Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a new judgment matches your query (Query Alert Service). Try out our Premium Member services -- Free for one month.\n\nKarnataka High Court\nSri Allabaksh vs State Of Karnataka on 31 May, 2022Bench: Mohammad Nawaz\n                                1\n\n\n\n\n IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\n           DATED THIS THE 31ST DAY OF MAY, 2022\n\n                          BEFORE\n\n        THE HON'BLE MR.JUSTICE MOHAMMAD NAWAZ\n\n            CRIMINAL APPEAL No.584 OF 2011\nBETWEEN:\n\n1.     SRI. ALLABAKASH,\n       S/O. HYDERSAB,\n       AGED ABOUT 46 YEARS,\n       RESIDING AT IN FRONT OF\n       GOVT. URDU SCHOOL,\n       MILLAT NAGAR, KOLAR CITY.\n\n2.     SHEIK AMJAD PASHA,\n       S/O. AMEER JAN,\n       AGED ABOUT 31 YEARS,\n       RESIDING AT NO.629/1,\n       RAHAMATHNAGARA,\n       KOLAR CITY.                        ...   APPELLANTS\n\n[BY SRI. A. SAMPATH, ADVOCATE]\n\nAND:\n\nSTATE OF KARNATAKA\nBY KOLAR RURAL POLICE STATION,\nKOLAR.                                   ...    RESPONDENT\n\n[BY SRI. KRISHNA KUMAR K.K., HCGP]\n\n                               ***\n\n      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)\nOF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT DATED\n22.03.2011 PASSED BY THE I ADDITIONAL SESSIONS JUDGE,\nKOLAR, IN EACC NO.97/2010 AND AQCUIT THE APPELLANTS FOR\nOFFENCE PUNISHABLE UNDER SECTIONS 379, 427 R/W 34 OF IPC\nAND UNDER SECTION 136 OF THE ELECTRICITY ACT, 2003, ETC.\n\n      THIS CRIMINAL APPEAL COMING ON FOR FURTHER\nHEARING, THROUGH VIDEO CONFERENCE/PHYSICAL HEARING,\nTHIS DAY, THE COURT DELIVERED THE FOLLOWING:\n                              2\n\n\n\n\n                         JUDGMENT\n\n      This appeal is preferred by accused Nos.1 and 2\nchallenging their conviction and sentence passed by the\n\nCourt of I Additional District and Sessions Judge, Kolar, in\n\nEACC No.97/2010 dated 22.03.2011, whereby they are\n\nconvicted along with accused No.3 for offence punishable\n\nunder Sections 379, 427 r/w 34 of IPC and Section 136 of\n\nthe Electricity Act, 2003.\n\n\n      2.    Heard the learned counsel for appellants and\n\nthe learned HCGP for respondent/State and perused the\n\nmaterial on record.\n\n\n      3.    The trial Court has sentenced accused Nos.1\n\nand 2 to undergo simple imprisonment for 4 months each\n\nfor offence punishable under Sections 379 r/w 34 of IPC,\n\nSection 427 r/w 34 of IPC and Section 136 of the Electricity\n\nAct, 2003, which are ordered to run concurrently.\n\n\n      4.    Accused No.3 was given set off for the period of\n\ndetention he had already undergone and hence he has not\n\npreferred any appeal.\n                              3\n     5.     In brief, the case of the prosecution is that, on\n\n18.07.2010, during night hours, near Moorandahalli village,\n\nKolar taluk, beside Kolar-Chintamani road, the accused\n\npersons committed theft of 1,500 mtrs. of electric cable\n\nwire belonging to BESCOM, damaging 6 electric poles and\n\ncaused loss to the BESCOM to the tune of `40,000/- and\n\nthereby committed the charged offences.\n\n\n     6.    The prosecution has got examined P.Ws.1 to 10\n\nand got marked Exs.P1 to 11 to establish its case.\n\n\n     7.    The learned trial Judge after appreciating the\n\noral and documentary evidence on record, came to the\n\nconclusion that the prosecution has successfully proved the\n\nguilt of the accused beyond all reasonable doubt for the\n\ncharged offences.\n\n\n     8.    It is contended by the learned counsel for the\n\nappellants that the prosecution has failed to establish the\n\nguilt of the accused beyond all reasonable doubt as the\n\npanchwitneses viz., P.Ws.5 and 6 to the seizure of alleged\n\ntheft articles from the possession of the accused have not\n                               4\n\n\n\n\nsupported the case of prosecution. He submits that Ex.P4\n\nviz., mahazar drawn in respect of seizure of electric cable\n\nfrom the accused is not proved.      He would also contend\n\nthat the alleged theft was brought to the notice of the\n\ncomplainant viz., Section Officer of the BESCOM by one\n\nNataraj, examined as P.W.2. However, his signature is not\n\nfound in the spot-mahazar-Ex.P2. Further contended that\n\nthough it is stated by the prosecution that photographs\n\nwere taken, no such photographs are marked in evidence.\n\nHe would also draw the attention of the Court to the\n\ndiscrepancy with regard to the time of drawing of Ex.P2-\n\nspot mahazar and contended that according to P.Ws.3 and\n\n4 spot-mahazar was prepared at 11.00 a.m. even before\n\nthe complaint was lodged and therefore the prosecution\n\ncase is shrouded with doubt and hence, contends that the\n\naccused are entitled for benefit of doubt.\n\n\n     9.    The learned High Court Government Pleader\n\nwould contend that the prosecution has been able to\n\nestablish that the accused have committed theft of electric\n\ncable belonging to the BESCOM by adducing acceptable\n                               5\n\n\n\n\nevidence. He would contend that eventhough P.Ws.3 and 4\n\nhave turned hostile, there is nothing to disbelieve the\n\nevidence of the official witnesses.    He submits that the\n\naccused were caught red-handed with the theft article\n\nwhich is spoken by P.Ws.1, 7 and 9. He therefore contends\n\nthat there is no illegality committed by the trial Court so as\n\nto reverse the impugned Judgment. Accordingly, seeks to\n\ndismiss the appeal.\n\n\n     10.   The complaint is lodged by P.W.1 who was\n\nworking as Section Officer in BESCOM.       He has deposed\n\nthat on 19.07.2010 he received an information from\n\nC.W.2-Nataraj [P.M.2] regarding theft of electric cable in\n\nMoorandahalli village.   Immediately he went to the spot\n\nand noticed that some miscreants had removed about\n\n1,500 mtrs. of electric cable wire damaging 6 electric poles.\n\nHe lodged complaint as per Ex.P1. He has stated that after\n\nlodging the complaint, the Police visited the spot and drawn\n\nthe spot-mahazar as per Ex.P2.\n\n\n     11.   The evidence of P.Ws.2 to 4 would reveal that\n\non the night of 19.07.2010 there was theft of electric cable.\n                                6\n\n\n\n\nP.W.2 has stated that this was informed by him to the\n\nSection Officer over phone and thereafter officials came\n\nand inspected the spot.   The witnesses have categorically\n\ndenied in the cross-examination to the suggestion put to\n\nthem that no such theft had taken place. There is nothing\n\nelicited in their cross-examination to disbelieve that there\n\nwas theft of electric cable on the night of 19.07.2010.\n\n\n     12.   P.W.10 viz., PSI has stated that he received the\n\ncomplaint from P.W.1 at about 2.00 p.m. on 19.07.2010\n\nregarding theft of electric cable and in this connection he\n\nregistered a case and went to the spot ad prepared a\n\nmahazar    as   per   Ex.P2.       P.Ws.3   and   4   are   the\n\npanchwitnesses to Ex.P4-seizure mahazar.          Both of them\n\nhave deposed regarding drawing up of spot-mahazar as per\n\nEx.P2.   In the cross-examination of P.W.3, he has stated\n\nthat when Ex.P2 was prepared it was 11.00 a.m. But, that\n\nitself is not a ground to disbelieve the spot-mahazar drawn\n\nas per Ex.P2.   Ex.P2 clearly shows that it was prepared\n\nbetween 3.00 and 3.45 p.m.           In his cross-examination,\n\nP.W.3 has stated that immediately after lodging the\n                                7\n\n\n\n\ncomplaint, the Police have visited the spot and it took\n\nabout one hour for preparing the spot-mahazar. When it is\n\nnot disputed that the case was registered at about 2.00\n\np.m. on 19.07.2010, preparation of the spot-mahazar as\n\nper Ex.P2 cannot be doubted.\n\n\n        13.   It is contended by the learned counsel for the\n\nappellants that since P.Ws.5 and 6 have turned hostile, the\n\nseizure of electric cable from the possession of the accused\n\nis not proved.       Merely because the said witnesses who\n\nsigned the spot-mahazar have turned hostile, it cannot be\n\nsaid that the prosecution has failed to establish the seizure\n\nof electric cable from the possession of the accused\n\npersons. It is relevant to see that after registration of the\n\ncase, on 26.07.2010, in the wee hours, while P.Ws.7, 9 and\n\n10 and other Police Officials were on patrolling duty\n\nreceived a credible information that some accused are\n\ntraveling from Mulbaglu to Kolar in a TATA vehicle with the\n\ntheft    articles.     They   intercepted   the   vehicle   and\n\napprehended them.        From their possession, they seized\n\nabout 11 bundles of electric cable wire,      weighing about\n                               8\n\n\n\n\n200 kgs. valued at `30,000/- under Ex.P.4.          Nothing is\n\nelicited in the cross-examination of P.Ws.7, 9 and 10 to\n\ndisbelieve the seizure of electric cable wire from the\n\naccused    persons.    Merely     because   they   are   official\n\nwitnesses, their evidence cannot be doubted or discarded.\n\nP.W.1-Assistant Engineer working as Section Officer at\n\nBESCOM, Kolar Branch, has deposed in his evidence that\n\nhe identified the theft wires and after giving an indemnity\n\nbond received the same from the Police.        The indemnity\n\nbond is marked as Ex.P3. He has also identified the sample\n\nwire marked as MO.1.      Hence, the prosecution has been\n\nable to establish the guilt of the accused beyond all\n\nreasonable doubt.     The trial Court after appreciating the\n\noral and documentary evidence and after giving reasons\n\nhas convicted the accused for the charged offences.\n\nHence, there is no illegality committed by the trial Court.\n\n\n     14.    The offence is committed in the year 2010.\n\nAccused No.3 has been given set off for the period of\n\ndetention he has already undergone.         The accused were\n\nsentenced to undergo simple imprisonment for a period of\n                                 9\n\n\n\n\n4 [four] months each for the charged offences.        It is\n\nsubmitted by the learned High Court Government Pleader\n\nthat the appellant/accused Nos.1 and 2 were in the custody\n\nfrom 26.07.2010 till 16.08.2010 for a period of about 22\n\ndays. Sending the accused to prison at this stage may not\n\nserve any purpose.       Therefore, the sentence imposed by\n\nthe trial Court can be modified by imposing appropriate\n\nfine.   Hence, the following:\n\n\n                                ORDER\n\n\n        Appeal is allowed in part.\n        The Judgment dated 22.03.2011, convicting the\n\nappellants/accused Nos.1 and 2 for offence punishable\n\nunder Sections 379, 427 r/w 34 IPC and Section 136 of the\n\nElectricity Act, 2003 passed by the Court of I Additional\n\nSessions Judge, Kolar, in EACC No.97/2010 is hereby\n\nconfirmed.\n\n\n        The sentence imposed against accused Nos.1 and 2 is\n\nhereby modified. The appellants/accused Nos.1 and 2 are\n\nsentenced for the period of detention already undergone by\n                            10\n\n\n\n\nthem and each of them shall pay a total fine of `10,000/-\n\n[Rupees ten thousand]. In default of payment of fine, they\n\nshall undergo simple imprisonment for a period of 2 [two]\n\nmonths.\n\n\n                                        Sd/-\n                                       JUDGE\n\n\n\n\nKsm*