Karnataka High Court
Abrar Khan @ Abrar vs State Of Karnataka on 12 September, 2023
Bench: Shivashankar Amarannavar
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NC: 2023:KHC:32906
CRL.A No. 490 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO. 490 OF 2012
BETWEEN:
1. ABRAR KHAN @ ABRAR
S/O MAZAR KHAN
AGED ABOUT 26 YEARS
R/AT No.3236, II CROSS
C V ROAD, 2ND EDIGA
MYSORE CITY.
2. MOHAMAD THOUSIF
S/O MOHAMMED KASIM
AGED ABOUT 32 YEARS
Digitally signed by
R/AT No.3263, II CROSS
LAKSHMINARAYANA C V ROAD, 2ND EDIGA
MURTHY RAJASHRI
Location: HIGH MYSORE CITY.
COURT OF ...APPELLANTS
KARNATAKA
(BY SRI GOPALA C, ADVOCATE FOR
SRI M V VEDACHALA, ADVOCATE)
AND:
STATE OF KARNATAKA
REPRESENTED BY ITS SPP
HIGH COURT BUILDINGS
BANGALORE - 560 001
(THROUGH THE S H O
NAZARBAD POLICE STATION
MYSORE DISTRICT, MYSORE)
...RESPONDENT
(BY SRI RANGASWAMY R, HCGP)
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CRL.A No. 490 of 2012
THIS CRL.A. IS FILED U/S.374(2) CR.P.C BY THE
ADV.FOR THE APPELLANTS/ACCUSED NO.1 AND 2 PRAYING TO
SET ASIDE THE ORDER DATED:30.3.12 PASSED BY THE I
ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSORE IN
SPECIAL CASE No.1/10-CONVICTING THE
APPELLANTS/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 136 OF KARNATAKA ELECTRICITY ACT 2003.
THIS APPEAL COMING ON FOR DICTATING JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is filed against the judgment of
conviction and order of sentence dated 30.03.2012 passed
in Special Case No.1/2010 by the I Additional Sessions
and Special Judge, Mysuru convicting the appellants -
accused Nos.1 and 2 for the offence under Section 136 of
the Electricity Act, 2003 (for short hereinafter referred to
as 'the Act') and sentencing them to undergo Rigorous
Imprisonment for a period of one year and to pay fine of
Rs.25,000/-, in default to undergo Rigorous Imprisonment
for a period of six months.
2. Heard the arguments of learned counsel for the
appellants and learned High Court Government Pleader for
the respondent - State.
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3. The parties will be referred to as per their rankings in
the Trial Court for the sake of convenience.
4. Case of the prosecution is that, on the complaint of
PW4 - Sri.H.M.Srikantaiah filed as per Ex.P6, the police
registered a case against the unknown persons for the
offence under Section 379 of IPC. In the complaint, it is
stated that he got the information that a transformer has
been stolen which has been fixed opposite to Computer
Centre on Dr.Rajkumar road of Nazrabad Mohalla to give
electric connection to the Teachers Lay Out and it is of the
capacity of 250 KVA (T.C. Code No.113644) and the said
theft has been taken place on 01.08.2009 during the night
hours and the value of the said transformer is about
Rs.2,45,000/-.
5. After registering the F.I.R., police said to have
arrested accused Nos.1 to 3 and seized two transformers
and also oil cans used in the transformers under the
panchnama and filed the charge sheet against the accused
persons. After filing the charge sheet for the offence
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CRL.A No. 490 of 2012
under Section 136 of the Act, the case was taken up by
the Special Court. Accordingly, the accused persons were
tried and charges were framed against them. They
pleaded not guilty and claimed to be tried.
6. The prosecution examined nine witnesses as
PWs.1 to 9 and got marked fifteen documents as Exs.P1 to
P15 and the material objects as per MOs.1 to 13. The
accused did not lead any defence evidence.
7. After hearing the arguments, the Trial Court
convicted and sentenced the appellants to undergo
imprisonment as stated above. Being aggrieved by the
same, the appellants who were accused Nos.1 and 2
before the Trial Court have filed this appeal.
8. Learned counsel for the appellants argued that there
is a contradiction in recovery of the missing or stolen
transformers and the transformers recovered / seized in
the case. The independent witness examined for the
prosecution namely PW1 - Pancha to Ex.P1 has not
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supported the case of the prosecution. The transformer
seized in the lorry under Ex.P1 - mahazar and the
transformer seized in the Godown under mahazar - Ex.P2
are not the transformers said to have been stolen as per
the complaint - Ex.P6. There is no connecting materials to
show that the appellants - accused No.1 and 2 were
possessing the stolen transformer, the details of which is
mentioned in Ex.P6 - complaint. The Trial Court
committed the error in accepting the evidence and
convicted the appellants / accused Nos.1 and 2. Hence,
he prayed for allowing the appeal and acquitting the
appellants / accused Nos.1 and 2.
9. Per contra, learned High Court Government Pleader
supported the judgment of the Trial Court and contended
that the appellants - accused Nos.1 and 2 were found
possessing the transformers belonging to Karnataka
Electricity Board.
10. Having heard the arguments and perusing the
records, the following point arises for consideration;
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"Whether the Trial Court erred in convicting the
appellants / accused Nos.1 and 2 for the
offence under Section 136 of the Act?
11. My answer to the above point is in the affirmative,
for the following reasons;
Upon hearing the rival contentions of the learned
counsel and in order to re-appreciate the evidence on
record, it is necessary to have the cursory look to the
evidence adduced by the prosecution before the Trial
Court, which are as under;
(a) PW1 is the Pancha to the seizure mahazar -
Ex.P1 and he has turned hostile and not supported the
prosecution case.
(b) PW2 is one Sri.Venkatachala, the Lineman in
C.E.S.C, Mysuru who is one of the Pancha to Ex.P4 -
mahazar and he has deposed regarding the seizure of one
sealed bottle containing oil in the police station under
Ex.P4 - mahazar and it bears his signature. In the cross
examination, he has stated that he does not know from
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where the oil contained in the said bottle - MO1 was
brought.
(c) PW3 is the Head Constable of Nazrabad police
station. He has deposed that he was present with CW18 -
PW8 at the time of preparing Ex.P1 - seizure mahazar,
arrest of the accused, seizure of transformer and identified
the transformer on seeing its photograph - Ex.P8 and the
photograph of the lorry - Ex.P14. In the cross
examination, he has stated that no person was in that
locality to sign the mahazar. He further deposed that he
saw that there was a number on the transformer.
(d) PW4 is one Sri.H.M.Srikantaiah, Assistant
Engineer, C.E.S.C and he has deposed regarding receiving
a phone call of no electricity supply on 03.08.2009 and the
transformer fixed was not found there and he went to the
spot and found that the transformer was not there and he
filed a complaint as per Ex.P6. He has deposed that the
mahazar as per Ex.P7 was drawn by the police and seizure
of wooden piece of the lorry MO.2 under the said mahazar
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which was lying at the spot. He further deposed that on
05.08.2009, on receiving information from the police
regarding tracing of the transformer, he went and
identified the transformer as belonging to C.E.S.C which
was seized under Ex.P1 - mahazar. He further deposed
that again he was called on 15.09.2008 to Nazrabad police
station and the police shown him one bottle (MO.1) which
was seized by the police under Ex.P4 - mahazar. He has
identified the transformer which the police had traced and
marked as MO.3.
(e) PW5 is the Lineman of C.E.S.C and he has
deposed regarding the police preparing the mahazar -
Ex.P4 and seizing MO.1 - bottle.
(f) PW6 is the Assistant Engineer in C.E.S.C, Mysuru
and he has deposed regarding the police drawing the
mahazar as per Ex.P7 on 03.08.2009 and seizing MO.2 -
wooden piece.
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(g) PW7 is the Police Sub-Inspector. He has deposed
regarding receiving the complaint - Ex.P6, registering the
F.I.R - Ex.P9 and preparing the mahazar as per Ex.P7 and
seizing MO.2 - wooden piece lying on the ground at the
spot.
(h) PW8 is the Police Inspector. He has deposed
regarding receiving the message over phone of stealing
the transformers and transporting the same in a lorry
bearing No.KA-14-5065 and he reached Bannimantapa at
5.30 am., on 04.08.2009 and stopped the lorry. Four
persons who were in the body of the lorry ran away and
they caught hold three persons who were in the cabin and
they are accused Nos.1 to 3 and on checking the lorry,
they found two transformers, one of 250 K.V.A capacity
and the other of 100 K.V.A capacity and he drew the
mahazar - Ex.P1 and seized the lorry and the
transformers and identified the transformers on seeing its
photograph - Ex.P8. He has further deposed regarding
recording of voluntary statement of accused Nos.1 to 3 as
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per Exs.P11 to P13 and accused Nos.1 to 3 taking him to
the godown near Gajanana Rice Mill and they produced a
transformer, 26 cans containing transformer oil and other
articles and seized them under mahazar - Ex.P2 and
identified the articles at MOs.4 and 5 and he has identified
the transformer on seeing the photograph - Ex.P8 and he
collected 180 ml. of oil which is at MO.13 and he identified
the lorry on seeing the photograph of the lorry - Ex.P14.
12. On perusal of the entire evidence on record, except
PW3 - Police Head Constable and PW8 - Police Inspector
seized two transformers under mahazar - Ex.P1. Ex.P1 is
not proved by examining the independent witnesses and
PW1 turned hostile. Except seizing the transformer and
some oil, there is no evidence available on record to
connect the accused to the crime. The transformer which
was seized under Mahazar - Ex.P1 is altogether different
from the transformer which was stolen from Dr.Rajkumar
Road situated opposite to the Computer Centre which is
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having Sl.No.113644, but the transformers seized under
Ex.P1 are having different numbers.
13. Absolutely, there is no evidence to prove that the
seized transformers are that of the transformers which
were stolen from Dr.Rajkumar Road, opposite to Computer
Centre. It appears that the police seized some
transformers and fixed this case and filed the charge sheet
against the appellants / accused persons to show that the
accused persons have committed theft of the
transformers.
14. PW4 is the Assistant Engineer in C.E.S.C. In his
cross examination he has admitted the suggestion that the
transformers are manufactured in private companies and
one can purchase the transformers from such companies.
He has also admitted the suggestion that whenever
anything is purchased for their office, there would be an
entry in the stock register. No such stock register has
been placed by the prosecution to show that the seized
transformers are belonging to C.E.S.C. PW4 also admitted
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the suggestion that some of the private lay-outs'
transformers are brought by the owners of the lay-out and
permission is sought only for taking connection.
15. Even PW8 - Investigating Officer has stated that he
did not collect any documents to show that the
transformers belong to K.E.B. On seeing Ex.P8, he has
stated that he did not see the serial number of the
transformer in it.
16. Therefore, there is nothing on record to establish
that the transformers seized under Exs.P1 and P2 are
belonging to K.E.B / C.E.S.C and they are the subject
matter of theft. Therefore, I am of the view that the
prosecution has utterly failed to show that the accused
persons committed the offence of stealing the
transformers which are seized under Exs.P1 and P2.
Absolutely there is no connecting evidence to connect the
accused with the theft of transformers and therefore, the
accused persons have to be acquitted. The Trial Court
without proper appreciation of the evidence, ignored the
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seized transformers' numbers and stolen transformers'
numbers, which are altogether different. The Trial Court
has committed error in finding the guilt of the accused and
convicted appellant Nos.1 and 2 / accused Nos.1 and 2.
Hence, the conviction of appellant Nos.1 and 2 / accused
Nos.1 and 2 under the impugned judgment is liable to be
set-aside. Accordingly, I proceed to pass the following;
ORDER
The appeal is allowed. The judgment of the Trial
Court in Special Case No.1/2010 is hereby set-aside. The
appellant Nos.1 and 2 / accused Nos.1 and 2 are acquitted
of the offence under Section 136 of the Act and their bail
bonds shall stand cancelled. If any fine amount is
collected, the same is ordered to be refunded to the
appellant Nos.1 and 2 / accused Nos.1 and 2.
Sd/-
JUDGE
GH
