The judgment established the importance of mensrea and hunting intent in determining offences under the Wild Life (Protection) Act, and the element of intention or knowledge in the context of committing mischief under the IPC.

JUDGMENT/ORDER

1. This appeal is preferred against the judgment and order dtd. 27/6/2011 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 Sec. 138(1)(a) of the Electricity Act, 2003, Sec. 429 of IPC and Sec. 9 read with Sec. 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 5/1/2008, 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 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 Sec. 135 of the Electricity Act, 2003, Sec. 429 of IPC and Sec. 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.

6. The trial Court has found the appellant / accused guilty for the offence punishable under Sec. 138(1)(a) of the Electricity Act, 2003, Sec. 429 of IPC and Sec. 9 read with Sec. 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 Sec. 429 of IPC and it also amounts to hunting which is defined in Sec. 2(16) of the Wild Life (Protection) Act and Sec. 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 Sec. 9 punishable under Sec. 51 of the Act.

8. Insofar as charged offence under Sec. 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 Sec. 138(1)(a) of the Act and not under Sec. 135 of the Act, since it is not a case of theft of electricity.

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 Sec. 9 r/w Sec. 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 unauthorisedly from the electric pole. She contends that the elephant has come into contact wit