Sri Muniramaiah Vs State by

THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT CONVICTION AND SENTENCE DATED 22.08.2013 PASSED BY THE X ADDL. C.C. AND SESSIONS JUDGE IN SPL.C.C.NO.60/2008 CONVICTING THE APPELLANT ACCUSED FOR THE OFFENC P/U/S 135 OF INDIAN ELECTICITY ACT. THE APPELLANT/ACCUSED IS SENTENCED TO PAY FINE OF RS.25,236/-, IN DEFAULT TO PAY FINE, HE SHALL UNDERGO S.I. FOR 3 MONTHS FOR THE OFFENCE P/U/S 135 OF INDIAN ELECTICITY ACT.

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NC: 2025:KHC:39660 CRL.A No. 1101 of 2013

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HC-KAR

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE G BASAVARAJA

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ORAL JUDGMENT

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Appellant/accused has preferred this appeal against the Judgment of Conviction and order of sentence dated 22^nd August 2013, passed in Special CC No.60 of 2008 by the X Additional City Civil and Sessions Judge, Bangalore (CCH 26) (for short "the trial Court").

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For the sake of convenience, the parties herein are referred to as per their status before the trial Court.

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Brief facts leading to this appeal are that Bangalore Electricity Supply Company (for short "BESCOM") Vigilance Police, has filed Charge-sheet against the accused for the offence punishable under Section 135 of Indian Electricity Act, 2003. It is alleged that on 29^th August, 2007, the complainant N.Nagaraj, Assistant Engineer, BESCOM Vigilance received information regarding theft of electricity by taking direct connection from the Electric Pole at Kyalasanahalli. Therefore, he secured the presence of other BESCOM Vigilance Police staff

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HC-KAR

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and went to the property bearing Katha No.723 situate at K Narayanapura Grama Panchayath, K.R. Puram Hobli, Bangalore East Taluk, at about 12 noon and inspected the said property and found that the accused had taken direct connection from the electric pole to the bore-well to lift the water, without taking authorised connection of power supply or obtaining any permission from the BESCOM authorities, thereby committed theft of electricity. It is alleged that the accused has fixed submersible pump set of 12.53 HP and committed theft of 1402 units of power and made loss to the BESCOM to the tune of Rs.17,665/-.

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After filing, Charge-sheet, cognizance was taken for alleged offence and case was registered in Spl.CC No.60 of 2008 and summons were issued. Accused appeared before the Court and enlarged on bail. Upon hearing on charges, the trial Court framed charges for the alleged commission of offence and the same was read over and explained to the accused. Having understood the same accused pleaded not guilty and claimed to be tried. To prove the case of prosecution, in all, three witnesses were examined as PWs1 to 3 and ten

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documents were marked as Exhibits P1 to P10 and two Material

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Objects were marked as MOs1 and 2. On closure of prosecution side evidence, statement of the accused under Section 313 of Code of Criminal Procedure was recorded.

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Accused has totally denied the evidence of prosecution witnesses, but has not chosen to lead any defence evidence on his behalf. Having heard on both sides, the trial Court convicted the accused for the offence punishable under section 135 of Indian Electricity Act and sentenced to pay fine offer Rs.25,236/-, in default of payment of fine, to undergo simple imprisonment for a period of three months. Being aggrieved by the Judgment of conviction and order of sentence, the appellant/accused has preferred this appeal.

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In the memorandum of appeal, it is stated that the Judgment of conviction and order of sentence passed by the trial Court is otherwise opposed to law, facts and probability of the case. It is also stated that prosecution had not examined the independent witnesses to prove the guilt of the accused and the trial Court has failed to appreciate the evidence on record in

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NC: 2025:KHC:39660 CRL.A No. 1101 of 2013

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HC-KAR

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accordance with law and facts, and accordingly sought to allow the appeal.

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On the other hand, Ms. Asma Kauser, learned Additional State Public Prosecutor appearing for the respondent-State, would submit that the trial Court has properly appreciated the evidence on record in accordance with

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law and facts and there are no grounds to interfere with the same and accordingly, sought for dismissal of the appeal.

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Having heard the arguments on both sides, the

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following points arise for my consideration:

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1. Whether the appellant/accused has made a ground to interfere with the Judgment of conviction and order on sentence passed by the trial Court?

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2. What order?

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Regarding Point No.1:

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8. I have examined the material placed before me. It is the Case of the prosecution that BESCOM Vigilance received information regarding theft of electricity by obtaining direct connection from the electric pole to submersible pumpset to lift

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water from the bore-well, and accordingly committed theft of 1402 units of power causing a loss to the BESCOM to the tune of Rs.17,665/-. To prove the guilt of the accused prosecution has examined three official witnesses as PWs1 to 3, and also marked ten documents as Exhibits P1 to P10.

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9. PWs1 to 3 have deposed in their evidence that there was a pump-house in the open land belonging to Sri Muniramaiah. The Investigating officer has not produced the RTC extract pertaining to the land where the pumpset is installed. Even in mahazar-Exhibit P1, the Investigating officer has not mentioned as to the survey number of the land and the investigating officer has also not explained anything as to nonproduction of RTC extract pertaining to the said land and as to non-disclosure of survey number. On the contrary in his crossexamination, he has clearly admitted that he do not know the survey number of the land in question and he has not seen any record pertaining to the said piece of land.

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10. The panchanama-Exhibit P1, reveals that on 29^th August 2007, the Investigating officer has conducted mahazar in the presence of panchas. But none of the panch witnesses

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have been examined before the Court. Exhibit P1 reveals that at the time of mahazar, Investigating officer seized the control panel starter-box and cable. After the seizure of same, the Investigating officer has not inserted the same in the property register. Seizure property form also not submitted before the Court as required under Section 102 of Code of Criminal Procedure. The Investigating officer has not given any explanation as to non-compliance of the mandatory provisions of Section 102 of Code of Criminal Procedure. The trial Court has not properly appreciated the evidence and record in accordance with law and facts. Absolutely there are no cogent, convincing, corroborative evidence before the Court to prove the guilt of the accused. When the prosecution has failed to produce material documents to show that the accused is the owner of disputed land and pump-house, the question of committing theft of electrical energy, as alleged by the prosecution, does not arise. Accordingly, the appellant has made out a ground to interfere with the impugned Judgment of conviction and order of sentence passed by the trial Court. Hence, I answer Point No.1 in the affirmative.

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NC: 2025:KHC:39660 CRL.A No. 1101 of 2013

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HC-KAR

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Regarding Point No.2 :

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11. For the foregoing reasons and discussions, I proceed

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to pass the following:

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O R D E R

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i) Appeal is allowed;

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ii) Judgment of conviction and order on sentence dated 22^nd August, 2013 passed in Spl.CC No. 60 of 2008 by the X Additional City Civil & Sessions Judge, Bangalore is set aside;

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