JUDGMENT : VENKATESH NAIK T., J. 1. Criminal Appeal No.623 of 2012 is filed by the appellants/accused Nos.4 and 5, Criminal Appeal No.644 of 2012 is filed by the appellant/accused No.1 and Criminal Appeal No.899 of 2012 is filed by the appellants/accused Nos.2 and 3 praying to set-aside the judgment of conviction and order on sentence dated 30.04.2012 passed by learned Additional Sessions Judge, Hassan, in Special Case No.27 of 2011, whereby they were held guilty for the offences under Section 136 of the Indian Electricity Act, 2003, and Section 379 of Indian Penal Code, 1860 (for short 'IPC') and were sentenced to undergo Simple imprisonment for two years each for the aforesaid offences. 2. Brief facts of the prosecution case are that on 18.08.2010 at about 12.00 midnight, there was interruption in supply of electricity at Beluru 66 K.V. Line. Hence, the complainant along with his staff went to inspect the line and found that, within the limits of Kuppalli and Janivera limits, some miscreants had cut and stolen the copper wires, which was drawn between Tower 658 to 663 weighing 213kgs 780grams and the total value of the wires was Rs.41,478/-. Hence, on 21-8-2010 at 10:30 a.m., he lodged a complaint. Based on the complaint, the case has been registered, the matter was investigated and the Investigating Officer laid the charge-sheet against the accused. 3. After receipt of the charge-sheet, the trial Court complied with Section 207 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C') by supplying prosecution papers and framed charges against the accused for the aforesaid offences. The accused pleaded not guilty and claimed to be tried. Thus, the prosecution in order to prove its case, examined in all ten witnesses as PW1 to PW10, got marked eleven documents as per Exs.P1 to P11 and thirty one material objects as per MOs.1 to 31. Assessing the entire evidence, the trial Court arrived at a conclusion that, the accused committed the offences charged against them and thus, convicted them for the offences punishable under Section 136 of Electricity Act and under Section 379 of IPC. Being aggrieved by the same, the accused have preferred the appeals. 4. Heard the learned counsel for the appellants and the learned High Court Government Pleader for the respondent-State. 5. Being aggrieved by the same, the accused have preferred the appeals. 4. Heard the learned counsel for the appellants and the learned High Court Government Pleader for the respondent-State. 5. Sri P.B. Umesh and Sri B.S. Prasad, learned counsel for the appellants, have contended that the conviction and sentence passed by the trial Court is contrary to law, evidence and probabilities of the case. The prosecution is guilty of material suppression of evidence and has not come forward with true origin of the incident. There is delay in filing the complaint and the delay has been conveniently used by the prosecution to foist a false case against the accused. The trial Court has mainly relied on the evidence of PWs.1 to 3 and 8 to 10, which is full of material omissions, contradictions, and suffers from infirmities. The trial Court also relied upon the evidence of PW1, Investigating Officer, and voluntary statement of accused No.1. In fact, such voluntary statement appears to be implanted for the purpose of this case. The evidence of PW3 about the alleged recovery of the material objects along with Tata Sumo vehicle is doubtful, as no mahazar was drawn at that time, which goes to the very root of the case. Further, the Investigating Officer has not followed due procedures while seizing the articles and therefore, the recovery itself is doubtful. The trial Court should have given the benefit of doubt and acquitted the accused. The trial Court ought to have extended the benefit available under Sections 3 and 4 of the Probation of Offenders Act, 1958, to the accused. On all these grounds, they prayed to allow the appeals. 6. Per contra, Sri Divakar Maddur, learned High Court Government Pleader for the respondent-State, submits that the trial Court convicted the accused based on the material evidence available before it. The recovery of material objects at the instance of the accused is proved by examining the independent witnesses to seizure mahazar. Except PW 4 to 7, all other witnesses have supported the case of the prosecution and hence, no interference is called for by this Court. Thus, he prayed for dismissal of the appeals. 7. The recovery of material objects at the instance of the accused is proved by examining the independent witnesses to seizure mahazar. Except PW 4 to 7, all other witnesses have supported the case of the prosecution and hence, no interference is called for by this Court. Thus, he prayed for dismissal of the appeals. 7. In view of the submissions made by the learned counsel for both parties, the point that arises for the Court's consideration is:- "Whether the judgment and order of conviction and sentence passed by the trial Court requires interference at the hands of this Court?" 8. Firstly, to connect the accused to the theft of copper wires, the prosecution must establish specific legal elements of the offence and provide concrete evidence linking the individual to the crime. The primary burden of proof is on the prosecution to prove the guilt beyond reasonable doubt. Secondly, the prosecution must prove that the accused had willful and dishonest intention in committing theft of electric wires. The act of committing theft of electric wires for personal gain is often considered prima- facie evidence of this intention. Thirdly, the prosecution must prove the physical act of the accused that he performed the physical act of cutting, removing, taking away, transferring, possessing the electric lines or materials without the owner's consent. Fourthly, the act must have been done without the authorisation or consent of the licensee or owner of the property. Fifthly, the property in question must be identified as the specific electric lines or materials that were stolen. Sixthly, if the accused cannot provide a reasonable or legal explanation for possessing the materials, his conduct can fortify the allegations of theft. 9. In the light of the above propositions, it is just and necessary to analyse the evidence of the prosecution witnesses. 10. PW1-Raghu, The Inspector of Police, Beluru Circle, has stated that on 24-9-2010, when he was on patrolling duty, he received credible information and thus, he along with his staff went to Hagare Reserve Forest and noticed the accused, who were in Tata Sumo vehicle, bearing Registration No.KA-02 B-9024, and also noticed 14 bundles of electric copper wires. Thus, he enquired the accused and they informed that they committed theft of electric copper wire and sold the same to Afthaf Ahmed Scrap shop of Chennagiri Town. Thus, he enquired the accused and they informed that they committed theft of electric copper wire and sold the same to Afthaf Ahmed Scrap shop of Chennagiri Town. Thus, he brought those accused to Hagare police station, recorded the voluntary statement of accused No.1, secured PWs.5 to 7, went to the shop of Afthaf Ahmed shop at Chennagiri at the instance of accused No.1 and showed PW.7 M.D. Fasiulla to whom, he sold the electric copper wire, in turn, PW.7 informed that he acknowledged the receipt of copper wire, however, he told that those electric wire were sent to Bengaluru, melted and converted as 30 copper ingots. Hence, the IO seized 30 copper ingots and drew Ex.P1-seizure mahazar. He further stated that on 10.11.2010, he sent PWs 5 to 7 before Senior Civil Judge and JMFC, Hassan for recording their statements under Section 164 Cr.P.C. In the cross examination, nothing has been elicited to discredit the testimony of PW.1. 11. The evidence of PW.2 reveals that during the years 2007 and 2010, he was working as Junior Engineer, KPTCL, Hassan and Kuppalli and Janivara village comes within his jurisdiction. On 18-8-2010 at 12:00 midnight, there was interruption in supply of electricity at Kuppalli and Janivara village and he found that the accused committed theft of electric copper wires from electric tower Nos.658 to 663. Hence, he informed his higher authorities and lodged the complaint vide Ex-P2. 12. PW.3 Govindaraju is the witness for seizure mahazar as per Ex.P3, who has stated that the Police conducted seizure mahazar in his presence, seized the Tata Sumo vehicle and 14 bundles of copper wires under Ex.P3. At that time, the accused were present in the Police Station. He has categorically denied the suggestion put to him that no such theft had taken place and no mahazars were drawn in his presence. Thus, it clearly establishes that there is nothing elicited in his cross-examination to disbelieve that there was theft of electric copper wires on the night of 18-8-2010. 13. PW-4 Rangappa, a witness to spot mahazar Ex-P4 turned hostile to the case of the prosecution. 14. PWs.5 and 6, the witnesses to seizure mahazar Ex-P1 have turned hostile to the case of the prosecution. 15. PW.7 the receiver of stolen property had also turned hostile to the case of the prosecution. 16. 13. PW-4 Rangappa, a witness to spot mahazar Ex-P4 turned hostile to the case of the prosecution. 14. PWs.5 and 6, the witnesses to seizure mahazar Ex-P1 have turned hostile to the case of the prosecution. 15. PW.7 the receiver of stolen property had also turned hostile to the case of the prosecution. 16. PW.8 the Head Constable of Hassan Rural Police station has stated that he received seized articles from PW.1 and retained in the police station in his custody. 17. PW.9 the PSI, received the complaint and registered the case. 18. PW.10 Senior Civil Judge, Hassan, recorded the statements of PWs.5 to 7 as per Exs-P9 to 11. 19. In the instant cases, the first informant (PW2) the Junior Engineer, KPTCL has clearly stated that near Kuppalli Janivara village, there was theft of electric copper wires in between Electric Tower Nos.658 to 663. 20. In so far as, recovery is concerned, PWs.5 to 7, who are independent witnesses, have not stated anything about the seizure of copper ingots in their presence under Ex-P1. PW9-Sub-Inspector of Police, Hassan Rural Police Station, PW1-Circle Inspector of Police, Belur and PW8-Head Constable of Hassan Rural Police Station have clearly stated about seizure of 14 bundles of copper wires under Ex.P1. Thus, the official witnesses have supported the case of the prosecution. The testimonies of PWs.1, 2, 3, 8 and 9 clearly reveal that the stolen electric copper wires were recovered by the Investigating Officer at the instance of the accused, which is the best piece of evidence to connect them to the crime. Hence, the prosecution has been able to establish the guilt of the accused beyond all reasonable doubt. 21. The trial Court, after appreciating the oral and documentary evidence and after assigning proper reasons, has convicted the accused for the charged offences. Hence, there is no illegality committed by the trial Court. 22. Learned counsel for the appellants alternatively contended that the trial Court convicted the accused for a period of two years each for the alleged offences and the sentences were ordered to run concurrently. The accused were arrested on 25-9-2010 and were in custody throughout trial and were released on bail by this Court on 13-9-2012. 22. Learned counsel for the appellants alternatively contended that the trial Court convicted the accused for a period of two years each for the alleged offences and the sentences were ordered to run concurrently. The accused were arrested on 25-9-2010 and were in custody throughout trial and were released on bail by this Court on 13-9-2012. Hence, they submit that as the accused have served substantial sentence of one year, eleven months and eighteen days, there is no point in keeping the accused in custody for another twelve days. Hence, they prayed for set- off under Section 428 of Cr.P.C. for the period already undergone by the accused. 23. Per contra, the learned High Court Government Pleader submitted that since the accused are still to serve twelve more days of sentence, no leniency should be shown against them. Thus, he sought for rejection of the prayer of the learned counsel for the appellants. 24. In view of the submission of the learned counsel for both parties, it is just and necessary to analyse Section 428 of Cr.P.C., which reads as under: “ 428. Period of detention undergone by the accused to be set off against the sentence of imprisonment .— Where an accused person has, on conviction, been sentenced to imprisonment for a term, not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him during the investigation, enquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him.” (emphasis supplied) 25. The Hon'ble Supreme Court in the case of Mr. Vinay Prakash Singh v. Sameer Gehlaut and others reported in 2022 LiveLaw (SC) 974 , at paragraph No.12, held as follows: "12. As far as Section 428 of Cr.P.C. is concerned, an indispensable requirement to invoke Section 428 of Cr.P.C. is that there must be a conviction. The conviction must be followed by a sentence of imprisonment. It must be for a term and it should not be imprisonment in default of payment of fine. As far as Section 428 of Cr.P.C. is concerned, an indispensable requirement to invoke Section 428 of Cr.P.C. is that there must be a conviction. The conviction must be followed by a sentence of imprisonment. It must be for a term and it should not be imprisonment in default of payment of fine. If these requirements exist, then the occasion opens up for applying the beneficial provisions of Section 428 of Cr.P.C. However, for it to be invoked the existence of detention undergone by the convict during investigation, enquiry or trial in the 'same case' is indispensable. If these requirements are satisfied, the convict would be entitled to the set off for the period of detention which he has undergone." Therefore, from the above, it is clear that the benefit of set-off under Section 428 of Cr.P.C. can only be applied if the detention is undergone in the same case in which the conviction was imposed, not in other cases, emphasizing this is a key and indispensable requirement for the beneficial provision to apply. 26. In the above cases, the appellants have been convicted and sentenced to undergo imprisonment of two years each for the offences punishable under Section 136 of Electricity Act and under Section 379 of IPC and now, they have sought for set-off under Section 428 of Cr.P.C. in respect of the sentence already undergone by them and they are not seeking set-off in respect of imprisonment in default of payment of fine. Thus, the accused have fulfilled the requirements as referred in the decision cited supra. 27. The trial Court has sentenced the accused for a period of two years each for the offences punishable under Section 136 of Electricity Act and under Section 379 of IPC. As per the judgment of the trial Court, it reveals that the accused were arrested on 25-9-2010 and were in custody throughout trial, and they were released on bail by this Court on 13-9-2012. Hence, they have served the sentence of one year, eleven months and eighteen days, which is nearly two years. The offence is committed in the year 2010 and thus, no purpose would be served in keeping the accused in custody for another twelve days and hence, the benefit of set-off as contemplated under Section 428 of Cr.P.C. is given to the accused. The offence is committed in the year 2010 and thus, no purpose would be served in keeping the accused in custody for another twelve days and hence, the benefit of set-off as contemplated under Section 428 of Cr.P.C. is given to the accused. Therefore, in the facts and circumstances of the case, the appeals filed by the accused deserve to be partly allowed. Hence, the following: ORDER i. Criminal appeals are partly allowed ii. The judgment of conviction dated 30-4-2012 in Special Case No.27 of 2011 passed by the Additional Sessions Judge, at Hassan, against the appellants/accused Nos.1 to 5 for the offences punishable under Section 136 of the Electricity Act, 2003, and under Section 379 of the Indian Penal Code, 1860, is hereby confirmed. iii. The sentence imposed against the appellants is hereby modified and they are given set-off for the period of detention already undergone by them, i.e. for a period of one year, eleven months and eighteen days, as per Section 428 of the Code of Criminal Procedure, 1973. iv. The appellants are set at liberty, if they are not required in any other case. v. The bail bonds, if any, of the appellants shall stand cancelled. The Registry is directed to return the trial Court records with a copy of this judgment, forthwith.