Dismissed

Madashetty v. State of Karnataka

Karnataka HC23 Feb 2022CRL.A/734/2011

Case brief

AI extract

What is this about?

The High Court dismissed the criminal appeal filed by an accused convicted for unauthorized electricity theft resulting in the electrocution and death of an elephant. The court held that the impugned judgment involving conviction under the Electricity Act, IPC, and Wildlife Protection Act was not perverse, illegal, or arbitrary and confirmed the trial court's sentence as reasonable.

What did the court decide?

Appeal dismissed and the judgment of conviction and order of sentence dated 20.06.2011 passed by the trial Court is confirmed.

Madashetty Vs State of Karnataka — Criminal Trial and Appeal | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF FEBRUARY, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE RAJENDRA BADAMIKAR

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CRIMINAL APPEAL No.734/2011

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BETWEEN:

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MADASHETTY S/O MADASHETTY AGED ABOUT 55 YEARS CHIKKABARAGI VILLAGE H.D.KOTE TALUK MYSORE DISTRICT

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….APPELLANT

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(BY SRI. M. SHARASS CHANDRA, ADVOCATE)

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AND:

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STATE OF KARNATAKA BY NANJUNAGUDU POLICE (REP.:S.P.P.)

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…. RESPONDENT

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(BY SRI. K.S. ABHIJITH, HCGP)

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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:

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JUDGMENT

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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).

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For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial Court.

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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

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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.

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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.

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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.

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Heard the arguments of learned counsel for the appellant and the learned High Court Government Pleader (‘HCGP’ for short) for the respondent-State.

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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

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allowing the appeal by setting aside the impugned judgment of conviction and order of sentence.

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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

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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

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not call for any interference, and therefore, he would seek for dismissal of the appeal.

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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:

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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?

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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.

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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.

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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.

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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

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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.

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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.

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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.

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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

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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.

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It is important to note here that the accused has

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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

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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.

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Admittedly, the solar fence does not cause severe

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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

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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.

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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

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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.

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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

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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.

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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:-

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ORDER

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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.

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Sd/-

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JUDGE

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KGR*

Madashetty v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Madashetty v. State of Karnataka

Case brief

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