Karnataka High Court
Sri Venkatesh vs State Of Karnataka on 4 January, 2023
Bench: Shivashankar Amarannavar
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CRL.A No. 726 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO. 726 OF 2011
BETWEEN:
SRI VENKATESH
S/O.BILISHETTY @ CHINNASHETTY
R/AT.DODDABARAGI VILLAGE
H D KOTE TALUK
MYSORE DISTRICT.
...APPELLANT
(BY SRI. N SRINIVAS - ADVOCATE)
Digitally signed by AND:
SANDHYA S
Location: High STATE OF KARNATAKA
Court of Karnataka
BY SARAGOOR POLICE STATION.
...RESPONDENT
(BY SMT. RASHMI JADHAV - HCGP)
THIS CRL.A. FILED U/S.374(2) CR.P.C BY THE ADV., FOR
THE APPELLANT PRAYING THAT THIS HON'BLE COURT MAY
BE PLEASED TO SET ASIDE THE ORDER OF CONVICTION
AND SENTENCE DT:27.6.2011 PASSED BY THE I-ADDL.DIST.,
AND S.J., MYSORE IN SPL.C.NO.76/2008 BY CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 138(1)(a) OF
THE ELECTRICITY ACT 2003, SEC.429 IPC AND SENTENCING
HIM TO PAY A FINE OF RS.5,000/- EACH AND TO UNDERGO
R.I. FOR 6 MONTHS AND ALSO UNDER SEC.429 IPC
SENTENCED TO UNDERGO R.I. FOR 6 MONTHS FOR THE
OFFENCE UNDER SECTION 9 P/U/S 51 OF THE WILD LIFE
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CRL.A No. 726 of 2011
PROTECTION ACT AND ACQUIT HIM AND ALL THE CHARGES
LEVELED AGAINST HIM.
THIS CRL.A, COMING ON FOR FURTHER ARGUMENTS,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred against the judgment and order
dated 27.06.2011 passed by the I Addl.District and Sessions
Judge, Mysore in Spl.Case No.76/2008.
Vide impugned judgment appellant / accused 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.
2. Heard both sides and perused the material on record.
3. Brief facts of the case of the prosecution are that:
The accused has a land in Doddabaragi of H.D.Kote Taluk.
On 05.01.2008, PW.1 and PW.2 working in the Forest Department
were on patrolling duty in Chikkabaragi forest area. Doddabaragi is
within the limits of Chikkabaragi forest area. They found eagles
flying over the land of the accused and when they went to the place
CRL.A No. 726 of 2011
where eagles were flying, they found a dead elephant. It had died
due to electrocution. It was lying in the land of the
appellant/accused. Sugarcane was grown in that land. Fence has
been put up around the land and electric connection was taken to
the fence from an electric pole. On seeing this, they passed the
information to PW.10, Assistant Conservator of Forests who went
to the spot and observed all these things and gave complaint to
Saragoor police.
4. The complaint was lodged as per Ex.P7 on the basis of
which case was registered against appellant / accused in Crime
No.1/2008. On completion of investigation, charge sheet was filed.
Appellant / accused was charged for the offences punishable under
Section 135 of the Electricity Act, 2003, Section 429 of IPC and
Section 51 of the Wild Life (Protection) Act.
5. In order to prove the guilt of the accused, prosecution
got examined PWs.1 to 11 and got marked Exs.P1 to P8 and
M.Os.1 to 3.
CRL.A No. 726 of 2011
6. The trial Court has found the appellant / accused guilty
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.
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 punishable under
Section 429 of IPC and it also amounts to hunting which is defined
in Section 2(16) of the Wild Life (Protection) Act and Section 9 of
the Act prohibits hunting of any wild animal as specified in
Schedule I Part I of the Act and therefore, the accused has violated
Section 9 punishable under Section 51 of the Act.
8. Insofar as charged offence under Section 135 of the
Electricity Act is concerned the trial Court has come to the
conclusion that the accused has taken electricity connection from
the electric pole to the fence unauthorisedly and therefore, he has
committed the offence under Section 138(1)(a) of the Act and not
under Section 135 of the Act, since it is not a case of theft of
electricity.
CRL.A No. 726 of 2011
9. Learned counsel for the appellant 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 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 and 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 mensrea which is absent
in the instant case. He, therefore, contends that the 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 fence
around his land and drawn electricity connection
CRL.A No. 726 of 2011
unauthorisedly from the electric pole. She 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.10 is the Assistant Conservator of Forests and he is
the first informant. Complaint is marked as Ex.P.7. 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.3 is the post mortem report. The autopsy was
conducted by the Veterinary doctor - P.W.5, who has
stated that the elephant died due to electrocution.
Further, from the spot M.Os. 1 to 3 i.e., aluminium wire, binding
wire and 3 wooden poles were seized under Ex.P4 - Mahazar. The
evidence of P.W.10 is supported by the
evidence of P.W.1 and 2 who were Forest Guard and Forest
Watcher who informed P.W.10 about the elephant lying dead in the
land of accused. P.Ws.6 and 7 are the witness to Ex.P.4 under
CRL.A No. 726 of 2011
which M.Os. 1 to 3 were seized. Though P.Ws.6 to 8
have been treated as hostile by the prosecution but their
evidence clearly disclose that the land in question belongs
to the accused and he had grown Sugarcane in the said land and
he had fenced the land with aluminium 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 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;
CRL.A No. 726 of 2011
(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 his crops. Therefore, he contends that the
element of mensrea is necessary to attract an offence
CRL.A No. 726 of 2011
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. A reading of the
above provisions would give an indication that a person
who is accused of hunting an animal should have
mensrea 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
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CRL.A No. 726 of 2011
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.
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CRL.A No. 726 of 2011
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. Hence, the following:
ORDER
Appeal is partly allowed.
The conviction and sentence of the
appellant / accused for the offence punishable under
Section 9 r/w Section 51 of Wild Life
(Protection) Act is hereby set aside.
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CRL.A No. 726 of 2011
The conviction and sentence for the
offence punishable under Section 138(1)(a)
of the Electricity Act and under
Section 429 of IPC are 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
DKB
