State appealed against acquittal under Indian Telegraph Act and reduction of theft sentence. High Court held prosecution proved guilt under IPC theft; refused enhancement due to time served; dismissed appeals.
Both criminal appeals were dismissed; sentence for theft remained unchanged; acquittal under Telegraph Act upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Criminal Appeal No. 191 of 2008 and Cr. Appeal No.283 of 2008 Reserved on : 16.5.2017 Date of judgment: 01.6.2017
_______________________________________________ State of Himachal Pradesh …..Appellant
Versus
Sanjeev Kumar & another. …..Respondents
______________________________________________ Coram:_
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. 1 Whether approved for reporting? Yes.
_______________________________________________ For the appellant: Mr. Pushpinder Jaswal, Deputy Advocate General with Mr. Rajat Chauhan, Law Officer For the respondents: Mr. Y.P. Sood, Advocate.
Chander Bhusan Barowalia, Judge
The present appeal (Cr.A No.191 of 2008) is maintained by the State of Himachal Pradesh under Section 377 of the Code of Criminal Procedure for enhancement of sentence, passed by the learned Sessions Judge, Kinnaur, Sessions Division at Rampur Bushahr, H.P., whereby the
1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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learned lower Appellate Court has acquitted the accused under Section 5 of the Indian Telegraph Act and upheld the sentence recorded by the learned trial Court under Section 379 IPC. However, the sentence is modified to the period already undergone. On the day the appeal was decided, the respondent-accused remained behind the bars for a little period of more than six weeks.
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accused persons from the place H.P.M.C. Orchard to Khanewali. As per prosecution, the accused persons had committed theft of the said cable and, thereafter, melted the same and converted into copper wire. The accused, Sanjeev had kept some of the wire in the forest and some wire in his
house. The accused persons were also resorting the help of
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one more accused. The case property recovered from the house of the accused was taken into police custody. Accused persons failed to produce any document for keeping the copper wire. Both the accused persons were arrested on 10.7.2007.
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under Section 161 Cr.P.C., as per their versions. Challan was prepared and presented in the Court. Thereafter, the accused persons were charge-sheeted under Section 379 IPC and Section 5 of the Indian Telegraph Act and after evidence being led by the prosecution, they were convicted by the learned trial Court and sentenced to undergo imprisonment as under:
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Act and upheld the conviction under Section 379 IPC, however, the sentence under Section 379 is reduced that is undergone by the accused i.e. from 10.7.2007 to 13.2.2008.
for the respondents/accused has argued that as per the provisions under Section 377 Cr.P.C. he has right to argue his case on conviction under Section 379 IPC and also argued that the conviction of the accused by both the Courts below under Section 379 IPC, is against the law and facts, which has come
on record and is not sustainable in the eyes of law and requires
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to be set aside. In the alternative, he has argued that the sentence imposed under Section 379 IPC is for more than six months and fine, which is quite high and is not required to be enhanced. He has further argued that the acquittal of the accused under Section 5 of the Indian Telegraph Act is as per law, as it is not proved on record that the accused has stolen cable or tampered with the cable of the Telecom Department.
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identified the Gunny bags, Ex.P1 and Ex.P2 to be the same. In his cross-examination, he has stated that the diameter of the cable was 2 mm and the cable wire was entered in the stock register. He has also admitted that he was receiving complaint
from village Sobli since the months of March-April, 2007. He denied the suggestion that he did not visit the spot. He has also denied that he has deposed falsely. He further deposed that nothing else was recovered from the possession of the accused except wire.
also identified the place where the cable was burnt and also
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got recovered the weapon of offence i.e. an axe . Further stated that disclosure statement of accused Manoj Kumar was also recorded. Accused Manoj Kumar got recovered one Gunny bag containing copper wire from village Bahli and, he proved the disclosure statements Ex.PW4/A and Ex.PW4/B on record. In his cross-examination, he stated that his statement was recorded at Police Station. He has further stated that the statement of accused Sanjeev Kumar was recorded and thereafter the statement of accused Manoj Kumar was also recorded. He denied the suggestion that the accused persons did not make any disclosure statement.
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about ½ Km far from Kupvi. The weight of the Gunny bag was stated to be 60 kg., which is Ex.P-1 and he also identified the axe to be the same. He also proved his signatures on the seizure memo, Ex.PW-1/B. In his cross-examination, he denied the suggestion that the wire cannot be cut from Ex.P-82. He again admitted it to be correct that there was no mark of cutting on Ex.P-82. Further he has stated that the accused cut the wire for the distance of 50 feet. He admitted that the place from where recovery had been effected was an open place. He also denied the suggestion that there is no recovery, which was got effected by the accused persons.
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wire alongwith an axe . He deposed that accused disclosed to the police that he had hidden one bag having 60 kg. copper wire in the nearby bushes and the weapon of offence Axe (Ex.P-82), which was used for cutting the cable. He further stated that the Gunny bag containing wire and Axe was taken into custody by the police vide seizure memo Ex.PW1/B. He also identified the Borru and Axe to be the same. He also deposed that as per the demarcation of the accused site plan of the spot was prepared and that the site plan of the house of the accused Sanjeev Kumar was also prepared. He also stated that accused Sanjeev Kumar narrated to him that he had stolen the wire at Nogli. He also deposed that the case property in case F.I.R. No.109 of 2007 was taken into possession. Statements of the witnesses were also recorded as per their version. The case property was also identified by PW,Rakesh Dutt. He also prepared seizure memo, clicked photographs. In his cross-examination, he deposed that S.H.O. had already clicked the photographs in the present case. He also disclosed the place from where the cable had been stolen. He also deposed that there were about 50 residents at village Bahli. He stated that there was one foot wire hanging nearby the Exchange. He admitted that the house of the accused was adjoining to a thoroughfare. He denied the suggestion that a
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false case has been lodged against the accused. He admitted that there were shops, hotels and offices at Bahli Chowk. He also admitted that Axe becomes available in every house. He further admitted that the wire at the height of 22 feet cannot be cut with an axe . He denied the suggestion that he has implicated the accused persons in a false case.
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Ex.PW-10/D-1 to Ex.PW-10/D-4. In his cross-examination, he also admitted that accused persons were already under arrest. He also deposed that besides accused persons, one Jeewa Ram also cut the cable. He further deposed that no application was moved in this case to make accused Jeewa Ram as approver. He also stated that the Pradhan, Gram Panchayat, Bahli was also residing there and that there were many houses situated near the place. He further stated that the place from where the wire was recovered, was not having any door. He denied the suggestion that the accused persons did not steal and commit theft of the cable.
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anybody can pass through spot. He also admitted that the telephone of village Khanewali and Sobli were lying dead since March, 2007. He also stated that there were many houses situated nearby the house of the accused. He denied the suggestion that he is stating falsely. He further deposed that there was no statement made by the accused before him. He admitted that the cable was cut and stolen from place Khanewali to H.P.M.C. Orchard.
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School. He further deposed that he was being engaged for cutting the cable during night hours and he used to work under the light of the Lighter. Sanjeev Kumar used to provide him meal and liquor. He further denied that there was no cutting and stealing of wire, was done by him and the accused persons. He denied that he was deposing falsely. He admitted that he was working in the hotel of the father of the accused. He also denied that he had stolen the cash amount from the hotel of the accused.
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were further transferred to the present case and taken into police custody vide seizure memo Ex.PW-1/B-1. The seizure memo of Gunny bags, Ex.P-2 and Ex.P-3 were proved satisfactorily on record by PW-7 Kuldeep Kumar. These Gunny bags were identified by PW-1, Rakesh Dutt Sharma.
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Ram. Further, on the disclosure statement given by the accused under Section 27 of the Evidence Act and also the statement of PW12 Jeewa Ram, who is stated to have been
kidnapped and wrongfully confined by the accused in a store room and he was forced to cut and burn the telephone cables. He has categorically stated that he had gone to bring mobile from the house of the accused Sanjeev Kumar, where he was wrongfully confined in the store and he was forced to cut and burn the telephone cable from Latohar and Bahli with the help of an axe . According to him, the cables were burnt in the dwar (Cave) and were melted and copper was obtained. He has also identified the place where the cables were burnt and burnt pieces were also found there which inspires confidence in the statement of this witness. He has also deposed that the
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accused persons also used to climb on pole to cut the cable. He has denied the suggestion that he used to cut cable, which shows that the accused admits that the telephone cables were cut. He has also deposed that he had been served meal in the store room and was forced not to leave that store room. The statement of this PW also finds corroboration from the statement of PW9 Hari Bhagat, who has conducted the investigation and got recovered PW12 from the room of accused Sanjeev Kumar and during recovery two Gunny bags Ex.P-2 and Ex.P-3, which were found containing burnt cable.
He has also deposed that he had received information that the accused had confined a person inside the room but there was no information about the room in which such person was confined. He has not obtained any search warrant and has also not prepared the inventory of other articles. As per him, PW12 was found in the house of the accused confined in a room. Statement made by PW3 (Govind Singh) also corroborates the above fact, who was also present at the time of recovery of Jiwa Ram (PW 12) from the house of Sanjeev Kumar. He has also deposed that the police had taken out Jeewa Ram from the possession of Sanjeev Kumar and the police had also enquired from Jeewa Ram, who told that the accused had been getting cables cut during night hours and
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had also been burning the same and during the day time, he used to be locked inside the room. The police had also recovered 2 Gunny bags, which have been produced in the Court. It has also been stated that these Gunny bags were kept in the Orchard adjoining to the house of the accused. He has also deposed that accused Sanjeev Kumar has also identified the spot and signed the memo. He shown the places where the cable was burnt and also identified the place where the cable was cut. He has deposed that the accused had also taken the police to the cave, where the cable was burnt. PW2 Sher Singh had also admitted his signatures on the disclosure statement, but denied that the same had been made by the accused persons as he had turned hostile. PW4, HC Dharam Pal, has fully supported the prosecution case and stated that accused Sanjeev Kumar has given disclosure statement under Section 27 of the Evidence Act and also identified the place where the cable was cut and the place where the same was burnt, as also where the weapon was kept with which the cable was cut. On the same analogy, accused Manoj Kumar has deposed that one Gunny bag containing copper wire was recovered from Bahli. The prosecution case has also been supported by the statement of PW 6, who has stated to the effect that accused Manoj Kumar
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has also identified the place at Bahli Kopri and also got recovered one Gunny bag and an axe and the weight of the Gunny bag Ex.P-1, was about 60 Kg. The accused admitted the recovery of the case property. So, the fact that the case property was lying near to the common path does not exonerate the accused from the commission of offence. Therefore, the above evidence is sufficient to bring home the guilt of the accused persons to the effect that the accused had cut the cable and had burnt the same with the help of PW12 and melted the same and some of the pieces of the cable were also found on the spot and the accused had the knowledge of the places where they have burnt the wire and hidden the Gunny bags. The accused persons have no explanation how they came in possession of the burnt and melted copper wire. The weight of one of the Gunny bag copper wire was about 60 Kg. in addition to another Gunny bag of the copper wire. No explanation is there on behalf of the accused as to how they were found in possession of the above quantity of the copper wire and the only presumption that can be drawn is that the accused had committed the offence of theft of the telephone cable. The accused persons in cross-examination of the prosecution witnesses have admitted the theft of cable was from the area of HPMC Orchard and Khanewali. No doubt, the
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investigation has not been conducted properly by the Investigating Officer and similarly the prosecution has not been conducted the case properly, as a result of which, the prosecution case has not been linked properly, but the benefit of that cannot be given to the accused for the reason that the occurrence of such offences in such remote area is increasing at an alarming stage and it has become a big nuisance to the general public, where communication remained cut off for a considerable period and the Telegraph Department has also suffered huge loss due to the above mischievous activities of the anti social elements. The Ld. Counsel for the accused has contended before the learned lower Appellate Court that the recovery of the copper telegraph wire and the axe has not been made as per provisions of Sections 100(4) and 165 Cr.P.C. and, therefore, the accused cannot be held guilty for the offence of theft of the above wire. It has also been alleged that the I.O. has associated PW2, Sher Singh, as one of the independent witness, at the time of alleged occurrence, but since the above witness has been won over the accused and has not supported the prosecution case, therefore, there was sufficient compliance with the provisions of Section 100(4) Cr.P.C. and Section 165 Cr.P.C. The alleged recovery has
been fully proved by P.W.4, H.C. Dharam Pal. Similarly,
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although disclosure statements have not been supported by P.W.2 Sher Singh, who has turned hostile, but the same has been fully proved by P.W.4, H.C. Dharam Pal. However, even if the above statements are not taken into consideration, still there is sufficient evidence on record to connect the accused with the commission of the offence, as P.W. 12. Jeewa Ram has fully supported the prosecution case, who was wrongfully confined by the accused persons and was forced to commit illegal act of cutting cable, burning and melting the same and he was recovered from the house of one of accused Sanjeev Kumar. The conduct of the accused in pointing out the places from where they have cut the telephone cable and the places where they have burnt and kept the burnt cable also lead to irresistible conclusion that none else than the accused have committed the above offence. Therefore, the findings of the trial Court to this effect is sustainable.
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not required against the order of acquittal recorded by learned Lower Appellate Court. Resultantly, the appeal against acquittal is dismissed accordingly.
(Chander Bhusan Barowalia) Judge
June 01,2017 (M.gandhi)
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2 issues framed by the court
Whether the acquittal of the accused under Section 5 of the Indian Telegraph Act be set aside given the prosecution evidence and recovery of copper wire.
Whether the sentence for the offence under Section 379 IPC should be enhanced by this Court.
5 provisions across 4 enactments
State of Himachal Pradesh
Sanjeev Kumar
Chander Bhusan Barowalia
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
