time of drawing of spot-mahazar.

Though PW.1 was cross-examined at length, nothing was

elicited during cross-examination of this witness. Further,

during cross, ownership of accused on the said land is not

denied, but only putting up solar fencing is denied. It is further

admitted that, nearby an electric pole is also situated. On the

contrary, by making certain suggestions, it is admitted that the

land belongs to the accused himself.

12. PW.7 is the first person, who has reported the

matter to the complainant-PW.1. He deposed that, he was

working as a Forest Guard in Chikkabaragi Forest Range and on

16.03.2008, when he along with CW.3 was proceeding to

Doddabaragi from Chikkabaragi on patrolling duty, they found

eagles flying over the land of accused and immediately he went

there and found that an elephant was lying dead on solar

fencing and it was having burn injuries and his evidence further

disclose that, he reported the matter to PW.1 over wireless

instrument. Though this witness was cross-examined at length,

nothing was elicited in his evidence so as to impeach his

evidence and he specifically deposed that Solar Fencing was

connected with an electric wire and unauthorised electricity

was taken to the solar fencing from a nearby electric pole. A

simple suggestion was made to this witness that land of

accused was not having any solar fencing, but he denied this

aspect. However, by this suggestion, ownership of accused over

said land is admitted.

13. PW.2 is the photographer and mahazar witness. In

his evidence he has deposed that, two years prior to January

2011 he had gone to Chikkabaragi Village and there he found

the dead body of an elephant in an agricultural land and

snapped photos viz.,Exs.P3 to P 13 at that place. He also

deposed that he signed the mahazar, which was drawn as per

Ex.P2. No doubt, this witness has turned hostile stating that he

do not know the contents of Ex.P2, but he specifically deposed

that, he has snapped photos at Exs.P3 to P13 as per

instructions of PW.1. Whether he has witnessed burn injuries on

the body of elephant has no relevancy, as he is not a

competent person to depose in this regard. Hence, partial

hostility of this witness regarding contents of mahaar-Ex.P2 has

no relevancy and does not affect the case of prosecution.

14. PW.3 is a Line-man, who deposed that, two years

prior to 2011 he was summoned to the land of accused and

around the land stone pillars have been placed and solar

fencing was put. He further deposed that an elephant was

found dead in the land and as per the request of the police, he

has disconnected the J.I. wire and insulated the copper wire

which, was hanging from electric pole and police have drawn

mahazar as per Ex.P2 and he has also identified MOs. 1 & 2

and also the photographs in this regard. This witness was also

cross-examined at length, but his evidence was not at all

impeached. Except formal denial, nothing worthy was elicited in

his evidence and during his cross-examination also a simple

suggestion was put him that he is giving false evidence as per

the say of his higher officers, which he denied.

15. No doubt, the evidence of PW.1 disclose that he is

not in a position to give further details. But, that itself does not

mean that he has given go-by to entire case of prosecution.

The evidence has to be considered in whole and stray

sentences cannot be given much importance. Further, on the

contrary, though he has not disclosed certain material aspects

in his examination-in-chief, but during cross-examination,

materials have been elicited which are helpful for prosecution.

His very specific evidence is that solar fence had been put-up

around the land of accused and electric connection was

unauthorisedly taken to solar fencing from a nearby electric

pole and that the said land belongs to accused, which is

undisputed.

16. It is important to note here that the accused has

not denied the fact that the land belongs to him. Admittedly,

the evidence of PWs. 1, 2 3 & 7 would definitely go to show

that an electric pole was situated nearby the land of accused

and unauthorized electric connection has been taken to the

solar fence put-up around the land. The case of accused is

that, there was no solar fencing at all. But, this defence is

falsified by the evidence of PWs.1, 3, 4 & 7. PW.4-Anil Kumar,

Assistant Engineer working in CESC Division, has deposed

regarding issuing report as per Ex.P14 on inspection of MOs.1

& 2. He certified that electricity could pass through MOs. 1 & 2.

PW.6 is another Engineer, who has given report as per Ex.P16

regarding supply of electricity in the said area during particular

intervals and their evidence is not seriously challenged. PW.8

is the Investigating Officer, who submitted the charge sheet

against the accused. PW.5 is the Veterinary Doctor, who has

conducted autopsy on the dead body of elephant. His evidence

would clearly establish that he found burn wounds over the

trunk of elephant and has specifically stated that there was an

abrasion on the trunk and no abrasions were found on other

parts of the body of elephant and the death of elephant was

due to electric shock.

17. Admittedly, the solar fence does not cause severe

electric shock so as to cause death of a wild animal and it only

cause mild shock. But, the specific case of prosecution is that,

un-authorised electric connection was taken to solar fencing

from the nearby electric pole and that has resulted in electric

shock to elephant. This act of accused clearly establishes

misconduct as defined under Section 429 of IPC. Much

arguments have been addressed regarding hostility of PW.9.

But, mere hostility of PW.9 does not affect the case of

prosecution. Further, it is contended that Investigating Officer,

who conducted material investigation was not examined. PW.8

has only received reports/certificates and submitted charge

sheet. However, there are no contradictions elicited so that

non-examination of Investigating Officer becomes fatal to the

case of prosecution. Hence, said ground is also not acceptable.

18. Section 51 of the WLP Act provides punishment for

contravention of any of the provisions of the Act. Further,

Section 9 of the Act prohibits hunting of any wild animal

specified in Schedules-I to IV, except as provided under

Sections 11 and 12 of the this Act. Admittedly the accused has

not obtained any permission for hunting. Further, hunting is

also defined in sub-section (16) of Section 2 of the Act and it

includes killing of wild animals. In the instant case, the act of

accused has resulted in death of an animal, which is a wild

animal, which falls under Schedule-I of the Act. As such, the

prosecution is able to establish the guilt of accused for alleged

offences under the provisions of this Act. Further, for

convicting the accused for the offence under Section 138 of the

Electricity Act, the financial gain made by him on account of

theft of electricity will have to be determined. However, in

the instant case, no attempt has been made to determine the

financial loss caused to the department. As such, the learned

Sessions Judge has rightly convicted the accused for offence

under Section 138 (1)(a) of the Act and imposed fine of

Rs.5,000/- for offence under Sections 138(1)(a) of Electricity

Act and also for offence under Section 429 of IPC, which in my

opinion, is a meager one and does not call for any interference.

19. For the offence under Section 51 of the WLP Act,

the learned Sessions Judge has imposed sentence of

imprisonment for a period of three years with fine of

Rs.10,000/-. In this context, he has considered the proviso of

sub-section (1) of Section 51, wherein it is observed that, when

an offence is committed in relation to any animal specified in

Schedule-I or Part-II of Schedule-II, the minimum sentence

prescribed is three years with minimum fine, which shall not be

less than Rs.10,000/-. Considering this statutory mandate, the

learned Sessions Judge has imposed minimum sentence

prescribed in the Schedule. As such, question of reducing such

sentence does not arise at all. Hence, considering the nature

and gravity of the offence, the learned Sessions Judge has

rightly convicted the accused and imposed reasonable

sentence. Even on re-appreciation of the oral and documentary

evidence, it is evident that, the impugned judgment of

conviction and order of sentence does not call for any

interference, as it does not suffer from any perversity, illegality

or arbitrariness.

20. Under these circumstances, the appeal is devoid of

any merits and needs to be rejected. Accordingly, I answer

the point under consideration in negative and proceed to pass

the following:-

ORDER

The appeal is dismissed. The judgment of conviction and order of Sentence dated 20.06.2011 passed by the trial Court viz., I Additional District and Sessions Judge at Mysore, in Special Case No.77/2008, is confirmed.

Sd/-

JUDGE

KGR*