R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE03D DAY OF MARCH, 2020 BEFORE THE HON'BLE MR. JUSTICE ASHOK G.NIJAGANNAVAR CRIMINAL APPEAL NO.1185 OF2010(C) BETWEEN: KENCHANNA, AGED ABOUT38YEARS, S/O KADURAPPA, ADI KARNATAKA CASTE, AGRICULTURIST, BANDAKUNTE VILLAGE, GOWDAGERE HOBLI, SIRA TALUK. ...APPELLANT (BY SRI CHETAN DESAI, ADVOCATE) AND: STATE OF KARNATAKA, BY TAVAREKERE POLICE, REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE-1. …RESPONDENT (BY SRI VINAYAKA V.S, HCGP) **** THIS CRIMINAL APPEAL IS FILED UNDER SECTION3742) CR.P.C PRAYING TO SET ASIDE THE ORDER
OF CONVICTION AND SENTENCE DT:4/5.10.10 PASSED BY THE I ADDL. S.J., TUMKUR IN SPL.C.285/08-CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S136OF ELECTRICITY ACT, 2003. HE2APPELLANT/ACCUSED IS SENTENCED TO UNDERGO S.I. FOR ONE YEAR AND PAY A FINE OF RS.20,000/- IN DEFAULT OF PAYMENT OF FINE HE SHALL UNDERGO S.I. FOR SIX MONTHS-FOR THE OFFENCE P/U/S136OF ELECTRICITY ACT, 2003. THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT
This appeal is preferred by the appellant/accused against the judgment of conviction and sentence dated 04.10.2010 passed in Spl. C. No.285/2008 by the 1st Additional Sessions Judge, Tumkur, sentencing the accused to undergo simple imprisonment for one year and to pay a fine of Rs.20,000/-, in default to pay the fine, to undergo simple imprisonment for six months, for the offence punishable under Section 136 of the Electricity Act, 2003 (hereinafter referred to as ‘Act’ for the sake of brevity).
2. The case of the prosecution in nutshell is that on the complaint filed by the Section Officer / Junior Engineer, BESCOM, the Tavarekere police have 3 registered a case on 12.09.2008. The allegations are that on 29.08.2009 in the midnight at about 1.00 a.m., there was theft of 750 meters of electric copper wire fixed on electric poles installed for giving connection for SIP417pumpset put up in the land of one Tyagaraj from 63 KVA water supply motor. On receiving the information from the villagers about the theft of copper wire, the Section Officer / Junior Engineer, BESCOM registered a complaint. After completion of the investigation, the chargesheet was filed against the accused for the offence punishable under Section 136 of the Act.
3. After committal of the case to the Special Court, the accused appeared and the charges were framed, which is as under: vÁªgÀ ÉPgÉ É ¥Éưøï oÁuÁ ªÁå¦ÛAiÀÄ ¨sÀÆvÀPÁl£ºÀ ½À î UÁªæ ÀÄz À vÁåUgÀ ÁdÄgÀªgÀ À ¨Á§ÄÛ J¸ï.L.¦ 417 £ÃÉ ¥AÀ ¥ï¸ÉmïUÉ ¨sÀÆvÀPÁl£ºÀ ½À î ¥PÀ ÀÌ ²gÁ-ZÀAUÁªgÀ À gÀ¸ÉÛAiÄÀ 4 §®¨sÁUÀz°À ègÀĪÀ 63 P.É «.J ªÁlgï ¸À¥Éèà n.¹.¬ÄAz À ¨¸É ÁÌAgÀªgÀ ÀÄ «zÀÄåvï ¸gÀ §À gÁdÄ ªÀiÁqÀ®Ä J¼É¢gÀĪ À J¯ï.n. ¯ÉÊ£ï£À 9£Éà PAÀ §¢Az À 12£ÃÉ PAÀ §zÀ ªÀÄzsåÀ EgÀĪÀ vÁªÀÄæz À vAÀ wAiÀÄ£ÀÄß ¢£ÁAP:À 28.08.2018 gAÀ zÄÀ gÁw æ 1 UAÀ mAÉ iÀÄ°è D¥Á¢vgÀ Áz À ¤ÃªÀÅ 750 «ÄÃlgï vÁªÀÄæz À vAÀ wAiÀÄ£ÀÄß zÀÄgÀÄzÉÝñÀ¢Az À PÀ¼ÀîvÀ£ À ªiÀ Ár ¨¸É ÁÌA E¯ÁSUÉ É gÀÆ.15,000/- £ÀµÀÖ GAlÄ ªÀiÁrzÀÄÝ, CzPÀ ÁÌV ¤ÃªÀÅ ¨sÁgwÀ ÃAiÀÄ «zÀÄåvï PÁAiÉÄÝ P®À A2003g À 136 ¨sÁ.zÀA.¸AÀ . P®À A CrAiÀÄ°èAiÀÄ ²PÁëºÀðªÁz À C¥gÀ ÁzsÀªÀ£ÀÄß £À£Àß ¸ÀAYÉÕAiÀÄ°è ªÀiÁrgÀÄwÛÃj.
4. The prosecution has examined nine witnesses as PW1 to PW9 and got marked documents as per Exhbits-P1 to P8. The material objects are marked as MO Nos.1 to 3. After completion of the trial, statement under Section 313 was recorded and the accused denied the incriminating circumstances. The accused has not led defence evidence. 5
5. On appreciating the oral and documentary evidence placed on record, the trial Court has held the accused guilty for the offence punishable under Section 136 of the Act and has imposed the aforesaid sentence. Being aggrieved by the judgment of conviction, the appellant has preferred the appeal.
6. Heard the learned counsel for the appellant and learned High Court Government Pleader.
7. Having heard the submission of the learned counsel for the appellant and learned High Court Government Pleader, the only point that arise for consideration is: “Whether the trial Court was justified in convicting the accused?.” 6 8. It is always the duty of the Court to ascertain whether the evidence of prosecution is filled with any contradictions, improbabilities and variations to come to the conclusion that prosecution witnesses cannot be relied to convict the accused. Thus, I have given cursory glance to the evidence of witnesses.
9. PW1 to PW3 are the land owners where the electric poles were installed and these are the persons who have noticed theft of electric copper wire fixed on the electric poles. All these three witnesses have consistently stated that after noticing the theft of electric copper wire, they had gone to Tavarekere Electric Department and had also approached the police. Since the Police Inspector was not available, there was delay in informing the police. Further, these witnesses have stated that the police informed that the competent authority is the Karnataka Electricity Board (BESCOM) alone can give the complaint. As such, the 7 BESCOM officials were informed about the same. These witnesses have stated about the spot mahazar conducted on 13.09.2008, as per Exhibit-P1 and the seizure mahazar as per Exhibits-P2 & P3 for recovery of cutting plier and sample copper wire, which are marked as MO Nos.1 to 3. PW2 and PW3 have been cross-examined at length, but nothing much is elicited. They have denied the suggestion that they have seen the accused for the first time before the Court and they are deposing false evidence about the spot mahazar and recover of articles at the spot. PW4 and 6 are the witnesses for seizure mahazar drawn on 13.09.2008. These two witnesses are the residents of the same village and they have spoken about the seizure mahazar drawn for recovery of cutting plier from the house of the accused and also the seizure of copper ingots (manufactured by melting copper wire) 8 from the shop of PW7 – Mohammed Hussain, who had received the stolen property from the accused. These two witnesses have stated about the recovery of cutting plier and the seizure of the stolen properties namely copper ingots. In the cross-examination, nothing much is elicited to disprove the seizure of the said articles. PW5 is the Section Officer / Junior Engineer of BESCOM, Tavarekere, who has stated about the complaint given to the police, as per Exhibit-P4, regarding theft of electric copper wire and the spot mahazar and seizure mahazar drawn as per Exhibits- P1, P2 and P3 and has also identified the material objects i.e., MO Nos.1 to 3. PW7 is the receiver of the stolen property. He has not supported the prosecution case and has stated that the accused has not sold the stolen property to him and no mahazar was drawn in his presence regarding seizure of the said property. This witness was treated 9 as hostile. In the cross-examination by learned Public Prosecutor, he has denied the suggestion that on 13.09.2008, the police had come along with the accused and has seized 13 copper ingots, through mahazar - Exhibit-P2. PW8 and PW9 are the police officials. PW8 is the Police Constable of Tavarekere Police Station, who was deputed to trace the accused. He has stated in his evidence that on 19.09.2008, he along with PC Nagesh were deputed to trace the accused and to search the stolen property. On 29.09.2008, the said officials got the information that the accused by name Kenchanna had sold the stolen electric copper wire in the shop of PW7. On enquiry, the accused – Kenchanna admitted that he had stolen the electric copper wire on 28/29.08.2009 from the electric poles installed in the land of Tyagaraj of Bootakatanahalli. The said accused was produced in the Police Station. On recording the 10 voluntary statement given by the accused, one cutting plier which was found in the house of the accused was seized in the presence of panchas. Thereafter, the accused took them to the shop of PW7 and informed about the sale of the stolen property in the said shop. It was learnt that the electric copper wires were converted into copper ingots and they were seized in the presence of panchas and PW7 and mahazar was drawn as per Exhibit-P2. PW9 is the Investigating Officer who has conducted the investigation and submitted the chargesheet.
10. The entire case is based on circumstantial evidence. In the instant case, none of the witnesses have spoken about the theft of electric copper wire in their presence. It is only on the basis of the information said to have been disclosed by the villagers, the complaint was filed by the Section Officer / Junior 11 Engineer of BESCOM and the police have registered the case.
11. The main contention of the learned counsel for the appellant is regarding the legality of the proceedings initiated against the accused and the delay caused in filing the FIR. It is submitted that, according to the evidence of PW1 to PW4 and PW6, the police officials came to know about the offence committed by the accused on 28/29.08.2009. But, whereas the FIR was registered on 12.09.2008. The explanation given by PW1 to PW3 is that they had informed the police and BESCOM officials about the theft of electric copper wire, but the police informed them to approach the BESCOM officials to file a complaint. Therefore, they have approached the officials of BESCOM and thereafter, the Section Officer / Junior Engineer of BESCOM has filed a complaint. 12
12. According to the prosecution, the main reason for delay in registering the FIR is that in view of Section 151 of the Act, the complaint was required to be filed by the concerned Officer. Therefore, the police had directed the informants to approach the concerned BESCOM officials to file a complaint, thereafter, the FIR was registered. In this regard, the learned counsel for the appellant submitted that the offence was committed on 28/29.08.2009. As on that date, there was no restriction for registering the case on the police report. The investigation was conducted before registering the FIR which cannot be sustained in law and the criminal proceedings initiated on the basis of the investigation conducted before registering the criminal case is not in accordance with law. Thus, the impugned order of conviction is liable to be set aside.
13. On perusal of the records, it is noticed that the offence was committed on 28/29.08.2009, but the 13 complaint was registered on 12.09.2008. As per the evidence of PW1 to PW3, the information was given by them on 29.08.2008 and these witnesses have stated that the police informed them to approach the concerned officials of the Electricity Department to file complaint. Subsequently, on the complaint filed by the Section Officer / Junior Engineer of BESCOM, the case was registered in Tavarekere Police Station on 12.09.2008.
14. It is pertinent to note that, Section 151 of the Electricity Act, 2003 deals with cognizance of offence, which reads as under: “151. Cognizance of offences – No Court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by Appropriate Government or Appropriate Commission or any of their officer authorized by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be, for this purpose:” 14 15. As per the old Section 151 - prior to Karnataka Amendment (Section 151 substituted by Act No.12 of 2006 with effect from 19.06.2006), the complaint must necessarily be filed by the authorised Officer, then only the Court can take cognizance of the offence punishable under this Act. Later, there was Karnataka Amendment in the year 2006 and provisos were inserted with effect from 15.06.2007 by Act No.26 of 2007, which reads as under: “151. Institution of prosecution – No prosecution shall be instituted against any person for any offence under this Act or any rule, regulation, licence or order made or issued thereunder, except at the instance of the State Government or a licensee or a generating company under the Act or an officer authorised in this behalf by the State Government or a licensee or a generating company or by any person affected by the act alleged to constitute the offence. (Section 151 substituted by Act No.12 of 2006, w.e.f. 19.6.2006)” 15 Provided that the Court may also take cognizance of an offence punishable under the Act upon a report of a Police Officer filed under Section 173 of the Code of Criminal Procedure, 1973: Provided further that a special Court constituted under Section 153 shall be competent to take cognizance of an offence without the accused being committed to it for trial.
16. The relevant factor to be examined is, whether the alleged crime was committed prior to Karnataka Amendment to Section 151 of the Karnataka Electricity Act, 2003. If the offence is alleged to have been committed prior to 15.06.2007 i.e., the date on which the relevant proviso was inserted, it was mandatory for the police to register the case on the basis of complaint by authorized official of the BESCOM. In view of provisos inserted by Act 26 of 2007, the police are competent to register the case on 16 any complaint and the Court may also take cognizance of an offence punishable under this Act upon a report of a Police Officer filed under Section 173 CrPC.
17. In the instant case, the FIR could have been registered by the concerned police on the basis of the information given by the villagers namely PW1 to PW3, but the police have waited till filing of the complaint by the concerned Section Officer / Junior Engineer of BESCOM. Since the offence is committed on 28/29.08.2009, the restriction imposed as per old Section 151 of the Act was not applicable and there was no embargo for registering the FIR. In view of the Karnataka Amendment and insertion of the provision, the case should have been registered on 29.08.2008 itself.
18. The need for setting the law in motion soonafter the incident is of paramount importance in a criminal case. The delay in filing the complaint / FIR17report at Police Station is normally viewed by Courts with suspicion because of the possibility of concoction of evidence against the accused. So it becomes necessary for the prosecution to explain the delay. When there is no proper explanation for the delay, the Courts shall have to carefully evaluate the evidence. In the instant case, three prosecution witnesses namely PW1 to PW3 have stated that immediately after the theft of electric copper wire on 28/29.08.2009, they have informed both the police as well as officials of BESCOM, but whereas, the FIR is registered on 12.09.2008 on the basis of the complaint filed by the Section Officer / Junior Engineer, BESCOM. There is no convincing explanation forthcoming by the prosecution regarding delay of more than 10 days, which creates a doubtful circumstance to disbelieve the prosecution case.
19. The evidence of PW8 – Police Constable who was working in Tavarakere Police Station discloses that 18 on 19.09.2008, he was deputed to search the accused and the stolen property. But Exhibits-P1 to P3 namely the spot mahazar, seizure mahazar at the house of the accused and another seizure mahazar for recovery of the stolen property namely copper ingots from the shop of PW7, were drawn on 13.09.2008, which creates a serious doubt about the prosecution version.
20. PW3 has stated in his cross-examination that when they gave the complaint, they have specifically stated which person has committed the theft, but whereas the FIR is registered against unknown person. Further, PW3 has stated that cutting plier was not found at the spot, but whereas PW2 – another mahazar witness has stated that the cutting plier and electric copper wire were found near the electric pole at the spot. Thus, there is a clear variation between the evidence of these mahazar witnesses. 19
21. PW7 is the witness who is said to be the receiver of the stolen property. He has turned hostile and has not supported the prosecution version that the accused had given the stolen property to him. Thus, there is no clinching evidence to prove the recovery of stolen property from PW7, as per the information of the accused.
22. The Hon’ble Apex Court in Criminal Appeal Nos.1624-1625 of 2013 in the case of Harbeer Singh vs. Sheeshpal and others, has held as under: “(11). It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the 20 evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.
23. On reappreciation of the entire evidence on record, I am of the opinion that there is no convincing evidence to connect the accused with the offence alleged against him. The circumstance relied on by the prosecution regarding recovery of cutting plier and the stolen property is also not proved by placing satisfactory evidence on record. Hence, I disagree with the finding given by the trial Court. Accordingly, I pass the following: ORDER
i. The Criminal Appeal is allowed. ii. Consequently, the judgment of conviction and sentence dated 04.10.2010 passed in Spl. C. 21 No.285/2008 by the 1st Additional Sessions Judge, Tumkur, for the offence punishable under Section 136 of the Act, is hereby set aside. iii. The fine amount if deposited, shall be refunded to the appellant on proper identification. iv. M.O. Nos.2 and 3 shall be confiscated to Government / BESCOM for disposal in accordance with law. Sd/- JUDGE SJ