Kareen Khan vs State by Tavarekere Police

A.S. Pachhapure, J.—The conviction and sentence ordered by the trial Court for the offence punishable under Section 136 of the Electricity Act, 2003 [hereinafter referred to as "the Act" for short], challenged in this appeal.

The facts reveal that 810 mtrs. of copper wire from the electricity pole from STP 529 was stolen and a complaint was filed by a Junior Engineer, BESCOM [P.W. 1] under Ex. P1. The stolen electricity wire was worth more than Rs. 5,000-00. During investigation of the aforesaid complaint, spot-mahazar was held as per Ex. P2 and M.O. 1-pieces of copper wires were seized in the presence of P.Ws. 3 and 4.

P.W. 7-Police Constable was entrusted with the responsibility to trace the accused and on 04.02.2007 when he was on patrolling duty with another constable-Shivakumar, they found two suspicious persons near the bridge, they started to run away and ultimately, P.W. 7 apprehended them. They were produced before the PSI under report-Ex. P5. P.W. 8-I.O. recorded the voluntary statement of the appellant under Ex. P7 and that of accused No. 2 under Ex. P8. Both the accused led the Police and also the attesting witnesses-P.Ws. 2 and 3 to Suvarnamukhi river and showed a place where the stolen copper wire was stolen. It is the 1st accused, who went into the water and produced the copper wire which was weighing 98 kgs. It was seized under mahazar-Ex.P3. The seized copper wire was sent for the opinion and Ex. P4 report was obtained. On completion of the investigation, a charge-sheet also laid against the appellant and accused No. 2 for the charge under Section 379 IPC r/w. Section 136 of the Act.

The prosecution examined P.Ws. 1 to 8, got marked the documents Exs. P1 to 8 and M.Os. 1 and 2. After recording the statement of the accused i.e., the appellant herein [accused No. 2 is dead], the trial Court convicted the appellant for the charge under Section 136 of the Act and ordered him to undergo imprisonment for one year and to pay a fine of Rs. 20,000-00, in default to undergo simple imprisonment for 6 months. Aggrieved by the conviction and sentence, the present appeal is filed.

Learned counsel for the appellant is absent. In the circumstances, I have heard learned High Court Government Pleader.

The Apex Court in the decision reported in Surya Baksh Singh Vs. State of Uttar Pradesh, held that when the accused is not in custody and the counsel does not appear, the Court can dispose of the appeal on merits. It is relevant to note that the appeal is of the year 2010 and despite the fact that the matter was taken up for hearing on two occasions in the day, learned counsel for the appellant is absent. On perusal of the appeal memo and the record and after hearing learned High Court Government Pleader, the appeal is being disposed of.

In the appeal memo, it is contended that there is no evidence for the charge framed and the conviction of the appellant is improper. The appellant has stated that in the absence of charge under Section 379 IPC, framing of charge under Section 136 of the Act is improper. He has also specifically contended that in the absence of the charge under Section 379 IPC, conviction under Section 136 of the Act cannot be sustained. In para 13 of the appeal memo, it is contended that there is a delay in lodging the complaint and the prosecution case cannot be accepted. The appellant has also contended that there is no material against him for the offence convicted and the impugned Judgment and Order is liable to be set aside.

On the other hand, learned High Court Government Pleader supporting the Judgment and Order of the Courts below has taken me through the evidence and submits that the seized copper wire was recovered at the instance of the appellant and this evidence is sufficient to confirm the conviction.

Admittedly, there is no other material except the recovery of 98 kgs. of stolen copper wire at the instance of the appellant. It is relevant to mention here that P.Ws. 2 and 3 are the attesting witnesses to the mahazar-Ex.P3. These two witnesses had accompanied the Police Officers and also the appellant. Before recovery, the appellant had given a voluntary statement and it was recorded by P.W. 8-I.O. and the said voluntary statement is at Ex. P7. The appellant has stated that in case if he is taken to a place that he would show, he would produce the copper wire. It is at his instance, the Police held the appellant and the attesting witnesses were taken and it is the appellant alone, who went towards Suvernamukhi river and he also showed the copper wire where it was beneath the water, which was seized under mahazar-Ex.P3, which was weighing 98 kgs. It is relevant to note that prior to recovery of M.O. 2-copper wire, the place where it was hidden was not known to anybody except the appellant. It was thrown into river near the bridge. Therefore, recovery has to be accepted and as it is done at the instance of the appellant, the presumption in law is that the other accused was receiver of the hidden article/s. His conduct of running away from the police at the time of his arrest is also a circumstance to support the prosecution.

So far as the theft of copper wire is concerned, it is P.W. 1, the Junior Engineer of the BESCOM., who came to know about the theft on 29.10.2006 and lodged the complaint-Ex. P1. Though there appears to be some delay in lodging the complaint, there is no material worth acceptance to say that the prosecution has taken the disadvantage to falsely implicate the accused.

It is only on 04.02.2007 i.e., after lapse of about 4 months that when P.W. 7 along with Shivakumar were on patrolling duty, the appellant and another accused were arrested because of their suspicious conduct and at their instance, the copper wire stolen was recovered. All the witnesses examined by the prosecution have supported the case of the prosecution. The scrutiny of the material placed on record would reveal that the stolen wire was recovered at the instance of the appellant within a short period. It is for this reason that the trial Court has convicted the appellant for the charge under Section 136 of the Act.

The perusal of the provision would reveal that all the requirements of the said Section has been complied with by the prosecution. There is sufficient evidence and on the basis of which the conviction has been ordered. There was no necessity for the trial Court to frame a charge for the offence under Section 379 IPC. In that view of the matter, I do not find any material to disbelieve the version put-forth by the prosecution. No grounds are made out to interfere with the impugned Judgment and Order of conviction and sentence.

Consequently, the appeal fails and it is accordingly dismissed. The conviction and sentence of the appellant for the charge under Section 136 of the Act is affirmed and the trial Court is directed to secure the appellant to undergo the sentence. The appellant is entitled to set off under Section 428 Cr.P.C.