Karnataka High Court
Srinivasa @ Srinath vs State Of Karnataka on 23 May, 2023
Bench: K.Natarajan
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CRL.A No. 1306 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
CRIMINAL APPEAL NO. 1306 OF 2011
BETWEEN:
1. SRINIVASA @ SRINATH
AGED ABOUT 30 YEARS
S/O THIMMARAYAPPA
2. SATHEESH
AGED ABOUT 30 YEARS
S/O NARAYANAPPA
3. THIPPESWAMY @ THIPPESH
AGED ABOUT 28 YEARS
S/O RAMACHANDRAPPA
ALL ARE R/AT SIDDAPURA
MADHUGIRI TALUK
TUMKUR DIST572101
...APPELLANTS
(BY SRI. G NARASI REDDY .,ADVOCATE FOR A1 AND A3
Digitally signed by SRI. CHETHAN B., ADVOCATE FOR A2)
SHOBHA C
Location: High
Court of Karnataka
AND:
1. STATE OF KARNATAKA
BY THE STATION HOUSEOFFICER,
KORATAGERE POLICE STATION,
TUMKUR DIST- 572101
...RESPONDENT
(BY SRI. B.J. ROHITH, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C. PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO
SET ASIDE THE IMPUGNED JUDGMENT DT.2.12.2011 PASSED BY
THE I ADDL. DIST. AND S.J. TUMKUR IN SPL.C.NO.83/2006-
CONVICTING THE APPELLANTS/ACCUSED NOS.2 TO 4 FOR THE
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CRL.A No. 1306 of 2011
OFFENCES PUNISHABLE UNDER SECTION 136 OF ELECTRICITY ACT
AND ETC.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant-accused Nos.2 to 4
under Section 374(2) of Cr.P.C. for setting aside the judgment
of conviction and sentence passed by the I Additional District
and Sessions Judge, Tumkur, in Special Case No.83/2006 dated
02.12.2011, whereby the trial Court has convicted the
appellants for the offences punishable under Section 136 of
Electricity Act, 2003 (hereinafter referred to as 'Act'), and
sentenced them to undergo rigorous imprisonment for three
years and to pay fine of Rs.5,000/- each, and in default, to
undergo rigorous imprisonment for six months.
2. Heard learned counsel for the appellants and the
learned High Court Government Pleader for respondent.
3. The case of prosecution is that the complainant
(P.W.12) filed a complaint on 18.08.2005 stating that there
was theft of electricity copper wire measuring 765 meters at
CRL.A No. 1306 of 2011
Sompura village by the unknown persons. The police officer
(P.W.10) received complaint and registered FIR in Crime
No.162/2005 for the offence punishable under Section 379 of
IPC against the unknown persons and issued FIR to Court.
Subsequently, on 26.09.2005, the police apprehended accused
Nos.1 to 4 and their voluntary statement was recorded and
based upon the said voluntary statement, the police recovered
copper ingots from C.W.6 Atavulla at Bengaluru in a scrap shop
under panchanama as per Ex.P.2 and the police filed charge
sheet against the accused persons. The accused persons
pleaded not guilty and claimed to be tried.
4. The prosecution, in all, examined 13 witnesses and 11
documents have been marked as per Exs.P.1 to P.11 and two
material objects have been marked as per M.Os.1 and 2. After
the examination of witnesses, the statement of accused
persons under Section 313 of Cr.P.C. was recorded. The case
of accused is totally denial and have not entered any defence.
After hearing the arguments, the trial Court found the accused
persons guilty for the offence punishable under Section 136 of
CRL.A No. 1306 of 2011
the Act and convicted them as aforesaid, which is under
challenge.
5. Learned counsel for the appellants has strenuously
contended that, except the police witness, none of the
witnesses have supported, FIR registered against the unknown
persons. There is contradictory evidence by the complainant in
respect of the copper ingots. The complainant in the complaint
has stated that there was theft of copper wire of 765 meters,
but he has deposed in the evidence that there was theft of
about 675 maters and identification of copper wire was not
done as it is ingot. Learned counsel for the appellant has
further contended that the independent witnesses have turned
hostile. The stolen goods was not seized by the Police. Except
the evidence of the investigation officer and the complainant,
the prosecution has not examined any other witnesses to prove
its case. Therefore, the prosecution has utterly failed to prove
the case beyond reasonable doubt. It is also contended by the
learned counsel that the trial Court has committed an error in
convicting the appellants-accused. Hence, prayed for allowing
CRL.A No. 1306 of 2011
the appeal by setting aside the judgment of conviction and
sentence passed by the trial Court.
6. Per contra, learned High Court Government Pleader
for the respondent State has seriously objected the appeal and
contended that the evidence of the prosecution witnesses
especially the police constable and investigation officer clearly
indicates that there is recovery at the instance of the
appellants-accused, which was seized under panchanama.
Merely the independent witnesses have been turned hostile, the
evidence of investigation officer cannot be brushed aside.
Therefore, the learned High Court Government Pleader prayed
for dismissing the appeal by confirming the judgment of
conviction and sentence passed by the trial Court.
7. Having heard the learned counsel appearing for the
parties and on perused the records, the following points would
arise for consideration in this appeal:
(i) Whether the prosecution proves beyond
all reasonable doubt that the accused persons have
CRL.A No. 1306 of 2011
committed the theft of 765 meters of copper wire
which is punishable under Section 136 of the Act ?
(ii) Whether the judgment of trial Court calls
for interference ?
8. Having heard the learned counsel for the parties and
at the cost of repetition, the evidence of prosecution witnesses,
is narrated as follows:
P.Ws.1 and 2 are the independent mahazar witnesses,
who acted as panchas, for seizing the material at Ex.P.2. Both
of them have turned hostile and not supported the case.
P.W.3-Junior Engineer of BESCOM, has supported the
case speaks about staling the wire.
P.W.4 another panch witness has also turned hostile.
P.W.5 has apprehended accused persons on 26.09.2005
along with P.Ws.6 and 7, who are the formal witnesses for
apprehension of accused persons, and they have supported the
prosecution case.
CRL.A No. 1306 of 2011
P.W.8 is the head constable and he accompanied the
investigation officer for seizure of the material and he has
supported the case of prosecution.
P.W.9 who is police constable has assisted investigation.
P.W.10 is PSI and he registered FIR after receiving the
complaint from P.W.12 and issued FIR against the unknown
persons for the offence punishable under Section 379 of IPC.
P.W.11, another panch witness, has turned hostile.
P.W.12-complainant working in the office of BESCOM filed
a complaint against the unknown persons for the theft of 765
meters of copper wire.
P.W.13 accompanied investigation officer for seizure of
the copper wire at the instance of accused from the possession
of C.W.No.6, who is the scrap shop owner.
9. On perusal of the entire evidence on record, it is clear
that P.W.12-complainant is only the first informant who lodged
complaint against the unknown persons. P.W.9 who recovered
CRL.A No. 1306 of 2011
copper wire ingot from C.W.6 and has supported the case of
prosecution.
10. M.O.1 marked by the trial Court contains copper
ingots and as per Ex.P.2, 38 items of ingots were seized by the
investigation officer. As per M.O.1, 14 meters of copper ingots
are also seized.
11. As per the evidence of the complainant, the seized
articles are the theft of copper wire ingots measuring 765
metes. There is no evidence to show that 765 meters of
copper wire were made as ingots and recovered through the
accused. Ex.P.2 only 8 items of ingots recovered. In 6 1/4
months, three bags of ingots were recovered and the weight of
those bags totally measures 150 Kgs., the weight of 2nd item
measures 35 Kgs., the weight of 3rd item measures 17 Kgs.,
the weight of 4th item measures 50 Kgs., the weight of 5th
item measures 120 Kgs., the weight of 6th item measures 170
Kgs., the weight of 7th item measures 62 Kgs. and the weight
of 8th item measures 110 Kgs., but the prosecution was not
able to identify which of the ingots which measures 765 meters
CRL.A No. 1306 of 2011
of copper and which was registered in crime, was recovered at
the instance of the accused. That apart, independent witnesses
P.Ws.1, 2, 4 and 11 have totally turned hostile and have not
supported the case of prosecution. Except, investigation officer
and P.W.13, no other witnesses have supported the prosecution
case. There is no corroboration in the evidence of complainant
in respect of theft of copper wire and seizure of copper ingots.
Therefore, seizure of ingots is not proved by the prosecution at
the instance of independent witnesses, the C.W.6 Ataulla also
not examined by the prosecution who is receiver of stolen
goods.
12. Such being the case, the prosecution has failed to
prove that the seizure of copper ingots is the theft committed
by the appellants-accused, which is the offence punishable
under Section 136 of the Act or Section 379 of IPC beyond
reasonable doubt. There is no sufficient material placed by the
prosecution against the appellants-accused on record.
Therefore, I am of the view that the impugned judgment of
conviction and sentence passed by the trial Court is required to
be interfered with by this Court.
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CRL.A No. 1306 of 2011
13. Accordingly, I pass the following order:
(i) The appeal is allowed.
(ii) The judgment of conviction and sentence passed by
the judgment of conviction and sentence passed by the I
Additional District and Sessions Judge, Tumkur, in Special Case
No.83/2006 dated 02.12.2011, is hereby set aside.
(iii) The appellants-accused Nos.2 to 4 are acquitted of
the offences punishable under Section 136 of Act.
(iv) The bail bond stands cancelled.
(v) The fine amount, if any, is to be refunded to the
appellants after due identification.
Sd/-
JUDGE
CS
