Karnataka High Court
Syed Farooq Pasha vs State By Madhugiri Police Station on 30 October, 2023
Bench: Mohammad Nawaz
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CRL.A No. 333 of 2012
C/W CRL.A No. 363 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO. 333 OF 2012
C/W
CRIMINAL APPEAL NO. 363 OF 2012
IN CRL.A. NO.333/2012
BETWEEN:
1. SYED FAROOQ PASHA
S/O SYED MAQBOOL,
AGED ABOUT 26 YEARS
R/A GOPALPURAM
BEHIND MINERVA MILLS
MAGADI ROAD
BANGALORE.
...APPELLANT
Digitally (BY SRI. A S KULKARNI, ADVOCATE)
signed by
SUMITHRA R AND:
Location:
High Court of
1. STATE BY MADHUGIRI POLICE STATION
Karnataka
DISTRICT:TUMKUR.
...RESPONDENT
(BY SMT. SOWMYA R., HCGP)
THIS CRL.A IS FILED U/S.374(2) CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER DATED 28.01.2012 PASSED
BY THE I - ADDL. DISTRICT AND SESSIONS JUDGE, TUMKUR
IN SPECIAL C.NO.69/2006 - CONVICTING THE
APPELLANT/ACCUSED NO.4 IS P/U/S.136 AND 137 OF
ELECTRICITY ACT, 2003. AND THE APPELLANT/ACCUSED NO.4
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CRL.A No. 333 of 2012
C/W CRL.A No. 363 of 2012
IS SENTENCED TO UNDERGO R.I. FOR ONE YEAR AND TO PAY
A FINE OF RS.3,000/- AND IN DEFAULT TO PAY FINE AMOUNT,
TO UNDERGO R.I. FOR SIX MONTHS FOR THE OFFENCES
P/U/S.136 AND 137 OF ELECTRICITY ACT.
IN CRL.A. NO.363/2012
BETWEEN:
1. RAVIKUMAR @ RAVI
S/O SIDDAPPA,
AGED ABOUT 27 YEARS,
GANIGARU BY CASTE,
R/O CHIKKONAHALLI,
KOPPA HOBLI,
MADDUR TALUK,
MANDYA DISTRICT.
...APPELLANT
(BY SMT. M R VANAJA., ADVOCATE)
AND:
1. STATE BY MADHUGIRI
POLICE.
...RESPONDENT
(BY SMT. SOWMYA R., HCGP)
THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT OF CONVICTION DATED:28.1.12
PASSED BY THE I ADDL.DISTRICT AND SESSIONS JUDGE,
TUMKUR IN SPL.C.NO.69/06 - CONVICTING THE
APPELLANT/ACCUSED NO.3 FOR THE OFFENCE P/U/S.136 AND
137 OF ELECTRICITY ACT 2003.THE APPELLANT/ACCUSED
NO.3 SENTENCED TO UNDER GO RIGOROUS IMPRISONMENT
FOR ONE YEAR AND TO PAY A FINE OF RS.3,000/- AND IN
DEFAULT TO PAY THE FINE AMOUNT TO UNDER GO RIGOROUS
IMPRISONMENT FOR SIX MONTHS FOR THE OFFENCES
P/U/SEC.136 AND 137 OF ELECTRICITY ACT.
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CRL.A No. 333 of 2012
C/W CRL.A No. 363 of 2012
THESE APPEALS ARE COMING ON FOR HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals are preferred by accused Nos.3 and 4
respectively against the judgment and order dated
28.01.2012 passed by the Court of I Additional District and
Sessions Judge, Tumkur in Special.C No.69/2006.
2. By the aforesaid judgment, the learned
Sessions Judge has convicted accused Nos.2 to 4 for the
offence punishable under Sections 136 and 137 of
Electricity Act, 2003 and sentenced them to suffer R.I. for
one year and to pay a fine of Rs.3,000/- each and in
default to pay the fine amount, to undergo R.I. for six
months. The trial Court has acquitted accused No.1 of the
charged offences, observing that there is nothing on
record with regard to the role played by the said accused
and the prosecution has not brought home its case against
him.
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CRL.A No. 333 of 2012
C/W CRL.A No. 363 of 2012
3. Criminal Appeal No.363/2012 is preferred by
accused No.3 and Criminal Appeal No.333/2012 is
preferred by accused No.4.
4. It is the case of prosecution that accused Nos.1
to 3 committed theft of 10,040 meters of aluminum and
copper wires belonging to BESCOM valued at Rs.27,706/-,
during night hours on 20.11.2005 in Kithagahalli and
Karpehalli of Madhugiri Taluk and then sold it to accused
No.4, who purchased it knowing it to be stolen property
and then melted and converted into aluminum and copper
ingots and thereby the accused committed offences
punishable under Sections 136 and 137 of Electricity Act,
2003.
5. I have heard the learned counsel appearing for
accused/appellants and the learned High Court
Government Pleader for respondent/State and perused the
material on record.
6. The complainant is a Junior Engineer of
BESCOM, Badavana Halli, Madhugiri Taluk. He is examined
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C/W CRL.A No. 363 of 2012
as PW.1. The complaint is marked as Ex.P1. The
complaint was lodged on 30.11.2005, on the basis of
which PW.9 - PSI of Madhugiri Police Station registered a
case against unknown persons under Section 379 of IPC
and issued the FIR - Ex.P13 to the jurisdictional Court. As
per Ex.P1, there was theft of aluminum and copper wires
from different places in Kithagahalli Village and Karpehalli
Village, during night hours of 20.11.2005, i.e., about ten
days prior to the lodging of the complaint.
7. PW.1 has deposed about lodging of Ex.P1 and
conducting mahazars as per Exs.P2 to P7. He has stated
that at five places, aluminum and copper wires were
stolen. He has further stated that after lodging of the
complaint, madhugiri police showed 123 aluminum ingots
and 38 copper ingots marked as MOs.1 and 2. In the
cross-examination he has denied of having lodged a false
complaint.
8. The prosecution has got examined PWs.2 to 7,
the owners of the land from where the theft of copper and
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C/W CRL.A No. 363 of 2012
aluminum wires have taken place. PWs.4 to 6 and 7 have
been treated hostile by the prosecution. PWs.2 and 3
have stated that the wires were stolen from the poles
erected in their lands. The evidence of PWs.2 to 7 goes to
show that there was theft of aluminum and copper wires
and they had lodged complaints in this regard. Further,
PW.2 has identified his signatures on Ex.P2 to P6 namely
the spot mahazars which were drawn on 01.12.2005.
9. PW.8 is the police constable who apprehended
accused Nos.2 and 3 and produced before PW.9 on
06.05.2005. He has sated that the said accused led the
police and panchas to the shop of one Amanulla wherein
accused No.4 was present and at the instance of accused
Nos.2 and 3, accused No.4 produced the aluminum and
copper ingots which are said to have been sold to him
about fifteen days prior. He has stated that they
recovered 123 aluminum ingots and 38 copper ingots
under a mahazar Ex.P12.
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10. PW.9 namely the investigation Officer has
deposed about the arrest of accused Nos.2 and 3 on
06.12.2015 and recording of their voluntary statements as
per Exs.P14 and 15. He has deposed about accused Nos.2
and 3 leading the police and panchas to the scrap shop
wherein accused No.4 produced 123 aluminum ingots and
38 copper ingots which were seized under a mahazar -
Ex.P12 in the presence of panch witnesses PWs.10 and 11.
11. From the above material on record, it can be
seen that there was theft of copper and aluminum wires
from the electric poles prior to 30.11.2005 and on the
complaints of the land owners. PW.1 lodged a complaint
on the basis of which the police registered a case against
unknown persons for an offence punishable under Section
379 of IPC and investigation was taken up. On
01.12.2005, spot mahazars as per Ex.P2 to P7 were
drawn. Accused Nos.2 and 3 are said to be apprehended
on 06.12.2005 and their voluntary statements as per
Exs.P14 and 15 were recorded. However, it is not
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C/W CRL.A No. 363 of 2012
forthcoming from the evidence of PWs.8 and 9 as to on
what basis the said accused Nos.2 and 3 were arrested.
According to the police, after the arrest the accused gave
their voluntary statements and they led the police to the
scrap shop of one Amanulla, wherein accused No.4 - Syed
Fairoz was present. PWs.8 namely the police constable
and PW.9 - PSI who registered the case have stated that
from the said accused No.4, 123 aluminum ingots and 38
copper ingots were recovered. On the ground that he has
received the aluminum and copper wires belonging to
BESCOM from accused Nos.2 and 3, knowing fully well
that they are stolen property, he has been arraigned as an
accused. What is relevant to be seen is that there is no
material placed by the prosecution to show that the said
accused No.4 received aluminum and copper wires
belonging to BESCOM from accused Nos.2 and 3.
Admittedly, what is recovered from accused No.4 is the
copper and aluminum ingots. There is no material to show
that the said copper and aluminum ingots were belonging
to BESCOM. Merely because the copper and aluminum
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ingots were recovered from accused No.4 on that basis
itself, it cannot be held that they are the melted copper
and aluminum wires which were stolen from the electric
poles at different places, prior to 30.11.2005.
12. PW.9 in his cross-examination has admitted
that he has not mentioned the date in the voluntary
statements of the accused and no records of the shop of
accused No.4 was collected. He has further stated that
accused No.4 has not given any bill to accused Nos.2 and
3 for having sold the stolen property and accused No.4 has
not maintained any book of accounts. According to the
prosecution, under Ex.P12 about 69 aluminum ingots
weighing about 100 kgs 100 grams which was sold to
accused No.4 about 1 ½ months prior, which were stolen
in connection with Crime No.186/2005 and another 3
plastic bags containing 123 aluminum ingots weighing
about 180 kgs and 2 bags containing 38 copper ingots
weighing about 200 kgs which is the subject matter were
recovered. Neither PW.8 nor PW.9 have mentioned about
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C/W CRL.A No. 363 of 2012
the weight of the copper and aluminum ingots recovered
from accused No.4 in connection with the case on hand.
The prosecution has also failed to prove that the weight of
the copper and aluminum ingots which are recovered
from accused No.4 and the weight of the copper and
aluminum wires which were stolen from the electric poles
belonging to BESCOM are same. Further, PWs.10 and 11
the panch witnesses to Ex.P12 have turned hostile and
they have not supported the case of prosecution. Hence,
the prosecution has failed to establish the charges leveled
against the accused/appellants beyond all reasonable
doubt. The trial Court has failed to take into consideration
the above aspects which are discussed by this Court. The
reasons assigned by the trial Court for convicting the
accused for the charged offences are therefore, not in
accordance with law. The accused are accordingly liable to
be acquitted. Hence, the following:
ORDER
Appeals are allowed.
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CRL.A No. 333 of 2012
C/W CRL.A No. 363 of 2012
The judgment and order dated 28.01.2012 passed by
the Court of I Additional District and Sessions Judge,
Tumkur in Special.C No.69/2006 convicting and sentencing
the appellants/accused Nos.3 and 4 is hereby set aside.
The accused are acquitted of the offences punishable
under Section 136 and 137 of the Electricity Act, 2003.
Their bail bonds shall stand cancelled.
Sd/-
JUDGE
HB
