JUDGMENT : VENKATESH NAIK T., J. 1. Criminal Appeal No.624 of 2012 is filed by the appellants/accused Nos.2 and 3, Criminal Appeal No.646 of 2012 is filed by the appellants/accused Nos.1 and 6, and Criminal Appeal No.900 of 2012 is filed by the appellants/accused Nos.4, 5 and 7 praying to set-aside the judgment of conviction and order on sentence dated 30.04.2012 passed by the learned Additional Sessions Judge, at Hassan, in Special Case No.106 of 2010, whereby the accused are held guilty for the offences punishable under Section 136 of the Indian Electricity Act, 2003 (for short, 'Electricity Act') and Section 379 of the Indian Penal Code, 1860 (for short, 'IPC') and are sentenced to undergo simple imprisonment for a period of two years each for the aforesaid offences. 2. Brief facts of the prosecution case are that on 19-9-2010 at about 1.00 a.m., 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 Rajarajeshwari Nagara, some miscreants had cut and stolen the copper wires, which was drawn between Goruru and Ramachandrapura, and the total value of the wires was Rs.40,000/-. Hence, on 20-9-2010 at 10:00 a.m., he lodged a complaint. Based on the complaint, the case has been registered 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 eight witnesses as PW1 to PW8, got marked five documents as per Exs.P1 to P5 and two material objects as per MOs.1 and 2. 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-accused Nos.1 to 7 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-accused Nos.1 to 7 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.2 to 4, which is full of material omissions, contradictions, and suffers from legal infirmities. The trial Court also relied upon the evidence of PW6, 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 PW5 about the alleged recovery of 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 mahazars. All the witnesses have supported the case of the prosecution and hence, no interference is called for by this Court. Thus, he prayed to dismiss 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. Thus, he prayed to dismiss 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. The complaint was lodged by PW1, Harish Kumar, who was working as Junior Engineer, Beluru Branch, KPTCL. He has stated that on 19-9-2010 between 1:30 a.m. and 2:00 a.m., there was interruption in supply of electricity line drawn between Beluru and Hassan, and on inspection, he found that 300 meters of copper wires was stolen. Hence, he informed the said fact to his superior Officers and lodged the complaint as per Ex.P1. The Police drew spot mahazar as per Ex.P2 in his presence at the scene of occurrence. He has further stated that, thereafter, the Police called him to the Police Station, where he saw one Tata Sumo vehicle and in the said vehicle, the stolen copper wires, axe-saw blade, cutting-plier and pipes were kept. The accused, who committed theft of copper wires, were present in the Police Station. He identified MOs.1 and 2. He has further stated that, thereafter, the Police called him to the Police Station, where he saw one Tata Sumo vehicle and in the said vehicle, the stolen copper wires, axe-saw blade, cutting-plier and pipes were kept. The accused, who committed theft of copper wires, were present in the Police Station. He identified MOs.1 and 2. He further stated that approximate cost of copper wires was Rs.22,000/-. In the cross-examination, nothing has been elicited to discredit his testimony. 11. The evidence of PWs.2 to 4 would reveal that on 19-9-2010 at 1:00 a.m., there was theft of electric copper wires. PW2, Line Man, has stated that Ramachandrapura Village comes under his jurisdiction and he accompanied PW1 at the time of drawing spot mahazar-Ex.P2. 12. PWs.3 and 4 are the witnesses for seizure mahazars as per Exs.P3 and P4, respectively. In their evidence, they have stated that the Police conducted seizure mahazars in their presence, they seized Tata Sumo vehicle and 4 bundles of copper wires under Exs.P3 and P4, respectively. At that time, the accused were present in the Police Station. They identified MO1-copper wires and the accused before the Court. These witnesses have categorically denied in the cross-examination to the suggestion put to them that no such theft had taken place and no mahazars were drawn in their presence. Thus, it clearly establishes that there is nothing elicited in their cross-examination to disbelieve that there was theft of electric copper wires on the night of 19-9-2010. 13. PW5, Sub-Inspector of Police, Halebeedu Police Station, has stated that he received the complaint from PW1 on 19-9-2010 at 10:45 a.m. regarding theft of electric copper wires and accordingly, he registered the case, went to the spot and drew spot mahazar as per Ex.P2. PWs.3 and 4 are pancha witnesses to Exs.P3 and P4-seizure mahazars, respectively. In his cross-examination, he has admitted that he did not summon any documents, such as, the report or value of the stolen property, and that the stolen property was found installed at the scene of crime from PW1. He has not shown the distance from one electric tower to another tower in the sketch, he has mentioned the approximate length of 300 meters in the mahazar and he has not mentioned the exact measurement of electric copper wires. He further admitted that he has not shown the location of axle blade in the sketch. He has not shown the distance from one electric tower to another tower in the sketch, he has mentioned the approximate length of 300 meters in the mahazar and he has not mentioned the exact measurement of electric copper wires. He further admitted that he has not shown the location of axle blade in the sketch. He has not conducted any mahazars in front of Tata Sumo vehicle. He has denied the other suggestions put to him. 14. PW6, 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 4 bundles of electric copper wires. Thus, he enquired the accused and they informed that the said wires were installed to the towers situated between Ramachandrapura Village and Soorapura Village and hence, he secured the accused, Tata Sumo vehicle and came to the Police Station, recorded the voluntary statements of the accused, and drew Ex.P3-seizure mahazar and seized 4 bundles of electric copper wires, weighing 117 kgs. He further stated that accused No.1 gave his voluntary statement stating that he would show the place, where he has kept the stolen articles. Pursuant to his voluntary statement, they went to Government Eucalyptus Forest Area at Hagare Village and accused No.1 showed the spot and accordingly, he drew mahazar and took photographs of the said place. 15. PW7, Constable, Halebeedu Police Station, has stated that on 26-10-2010, as per the instructions of PW6- Inspector of Police, he produced 4 copper wires bundles before PW5, Sub-Inspector of Police. 16. PW8, Sub-inspector of Police, Halebeedu Police Station, has stated that on 26-10-2010, PW7, Constable, produced 4 electric copper wires bundles before him and hence, he seized the same under Ex.P4-seizure mahazar in the presence of PWs.3 and 4. He further stated that he recorded the statements of all the witnesses and after completion of the investigation, he filed the charge-sheet. 17. In the instant case, the first informant, PW1, and the Line Man, PW2, of KPTCL have clearly stated that near Goruru Ramachandrapura, there was theft of electric copper wires worth Rs.40,000/- which belongs to KPTCL. 18. He further stated that he recorded the statements of all the witnesses and after completion of the investigation, he filed the charge-sheet. 17. In the instant case, the first informant, PW1, and the Line Man, PW2, of KPTCL have clearly stated that near Goruru Ramachandrapura, there was theft of electric copper wires worth Rs.40,000/- which belongs to KPTCL. 18. In so far as, recovery is concerned, PWs.3 and 4, who are independent witnesses, have stated that in their presence, PW8, Investigating Officer, seized the electric copper wires bundles under Ex.P4-seizure mahazar. PW5- Sub-Inspector of Police, PW6-Inspector of Police, PW7- Constable, and PW8-Sub-Inspector of Police/Investigating Officer of Halebeedu Police Station have clearly stated about seizure of 4 electric copper wires bundles under Ex.P4. Thus, the official witnesses and independent witnesses have supported the case of the prosecution. The testimonies of PWs.3, 4, 6, and 7 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. 19. 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. 20. 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. 21. Per contra, the learned High Court Government Pleader submitted that since the accused are still to serve twelve 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. 22. 21. Per contra, the learned High Court Government Pleader submitted that since the accused are still to serve twelve 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. 22. In view of the submission made by 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) 23. 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. 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. 24. 24. In this case, the accused 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. 25. 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. 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.106 of 2010 passed by the Additional Sessions Judge, at Hassan, against the appellants/accused Nos.1 to 7 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 record with a copy of this judgment, forthwith.