Smt Nanjamma vs The State By Beechanahalli Police
2022 Latest Caselaw 5065 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 21ST DAY OF MARCH, 2022

                         BEFORE

       THE HON'BLE MR.JUSTICE MOHAMMAD NAWAZ

           CRIMINAL APPEAL No.633 OF 2011

BETWEEN:

SMT.NANJAMMA,
W/O SRI JAYAKUMAR,
AGED ABOUT 50 YEARS,
JAKKALLI VILLAGE,
H.D.KOTE TALUK,
MYSORE DISTRICT.                           ... APPELLANT

[BY SRI.M.V.CHARATI, ADVOCATE]

AND:

THE STATE BY BEECHANAHALLI POLICE,
H.D.KOTE TALUK,
MYSORE DISTRICT.                         ... RESPONDENT

[BY SRI.K.K.KRISHNA KUMAR, HCGP]

                          ----
      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., PRAYING TO SET ASIDE THE ORDER DT:28.05.2011
PASSED BY THE I ADDL. DIST., AND S.J.,MYSORE IN
SPL.C.NO.27/09 - CONVICTING THE APPELLANT/ACCUSED FOR
THE OFFENCE P/U/S 138(1)(a) OF THE ELECTRICITY ACT 2003,
SEC.429 IPC AND SEC.9 R/W 51 OF THE WILD LIFE PROTECTION
ACT. THE APPELLANT/ACCUSED IS SENTENCED TO PAY A FINE OF
RS.5,000/- AND IN DEFAULT TO UNDERGO S.I. FOR SIX MONTHS
FOR THE OFFENCE P/U/S 138(1)(a) OF THE ELECTRICITY ACT
2003.AND THE APPELLANT/ACCUSED IS SENTENCED TO FINE OF
RS.5,000/- AND IN DEFAULT OF PAYMENT OF FINE TO UNDERGO
S.I. FOR SIX MONTHS FOR THE OFFENCE P/U/S 429 OF IPC.
AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I.
FOR 3 YEARS AND TO PAY A FINE OF RS.10,000/- FOR THE
OFFENCE P/U/S 9 PUNISHABLE U/S 51 OF THE WILD LIFE
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PROTECTION ACT AND IN DEFAULT OF PAYMENT OF FINE TO
UNDERGO S.I. FOR SIX MONTHS.

     THIS CRIMINAL APPEAL COMING ON FOR FINAL DISPOSAL
THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:



                          JUDGMENT

This appeal is preferred by the accused feeling

aggrieved by the Judgment and Order dated 28.11.2011

passed by the I Additional District and Sessions Judge,

Mysore, in Spl. Case No.27/2009, wherein, she has been

convicted and sentenced for the offence punishable

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

Section 429 of IPC and Section 9 read with Section 51 of

the Wild Life (Protection) Act, 1972.

2. Heard both side and perused the material on

record.

3. The case of the prosecution is that the

accused is the owner of land bearing Sy.No.52/113 of

Beeramballi village, Antharasanthe Hobli, H.D.Kote

Taluk. She has grown sugarcane in the said land and

fenced the land with alluminum wire and has given

electric connection to the said fencing by drawing

electricity unauthorizedly from the power station situated

in the land. On 29.10.2008, a female elephant came in

contact with the electric fence which was erected around

the land of the accused and died due to electrocution.

4. Charges were framed against the accused for

offences punishable under Section 135 of the Electricity

Act, 2003, Section 429 of IPC and Section 9 read with 51

of Wild Life (Protection) Act, 1972.

5. In order to bring home the guilt of the

accused, the prosecution got examined 9 witnesses and

got marked six documents, Exs.P1 to 6 and MOs.1 and 2.

6. The Trial Court has come to the conclusion

that the accused is guilty of offence under Section

138(1)(a) of the Electricity Act, 2003 and not under

Section 135 of the Electricity Act. Further, it has come

to the conclusion that though there is no direct evidence,

the circumstances point out to the guilt of the accused

and the evidence of PW5-Veternary Doctor who has

conducted post mortem examination corroborates the

other evidence on record and therefore, the prosecution

has proved the charge under Section 429 of IPC.

Further, observed that by taking unauthorized electricity

connection to the fence, the accused is indirectly

responsible for killing an elephant and therefore, she has

committed the offence punishable under Section 9 read

with 51 of the Wild Life (Protection) Act, 1972.

7. The learned counsel for appellant / accused

has contended that there is no complaint filed by an

Officer notified under the Wild Life (Protection) Act, 1972

and therefore, taking cognizance by the Court is vitiated

in view of Section 55 of the of the said Act. He, further

contends that from the material on record, it cannot be

held that the accused has committed an offence under

Section 9 punishable under Section 51 of the Wild Life

(Protection) Act. He has also contended that the material

on record is not sufficient to hold that the accused is

guilty of the offence punishable under the Electricity Act

as well as under Section 429 of IPC since the

independent witnesses to the spot mahazar i.e., PWs.3,

4 and 9 have turned hostile. Therefore, he contends that

the approach of the trial Court and the reasons assigned

for convicting and sentencing the accused is not in

accordance with law.

8. The learned HCGP has contended that the

prosecution has been able to establish the guilt of the

accused beyond reasonable doubt in as much as PWs.1,

2, 5 to 8 have supported the case of prosecution and

their evidence is sufficient to hold that the accused has

committed the offences for which the trial Court has

convicted and sentenced. He contends that there is no

illegality committed by the trial Court and accordingly,

seeks for dismissal of the appeal.

9. PW.2 is the Forest Guard working at Gundre

Forest range. He informed about the death of an

elephant to PW.1-Range Forest Officer. On receiving the

said information, PW.1 along with PW.2 went to the spot

and noticed a female elephant lying dead. He lodged the

complaint, which is marked as Ex.P1. The Spot Mahazar

as per Ex.P2 was conducted and a white insulated wire-

MO.1 and Solar wire MO.2 were seized.

10. It is pertinent to see that PW7, the Village

Accountant has issued the RTC extract as per Ex.P5 in

respect of the land in question. It is nowhere disputed

by the accused that she is not the owner of the land.

She has also not disputed about the death of elephant

due to electrocution in the said land. Further, PW6,

Assistant Engineer, CESC, has given a report as per

Ex.P4 after examining the white insulated wire and the

solar wire and stated about the electricity supply on the

relevant date of incident.

11. PW5, is a Veterinary Doctor, who has

conducted necropsy over the dead elephant and issued

the report. As per Ex.P3, post mortem report, the

elephant died due to sudden shock and cardiac arrest by

electric current. Hence, the findings recorded by the

Trial Court to come to the conclusion that the accused

has erected electric fence around her land by taking

unauthorized electricity connection, which resulted in the

death of an elephant coming into contact with the said

electric fence, cannot be found fault with.

11. Under Section 55 of the Wild Life (Protection)

Act, 1972, no court shall take cognizance of any offence

under the Act, except on the complaint of the officers

mentioned therein. Admittedly, in the instant case,

cognizance is not taken on the basis of a complaint. On

the other hand, it is on the basis of the charge sheet

filed by the police. In that view of the matter, the

conviction and sentence passed against the accused /

appellant for the offence punishable under Section 9 read

with Section 51 of the Act cannot be sustained.

However, for the forgoing reasons, the conviction and

sentence passed by the Trial Court for the offences

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

2003 and under Section 429 of IPC is in accordance with

law. Hence, the following:

ORDER

i. The appeal is partly allowed.

ii. The judgment and order passed by the I

Additional District and Sessions Judge, Mysore, dated

28.05.2011 in Spl.Case No.27/2009 in so far as

convicting and sentencing the accused / appellant for the

offence punishable under Section 9 r/w Section 51 of

Wild Life Protection Act, 1972 is hereby set aside.

iii. The conviction and sentence for the offences

punishable under Section 138(1)(a) of the Electricity

Act 2003 and Section 429 IPC is hereby confirmed.

Sd/-

JUDGE

TL