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Judgment
This appeal has been directed against the judgment of conviction and order of sentence dated 15.01.2009 passed by Special Judge under the Electricity Act, 2003, Raigarh in Special Case No.03/2008, wherein the said Court convicted the appellant for commission of offence under Section 136(1)(a) of the Electricity Act and sentenced him to undergo rigorous imprisonment for one year and to pay fine of Rs. 5000/- with default stipulation.
As per the case of the prosecution, on 29.4.2006, it was found by Assistant Engineer of Electricity Board namely Sudhir Tirkey that there was theft of electric wire from electric pole between the village Khamhar to Kanseendad. After registration of the FIR, the authorities swung into action and on the basis of discovery statement of the appellant, electric wires were seized from him. The matter was investigated and the appellant was charge sheeted. After completion of the trial, the Court below convicted and sentenced the appellant as mentioned above.
Learned counsel for the appellant submits as under:-
(i) Procedure for search and seizure has not been followed in the present case, therefore, it is not proved that the wires were seized from the possession of the appellant.
(ii) Panch witnesses have turned hostile and they have not supported the version of the Asst. Engineer, therefore, seizure from the appellant is not established.
(iii) The trial Court has not appreciated the the evidence in its true perspective and the same is liable to be reversed.
On the other hand, learned counsel for the State submits that the finding arrived at by the trial Court is based on proper marshaling of evidence and the same is not liable to be interfered invoking the jurisdiction of the appeal.
I have heard learned counsel for the parties and perused the record.
To substantiate the charges the prosecution has examined as many as 11 witnesses. From the evidence of Sudhir Tirkey (PW-1) it is established that the electric wires from the poles between village Khamhar to Kanseendad were removed and that is why the matter was reported to Police Station Kapu as per Ex-P/1. Other witnesses have also supported the version or Sudhir Tirkey and their versions were unshaken during cross-examination. By the evidence of these witnesses, the prosecution has established the theft of electric wires from about 32 poles.
Police Inspector B. Minj (PW-11) was the investigating officer before whom the discovery statement was made by the appellant. As per the version of this witness, upon discovery statement of the appellant electric wires were sized in nine plastic bags and two jute bags. Apart from electric wires, one cutter made of iron and one pick up vehicle were also seized on basis of the discovery statement of the appellant. True it is that the Panch witnesses have not supported the version of the police inspector, but the fact remains that huge quantity of electric wires were seized during investigation along with cutter and pickup vehicle therefore, the version of Panch witnesses is not liable to be accepted. Even otherwise statement of the police officer cannot be under valued merely because he is a police officer. Looking to the seizure of huge quantity the trial court opined that the electric wires to the tune of 480 kg was seized from the appellant and this Court has no reason to record a contrary finding .
Asst. Engineer Sudhir Tirkey (PW-1) is the person who examined the seized wires and as per the report (Ex-P/4) electric wires seized from the possession of the appellant is the same which is used by the Electricity Board.
Looking to the evidence of the expert the trial Court opined that the seized wires which were removed from the electric pole is the subject matter of the theft. After reassessing the entire evidence, this Court has no reason to record a contrary finding or substitute a different opinion. Removal of the electric wires is an offence punishable under Section 136(1)(a) of the Act for which the trial Court convicted the appellant and the same is hereby affirmed.
Heard on the point of sentence. The appellant has suffered jail term from 02.5.2006 to 09.10.2006 i.e. about five months. He has paid the entire fine amount. Looking to the facts and circumstances of the case, jail sentence awarded to the appellant is reduced to the period already undergone by him while fine amount shall remain intact.
With this modification the appeal is allowed in part.