JUDGMENT : This appeal is filed by appellant -accused No. 3 challenging the judgment of conviction and order of sentence passed in Spl.C. No. 20/2010 by the Additional District and Special Judge, Chickmagaluru dated 04.10.2011 convicting the appellant -accused No. 3 and also accused Nos. 1 and 2 for the offence under Section 136 of Indian Electricity Act, 2003 (for short hereinafter referred to as `the Act') and Section 379 of IPC. Accused Nos.1 to 3 were sentenced to undergo simple imprisonment for a period of 2 months and to pay fine of Rs.2000/-each for the offence under Section 136 of the Act with a default sentence. No separate sentence has been passed for the offence under Section 379 of IPC as it is a similar offence to that of offence under Section 136 of the Act. 2. Factual matrix of the case is that, on 22.05.2007 at night hours near Mattavara kere in Chikkamagaluru accused persons committed theft of copper wire measuring 200 meters and weighing about 40 KGs 50 GMs. worth Rs.15,000/-belonging to MESCOM installed in electric poles and alleged to have committed offence punishable under Section 379 of IPC and Section 136 of the Act. Charge sheet came to be filed against accused Nos. 1 to 6 for the offence under Section 379 of IPC and Section 136 of the Act. Trial was held against accused Nos. 1 to 3 and 5 and 7 and the case against accused No.4 was split up. 3. In order to prove the case the prosecution has examined nine witnesses as P.W.1 to P.W.9 and got marked documents Ex.P.1 to Ex.P.12 and material objects as M.O.1 and M.O.2. The statement of the accused under Section 313 of Cr.P.C. was recorded. 4. After hearing arguments on both sides the trial Court framed points for consideration and convicted the appellant -accused No.3 and also accused Nos. 1 and 2 for offence under Section 379 of IPC and Section 136 of the Act. The said judgment of conviction and order of sentence has been challenged in this appeal. 5. Heard arguments of the learned counsel appearing for appellant -accused No.3 and the learned HCGP appearing for the respondent -State. 6. Learned counsel for the appellant -accused No.3 argued that the trial Court has erred in appreciating the evidence of prosecution witnesses in coming to the conclusion that appellant -accused No.3 has committed the offences. 5. Heard arguments of the learned counsel appearing for appellant -accused No.3 and the learned HCGP appearing for the respondent -State. 6. Learned counsel for the appellant -accused No.3 argued that the trial Court has erred in appreciating the evidence of prosecution witnesses in coming to the conclusion that appellant -accused No.3 has committed the offences. There are no connecting material to the alleged theft dated 22.05.2007 against this appellant -accused No.3. There is no recovery of any material objects at the instance of the appellant -accused No.3. Recovery of M.O.2 -40 KGs of copper ingots is at the instance of accused Nos.1 and 3 from the shop of C.W.7 under mahazar -Ex.P.10. The trial Court based on the voluntary statement of accused Nos.1 and 2 which are at Ex.P.8 and Ex.P.9 has come to the conclusion that appellant -accused No.3 is involved in commission of theft of 200 meters of copper wire on 22.05.2007. The said Ex.P.8 and Ex.P.9 are not admissible in evidence except for Section 27 of the Indian Evidence Act. Therefore, the trial Court without appreciating the evidence on record properly has erroneously convicted this appellant accused No.3. With this he prayed to allow the appeal and acquit appellant -accused No.3. 7. Per contra, learned HCGP would submit that the appellant -accused No.3 is a habitual offender along with other accused has committed theft of copper electric wire in two to three cases. He supported the reasoning assigned by the trial Court in convicting appellant -accused No.3. With this he prayed to dismiss the appeal. 8. On the grounds made out and considering the grounds urged by the learned counsel for the parties the following point arises for my consideration. Whether the trial Court erred in convicting appellant -accused No.3 for the offence under Section 379 of IPC and Section 136 of Indian Electricity Act, 2003? 9. My answer to the above point is in the affirmative for the following reasons: Charge leveled against appellant -accused No.3 and other accused is that on 22.05.2007 during night hours they committed theft of copper wire measuring 200 meters weighing 40 KGs 650 gms worth Rs.15,000/-belonging to MESCOM connected to electric poles situated near Mattavara tank of Mattavara village. 10. P.W.1 is the Junior Engineer. 10. P.W.1 is the Junior Engineer. He filed complaint as per Ex.P.1 which came to be registered in crime No. 192/2007 of Chikkamagalru Rural Police station for the offence under Section 379 of IPC against unknown persons. Said case was registered by P.W.6 -ASI who received the complaint Ex.P.1 and registered FIR -Ex.P.4. P.W.6 after registering the case visited the spot and drawn mahazar as per Ex.P.2 and seized some pieces of wire (M.O.1). P.W.2 is the mechanic who went to the spot as per the instructions of P.W.1 and found theft of 200 meters of copper wire and intimated the same to P.W.1. P.W.1 also came to the spot and observed the same. P.W.3 is the Chairman of Grama Panchayat of Mattavara who has intimated theft of electric wire to P.W.1 and thereafter P.W.1 and P.W.2 came to the spot and verified the said aspect of theft. P.W.4 is one of the pancha to Ex.P.2 -mahazar whereunder there is seizure of M.O.1 -five pieces of wire measuring one meter. The evidence of P.W.1, P.W.4 and P.W.6 establishes that there is theft of 200 meters of copper wire near Mattavara kere. 11. Accused Nos.1 and 2 were caught red handed by P.W.5 and P.W.7 when they along with two others attempted to commit theft of electric wire in the jurisdiction of Bhadravati New Town Police station against whom the case came to be registered in crime No. 27/2008 of Bhadravati New Town Police Station for the offence under Section 379 and Section 511 of IPC. Accused Nos.1 and 2 revealed the name of appellant -accused No.3 and accused No. 4 -Hasan stating that they ran away from the spot. Said incident of attempt to commit theft occurred on 04.03.2008. P.W.7 recorded the voluntary statement of accused Nos.1 and 2 as per Ex.P.8 and Ex.P.9 recovering 40 KGs of ingots (M.O.2) at the instance of accused Nos.1 and 2 from the shop of C.W.7 under mahazar -Ex.P.10. In the voluntary statement of accused Nos.1 and 2 they stated that they have committed theft of copper wire about nine months ago near Mattavara kere within the jurisdiction of Chikkamagaluru rural Police station and committed theft of 200 meters of copper wire and sold it to C.W.7 for Rs.15,000/-. In the voluntary statement of accused Nos.1 and 2 they stated that they have committed theft of copper wire about nine months ago near Mattavara kere within the jurisdiction of Chikkamagaluru rural Police station and committed theft of 200 meters of copper wire and sold it to C.W.7 for Rs.15,000/-. Accused Nos.1 and 2 also stated in the said statement regarding the involvement of this appellant -accused No.3 and other accused in the commission of theft of 200 meters of copper wire about nine months ago, i.e. on 22.05.2007. Said 40 KGs of ingots seized from the shop of C.W.7 under mahazar -Ex.P.10 has been transferred to Chikkamagaluru rural Police station pertaining to crime No. 192/2007 and the same has been received by P.W.8 – PSI. P.W.8 also received copies of voluntary statements of accused Nos.1 and 2 and copy of Ex.P.10 – mahazar along with the said 40 KGs of ingots. P.W.9 – PSI had shown M.O.2 -40 KGs of ingots to P.W.1 who had identified the same. 12. On perusal of the entire evidence of prosecution witnesses i.e, P.W.1 to P.W.9 and Ex.P.1 to Ex.P.12 there is no legal evidence connecting appellant – accused No. 3 to the commission of theft of 200 meters of copper wire on 22.05.2007. There is only reference in Ex.P.8 and Ex.P.9, i.e, voluntary statements of accused Nos.1 and 2 regarding involvement of this appellant – accused No. 3 in commission of theft of copper wire near Mattavara kere. Said voluntary statements of accused Nos.1 and 2 are not admissible in evidence except for recovery under Section 27 of the Indian Evidence Act. Without considering all these aspects learned trial Judge erroneously convicted this appellant – accused No.3 for the offence under Section 379 of IPC and Section 136 of the Act. 13. For the aforesaid reasons, the appeal deserves to be allowed and appellant – accused No. 3 is required to be acquitted. Hence, the following; ORDER 1. The appeal is allowed. 2. The judgment of conviction and order of sentence dated 04.10.2011 passed in Spl.C. No. 20/2010 by the Additional District and Sessions Judge, Chikkamagaluru, is set aside insofar as appellant – accused No. 3 is concerned. 3. Appellant – accused No. 3 is acquitted of the offence under Section 379 of IPC and Section 136 of the Indian Electricity Act, 2003. The judgment of conviction and order of sentence dated 04.10.2011 passed in Spl.C. No. 20/2010 by the Additional District and Sessions Judge, Chikkamagaluru, is set aside insofar as appellant – accused No. 3 is concerned. 3. Appellant – accused No. 3 is acquitted of the offence under Section 379 of IPC and Section 136 of the Indian Electricity Act, 2003. Fine amount, if any, paid by this appellant – accused No. 3 is ordered to be refunded to him.