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Judgment
Anand Byrareddy, J.—Heard the learned counsel for the appellant and the learned Additional State Public Prosecutor. The appellant is accused, in the following background:
It was the case of the prosecution that on 22.04.2008, the then Assistant Executive Engineer of the Vigilance Cell, Bagalkot, on the basis of credible information, along with lineman and the police staff, went to the house of the accused at Shirabadagi Village in Badami Taluk and verified the electricity installation there and found that despite disconnection of electricity supplied to the premises due to non-payment of the bill, the accused was still using electricity by drawing the power from the nearby low tension line with a service wire and that there were three bulbs of 60 watt each, which were alight. The complainant summoned three panchas and drew a panchanama on the spot, as per Exhibit P1 and disconnected the service wire and seized the same. An assessment was made of the loss to the Hubli Electricity Supply Company (hereinafter referred to as ''the HESCOM'', for brevity), of Rs. 42,135/- and lodged a complaint thereafter against the accused for offences punishable under Sections 135 and 138 of the Electricity Act, 2003, and recorded the statements of witnesses and collected the calculation sheet and subsequently, after completing the investigation, had filed a charge-sheet against the accused for the said offences. He was arrested, but was enlarged on bail. The court, after taking cognizance of the offence and after further proceedings, framed the charges. The accused pleaded not guilty and claimed to be tried. The prosecution then examined PWs 1 to 5 and marked Exhibits P1 to P6(a) and material object MO-1. After recording the statement of the appellant u/s 313 the Code of Criminal Procedure, 1973 (hereinafter referred to ''Cr.P.C.'', for brevity) and after hearing both the sides, the court below framed the following points for consideration:
Whether prosecution has proved beyond reasonable doubt that, on 22.4.2008 at 4.15 PM when the HESCOM vigilance officials inspected the house at Shirabadagi village in Badami taluka, they noticed that the accused was residing there and he had committed theft of electricity in the said house and had caused a loss of Rs. 42,135/- to the Electricity Company and thereby has committed an offence punishable u/s 135 of Electricity Act, 2003?
Whether, the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned above, the accused was found interfering in the supply of electricity in his house and thereby committed an offence punishable u/s 138 of Electricity Act, 2003?
What order?
The court below answered Point No. 1 in the affirmative and Point No. 2 in the negative and convicted the appellant to imprisonment for a period of one year and six months for the offences punishable u/s 135 of the Electricity Act and also held that the HESCOM was entitled to recover a sum of Rs. 42,135/- and acquitted the accused for the offences punishable u/s 138 of the Electricity Act and further imposed a fine of Rs. 5,000/-. It is that which is under challenge in the present appeal.
The learned counsel for the appellant urges several grounds. Firstly, it is pointed out that the so-called eye-witnesses and the panch witnesses had not supported the case of the prosecution. Therefore, the entire case of the prosecution resting on the evidence of official witnesses without being corroborated by independent evidence, would necessarily give rise to a serious doubt of the veracity of the evidence of those witnesses, since it would be their objective to bring home the charges at all odds and it is for this reason that the prosecution itself has thought it fit to tender evidence of independent panch witnesses and other eye-witnesses. When those witnesses have not supported the case of the prosecution, it goes without saying that the case of the prosecution stands diluted and would not be readily acceptable in holding that the charges have been proved beyond all reasonable doubt. Even the witnesses for the prosecution have not been consistent in their testimony and hence, a grave doubt arises as to the charges being established beyond all reasonable doubt. It is this which is sought to be emphasized while further contending that the finding as to the appellant being liable to pay a sum of Rs. 42,135/- is based on surmises. There is no indication of there being any reading of the alleged electricity consumption and in the absence of any measure on the basis of which such amounts are held recoverable from the appellant, the same is without foundation and therefore, illegal.
The learned counsel would submit that insofar as the punishment is concerned, even if the allegations are said to have been proved is totally disproportionate to the alleged offences. The prescription of punishment is in the alternative and therefore, the court below having exercised the power to impose the punishment of imprisonment apart form imposing a punishment of fine, has also thought it fit to hold that the appellant was liable to pay a substantial sum of money to the Electricity Supply Company, which is wholly disproportionate with the alleged offence when apparently the illegal connection and consumption of electricity was not for any commercial purpose and admittedly, the electricity was drawn for purposes of lighting and there were not more than three lights that were in existence, in the premises. Therefore, the liability to the extent found by the court below is on an imaginary calculation, which cannot be sustained and hence, the learned counsel for the appellant would seek that the judgment of the court below be set-aside and the appellant be acquitted.
In the above circumstances, the following aspects require to be addressed:
Firstly, whether the court below was justified in placing reliance on the evidence of official witnesses and arriving at a conclusion on the basis of findings by the Trial Court even though the panch witnesses and the eye-witnesses had turned hostile and did not support the case of the prosecution. There is no hard and fast rule that, unless the independent witnesses who may be examined at a trial to support the prosecution, that in all cases, it should be held that the prosecution had not established its case beyond all reasonable doubt. Firstly, in the absence of any mala fides or other bias alleged against a particular witness for the prosecution, the testimony of official witnesses cannot be negated or discarded merely because the other independent witnesses examined on behalf of the prosecution do not corroborate the evidence of the prosecution. This will depend on the facts and circumstances of each case. In the present case on hand, there is no allegation of any such bias or mala fides on the part of the official witnesses. The mere assertion that in the absence of corroboration, the said evidence would have to be negated, cannot be accepted. Therefore, there is no illegality or irregularity committed by the Trial Court in having accepted the evidence of the official witnesses.
The second contention that even if there was illegal consumption of electricity, the liability of Rs. 42,135/- found and held to be recoverable from the appellant by the court below, is certainly on the basis of a calculation on a hypothetical basis, prepared by the concerned Executive Engineer. However, in the absence of any challenge in cross-examination to the said calculation sheet, the same cannot be said to be untenable. The contention now raised as to the correctness or the basis of the said amount, it is not open for the appellant to question the same. In the face of the circumstance that illegal consumption of electricity has been established, it is not open for the appellant to question the liability that is fastened, albeit on a hypothetical basis.
However, insofar as the third aspect, namely the proportionality of the punishment that is imposed is concerned, as rightly pointed out by the learned counsel for the appellant, the punishment prescribed affords the court the discretion to impose punishment by way of imprisonment or fine, or both.
The court having chosen to impose both, ought to have been tempered with a sense of proportionality, in the face of the circumstance that the appellant is also mulcted with liability to pay an amount of Rs. 42,135/-, as the amount payable on an assessment of the electricity consumed. Therefore, the punishment that is imposed on the petitioner is three-fold. He suffers imprisonment. He is bound to pay the fine as well as meet the liability towards the consumption of electricity.
Therefore, in the opinion of this court, interest of justice would be served if the punishment is modified to enhance the fine payable substantially, and if the amount is made over to the Electricity Supply Company by way of compensation, it would serve two purposes. The petitioner would be given his liberty instead of being imprisoned. But at the same time, he shall suffer the burden of monetary payments, which cannot be said to be a lesser burden than suffering imprisonment and to bring home to the appellant the lesson that such illegal activity would not pay and that it would possibly cause greater loss than the illegal benefit that he would derive. It is also found that under the first proviso to Section 135 of the Electricity Act, if the load abstracted or consumed does not exceed 10 kilowatt, the fine imposed shall not be less than three times the financial gain, on account of such theft of electricity.
In this case, the financial gain has been quantified at Rs. 42,135/-. Therefore, the fine imposed at three times the said amount would exceed Rs. 1,20,000/-. However, since the amount arrived at is on a hypothetical basis by the concerned Engineer, the fine amount payable shall stand enhanced, over and above the amount imposed by the court below, to an amount rounded off to Rs. 50,000/- (Rupees Fifty Thousand only), which shall be in addition to the fine of Rs. 5,000/- that is already imposed by the Trial Court and a sum of Rs. 42,135/- held recoverable by the Electricity Supply Company and taking into account a sum of Rs. 30,000/- that has been deposited by the appellant in discharge of the said liability.
Therefore, the appellant would be liable to pay a fine of Rs. 55,000/-, apart from the electricity supply company being entitled to recover the further sum of Rs. 12,135/-. Out of the amount to be paid as fine in a sum of Rs. 55,000/-, a sum of Rs. 50,000/- shall be paid as compensation to the Electricity Supply Company u/s 357 of the Cr.P.C. The punishment of imprisonment imposed by the Trial Court shall stand eschewed and set-aside. With that modification, the appeal is allowed in part.