Karnataka High Court
Krishnappa @ Krishna vs The State on 16 August, 2023
Bench: Shivashankar Amarannavar
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NC: 2023:KHC:28954
CRL.A No. 736 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO. 736 OF 2011
BETWEEN:
KRISHNAPPA @ KRISHNA,
AGED ABOUT 70 YEARS,
S/O SWAMY,
CHIKKABARAGI VILLAGE,
H. D. KOTE TLAUK,
MYSORE DISTRICT.
...APPELLANT
(BY SRI. SHIVAYOGI B. HALLUR, ADVOCATE FOR
Digitally signed by SMT. SHWETA ANAND, ADVOCATE)
LAKSHMINARAYANA
MURTHY RAJASHRI
Location: HIGH AND:
COURT OF
KARNATAKA
THE STATE,
SARAGOOR POLICE STATION.
...RESPONDENT
(BY SRI. RAHUL RAI K, HCGP AND
SRI. RANGASWAMY R, HCGP)
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED:28.6.11 PASSED BY THE I
ADDL. DIST., AND S.J., MYSORE IN SPL.C.NO.74/08 -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
P/U/S 138(1)(a) OF THE ELECTRICITY ACT 2003, SEC. 429 IPC
AND SEC. 51 OF THE WILD LIFE PROTECTION ACT.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 736 of 2011
JUDGMENT
This appeal is preferred against the judgment and order
dated 28.06.2011 passed by the Court of I Addl. District and
Sessions Judge, Mysuru in Spl. Case No.74/2008, wherein the
accused - appellant has been convicted and sentenced for the
offence punishable under Section 138(1)(a) of the Electricity
Actw, 2003, Section 429 of IPC and Section 9 read with Section
51 of Wild Life Protection Act.
2. Heard the learned counsel for appellant and learned
High Court Government Pleader for respondent - State and
perused the material on record.
3. Brief facts of the prosecution case are :
That on 30.10.2007 PW1 and PW2, who are working in
Forest Department were on patrolling duty found a dead
elephant in the land of the accused and also found that electric
connection has been un-authorizedly taken by the accused to
the fence put up around the land from his house. They passed
the information to PW7 - Assistant Conservator of Forest.
Immediately, PW7 went to the spot and found a dead elephant
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CRL.A No. 736 of 2011
and also noticed that there was unauthorized electric
connection taken by the accused to the fence put up around the
land from his house. He filed a complaint as per Ex.P30. Police
took up investigation and after completion of investigation filed
charge sheet against the accused - appellant.
4. In order to bring home the guilt of the accused, the
prosecution got examined PW1 to 12 and got marked
documents Ex.P1 to 13 and MOs 1 to 3.
5. Amongst the prosecution witnesses PW6, 8, 9 and
11 have been treated hostile and have not supported the case
of the prosecution.
6. PW7 is the first informant, who was working as
Assistant Conservator of Forest. He lodged the complaint as
per Ex.P13. He has stated that on 30.10.2007, he was
informed by PW1 and PW2 about the death of an elephant in
the land of the accused and immediately he went and examined
the spot and found that there was fence put up around the
land, which was given electric connection unauthorisedly by the
accused from his house and the elephant was laying dead in
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CRL.A No. 736 of 2011
the land of the accused. He found that the land belongs to
accused and sugar cane and cotton were grown in the land. He
also found that there was electric connection unauthorisedly
taken from the house of the accused to the fence around the
land. The said evidence of PW7 has been corroborated by the
evidence of PW1 and PW2. Further from the spot MO1 to 3,
namely, insulated wire and Blue & White iron wires were
seized. The evidence of PWs.1 to 3 is that the accused is the
owner of the land, where the elephant was found.
7. PW4 is the doctor who conducted the post-mortem
as per Ex.P10. According to the report, the elephant died on
account of electrocution. PW5 is the Engineer who has given
report as per Ex.P11 stating that there was electric supply on
the date of incident. PW3 is the Engineer working in C.E.S.C.,
who has examined MOs.1 and 2 and given report as per Ex.P9,
opining that electric current will pass in MOs.1 and 2. In view
of the evidence of the above prosecution witnesses, the
prosecution has been able to establish that the appellant -
accused is the owner of the land and he had taken
unauthorized connection of electricity from his house to the
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CRL.A No. 736 of 2011
fence around his land and the elephant came in contact with
the said fence and died due to electrocution which is
substantiated by Ex.P10 issued by PW4.
8. The Trial Court has convicted the accused for the
offence punishable under Section 138(1)(a) of the Electricity
Act, 2003, Section 429 of IPC., and Section 51 of the Wild Life
(Protection) Act, 1972.
9. Learned counsel for the appellant has contended
that the Trial Court was not proper in convicting the appellant
under the provision of the Wild Life (Protection) Act, 1972 as
there is no complaint filed by an authorized officer and
therefore, the cognizance for the offence under the said Act
could not have been taken.
10. He placed reliance on the decision rendered by the
Co-ordinate Bench of this Court in the case of Srinivasa and
Another Vs. State by Beechanalli Police Station,
Bengalugu in Crl.A.No.716/2011 decided on 27.05.2022,
wherein it is held as under:
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"13. The learned counsel for the appellants has
contended that the trial Court was not proper in
convicting the appellant under the provisions of the
Wild Life Protection Act, as there is no complaint filed
by an authorized officer and therefore, cognizance for
the offence under the said Act could not have been
taken. He has placed reliance on an unreported
Judgment of this Court passed in Criminal Appeal
No.715/2011 disposed of on 15.03.2022, and
contended that in similar circumstances, this Court
has held that Section 9 r/w Section 51 of the Wild Life
Protection Act is not attracted. Relevant para No.17 of
the said Judgment is extracted hereunder:
"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."
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CRL.A No. 736 of 2011
11. Even in the instant case, the complaint was lodged
by PW7 - the Assistant Conservator of Forest before the Police
and on completion of investigation, charge sheet was filed and
on the basis of the charge sheet, learned Magistrate took
cognizance and therefore, the cognizance was not taken on
complaint, which is defined under Section 2(d) of Cr.P.C.
Hence, the conviction of the appellant - accused for the offence
punishable under Section 9 r/w Section 51 of the Wild Life
(Protection) Act, 1972 is not sustainable in law.
12. The judgment and order of conviction and sentence
passed by the Trial Court for the rest of the offences does not
call for any interference. Hence, the following;
ORDER
(i) The appeal is partly allowed. The
conviction and sentence of the appellant passed in
Spl.Case No.74/2008 dated 28.06.2011, by the I
Additional District and Sessions Judge, Mysuru for
the offence punishable under Section 9 r/w Section
51 of the Wild Life (Protection) Act, 1972 is hereby
set-aside.
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(ii) The conviction and sentence passed for the
offence punishable under Section 138(1)(a) of the
Electricity Act, 2003 and Section 429 of IPC., is
confirmed.
Sd/-
JUDGE
VK / GH
CT:STK
