[Cites 10, Cited by 0]
Karnataka High Court
Shamiulla vs The State Of Karnataka on 19 December, 2025
-1-
CRL.A No.624 of 2012
C/W CRL.A No.646 of 2012
AND CRL.A No.900 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF DECEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.624 OF 2012 (C)
CONNECTED WITH
CRIMINAL APPEAL NO.646 OF 2012 (C)
AND
CRIMINAL APPEAL NO.900 OF 2012 (C)
IN CRL.A. NO.624/2012:
BETWEEN:
1. SHAMIULLA
S/O. KHADIR SAB
AGED ABOUT 28 YEARS
OCC:MASON
RESIDING AT SEEGEBAGE
BHADRAVATHI
SHIMOGA DISTRICT.
2. MARUTHI
S/O. THIMMEGOWDA
AGED ABOUT 25 YEARS
OCC: AGRICULTURIST
RESIDING AT ASHWATH NAGAR
Digitally signed by BHADRAVATHI
MOUNESHWARAPPA
NAGARATHNA SHIMOGA DISTRICT.
Location: High Court
of Karnataka
...APPELLANTS
(BY SRI P.B. UMESH, ADVOCATE, FOR SRI R.B. DESHPANDE)
AND:
THE STATE OF KARNATAKA
BY BELUR POLICE STATION.
...RESPONDENT
(BY SRI DIVAKAR MADDUR, H.C.G.P.)
***
-2-
CRL.A No.624 of 2012
C/W CRL.A No.646 of 2012
AND CRL.A No.900 of 2012
IN CRL.A. NO.646/2012:
BETWEEN:
1. MANJUNATH @ KATHLE MANJA
S/O. SHANKARAPPA
AGED ABOUT 28 YEARS
CARPENTER
HOSAMANE, BHADRAVATHI
SHIMOGA DISTRICT.
2. MANJUNATHA
S/O. GANGADHARA
AGED ABOUT 38 YEARS
BAR BENDING WORK
SURGI THOPU, BHADRAVATHI
SHIMOGA DISTRICT.
...APPELLANTS
(BY SRI B.S. PRASAD, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY HASSAN RURAL POLICE STATION.
...RESPONDENT
(BY SRI DIVAKAR MADDUR, H.C.G.P.)
***
IN CRL.A. NO.900/2012:
BETWEEN:
1. ALTAF AHAMAD
S/O. ABDUL KAREEM
AGED ABOUT 35 YEARS
MASON WORK
HANUMANTHANAGARA
BHADRAVATHI.
-3-
CRL.A No.624 of 2012
C/W CRL.A No.646 of 2012
AND CRL.A No.900 of 2012
2. SANTHOSHA
S/O. CHANNAPPA
AGED ABOUT 26 YEARS
AUTO DRIVER
HOSAMANE, BHADRAVATHI.
3. KUMARA
S/O. ELUMALAI
AGED ABOUT 18 YEARS
PAINTING WORK
HANUMANTHANAGARA
BHADRAVATHI.
...APPELLANTS
(BY SRI B.S. PRASAD, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY BELUR POLICE STATION
HASSAN.
...RESPONDENT
(BY SRI DIVAKAR MADDUR, H.C.G.P.)
***
THESE CRIMINAL APPEALS ARE FILED UNDER SECTION 374(2)
OF THE CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND ORDER ON SENTENCE DATED 30-4-2012 PASSED
BY THE ADDITIONAL SESSIONS JUDGE, HASSAN, IN SPECIAL CASE
NO.106 OF 2010 CONVICTING THE APPELLANTS/ACCUSED NOS.1
TO 7 FOR THE OFFENCES PUNISHABLE UNDER SECTION 136 OF THE
INDIAN ELECTRICITY ACT, 2003, AND UNDER SECTION 379 OF THE
INDIAN PENAL CODE, 1860.
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED ON 5-12-2025, COMING ON FOR PRONOUNCEMENT, THIS
DAY, THE COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE VENKATESH NAIK T
-4-
CRL.A No.624 of 2012
C/W CRL.A No.646 of 2012
AND CRL.A No.900 of 2012
CAV JUDGMENT
Criminal Appeal No.624 of 2012 is filed by the
appellants/accused Nos.2 and 3, Criminal Appeal No.646
of 2012 is filed by the appellants/accused Nos.1 and 6,
and Criminal Appeal No.900 of 2012 is filed by the
appellants/accused Nos.4, 5 and 7 praying to set-aside the
judgment of conviction and order on sentence dated
30.04.2012 passed by the learned Additional Sessions
Judge, at Hassan, in Special Case No.106 of 2010,
whereby the accused are held guilty for the offences
punishable under Section 136 of the Indian Electricity Act,
2003 (for short, 'Electricity Act') and Section 379 of the
Indian Penal Code, 1860 (for short, 'IPC') and are
sentenced to undergo simple imprisonment for a period of
two years each for the aforesaid offences.
2. Brief facts of the prosecution case are that on
19-9-2010 at about 1.00 a.m., there was interruption in
supply of electricity at Beluru 66 K.V. Line. Hence, the
complainant along with his staff went to inspect the line
and found that, within the limits of Rajarajeshwari Nagara,
some miscreants had cut and stolen the copper wires,
which was drawn between Goruru and Ramachandrapura,
and the total value of the wires was Rs.40,000/-. Hence,
on 20-9-2010 at 10:00 a.m., he lodged a complaint.
Based on the complaint, the case has been registered and
the Investigating Officer laid the charge-sheet against the
accused.
3. After receipt of the charge-sheet, the trial Court
complied with Section 207 of the Code of Criminal
Procedure, 1973 (for short, 'Cr.P.C') by supplying
prosecution papers and framed charges against the
accused for the aforesaid offences. The accused pleaded
not guilty and claimed to be tried. Thus, the prosecution
in, order to prove its case, examined in all eight witnesses
as PW1 to PW8, got marked five documents as per Exs.P1
to P5 and two material objects as per MOs.1 and 2.
Assessing the entire evidence, the trial Court arrived at a
conclusion that, the accused committed the offences
charged against them and thus, convicted them for the
offences punishable under Section 136 of Electricity Act
and under Section 379 of IPC. Being aggrieved by the
same, the accused have preferred the appeals.
4. Heard the learned counsel for the appellants-
accused Nos.1 to 7 and the learned High Court
Government Pleader for the respondent-State.
5. Sri P.B. Umesh and Sri B.S. Prasad, learned
counsel for the appellants, have contended that the
conviction and sentence passed by the trial Court is
contrary to law, evidence and probabilities of the case.
The prosecution is guilty of material suppression of
evidence and has not come forward with true origin of the
incident. There is delay in filing the complaint and the
delay has been conveniently used by the prosecution to
foist a false case against the accused. The trial Court has
mainly relied on the evidence of PWs.2 to 4, which is full
of material omissions, contradictions, and suffers from
legal infirmities. The trial Court also relied upon the
evidence of PW6, Investigating Officer, and voluntary
statement of accused No.1. In fact, such voluntary
statement appears to be implanted for the purpose of this
case. The evidence of PW5 about the alleged recovery of
material objects along with Tata Sumo vehicle is doubtful,
as no mahazar was drawn at that time, which goes to the
very root of the case. Further, the Investigating Officer
has not followed due procedures while seizing the articles
and therefore, the recovery itself is doubtful. The trial
Court should have given the benefit of doubt and acquitted
the accused. The trial Court ought to have extended the
benefit available under Sections 3 and 4 of the Probation
of Offenders Act, 1958, to the accused. On all these
grounds, they prayed to allow the appeals.
6. Per contra, Sri Divakar Maddur, learned High Court
Government Pleader for the respondent-State, submits
that the trial Court convicted the accused based on the
material evidence available before it. The recovery of
material objects at the instance of the accused is proved
by examining the independent witnesses to seizure
mahazars. All the witnesses have supported the case of
the prosecution and hence, no interference is called for by
this Court. Thus, he prayed to dismiss the appeals.
7. In view of the submissions made by the learned
counsel for both parties, the point that arises for the
Court's consideration is,
Whether the judgment and order of conviction
and sentence passed by the trial Court requires
interference at the hands of this Court?
8. Firstly, to connect the accused to the theft of
copper wires, the prosecution must establish specific
legal elements of the offence and provide concrete
evidence linking the individual to the crime. The primary
burden of proof is on the prosecution to prove the guilt
beyond reasonable doubt. Secondly, the prosecution must
prove that the accused had willful and dishonest intention in
committing theft of electric wires. The act of committing theft
of electric wires for personal gain is often considered prima-
facie evidence of this intention. Thirdly, the prosecution
must prove the physical act of the accused that he performed
the physical act of cutting, removing, taking away,
transferring, possessing the electric lines or materials without
the owner's consent. Fourthly, the act must have been done
without the authorisation or consent of the licensee or owner
of the property. Fifthly, the property in question must be
identified as the specific electric lines or materials that were
stolen. Sixthly, if the accused cannot provide a reasonable or
legal explanation for possessing the materials, his conduct
can fortify the allegations of theft.
9. In the light of the above propositions, it is just and
necessary to analyse the evidence of the prosecution
witnesses.
10. The complaint was lodged by PW1, Harish
Kumar, who was working as Junior Engineer, Beluru Branch,
KPTCL. He has stated that on 19-9-2010 between 1:30 a.m.
and 2:00 a.m., there was interruption in supply of electricity
line drawn between Beluru and Hassan, and on inspection, he
- 10 -
found that 300 meters of copper wires was stolen. Hence, he
informed the said fact to his superior Officers and lodged the
complaint as per Ex.P1. The Police drew spot mahazar as per
Ex.P2 in his presence at the scene of occurrence. He has
further stated that, thereafter, the Police called him to the
Police Station, where he saw one Tata Sumo vehicle and in
the said vehicle, the stolen copper wires, axe-saw blade,
cutting-plier and pipes were kept. The accused, who
committed theft of copper wires, were present in the Police
Station. He identified MOs.1 and 2. He further stated that
approximate cost of copper wires was Rs.22,000/-. In the
cross-examination, nothing has been elicited to discredit his
testimony.
11. The evidence of PWs.2 to 4 would reveal that on
19-9-2010 at 1:00 a.m., there was theft of electric copper
wires. PW2, Line Man, has stated that Ramachandrapura
Village comes under his jurisdiction and he accompanied PW1
at the time of drawing spot mahazar-Ex.P2.
- 11 -
12. PWs.3 and 4 are the witnesses for seizure
mahazars as per Exs.P3 and P4, respectively. In their
evidence, they have stated that the Police conducted seizure
mahazars in their presence, they seized Tata Sumo vehicle
and 4 bundles of copper wires under Exs.P3 and P4,
respectively. At that time, the accused were present in the
Police Station. They identified MO1-copper wires and the
accused before the Court. These witnesses have categorically
denied in the cross-examination to the suggestion put to
them that no such theft had taken place and no mahazars
were drawn in their presence. Thus, it clearly establishes that
there is nothing elicited in their cross-examination to
disbelieve that there was theft of electric copper wires on the
night of 19-9-2010.
13. PW5, Sub-Inspector of Police, Halebeedu Police
Station, has stated that he received the complaint from PW1
on 19-9-2010 at 10:45 a.m. regarding theft of electric copper
wires and accordingly, he registered the case, went to the
spot and drew spot mahazar as per Ex.P2. PWs.3 and 4 are
- 12 -
pancha witnesses to Exs.P3 and P4-seizure mahazars,
respectively. In his cross-examination, he has admitted that
he did not summon any documents, such as, the report or
value of the stolen property, and that the stolen property was
found installed at the scene of crime from PW1. He has not
shown the distance from one electric tower to another tower
in the sketch, he has mentioned the approximate length of
300 meters in the mahazar and he has not mentioned the
exact measurement of electric copper wires. He further
admitted that he has not shown the location of axle blade in
the sketch. He has not conducted any mahazars in front of
Tata Sumo vehicle. He has denied the other suggestions put
to him.
14. PW6, Inspector of Police, Beluru Circle, has
stated that on 24-9-2010, when he was on patrolling duty,
he received credible information and thus, he along with his
staff went to Hagare Reserve Forest and noticed the accused,
who were in Tata Sumo vehicle, bearing Registration
No.KA-02 B-9024, and also noticed 4 bundles of electric
- 13 -
copper wires. Thus, he enquired the accused and they
informed that the said wires were installed to the towers
situated between Ramachandrapura Village and Soorapura
Village and hence, he secured the accused, Tata Sumo
vehicle and came to the Police Station, recorded the
voluntary statements of the accused, and drew Ex.P3-seizure
mahazar and seized 4 bundles of electric copper wires,
weighing 117 kgs. He further stated that accused No.1 gave
his voluntary statement stating that he would show the
place, where he has kept the stolen articles. Pursuant to his
voluntary statement, they went to Government Eucalyptus
Forest Area at Hagare Village and accused No.1 showed the
spot and accordingly, he drew mahazar and took
photographs of the said place.
15. PW7, Constable, Halebeedu Police Station, has
stated that on 26-10-2010, as per the instructions of PW6-
Inspector of Police, he produced 4 copper wires bundles
before PW5, Sub-Inspector of Police.
- 14 -
16. PW8, Sub-inspector of Police, Halebeedu Police
Station, has stated that on 26-10-2010, PW7, Constable,
produced 4 electric copper wires bundles before him and
hence, he seized the same under Ex.P4-seizure mahazar in
the presence of PWs.3 and 4. He further stated that he
recorded the statements of all the witnesses and after
completion of the investigation, he filed the charge-sheet.
17. In the instant case, the first informant, PW1, and
the Line Man, PW2, of KPTCL have clearly stated that near
Goruru Ramachandrapura, there was theft of electric copper
wires worth Rs.40,000/- which belongs to KPTCL.
18. In so far as, recovery is concerned, PWs.3 and 4,
who are independent witnesses, have stated that in their
presence, PW8, Investigating Officer, seized the electric
copper wires bundles under Ex.P4-seizure mahazar. PW5-
Sub-Inspector of Police, PW6-Inspector of Police, PW7-
Constable, and PW8-Sub-Inspector of Police/Investigating
Officer of Halebeedu Police Station have clearly stated about
seizure of 4 electric copper wires bundles under Ex.P4. Thus,
- 15 -
the official witnesses and independent witnesses have
supported the case of the prosecution. The testimonies of
PWs.3, 4, 6, and 7 clearly reveal that the stolen electric
copper wires were recovered by the Investigating Officer at
the instance of the accused, which is the best piece of
evidence to connect them to the crime. Hence, the
prosecution has been able to establish the guilt of the
accused beyond all reasonable doubt.
19. The trial Court, after appreciating the oral and
documentary evidence and after assigning proper reasons,
has convicted the accused for the charged offences. Hence,
there is no illegality committed by the trial Court.
20. Learned counsel for the appellants alternatively
contended that the trial Court convicted the accused for a
period of two years each for the alleged offences and the
sentences were ordered to run concurrently. The accused
were arrested on 25-9-2010 and were in custody throughout
trial and were released on bail by this Court on
13-9-2012. Hence, they submit that as the accused have
- 16 -
served substantial sentence of one year, eleven months and
eighteen days, there is no point in keeping the accused in
custody for another twelve days. Hence, they prayed for set-
off under Section 428 of Cr.P.C. for the period already
undergone by the accused.
21. Per contra, the learned High Court Government
Pleader submitted that since the accused are still to serve
twelve days of sentence, no leniency should be shown
against them. Thus, he sought for rejection of the prayer of
the learned counsel for the appellants.
22. In view of the submission made by the learned
counsel for both parties, it is just and necessary to analyse
Section 428 of Cr.P.C., which reads as under:
"428. Period of detention undergone by the
accused to be set off against the sentence of
imprisonment.-- Where an accused person has,
on conviction, been sentenced to imprisonment for
a term, not being imprisonment in default of
payment of fine, the period of detention, if any,
undergone by him during the investigation,
- 17 -
enquiry or trial of the same case and before the
date of such conviction, shall be set off against the
term of imprisonment imposed on him on such
conviction, and the liability of such person to
undergo imprisonment on such conviction shall be
restricted to the remainder, if any, of the term of
imprisonment imposed on him."
(emphasis supplied)
23. The Hon'ble Supreme Court in the case of
Mr. Vinay Prakash Singh v. Sameer Gehlaut and Others
reported in 2022 LiveLaw (SC) 974, at paragraph No.12,
held as follows:
"12. As far as Section 428 of Cr.P.C. is
concerned, an indispensable requirement to
invoke Section 428 of Cr.P.C. is that there
must be a conviction. The conviction must be
followed by a sentence of imprisonment. It
must be for a term and it should not be
imprisonment in default of payment of fine. If
these requirements exist, then the occasion
opens up for applying the beneficial provisions
of Section 428 of Cr.P.C. However, for it to be
invoked the existence of detention undergone
- 18 -
by the convict during investigation, enquiry or
trial in the 'same case' is indispensable. If
these requirements are satisfied, the convict
would be entitled to the set off for the period
of detention which he has undergone."
Therefore, from the above, it is clear that the benefit
of set-off under Section 428 of Cr.P.C. can only be applied
if the detention is undergone in the same case in which the
conviction was imposed, not in other cases, emphasizing
this is a key and indispensable requirement for the
beneficial provision to apply.
24. In this case, the accused have been convicted
and sentenced to undergo imprisonment of two years each
for the offences punishable under Section 136 of Electricity
Act and under Section 379 of IPC and now, they have
sought for set-off under Section 428 of Cr.P.C. in respect
of the sentence already undergone by them and they are
not seeking set-off in respect of imprisonment in default of
payment of fine. Thus, the accused have fulfilled the
requirements as referred in the decision cited supra.
- 19 -
25. The trial Court has sentenced the accused for a
period of two years each for the offences punishable under
Section 136 of Electricity Act and under Section 379 of
IPC. As per the judgment of the trial Court, it reveals that
the accused were arrested on 25-9-2010 and were in
custody throughout trial, and they were released on bail by
this Court on 13-9-2012. Hence, they have served the
sentence of one year, eleven months and eighteen days,
which is nearly two years. The offence is committed in the
year 2010 and thus, no purpose would be served in
keeping the accused in custody for another twelve days
and hence, the benefit of set-off as contemplated under
Section 428 of Cr.P.C. is given to the accused. Therefore,
in the facts and circumstances of the case, the appeals
filed by the accused deserve to be partly allowed. Hence,
the following
ORDER
i. Criminal appeals are partly allowed.
- 20 -
ii. The judgment of conviction dated 30-4-2012 in
Special Case No.106 of 2010 passed by the
Additional Sessions Judge, at Hassan, against the
appellants/accused Nos.1 to 7 for the offences
punishable under Section 136 of the Electricity Act,
2003, and under Section 379 of the Indian Penal
Code, 1860, is hereby confirmed.
iii. The sentence imposed against the appellants is
hereby modified and they are given set-off for the
period of detention already undergone by them, i.e.
for a period of one year, eleven months and eighteen
days, as per Section 428 of the Code of Criminal
Procedure, 1973.
iv. The appellants are set at liberty, if they are not
required in any other case.
v. The bail bonds, if any, of the appellants shall stand
cancelled.
- 21 -
The Registry is directed to return the trial Court
record with a copy of this judgment, forthwith.
Sd/-
(VENKATESH NAIK T)
JUDGE
KVK
