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2022 Supreme(Online)(KAR) 125
MR. JUSTICE MOHAMMAD NAWAZ, J
NOORALACHARI – Appellant
Versus
STATE BY SARAGOOR POLICE STATION – Respondent
CRL.A 715/2011
The absence of mens rea negates liability under the Wildlife Protection Act, while unauthorized electricity use constitutes offenses under the Electricity Act and IPC.
Headnote:
Electricity - Wildlife Protection - Electricity Act 2003, IPC, Wildlife Protection Act - The court confirmed the conviction under the Electricity Act and IPC while setting aside the conviction under the Wildlife Protection Act, emphasizing the absence of mens rea for hunting.
Fact of the Case:
The accused was charged for unauthorized electricity connection leading to the death of an elephant due to electrocution from a solar fence. The prosecution argued that this constituted mischief and hunting under relevant laws.
Finding of the Court:
The court found sufficient evidence of unauthorized electricity use and confirmed the conviction under the Electricity Act and IPC, but ruled that the prosecution failed to establish the hunting charge under the Wildlife Protection Act due to lack of intent.
Issues: Whether the accused's actions constituted hunting under the Wildlife Protection Act and whether the prosecution proved the necessary mens rea for the charges.
Ratio Decidendi: The court held that mere knowledge of the potential for harm does not equate to intent to hunt, thus the Wildlife Protection Act charge was not substantiated, while the other charges were upheld.
Final Decision: The appeal is partly allowed; conviction under the Wildlife Protection Act is set aside, while convictions under the Electricity Act and IPC are confirmed.
JUDGMENT
This appeal is preferred against the judgment and order dated 23.06.2011 passed by the court of I Additional District and Sessions Judge At Mysore in Spl.Case No.112/2018.
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.
2. Heard both sides and perused the material on record.
3. Brief facts of the prosecution case are that:
The land of the accused bearing Sy.No.34 is situated at Dadadahalli, Beddalapura, H.D.Kote talluk. He had grown Sugarcane and Tobacco in the said land. He had drawn electric connection unauthorisedly using aluminium wire, from the pump house situated in the land to the solar fence put up by him around his land. P.W.2 who is working as forest watcher in the Maleyur forest range, while on patrolling duty on 30.07.2008, noticed a male elephant lying dead in the land of the accused. He informed the same to P.W.1-Range Forest Officer working in Range Forest Office, Malayur. P.W.1 visited the spot and found that the elephant died on account of coming into contact with the solar fence put up around the land of accused.
4. The complaint was lodged as per Ex.P.1 with Saragoor Police on the basis of which case was registered against the accused/appellant in Cr.No.131/2008. On completion of investigation charge sheet was filed. The appellant was charged for offences punishable under Section 429 of IPC, Section 135 of the Electricity Act, 2003 and Section 51 of Wild Life (Protection) Act.
5. In order to prove the guilt of the accused, prosecution got examined P.Ws.1 to 11 and got marked Exs.P.1 to 19 and M.Os.1 to 4.
6. 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 Section9 R/w Section 51 of 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 under Section 429 of IPC and it also amount to hunting under Section 2(16) of Wild Life (Protection) Act and Section 9 prohibits hunting of any wild animal specified in Schedule 1 Part I of the Act and therefore, accused has violated Section 9 punishable under Section51 of the Act.
8. Insofar as the charged offence under Section135 of the Electricity Act is concerned, trial Court has come to the conclusion that the accused has taken electricity connection from the pump set to the solar fence unauthorisedly and therefore, he has committed an offence punishable under Section 138(1)(a) of Electricity Act and not under Section 135 of the Act, since it is not a case of theft of electricity.
9. The learned counsel for the appellant has 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 that 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 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 mens-rea which is absent in the instant case. He therefore contends that 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 a solar 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 a
