Sri Allabaksh vs State Of Karnataka
2022 Latest Caselaw 7773 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 31ST DAY OF MAY, 2022

                          BEFORE

        THE HON'BLE MR.JUSTICE MOHAMMAD NAWAZ

            CRIMINAL APPEAL No.584 OF 2011
BETWEEN:

1.     SRI. ALLABAKASH,
       S/O. HYDERSAB,
       AGED ABOUT 46 YEARS,
       RESIDING AT IN FRONT OF
       GOVT. URDU SCHOOL,
       MILLAT NAGAR, KOLAR CITY.

2.     SHEIK AMJAD PASHA,
       S/O. AMEER JAN,
       AGED ABOUT 31 YEARS,
       RESIDING AT NO.629/1,
       RAHAMATHNAGARA,
       KOLAR CITY.                        ...   APPELLANTS

[BY SRI. A. SAMPATH, ADVOCATE]

AND:

STATE OF KARNATAKA
BY KOLAR RURAL POLICE STATION,
KOLAR.                                   ...    RESPONDENT

[BY SRI. KRISHNA KUMAR K.K., HCGP]

                               ***

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT DATED
22.03.2011 PASSED BY THE I ADDITIONAL SESSIONS JUDGE,
KOLAR, IN EACC NO.97/2010 AND AQCUIT THE APPELLANTS FOR
OFFENCE PUNISHABLE UNDER SECTIONS 379, 427 R/W 34 OF IPC
AND UNDER SECTION 136 OF THE ELECTRICITY ACT, 2003, ETC.

      THIS CRIMINAL APPEAL COMING ON FOR FURTHER
HEARING, THROUGH VIDEO CONFERENCE/PHYSICAL HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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                         JUDGMENT

challenging their conviction and sentence passed by the

Court of I Additional District and Sessions Judge, Kolar, in

EACC No.97/2010 dated 22.03.2011, whereby they are

convicted along with accused No.3 for offence punishable

under Sections 379, 427 r/w 34 of IPC and Section 136 of

the Electricity Act, 2003.

2. Heard the learned counsel for appellants and

the learned HCGP for respondent/State and perused the

material on record.

3. The trial Court has sentenced accused Nos.1

and 2 to undergo simple imprisonment for 4 months each

for offence punishable under Sections 379 r/w 34 of IPC,

Section 427 r/w 34 of IPC and Section 136 of the Electricity

Act, 2003, which are ordered to run concurrently.

4. Accused No.3 was given set off for the period of

detention he had already undergone and hence he has not

preferred any appeal.

5. In brief, the case of the prosecution is that, on

18.07.2010, during night hours, near Moorandahalli village,

Kolar taluk, beside Kolar-Chintamani road, the accused

persons committed theft of 1,500 mtrs. of electric cable

wire belonging to BESCOM, damaging 6 electric poles and

caused loss to the BESCOM to the tune of `40,000/- and

thereby committed the charged offences.

6. The prosecution has got examined P.Ws.1 to 10

and got marked Exs.P1 to 11 to establish its case.

7. The learned trial Judge after appreciating the

oral and documentary evidence on record, came to the

conclusion that the prosecution has successfully proved the

guilt of the accused beyond all reasonable doubt for the

charged offences.

8. It is contended by the learned counsel for the

appellants that the prosecution has failed to establish the

guilt of the accused beyond all reasonable doubt as the

panchwitneses viz., P.Ws.5 and 6 to the seizure of alleged

theft articles from the possession of the accused have not

supported the case of prosecution. He submits that Ex.P4

viz., mahazar drawn in respect of seizure of electric cable

from the accused is not proved. He would also contend

that the alleged theft was brought to the notice of the

complainant viz., Section Officer of the BESCOM by one

Nataraj, examined as P.W.2. However, his signature is not

found in the spot-mahazar-Ex.P2. Further contended that

though it is stated by the prosecution that photographs

were taken, no such photographs are marked in evidence.

He would also draw the attention of the Court to the

discrepancy with regard to the time of drawing of Ex.P2-

spot mahazar and contended that according to P.Ws.3 and

4 spot-mahazar was prepared at 11.00 a.m. even before

the complaint was lodged and therefore the prosecution

case is shrouded with doubt and hence, contends that the

accused are entitled for benefit of doubt.

9. The learned High Court Government Pleader

would contend that the prosecution has been able to

establish that the accused have committed theft of electric

cable belonging to the BESCOM by adducing acceptable

evidence. He would contend that eventhough P.Ws.3 and 4

have turned hostile, there is nothing to disbelieve the

evidence of the official witnesses. He submits that the

accused were caught red-handed with the theft article

which is spoken by P.Ws.1, 7 and 9. He therefore contends

that there is no illegality committed by the trial Court so as

to reverse the impugned Judgment. Accordingly, seeks to

dismiss the appeal.

10. The complaint is lodged by P.W.1 who was

working as Section Officer in BESCOM. He has deposed

that on 19.07.2010 he received an information from

C.W.2-Nataraj [P.M.2] regarding theft of electric cable in

Moorandahalli village. Immediately he went to the spot

and noticed that some miscreants had removed about

1,500 mtrs. of electric cable wire damaging 6 electric poles.

He lodged complaint as per Ex.P1. He has stated that after

lodging the complaint, the Police visited the spot and drawn

the spot-mahazar as per Ex.P2.

11. The evidence of P.Ws.2 to 4 would reveal that

on the night of 19.07.2010 there was theft of electric cable.

P.W.2 has stated that this was informed by him to the

Section Officer over phone and thereafter officials came

and inspected the spot. The witnesses have categorically

denied in the cross-examination to the suggestion put to

them that no such theft had taken place. There is nothing

elicited in their cross-examination to disbelieve that there

was theft of electric cable on the night of 19.07.2010.

12. P.W.10 viz., PSI has stated that he received the

complaint from P.W.1 at about 2.00 p.m. on 19.07.2010

regarding theft of electric cable and in this connection he

registered a case and went to the spot ad prepared a

mahazar as per Ex.P2. P.Ws.3 and 4 are the

panchwitnesses to Ex.P4-seizure mahazar. Both of them

have deposed regarding drawing up of spot-mahazar as per

Ex.P2. In the cross-examination of P.W.3, he has stated

that when Ex.P2 was prepared it was 11.00 a.m. But, that

itself is not a ground to disbelieve the spot-mahazar drawn

as per Ex.P2. Ex.P2 clearly shows that it was prepared

between 3.00 and 3.45 p.m. In his cross-examination,

P.W.3 has stated that immediately after lodging the

complaint, the Police have visited the spot and it took

about one hour for preparing the spot-mahazar. When it is

not disputed that the case was registered at about 2.00

p.m. on 19.07.2010, preparation of the spot-mahazar as

per Ex.P2 cannot be doubted.

13. It is contended by the learned counsel for the

appellants that since P.Ws.5 and 6 have turned hostile, the

seizure of electric cable from the possession of the accused

is not proved. Merely because the said witnesses who

signed the spot-mahazar have turned hostile, it cannot be

said that the prosecution has failed to establish the seizure

of electric cable from the possession of the accused

persons. It is relevant to see that after registration of the

case, on 26.07.2010, in the wee hours, while P.Ws.7, 9 and

10 and other Police Officials were on patrolling duty

received a credible information that some accused are

traveling from Mulbaglu to Kolar in a TATA vehicle with the

theft articles. They intercepted the vehicle and

apprehended them. From their possession, they seized

about 11 bundles of electric cable wire, weighing about

200 kgs. valued at `30,000/- under Ex.P.4. Nothing is

elicited in the cross-examination of P.Ws.7, 9 and 10 to

disbelieve the seizure of electric cable wire from the

accused persons. Merely because they are official

witnesses, their evidence cannot be doubted or discarded.

P.W.1-Assistant Engineer working as Section Officer at

BESCOM, Kolar Branch, has deposed in his evidence that

he identified the theft wires and after giving an indemnity

bond received the same from the Police. The indemnity

bond is marked as Ex.P3. He has also identified the sample

wire marked as MO.1. Hence, the prosecution has been

able to establish the guilt of the accused beyond all

reasonable doubt. The trial Court after appreciating the

oral and documentary evidence and after giving reasons

has convicted the accused for the charged offences.

Hence, there is no illegality committed by the trial Court.

14. The offence is committed in the year 2010.

Accused No.3 has been given set off for the period of

detention he has already undergone. The accused were

sentenced to undergo simple imprisonment for a period of

4 [four] months each for the charged offences. It is

submitted by the learned High Court Government Pleader

that the appellant/accused Nos.1 and 2 were in the custody

from 26.07.2010 till 16.08.2010 for a period of about 22

days. Sending the accused to prison at this stage may not

serve any purpose. Therefore, the sentence imposed by

the trial Court can be modified by imposing appropriate

fine. Hence, the following:

ORDER

Appeal is allowed in part.

The Judgment dated 22.03.2011, convicting the

appellants/accused Nos.1 and 2 for offence punishable

under Sections 379, 427 r/w 34 IPC and Section 136 of the

Electricity Act, 2003 passed by the Court of I Additional

Sessions Judge, Kolar, in EACC No.97/2010 is hereby

confirmed.

The sentence imposed against accused Nos.1 and 2 is

hereby modified. The appellants/accused Nos.1 and 2 are

sentenced for the period of detention already undergone by

them and each of them shall pay a total fine of `10,000/-

[Rupees ten thousand]. In default of payment of fine, they

shall undergo simple imprisonment for a period of 2 [two]

months.

Sd/-

JUDGE

Ksm*