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2010 DIGILAW 1167 (KAR)

Krishnappa @ Kittappa v. State of Karnataka

2010-11-10

H.G.RAMESH

body2010
JUDGMENT H.G. RAMESH, J.—This appeal is by the accused challenging the order of conviction and sentence passed by the I Addl. Sessions Judge, Kolar, in EACC No. 16/2010, dated 3.7.2010 in convicting the accused for the offence punishable under Section 135 of the Electricity Act, 2003 and sentencing him to pay a fine of Rs. 31,804/- to the Asst. Executive Engineer, BESCOM, Mulbagal Sub-Division, in default, to undergo simple imprisonment for a period of six months. 2. As per the prosecution, on 20.4.2009 around 11.00 a.m. the Asst. Executive Engineer of the Vigilance Cell of BESCOM, Kolar Division alongwith his staff, inspected the electric installation bearing RR No. IP 575 belonging to accused No. 2-Akkayyamma and accused No. 1-Krishnappa is said to have obtained electricity connection illegally for the borewell by fixing 3 HP electric motor to lift water for sand filtering work and committed theft of 4028 units of electricity and caused loss to the tune of Rs. 29,804/- as back billing charges and Rs. 12,000/- as compounding charges. Accordingly, alleging the offence punishable under Section 135 of the Electricity Act, 2003, complaint was filed and after receipt of charge sheet, case was registered and the accused was tried since he pleaded not guilty. The prosecution has examined in all, 7 witnesses and got marked 9 documents and also seized M.Os. 1 to 4. After hearing, the learned Sessions Judge based on the evidence of BESCOM Inspector and the Asst. Executive Engineer, convicted and sentenced the accused. Hence, this appeal. 3. Heard. 4. The argument of the learned Counsel for the appellant-accused is that, the appellant had no reason to draw illegal electricity from the main line for filtering the sand, he could have very well made use of the bore well which is at a distance of 60 ft. from his land and there is nothing on record to indicate that this appellant is involved in the theft of electricity. In the absence of evidence of independent witnesses to show that this appellant is involved in the commission of offence, the trial Court ought not to have held him guilty of the offence. Even the witnesses who have been examined on behalf of the prosecution for the seizure of wire and electric motor, have turned hostile and the same is not proved and no photographs are produced regarding the seizure. Even the witnesses who have been examined on behalf of the prosecution for the seizure of wire and electric motor, have turned hostile and the same is not proved and no photographs are produced regarding the seizure. Merely, based on the evidence of the official witnesses, the trial Court has rendered the conviction calculating the theft of electricity for a period of six months as 4028 units, as if electricity was supplied for all the 24 hours and, imposed penalty. It is not the case of the prosecution that the accused was apprehended at the time of commission of the offence. Just because the land of the accused was adjacent to the alleged spot, under the presumption that the accused must have committed the offence, he has been charge sheeted, which is illegal and erroneous. 5. Per contra, the learned Govt. Pleader has submitted that, based on the material evidence on record the accused is held guilty of the offence, as there is theft of electricity from the main line. In this regard, the 3 HP motor and also the wire used for drawing the electricity from the main line have been seized in the presence of panchas. There is nothing to disbelieve the prosecution witnesses and they are not inimical to the accused. As such, there is no scope for interference. 6. In the light of the arguments advanced, the points that would arise for my consideration are: (i) Whether the prosecution is able to prove beyond reasonable doubt that, the accused has drawn the electricity from the main line by using 3 HP motor and committed theft of electricity to the tune of 4028 units? (ii) Whether the trial Court has committed any illegality or error in convicting and sentencing the accused? and (iii) What order? 7. At the outset it is seen that, the independent eye-witnesses P.Ws. 3 and 4 who are also panchas for the seizure of material objects have turned hostile. The Court has to look into the evidence of the official witnesses to see as to how far their evidence is trustworthy to hold the accused guilty of the offence. 8. P.W. 1 Sumeer Ali-the Asst. 3 and 4 who are also panchas for the seizure of material objects have turned hostile. The Court has to look into the evidence of the official witnesses to see as to how far their evidence is trustworthy to hold the accused guilty of the offence. 8. P.W. 1 Sumeer Ali-the Asst. Executive Engineer of BESCOM has deposed that, on 20.4.2009 he visited Shettihalli Tank Bund, Mulbagal Taluk, alongwith other staff and BESCOM vigilance police and they inspected the electrical installation belonging to accused No. 2 Akkayyamma and at that time accused No. 1 Krishnappa was present at the spot and they found that he had obtained illegal electricity connection to 3 HP motor to lift water for sand filtering work. Accordingly, mahazar was drawn as per Ex. P1 and M.Os. 1 to 4, i.e., cable, starter and electric motor were seized in the presence of witnesses. However, the stand taken by the accused is that he was not present near the spot. 9. Similar is the evidence of P.W.2-Subbarayappa, the Lineman. He has also deposed to the effect that, accused No. 1 has abstracted electricity connection directly to the electric motor and as per the direction of P.W. 1, he disconnected the electricity connection and has subscribed his signature to Ex. P1, the mahazar and seized M.Os. 1 to 4. 10. P.Ws. 3 and 4 have also been examined as panchas for the seizure and also regarding illegal drawing of electricity from the main line and those witnesses have turned hostile. 11. P.W. 5 is C.N. Vasudev, the Asst. Executive Engineer. He has deposed that as per the request of BESCOM Vigilance Police, he has prepared the bill in respect of back billing charges as per Ex. P6 in respect of RR No. IP 575. 12. P.W. 6 is the Police Head Constable of BESCOM (Vigilance) who received the complaint and sent the FIR. 13. P.W. 7 is K.V. Krishnappa, Police Inspector of BESCOM Vigilance Cell, who has conducted further investigation. He has visited the spot and recorded the statement of some of the witnesses. He has deposed that, he has received Ex. P6-bill in respect of back billing charges from P.W. 5 and after investigation, he has filed the charge sheet against the accused. 14. He has visited the spot and recorded the statement of some of the witnesses. He has deposed that, he has received Ex. P6-bill in respect of back billing charges from P.W. 5 and after investigation, he has filed the charge sheet against the accused. 14. The evidence of P.W. 1 is to the effect that, in the line supplied to the bore well on the over head having fixed another wire by hook, water has been drawn by putting 3 HP motor and having found that illegal electricity has been drawn, he seized the motor, starter and the wire used for abstracting the electricity under mahazar Ex. P1. He has also got prepared the bill for back billing charges through the Asst. Executive Engineer, Of course, the evidence of P.W. 1 is supported by the evidence of P.W. 2 and according to him, the accused-appellant has drawn an illegal connection by connecting wire to the main line and he has disconnected the same and the 3 HP motor, starter and cable were seized under panchanama and he is also the pancha for the same. Nothing worth is elicited in the cross-examination of these two witnesses to discard their evidence. 15. So far as the calculation of consumption of 4,028 units are concerned, nothing has been stated in the evidence of P.W. 1 or any other witnesses as to since how long such connection was used and the electricity was abstracted illegally and no details are furnished as to on what basis they arrived at the calculation of 4,028 units and, although the electricity connection was there, whether there was continuous supply of electricity for all the 24 hours of the day so as to impose fine for theft of 4,028 units. In the absence of any evidence to show that there was continuous supply of electricity for all the 24 hours and, also in the absence of evidence as to since how long the accused was drawing the electricity so as to approximately calculate the theft of electricity, the calculation arrived at by P.W. 1 that there was theft of electricity of 4,028 units cannot be accepted even accepting the fact that there would be theft of electricity for washing the sand. 16. 16. As per Section 135(1)(e)(i) of the Electricity Act of 2003, if the electricity is being used for the purpose other than the authorised usage and if it does not exceed 10 kw, then the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity. 17. In the case on hand, the gain of the accused by illegally abstracting electricity for the purpose other than it was supplied, is also not available on record. In the absence of any such material evidence on record as to what is the financial gain of the accused to hold him guilty for having committed the theft of electricity and also in the absence of recording by the meter, it is rather difficult to exactly arrive at a conclusion as to what is the quantum of theft, as the prosecution has not made known as to since how many days the accused was abstracting the electricity. 18. In the circumstances, while allowing the appeal in part, in modification of the order of the trial Court, while holding the accused guilty of the offence, the fine imposed is reduced to Rs. 2,000/- which shall be paid in three months, in default, the accused has to undergo simple imprisonment for a period of 15 days. However, the order of confiscation of 3 HP motor, starter and wire stands confirmed.