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2020 DIGILAW 1021 (KAR)

Mallappa v. State Of Karnataka

2020-06-09

HANCHATE SANJEEVKUMAR

body2020
JUDGMENT Hanchate Sanjeevkumar, J. - The above appeal is filed challenging the judgment of conviction and order on sentence dated 09.10.2012 passed in (K) Special Case No.4/2010 by the Court of Special Judge/II Additional Sessions Judge at Bijapur. 2. The brief facts of the case are as follows ;- The PW.2 after receipt of credible information that the accused were committing theft of electricity where the accused were running flourmill and accordingly the PW.2 along with PW.6 and with other two lineman and officials have conducted raid on the flourmill of the accused on 01.12.2009 at 3.00 p.m. by going over to the Nidoni village where the flourmill was situated and inspected and found that the accused No.2 is the wife and accused No.1 is her husband and said flourmill was running with the help of 2 HP electric motor and when this being the fact upon inspection and the search of the said flourmill on 01.12.2009 at 04.15. p.m. and it is found that the accused tampered two phase PVC wire before electric meter by using change over switch for their convenient bypassing the meter. Thereby made the arrangement to use electricity to run the flourmill but stopping the rotation of disk in the meter and thus in this manner it is alleged that the accused have committed theft of electricity which is punishable under Section 135(1)(b) of the Electricity Act, 2003 (for brevity hereinafter referred to as the 'Act') and accordingly the PW.2 had lodged first information statement (FIS) on 01.12.2009 at 10.00 p.m., against the accused and first information report is registered as per Ex.P.7. It is alleged against the accused that the accused/appellants that the accused/appellants have committed theft of 4832 units of energy worth of Rs.34,494/- and caused loss to the HESCOM. It is also stated that at the time of conducting raid on the date and time above stated the PW.2 has drawn spot panchanama as per Ex.P.5. After receipt of FIS and registration of first information report the PW.6 had conducted investigation and found that there are materials against the accused to subject them for trial. Hence, filed charge sheet against the accused for the offence punishable under Section 135(1)(b) of the Act. After receipt of FIS and registration of first information report the PW.6 had conducted investigation and found that there are materials against the accused to subject them for trial. Hence, filed charge sheet against the accused for the offence punishable under Section 135(1)(b) of the Act. The Special Court after receipt of the charge sheet had proceeded with the trial against the accused by framing charge against the accused under Section 135(1)(b) of the Act and the accused pleaded not guilty and claims to be tried. Accordingly, trial was proceeded with against the accused and during the course of trial the prosecution has examined totally seven witnesses as PWs.1 to 7 and got marked documentary evidences as per Exs.P1 to P7 and got marked material objects as M.Os.1 and 2. After closure of the prosecution side evidence the accused were examined under Section 313 of the Code of Criminal Procedure and the accused have not submitted any written statement and have not lead any defence evidence. It is totally denial of the case of the prosecution by the accused. The accused have simply denied the prosecution case whenever incriminating evidences/circumstances put to the accused under Section 313 of the Code of Criminal Procedure. The Special Court after considering all the evidences on record had delivered the judgment of conviction against the accused finding guilty of them for the offence punishable under Section 135(1)(b) of the Act and sentenced to pay fine amount of Rs.1,03,482/- with default clause to suffer simple imprisonment for a period of three months in case the accused fails to pay the fine amount. 3. Being aggrieved by the judgment of conviction and order on sentence as stated above, the accused have preferred the present appeal challenging on various grounds inter alia as below stated The Special Court has not appreciated the evidences on record in true and correct perspective manner as it is revealed that there was no raid conducted Even it is the case of the prosecution that change over switch was seized which is stated to have been used for commission of theft of energy by the accused and this is one of the important device/instrument but the prosecution has not produced the same during the trial. Therefore, contended that the entire episode of raid conducted is suspicious one. Therefore, contended that the entire episode of raid conducted is suspicious one. The accused No.1 while running the flourmill prior to 01.12.2009 i.e., in the month of November, 2009 had noticed a smoke coming from the electric meter i.e., M.O.2 installed in the flourmill and being afraid of further causing damage then they removed the said meter M.O.2 with bonafide belief and taken to the Section Officer of the HESCOM and gave it to them by informing the said defect in the meter by noticing of the smoke emerged on the meter, but by taking disadvantage of this fact the respondent HESCOM officials have registered false case by using this M.O.2 meter and by falsely implicating M.O.1 PVC wire. Therefore, contended that the Special Court has not appreciated evidence in this regard correctly and in true perspective manner. Further all the witnesses in the case are official witnesses and even the panch witnesses are drivers of the vehicles in which the PWs.2, 6 and other officials were said to have gone for raiding and thus vehicles were given rent to the HESCOM officials by the owners of the panch witnesses. Therefore, even the panch witnesses are highly interested witnesses and in this regard the reasonable doubt expressed by the defence is not correctly appreciated by the Special Court. 4. I have heard the learned counsel for the appellants/accused and the learned High Court Government Pleader and perused all the witnesses on record and other materials on record and the point that arise for my consideration is follows ;- "Whether the judgment of conviction and order on sentence recorded by Special Court requires any interference by this court ?" 5. I would like to discuss the submissions made by the learned counsel for the appellants and whatever the points raised by them in appropriate places wherever discussions are made while giving reasons in order to avoid repetition of their submissions. ANALYSES : 6. It is just and necessary to have a cursory look on the role of evidence adduced by the prosecution. ANALYSES : 6. It is just and necessary to have a cursory look on the role of evidence adduced by the prosecution. PW.1 is the Assistant Engineer who has furnished documents pertaining to the appellants/accused regarding licence was given to run the flourmill; PW.2 is the HESCOM official who had conducted raid along with PW.6 and other panchas; PWs.3 and 5 are the panch witnesses to Ex.P.5 spot panchanama; PW.4 is the lineman who had also accompanied the raid along with PW.2 and had removed wire and meter; PW.6 is the Police Inspector who had accompanied the raid along with PW.2; PW.7 is the Constable who had received FIS from PW.2 and registered FIR as per Ex.P.7. 7. The learned counsel for the appellants vehemently argued that the entire episode of raid conducted as projected by the prosecution by relying on the evidences of PWs.1 to 7 itself is suspicious one but in reality raid was not at all conducted. But submitted that when it is the allegation made by PWs.2 and 6 and from what is stated to have been revealed by other witnesses that the accused have used change over switch alleged to have been used for commission of theft of energy but the said instrument of change over switch is not produced before the Special Court and not got marked before the Special Court during the course of trial. Therefore, argued that this creates a reasonable doubt that whether really raid was conducted by the officials or not. 8. Further submitted upon considering the evidence of PW.2 in examination-in-chief itself the chronological events as stated by him creates a doubt whether really raid was conducted and found the accused are guilty and drawn panchanama on the spot. Therefore, learned counsel for the appellants submitted upon considering the evidence of PW.2 who is an important witness herein his evidence is not found to be trustworthy and believable regarding raid was conducted. Therefore, learned counsel for the appellants submitted upon considering the evidence of PW.2 who is an important witness herein his evidence is not found to be trustworthy and believable regarding raid was conducted. Therefore, it is totally a sum and substance of the submission made by the learned counsel for the appellants is that raid was not conducted but the entire documents were prepared in the office and false case was registered against the accused and thus, the accused/appellants were falsely implicated into the case and in this regard the trial court has not appreciated the evidence on record correctly and legally resulting into miscarriage of justice in convicting the appellants. Thus, prayed for allowing the appeal and acquit the appellants from the charges leveled against them. 9. On the other hand, the High Court Government Pleader supported the judgment of conviction of the Special Court and submitted that there are no discrepancies, infirmities, embellishments are found in the prosecution case and the Special Court has rightly appreciated the evidence on record and thus convicted for the offence alleged and therefore there is no need to cause any interference in the judgment rendered by the Special Court. Thus, prayed to dismiss the appeal. 10. Both the learned counsel for the appellants and the High Court Government Pleader have taken me to the evidence on record and other materials in the present case for appreciation of evidences on record. 11. This court being the appellate court has every power to re-appreciate the evidences on record to ascertain whether the findings recorded by the Special Court are correct or not. 12. As discussed above it is the case of the prosecution that upon raid was conducted on the flourmill of the appellants it was found that the accused have committed offence of theft of energy to the tune 4832 units of energy which is totally amounting to Rs.34,494/- by using the instruments and the manner which is described above. 13. Here in the present case all the witnesses are the officials witnesses except PWs.3 and 5 who are panch witnesses who are drivers of the vehicles in whose vehicle the HESCOM officials have gone to raid and these vehicles taken on rent basis from the owners of PWs.3 and 5. 13. Here in the present case all the witnesses are the officials witnesses except PWs.3 and 5 who are panch witnesses who are drivers of the vehicles in whose vehicle the HESCOM officials have gone to raid and these vehicles taken on rent basis from the owners of PWs.3 and 5. Therefore, I find force in the argument canvassed by the learned counsel for the appellants that even though these PWs.3 and 5 are not the official witnesses but they are on duty as drivers taking HESCOM officials since the said vehicles were taken on rent by the owners of PWs.3 and 5. Therefore PWs.3 and 5 cannot be categorized as independent witnesses but they were hired by the HESCOM officers. 14. Admittedly in the present case the instrument 'change over switch' which is stated to have been used for commission of theft of energy what is projected by the prosecution is not produced before the Special Court during trial. This is one of the circumstances how it affects the prosecution case is discussed regarding entire conducting of raid and drawing of panchanama whether they are in natural course or not. 15. Pw.2 who is Assistant Executive Engineer had stated in his evidence that on 01.12.2009 at forenoon 3.00 p.m he had received information that there was commission of theft of energy by the accused in Nidoni village. When the accused/appellants were running flourmill in their form house and accordingly PW.2 requested PW.6 Police Inspector and other police constables and PWs.3 and 5 who accompanied the raid and accordingly went to Indi Village and found that the accused were running flourmill and upon inspection PW.2 had given notice as per Ex.P.2 and upon search and inspection found that the accused have drawn a line by using of KYC wire between meter and flourmill and in between these two by adopting a 'change over switch' and accordingly conveniently the accused were committing theft of electrical energy. 16. Now let me consider the sequence of events done in this case by PW.2 what he has stated in the examination-in-chief itself and the preparation of the documentary evidences during raid, which is alleged to have been conducted. It is the evidence of PW.2 and also from the records it is borne out by perusing of Ex.P.5 panchanama that the panchanama was conducted at evening 4.30 p.m on 01.12.2009. It is the evidence of PW.2 and also from the records it is borne out by perusing of Ex.P.5 panchanama that the panchanama was conducted at evening 4.30 p.m on 01.12.2009. The PW.2 had received information at 3.00 p.m and he mobilized PW.6 and other officials stated above and went to Indi village at 4.15 p.m. in which flourmill was running in the farm house of the accused and upon inspection drawn panchanama at 4.30 p.m evening. The PW.2 had stated that after lodging FIS as per Ex.P3 on 01.12.2009 at 9.10 p.m. he went to the HESCOM office and collected documents pertaining to the accused and then he returned to his office and perused the documents of the accused regarding taking licence for using electric energy for running flourmill and prepared back billing as per Ex.P.4 and calculated that the accused have committed theft of 4832 units of energy wroth to Rs.34,494/-. The back billing is as per Ex.P.4. 17. Upon considering the consequence of events as stated by PW.2 in his examination-in-chief he stated that he had lodged FIS on 01.12.2009 at 9.10 p.m. (night) as per Ex.P.3. It can be seen on perusal of Ex.P.3 FIS that the PW.2 had lodged FIS at night 9.10 p.m. on 01.12.2009 then he has stated that after lodging FIS he had been to the office of HESCOM and collected documents. Therefore obviously it must have been after 9.10 p.m. on 01.12.2009 and collected the documents pertaining to the accused, then the PW.2 had returned to his office and made calculation and prepared back billing list as per Ex.P.4 and calculated that the accused have committed theft of electricity to the tune of 4832 of units worth of Rs.34,494/- and obviously this must have been done at night after 9.10 p.m. (lodged FIS at 9.10 p.m.) Therefore, all these exercise by PW.2 have been done after lodging FIS on 01.12.2009 at 9.10 p.m. 18. Then coming to the perusing of panchanama Ex.P.5 which is stated to have been prepared on 01.12.2009 at evening 4.30 p.m. From the evidence of PW.2 it is revealed that he left the office at Vijayapura at 3.00 p.m. and reached the place of flourmill at 4.15 p.m. then inspected and searched and then prepared panchanama at 4.30 p.m. on 01.12.2009. It is pertinent to mention here that in the panchanama Ex.P.5 the PW.2 had stated that the accused have committed theft of 4832 units of energy wroth of Rs.34,494/- and the same is reflected in Ex.P.5 panchanama. 19. When the entire scenario of sequence of events as deposed by PW.2 is considered it is revealed that panchanama was conducted on 01.12.2009 at 4.30 p.m. evening but the FIS was lodged at night 9.30 p.m. on 01.12.2009 and thereafter calculated back billing charges as 4832 unit committed theft of energy worth of Rs.34,494/-. Hence, there is no coherence of these events when the evidence on record are analyzed and appreciated in this regard and there is a serious mis-link is revealed regarding the raid is conducted and there is a high suspicious arose. 20. Considering the entire facts and circumstances of the case whether really the PW.2 had conducted raid or not. It is proved that before lodging FIS (lodged on 01.12.2009 at 9.10 p.m.) the PW.2 had prepared panchaama as per Ex.P.5 on 01.12.2009 evening at 4.30 p.m and quantify of theft of energy is mentioned as 4832 units worth of Rs.34,494/- is mentioned in Ex.P.5 but these calculations were made after 9.10 p.m. Hence, entire prosecution case of raid conducted and drawing panchanama is proved to be doubtful. 21. Pw.3 is a panch witness he had stated that spot panchanama was conducted at 4.30 p.m on 01.12.2009. The same is deposed by PW.5 also. The PW.6 had also stated that the PW.6 Police Constable who also conducted the raid and stated to have been present on 01.02.2009 at 4.30 p.m. when panchanama being drawn. He had also stated that panchanama was conducted and drawn at 4.30 p.m. on 01.12.2009. Therefore, as per the records revealed that the entire exercise of panchanama was conducted at 4.30 p.m. on 01.02.2009. 22. Here one more thing to be mentioned that in Ex.P.5 panchanama it is reflected and stated that 4832 units of energy was committed theft worth of Rs.34,494/-. Therefore, as per the records revealed that the entire exercise of panchanama was conducted at 4.30 p.m. on 01.02.2009. 22. Here one more thing to be mentioned that in Ex.P.5 panchanama it is reflected and stated that 4832 units of energy was committed theft worth of Rs.34,494/-. When analyzing the evidence of PW.2 and other witnesses as discussed above and as per the evidence of PW.2 when the PW.2 had calculated and prepared Ex.P.4 back billing of showing 4832 units of energy was committed theft and which must have been done after 9.30 p.m. but the same is reflected in the panchanama which was said to have been conducted at 4.30 p.m. 23. After proper analysis of the record as discussed above, it is impossible to mention the units of theft of energy and its sum in panchanama which is stated to have prepared at 4.30 p.m. when that calculation as per Ex.P4 was done after 9.30 p.m. Therefore, this proves that PW.2 has not conducted raid and prepared all the records in the office itself. In this regard, I find considerable force in the argument canvassed by the counsel for the appellants. 24. When it is the case of the prosecution that the accused have used 'change over switch' installed in between the meter and the flourmill and conveniently committing theft of energy by making use of this 'change over switch' and as per the prosecution while conducting panchanama Ex.P.5 it was seized but this important device is not at all produced before the Special Court during the trial. Even upon perusing the PF list submitted by the HESCOM officials while depositing the material objects before the Special Court which do not contain the instrument 'change over switch'. Totally upon considering the entire evidence on record this device namely 'change over switch' is not produced before the Special Court and the prosecution has not made any attempt to get it marked as material object. 25. The PW.2 in his evidence admitted in the cross-examination that during conducting of panchanama this device namely 'change over switch' was seized but it is not produced before the court and it is kept in his office. Therefore, this is one of the serious missing link to make connection of the accused into the alleged crime. 25. The PW.2 in his evidence admitted in the cross-examination that during conducting of panchanama this device namely 'change over switch' was seized but it is not produced before the court and it is kept in his office. Therefore, this is one of the serious missing link to make connection of the accused into the alleged crime. PW.4 is the lineman had stated that at the direction of PWs.2 and 6 he has removed the meter wire and 'change over switch'. Therefore, as per the prosecution case the PWs.2 and 6 have seized 'change over switch' but that is not produced before the court. Also upon perusing of Ex.P.5 panchanama even though it is stated that this change over switch was used for the purpose of commission of theft of energy but that is not shown in the particulars of seizure of instrument. Therefore, all these evidences revealed in the present case are very reasonable doubt regarding developing suspiciousness in the prosecution case whether really the raid was conducted or not. 26. Therefore, upon analyzing the entire prosecution case as discussed above, the prosecution has miserably failed to prove the guilt against the accused by placing cogent evidences before the court and in this regard the Special Court had not appreciated the evidence on record in true and correct perspective manner. 27. Even though there is no rule that the evidence of official witnesses cannot be disbelieved but upon considering the entire evidence on record and considering the entire scenario as discussed above, the evidence of these official witnesses are not found to be believable one. Upon considering the sequence of events upon receipt of information, conducting raid, preparing panchanama, lodging FIS, preparing back billing and all the exercise are considered they are not linking to each other in chronological manner and found to be in a very unnatural way. Therefore, the prosecution has not placed cogent evidence before the court and the Special Court has miscarried itself while appreciating the evidence. Therefore the prosecution fails to prove the guilt beyond reasonable doubt and in this regard the judgment of conviction and order on sentence rendered by Special Court is found to be perverse and illegal and thus, is liable to be set-aside. Accordingly, I answer point in the affirmative. In the result, I proceed to pass the following ORDER Appeal is hereby allowed. Accordingly, I answer point in the affirmative. In the result, I proceed to pass the following ORDER Appeal is hereby allowed. The judgment of conviction and order on sentence dated 09.10.2012 passed by the court of Special Judge/II Additional Sessions Judge, Bijapur in (K) Special Case No.4/2010 is hereby set-aside. The appellants are acquitted for the charges leveled against them. Their bails bonds and surety bonds shall stand cancelled. Whatever the fine amount is deposited by the appellants the same shall be returned to them.