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2019 DIGILAW 1877 (RAJ)

Durga Ram v. State of Rajasthan

2019-07-03

MANOJ KUMAR GARG

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JUDGMENT : Manoj Kumar Garg, J. 1. Instant criminal appeal has been filed by the appellant under Section 374(2) Cr.P.C. against the judgment dated 16.03.2011 passed by learned Special Judge, Electricity Act Cases (Additional Session Judge, No. 1), Jodhpur (hereinafter referred to as 'the trial court') whereby, the learned trial court convicted the accused appellant for offence under Sections 135 & 138 of Electricity Act and sentenced as under: Offence Sentence Fine In default Sec. 135 Electricity Act 6 months S.I. Rs. 50,000/- 3 month S.I. Sec. 138 Electricity Act 6 months S.I. Rs. 10,000/- 1 month S.I. 2. Both the sentences were ordered to be run concurrently. 3. Briefly stated the facts of the case are that on 31.07.2009 at 11 AM, P.W. 1 Rajesh Purohit, A.En. (Vigilance) (r) Jodhpur Vidhyut Vitran Nigam Ltd., Jodhpur submitted a written report Ex-P/2 at Police Station Prevention of Electric Theft, Jodhpur Rural alleging therein that on 30.07.2009 Hari Ram Bishnoi, Additional A.En. (Vigilance) along with vigilance team suddenly checked the tubewell of accused appellant and found that he connected the transformer (S. No. 5462 40 KV) in the electricity supply line of 11 KV, wherefrom the electricity supply was directly taken by him. The vigilance team seized the transformer, cable, booster, thereafter VCR No. 189/17 dated 30.07.2009 was prepared on the spot and material were also seized. 4. On the basis of the above report, Police registered the case under Sections 135 & 138 of Electricity Act as CR Case No. 122/2009 and started the investigation. Thereafter the accused-appellant was arrested. After thorough investigation, the Police filed challan against the accused-appellant for offence under Sections 135 & 138 of Electricity Act. 5. Thereafter learned court below framed charge for offence under Sections 135 & 138 of Electricity Act against the accused-appellant. The accused-appellant denied the charges and claimed for trial. During trial, 15 prosecution witnesses were examined and certain documents were got exhibited. Thereafter statements of the accused-appellant under Section 313 Cr.P.C. were recorded. In defence no witness was examined on behalf of the accused-appellant but some documents were got exhibited. 6. After conclusion of the trial, the learned trial court vide judgment dated 16.03.2011 convicted the accused-appellant for offence under Sections 135 & 138 of Electricity Act and sentenced him as aforesaid. 7. In defence no witness was examined on behalf of the accused-appellant but some documents were got exhibited. 6. After conclusion of the trial, the learned trial court vide judgment dated 16.03.2011 convicted the accused-appellant for offence under Sections 135 & 138 of Electricity Act and sentenced him as aforesaid. 7. At the threshold, learned counsel for the appellant submits that he does not challenge the finding of conviction but since the occurrence has taken place as back as in the year 2009 and the accused appellant has served in custody a period of two days out of total sentence of six months, therefore, it is prayed that the substantive sentence awarded to the appellant for the aforesaid offence may be reduced to the period already undergone by him. In support of his contention, learned counsel for the appellant has relied upon the judgment of the Hon'ble Supreme Court in the case of Vaithi @ Vaithianathan Vs. State of Tamil Nadu, Cr. Appeal Nos. 1870-1871 of 2010 decided on 14.11.2011 in which the Hon'ble Supreme Court while upholding the conviction of the appellant for the offence under Electricity Act, reduced the sentence to the period already undergone by him. 8. On the other hand, the learned Public Prosecutor has opposed the submissions made by the learned counsel for the appellant and submitted that there is neither any occasion to interfere with the sentence awarded to the accused appellant nor any compassion or sympathy is called for in the said case. 9. Heard the learned counsel for the parties and perused the judgment passed by the court below as well as the record of the case. 10. It is not disputed that the occurrence relates to the year 2009 and the accused appellant has so far served a period of two days in custody out of total sentence of six months and, so also suffered the agony and trauma of protracted trial. Thus, looking to the over-all circumstances and the fact the appellant has remained behind the bars for two days and also keeping in view the fact that the offence in question was committed nearly 10 years back, it will be just and proper if the sentence awarded by the trial court for offence under Sections 135 & 138 of Electricity Act is reduced from six months' simple imprisonment to the period already undergone by the appellant. 11. 11. Counsel for the appellant submits that the appellant is a poor person and he is also not keeping a good health, therefore he is not in a position to deposit the huge fine amount imposed by the trial court, in these circumstances, the fine amount imposed by the trial court may be reduced suitably. 12. In the case of Vaithi @ Vaithianathan (Supra), Hon'ble Supreme Court while maintaining the conviction of the accused for offence under Electricity Act, reduced the sentence to the period already undergone by the accused, which is about thirteen days. In the present case also, the accused-appellant has suffered about two days' sentence out of total sentence of six months. 13. Accordingly, the criminal appeal is partly allowed. While maintaining the appellant's conviction for offence under Sections 135 & 138 of Electricity Act, the sentence awarded to him is hereby reduced to the period already undergone by him. The fine imposed by the trial court for offence under Section 135 of Electricity Act is reduced from Rs. 50,000/- to Rs. 20,000/- and for offence under Section 138 of Electricity Act is reduced from Rs. 10,000/- to Rs. 5,000/-. Two months' time is hereby granted to deposit the fine, failing which the appellant shall undergo three month's simple imprisonment. The appellant is on bail. His bail bonds stand discharged. 14. The record of trial Court be sent back forthwith.