Jayalakshmamma Vs State

THIS CRL.A. IS FILED U/S.374(2) CR.P.C BY THE ADV. FOR THE APPELLANT/ACCUSED PRAYING TO SET ASIDE THE CONVICTION DATED 15.06.2013 PASSED BY THE I ADDL. DIST. & S.J. AND SPL. JUDGE, BANGALORE RURAL DISTRICT, BANGALORE IN SPL.C.NO.90/2011 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 135 OF ELECTRICITY ACT, 2003. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO S.I. FOR 2 YEARS AND PAY FINE OF RS.21,00,000/-,IN DEFAULT TO PAY FINE, SHE SHALL UNDERGO S.I. FOR FURTHER PERIOD OF 2 YEARS FOR THE OFFENCE P/U/S 135 OF ELECTRICITY ACT, 2003.

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NC: 2025:KHC:41634 CRL.A No. 638 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 has preferred this appeal against the judgment of conviction and order on sentence dated 15^th June 2013 passed in Special Case No.90 of 2011 by the I Additional District and Sessions Judge and Special Judge, Bengaluru rural District, Bangalore (for short "the trial Court").

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

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Brief facts leading to this appeal are that Inspector of Police, BESCOM Vigilance Cell, Hosakote, Bangalore Rural District submitted charge-sheet for the offence punishable under section 135 of Electricity Act, 2003. It is alleged that on 24^th April 2010, the Assistant Executive Engineer, BESCOM Vigilance Cell, visited the poultry farm of one Jayalakshmi, w/o T Rajasekhara situated at Hulikunte, and found that the said consumer was directly drawing electricity from the nearby electric line and was running a bore-well and also lighting 130

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incandescent bulbs of 100 watts each with a total load of about 25HP. The said poultry farm had power installation bearing RR No.DBP-215, which was disconnected two years ago for nonpayment of arrears and subsequently, the concerned Section Officer has also registered a non-cognizable case in the month of December 2009 against the consumer, but still the said consumer had not stopped stealing the electricity. On the strength of the said complaint, the Police Inspector, Hosakote Police Station, registered Crime No.23 of 2010 for offence punishable under Section 135 of Electricity Act and issued first information report and took up investigation. After completion of investigation, the police inspector filed charge-sheet against accused for offence punishable under Section 135 of Electricity Act 2003.

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After filing charge-sheet, accused was secured and was released. Charges framed against the accused under Section 135 of Electricity Act, the same was over and explained to the accused. Accused pleaded not guilty and claimed to be tried. To prove the guilt of the accused, prosecution has examined three witnesses as PWs1 to 3 and marked 5

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documents has Exhibits P1 to P5 and one material object as MO1. On closure of prosecution side evidence, statement of the accused under Section 313 of Code of Criminal Procedure was recorded. Accused totally denied the prosecution witnesses but has not chosen to lead any defence evidence on her behalf. Exhibit D1 was marked on behalf of the accused. Having heard arguments on both sides, the trial court convicted the accused for the offence punishable under Section 135 of Electricity Act 2003 and sentenced her to undergo simple imprisonment for a period of two years and to pay fine of Rs.21,00,000/- and in default of payment of fine accused shall further undergo simple imprisonment for a further period of two years.

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I have examined the materials placed before me.

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PW1-A.L. Prakash Kumar, Assistant Executive Engineer, has deposed in his evidence that on 24^th April 2020, when he along with BESCOM officials visited the poultry farm owned by the accused, he found that there were three sheds in the poultry farm and egging chicks were being raised in the said sheds and 130 incandescent bulbs of 100 watts each were being used in the said three sheds. He has further stated that a bore-well

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was also in the poultry farm and the same was in use. Further it is stated that the accused was abstracting power illegally for running bore-well as well as for lighting bulbs in the poultry farm, from the nearby electric pole. He has further stated that there are no meters to the said installation during the time of inspection. It is further stated that the consumer had an authorised connection in the past, having a meter bearing RR No.DBP-215, LT-5 and the power connection to the said installation was disconnected for non-payment of arrears. It is further stated that 2 to 3 months prior to the date of inspection, the BESCOM engineer visited the said poultry farm and having detected the theft of power by the accused, registered a Case and issued demand notice for payment of final amount to the tune of Rs.5,00,000/-. It is further stated that he conducted mahazar at the scene of offence as per Exhibit P1 and disconnected the illegal power connection with the help of the staff and obtained signatures of panch witnesses on the mahazar. It is also stated that he prepared inspection report as per Exhibit P2 at the spot, later lodged a complaint as per Exhibit P3 with Hosakote Vigilance Police Station. PW1 had identified the starter at MO1 and stated that it is the same

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starter which was installed by the accused for running bore-well as well as to light around 130 bulbs in the three poultry sheds. During the course of cross-examination, it was suggested to PW3 that accused was not at all running a poultry farm as on the date of inspection and no bore-well was in use. Prosecution has not placed any material to show that Padmavathi Poultry Farm is in the name of the accused. Prosecution had not produced any evidence that LT installation RR No.DBP-215 is standing in the name of the accused. The investigating officer has conducted mahazar on 24^th April 2020 in the presence of Panchas. None of the Panch witnesses were examined before the trial court. In exhibit P2-inspection report, it is shown that the person at the time of inspection is shown as Vishwanath s/o Hanumantha. The said Vishwanath is not examined by the prosecution. After seizure of property, the investigating officer has inserted the same in property register PF No.23 of 2010 dated 26^th April, 2010. The copy of property form is produced before the court which reveals that the investigating officer has prepared property form on 26^th April 2010, i.e. after lapse of two days. The delay in submitting this seizure report to the jurisdictional Magistrate has not been explained by the

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prosecution. In view of section 102 of Code of Criminal Procedure, the investigating officer ought to have a submitted the seizure report as early as possible. However, investigating officer has failed to comply with the mandatory provisions under Section 102 of CRPC. When the prosecution has failed to prove that accused is the owner of poultry farm, question of committing theft by getting unauthorised electricity connection from RR number DBP-215 by this accused does not arise. There is no cogent, convincing, corroborative, trustworthy or legally acceptable evidence before the court to prove the case beyond all reasonable doubt. However, the trial Court has convicted the accused, which is not sustainable under law. Hence, I proceed 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) Order dated 15^th June 2013 passed in Special Case No.90 of 2011 by the I Additional District and Sessions Judge and Special Judge, Bengaluru rural District, Bangalore, is set aside;

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