Partly allowed

Jayaraju, v. the State of Karnataka

Karnataka HC3 Mar 2023CRL.A/739/2011

Case brief

AI extract

What is this about?

In a criminal appeal regarding the death of an elephant due to electrocution from an unauthorized electric fence, the High Court held that the act constituted mischief and unauthorized electricity use. Consequently, the conviction for hunting under the Wild Life (Protection) Act was set aside, while convictions under the Electricity Act and IPC were set aside. The fine was modified.

What did the court decide?

Conviction and sentence for hunting under Wild Life (Protection) Act set aside. Conviction under Electricity Act confirmed. Conviction under IPC confirmed, with fine modified to Rs. 20,000.

Jayaraju, Vs the State of Karnataka — Criminal Trial and Appeal | Karnataka HC (2023)

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CRL.A No. 739 of 2011

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3^RD DAY OF MARCH, 2023 BEFORE

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THE HON'BLE MR JUSTICE VENKATESH NAIK T

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CRIMINAL APPEAL NO. 739 OF 2011

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BETWEEN:

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JAYARAJU, S/O CHIKKAVEERAIAH, AGED ABOUT 40 YEARS, NO.17, MAKANAPURA VILLAGE, NANJANGUD TALUK, MYSORE DISTRICT.

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…APPELLANT (BY SRI. SOMASHEKAR KASHIMATH.,ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, BY NANJUNGUD (RURAL) POLICE.

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…RESPONDENT (BY SRI. K.S.ABHIJTH,HCGP FOR SRI. VINAYAKA V.S. HCGP)

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Digitally signed by SUMITHRA R Location: HIGH COURT OF KARNATAKA

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THIS CRIMINAL APPEAL FILED UNDER SECTION 374(2) OF THE CRIMINAL PROCEDURE CODE (CR.P.C) PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE PASSED BY THE IST ADDITIONAL SESSIONS JUDGE, MYSORE IN SPECIAL CASE No.48/09 DATED 2.7.2011 IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS CRIMINAL APPEAL, HAVING BEEN HEARD AND RESERVED ON 24.02.2023, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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CRL.A No. 739 of 2011

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JUDGMENT

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This appeal is preferred against the judgment and order dated 2.7.2011 passed by the Court of I Additional District and Sessions Judge at Mysore in Spl.Case No.48/2009.

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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, 1972.

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Heard both sides and perused the material on

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record.

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Brief facts of the prosecution case are that:

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The appellant/accused is alleged to be the owner of Sy.No.62 of Makanapura Village in Nanjangud Taluk. On 26.1.2009, one Maregowda, a daily wages servant of the Forest Department gave information to PW1 Jayashekar-RFO (complainant), that a male elephant was lying dead, hence, after receipt of information, RFO visited the spot and came to know that a male elephant died due to electrocution and he also found that, a fence has been put up round the land of the

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CRL.A No. 739 of 2011

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appellant, for which the electric connection has been taken unauthorisedly from the pumpset house in that land. Hence, the RFO filed complaint to the respondent-police. Thereafter, the respondent-police has registered a case in Crime No.25/2009 for the offence punishable under Section 429 of IPC, Section 9 r/w. Section 51 of the Wild Life Protection Act, 1972 and Section 135 of the Indian Electricity Act, 2003. The Investigation officer investigated the case and filed charge sheet against accused for the aforesaid offences. Soon after the charge sheet, the Trial Court took cognizance of the case and framed charge against accused, for which he pleaded not guilty and claimed to be tried.

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In order to prove the guilt of the accused, prosecution got examined P.Ws.1 to 13 and got marked Exs.P1 to P11 and M.Os.1 and 2.

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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, 1972.

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CRL.A No. 739 of 2011

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The Trial Court has observed that the act of the

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accused 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 amounts to hunting under Section 2(16) of Wild Life (Protection) Act, 1972 and Section 9 of the Act prohibits hunting of any wild animal as specified in Schedule I Part I of the Act and therefore, accused has violated Section 9 punishable under Section 51 of the Act.

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Insofar as the offence under Section 135 of the Electricity Act, 2003 is concerned, the Trial Court has come to the conclusion that the accused has taken electricity connection from the pump set to the fence unauthorisedly and has committed an offence punishable under Section 138(1)(a) of Electricity Act, 1972 and not under Section 135 of the Act, since it is not a case of theft of electricity. Aggrieved by the impugned order of conviction and sentence, the accused has preferred the appeal.

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The learned counsel for the appellant has contended that, the alleged incident took place in the land bearing Sy.No.62, that too in the land of the appellant, as the land

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bearing Sy.No.62 measuring 20 acres of Makanapura Village, wherein, 4 acres of land is owned and possessed by the appellant. However, there are other owners in Sy.No.62, having different measurements. Therefore, there is doubt about the place of incident, whether it is in the land of the accused or in the other land of Sy.No.62, hence the spot mahazar has not been proved. Further, the counsel would submit that, PWs.2 and 3 are the spot mahazar witnesses, not supported the case of the prosecution, PW4 and 5 are the adjoining land owners of the accused, PWs 7 and 8 are independent witnesses and PW12 who is the first informant, also have not supported the case of the prosecution, hence, the Trial Court ought to have acquitted the accused/appellant. The counsel further submits that there is no corroborative evidence to the evidence of PW1-complainant. However, the trial court, relying upon the evidence of PW6 doctor, PW9 Village accountant, PW-10 KPTCL Engineer, PWs 11 and 13- police witnesses, has proceeded to convict the accused. The counsel further submits that, as per Ex.P8-RTC extract, crop is shown as teak wood plantation in Sy.No.62, but as per the prosecution case, there is sugarcane crop in the said land. Hence, the

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CRL.A No. 739 of 2011

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evidence of the prosecution is not consistent and cogent on material particulars. Therefore, the prosecution has not established it's case against the accused beyond all reasonable doubt.

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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 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.

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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.5 is the postmortem report.

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The necropsy was conducted by the veterinary doctor-P.W.6, who has stated that the elephant died due to electrocution. Further, from the spot, M.Os. 1 and 2 i.e., four wooden poles

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CRL.A No. 739 of 2011

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and zinc wire were seized. The evidence of P.W.1 is not supported by the evidence of P.W.12, who was working as a daily wage employee in Forest Department, who informed P.W.1 about the elephant lying dead in the land of accused.

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P.Ws 2 and 3 are spot mahazar witnesses to Ex.P2 under which M.Os. 1 and 2 are seized. Though P.Ws.4, 5, 7 and 8, who according to the prosecution, knew that, the accused had fenced the land and had taken unauthorized electricity connection, have been treated as hostile by prosecution.

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From the evidence and material on record, it appears that, only PW1, who is the Range Forest Officer, PW6Veterinary doctor, PW9 Village Accountant, PW10- KPTCL Engineer, have supported the case of the prosecution and independent witnesses have turned hostile to the case of prosecution.

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Court need not see corroboration of evidence of Range Forest Officer, Village Accountant, Veterinary Doctor and Police Officers. There is no principle of law that, the evidence of Government Officials and Police Officers cannot be relied on, without any corroboration. Whereas, in the instant case, there

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CRL.A No. 739 of 2011

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is no scope to doubt that the accused had drawn electric connection unauthorisedly using zinc wire and connected it to the fence erected around his land and the elephant coming into contact with the said electric fence, died due to electrocution.

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In the Wild Life (Protection) Act, 1972 the definition of ‘hunting’ is provided under Section 2(16) which is as under:

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“Hunting”, with its grammatical variations and cognate expressions, includes,—

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(a) killing or poisoning of any wild animal or captive animal and every attempt to do so;

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(b) capturing, coursing, snaring, trapping, driving or baiting any wild or captive animal and every attempt to do so;

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(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;

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The learned counsel for the appellant has contended

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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

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CRL.A No. 739 of 2011

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chase or search the animal for the purpose of catching or killing. He further 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 that, 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, 1972, which is absent in the present case.

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As per Section 9 of the Wild Life (Protection) Act, 1972, no person shall hunt any animal specified in Schedules I, II, III and IV except as provided under Sections 11 and 12 of the Act. Sections 11 and 12 of the aforesaid Act provides permission under certain cases to hunt such animal or cause such animal to be hunted. 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.

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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

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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, 1972.

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Another aspect is that, 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 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, conviction of the appellant under the provisions of the Wild Life (Protection) Act, 1972 cannot be sustained.

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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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The definition of ‘mischief’ under Section 425 of IPC includes, committing the act with intention or knowledge.

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CRL.A No. 739 of 2011

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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, 1972.

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20. Hence, the following;

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ORDER

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Appeal is partly allowed .

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The conviction and sentence of the appellant for the offence punishable under Section 9 r/w Section 51 of Wild Life (Protection) Act, 1972 is hereby set aside.

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The conviction and sentence for the offence punishable under Section 138(1)(a) of the Indian Electricity Act, 2003 is hereby confirmed.

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CRL.A No. 739 of 2011

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The conviction of accused under Section 429 of IPC is confirmed and the sentence is modified.

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The accused is sentenced to pay fine amount of Rs.20,000/(Rupees Twenty Thousand Only) and in default of payment of fine, he shall undergo rigorous imprisonment for a period of 6 months.

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Sd/JUDGE

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rs List No.: 1 Sl No.: 1

Jayaraju, v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Jayaraju, v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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