Nooralachari vs State By Saragoor Police Station
2022 Latest Caselaw 4758 Kant

                             1

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.

                            ***


     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

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.

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

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

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

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

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

'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

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

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

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.

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