Himachal Pradesh High Court
State Of Himachal Pradesh vs Sanjeev Kumar & Another on 1 June, 2017
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No. 191 of 2008 and Cr. Appeal No.283 of 2008 Reserved on : 16.5.2017 .
Date of judgment: 01.6.2017 _______________________________________________ State of Himachal Pradesh .....Appellant Versus Sanjeev Kumar & another. .....Respondents _______________________________________________ Coram: r The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
1Whether approved for reporting? Yes.
_______________________________________________ For the appellant: Mr. Pushpinder Jaswal, Deputy Advocate General with Mr. Rajat Chauhan, Law Officer For the respondents: Mr. Y.P. Sood, Advocate.
Chander Bhusan Barowalia, Judge The present appeal (Cr.A No.191 of 2008) is maintained by the State of Himachal Pradesh under Section 377 of the Code of Criminal Procedure for enhancement of sentence, passed by the learned Sessions Judge, Kinnaur, Sessions Division at Rampur Bushahr, H.P., whereby the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 02/06/2017 00:01:13 :::HCHP 2learned lower Appellate Court has acquitted the accused under Section 5 of the Indian Telegraph Act and upheld the sentence recorded by the learned trial Court under Section 379 IPC.
However, the sentence is modified to the period already .
undergone. On the day the appeal was decided, the respondent-accused remained behind the bars for a little period of more than six weeks.
2. The second appeal (Cr.No.283 of 2008) is also maintained by the State of H.P. under Section 378 Cr.P.C., against the same judgment acquitting the accused persons (hereinafter referred to as the 'accused') by the learned lower Appellate Court for the offence committed under Section 5 of the Indian Telegraph Act, for setting aside judgment of the learned Sessions Judge and convicting the accused under Section 5 of the Indian Telegraph Act also.
3. Meaning thereby that both the appeals are directed against one judgment. However, the appeal No.191 of 2008 is for enhancement of the sentence under Section 379 IPC and Appeal No.283 of 2008 is separately moved for setting aside the judgment of acquittal and for convicting the accused under Section 5 of the Indian Telegraph Act. Both the appeals since arises from the same judgment and are being heard together and disposed of by a common judgment.
::: Downloaded on - 02/06/2017 00:01:13 :::HCHP 34. Briefly stating the facts giving rise to the present appeals are that as per the information received by the S.D.O.(Telecom) Rakesh Dutt, who appeared as PW1 in the learned trial Court on 9.7.2007 at about 2.00 P.M., some .
unknown persons had stolen 50 pairs of cable wire of about 1.5 kms laid by the B.S.N.L.(Telecom Deptt.) for providing telephone facility to the remote villages between H.P.M.C. Orchard, Rampur to Khanewali. The tentative cost of cable assessed by the S.D.O. concerned was Rs.81,000/-.
5. r The S.D.O. (PW1) immediately reported the matter to the Police Station, Rampur, vide his written complaint Ex.PW-1/A. The Police registered FIR on the basis of the alleged complaint. During the course of investigation, copper wire, which was melted out of cable weighing 100 Kg was recovered from the house of accused Sanjeev Kumar in Case F.I.R. No.109/07, dated 9.7.2007, under Sections 342, 382, 506 I.P.C., which was found from the cable and was stolen by the accused persons from the place H.P.M.C. Orchard to Khanewali. As per prosecution, the accused persons had committed theft of the said cable and, thereafter, melted the same and converted into copper wire. The accused, Sanjeev had kept some of the wire in the forest and some wire in his house. The accused persons were also resorting the help of ::: Downloaded on - 02/06/2017 00:01:13 :::HCHP 4 one more accused. The case property recovered from the house of the accused was taken into police custody. Accused persons failed to produce any document for keeping the copper wire. Both the accused persons were arrested on 10.7.2007.
.
6. On investigation, it has come on the record that the accused persons Sanjeev Kumar and Manoj Kumar had cut the cable alongwith one Jeewa Nand and converted the same into copper. The accused made the disclosure statement and the police, after recording the disclosure statement, recovered axe, Ex.PW-8/B used for cutting the cable, which was taken into possession by the police vide seizure memo Ex.PW-1/B. The Police prepared the site plan Ex.PW-8/A and the place of recovery of the axe, Ex.PW-8/B. The police took into possession site plan of place of recovery. Police took into possession burnt pieces of cable/wire, Ex.P-4 to Ex.P-81 vide seizure memo, Ex.PW-3/C and the site plan/demarcation was made vide memo, Ex. PW-3/B. Two bags containing copper wire weighing 100 kg. Ex.P-2 and Ex.P-3 were taken into possessions vide seizure memo, Ex.PW-1/B. The police sealed the same in different parcels with seals and seals impressions were taken separately. The spot was photographed and thereafter the photographs were taken into possession. Police recorded the statement of the witnesses ::: Downloaded on - 02/06/2017 00:01:13 :::HCHP 5 under Section 161 Cr.P.C., as per their versions. Challan was prepared and presented in the Court. Thereafter, the accused persons were charge-sheeted under Section 379 IPC and .
Section 5 of the Indian Telegraph Act and after evidence being led by the prosecution, they were convicted by the learned trial Court and sentenced to undergo imprisonment as under:
a) That the convicts shall undergo simple imprisonment for three years and fined r for Rs.5,000/- for commission of offence punishable under Section 379 of IPC (in default of payment of fine, to undergo simple imprisonment for three months) each.
b) That the convicts shall further undergo simple imprisonment for two years and fined for Rs.2,000/- each for commission of offence punishable under Section 5 of the Telegraph Wire Un-lawful possession Act (in default of payment of fine to undergo simple imprisonment for two months) each. Both the sentences shall run concurrently.
7. In appeal, the learned lower Appellate Court has acquitted the accused under Section 5 of the Indian Telegraph ::: Downloaded on - 02/06/2017 00:01:13 :::HCHP 6 Act and upheld the conviction under Section 379 IPC, however, the sentence under Section 379 is reduced that is undergone by the accused i.e. from 10.7.2007 to 13.2.2008.
8. Heard. Learned Deputy Advocate General with the .
learned Law Officer has argued that the learned lower Appellate Court has acquitted the accused under Section 5 of the Indian Telegraph Act without there being any material on record, as the prosecution has proved the guilt of the accused beyond reasonable doubt, accused be convicted and sentenced under Section 5 of the Indian Telegraph Act. He has further argued that at the same point of time, the learned lower Appellate Court has awarded sentence, which is not commensurate with the offence committed by the accused. He has argued that the accused has committed a heinous crime and should be awarded maximum punishment provided under Section 379 IPC.
9. On the other hand, Shri Yadupati Sood, Advocate for the respondents/accused has argued that as per the provisions under Section 377 Cr.P.C. he has right to argue his case on conviction under Section 379 IPC and also argued that the conviction of the accused by both the Courts below under Section 379 IPC, is against the law and facts, which has come on record and is not sustainable in the eyes of law and requires ::: Downloaded on - 02/06/2017 00:01:13 :::HCHP 7 to be set aside. In the alternative, he has argued that the sentence imposed under Section 379 IPC is for more than six months and fine, which is quite high and is not required to be enhanced. He has further argued that the acquittal of the .
accused under Section 5 of the Indian Telegraph Act is as per law, as it is not proved on record that the accused has stolen cable or tampered with the cable of the Telecom Department.
10. To appreciate the arguments of learned Deputy Advocate General and learned counsel for the respondents, I have gone through the record in detail.
11. PW1, Rakesh Dutt Sharma, S.D.O. Telecom.
Department, Rampur, has made the complaint in writing and stated that, on 9.7.2007, a telephonic call was received by him conveying that some unidentified persons had removed and stolen telephone cable wire between H.P.M.C. Orchard to Khanewali, which was about 1.5 Kms in length and value of which was Rs.80,000/-. He also identified the cable, which was the same shown to him in the Court below and was taken into the police custody vide seizure memo Ex.PW-1/B, on which he has put his signatures, as an identifier. He further deposed that accused persons got identified the place where they converted the cable into the copper wire. He also admitted his signatures on seizure memo. Ex.PW-1/B and also ::: Downloaded on - 02/06/2017 00:01:13 :::HCHP 8 identified the Gunny bags, Ex.P1 and Ex.P2 to be the same. In his cross-examination, he has stated that the diameter of the cable was 2 mm and the cable wire was entered in the stock register. He has also admitted that he was receiving complaint .
from village Sobli since the months of March-April, 2007. He denied the suggestion that he did not visit the spot. He has also denied that he has deposed falsely. He further deposed that nothing else was recovered from the possession of the accused except wire.
12. rPW2, Sher Singh, stated that nothing had happened in front of him and he was subject to cross-examine by the learned A.P.P. after being declared hostile. In his cross-examination, he admitted his signatures on Ex.P-1. He further denied the suggestion that he is deposing falsely to save the accused persons. He denied that accused persons made a disclosure statement before the police. He also denied that his statement was recorded, as per his version, by the police. He also denied the prosecution story in toto.
13. PW4, HC Dharam Pal stated that on 10.7.2007, he, along with Sher Singh, remained associated with the investigation of the case. Statement of the accused Sanjeev Kumar was recorded under Section 27 of the Evidence Act. He also identified the place where the cable was burnt and also ::: Downloaded on - 02/06/2017 00:01:13 :::HCHP 9 got recovered the weapon of offence i.e. an axe. Further stated that disclosure statement of accused Manoj Kumar was also recorded. Accused Manoj Kumar got recovered one Gunny bag containing copper wire from village Bahli and, he proved .
the disclosure statements Ex.PW4/A and Ex.PW4/B on record.
In his cross-examination, he stated that his statement was recorded at Police Station. He has further stated that the statement of accused Sanjeev Kumar was recorded and thereafter the statement of accused Manoj Kumar was also recorded. He denied the suggestion that the accused persons did not make any disclosure statement.
14. PW5, Constable Pratap Singh stated that on 14.7.2007, he remained associated with the investigation of the case. During investigation, accused Sanjeev Kumar made a disclosure statement before the police. He was marginal witness of demarcation fard, which he got prepared. In his cross-examination, he denied that there is no statement, which was made by the accused. He has also stated that accused Sanjeev Kumar revealed that he had stolen the cable at Nogli and also that he sold that.
15. PW6, Constable Ashok Kumar stated that accused Manoj escorted the Investigating Agency to place where they had hidden one Gunny bag and an axe at a place, which was ::: Downloaded on - 02/06/2017 00:01:13 :::HCHP 10 about ½ Km far from Kupvi. The weight of the Gunny bag was stated to be 60 kg., which is Ex.P-1 and he also identified the axe to be the same. He also proved his signatures on the seizure memo, Ex.PW-1/B. In his cross-examination, he denied .
the suggestion that the wire cannot be cut from Ex.P-82. He again admitted it to be correct that there was no mark of cutting on Ex.P-82. Further he has stated that the accused cut the wire for the distance of 50 feet. He admitted that the place from where recovery had been effected was an open place.
He also denied the suggestion that there is no recovery, which was got effected by the accused persons.
16. PW7, Constable Kuldeep stated that on 20.7.2007, he was MHC, Police Station, Rampur and identified two Gunny bags Ex.P-1 and Ex. P-2, which were handed over to H.C. Mohan Joshi (PW8). He is marginal witness and proved his signatures.
17. PW8, H.C. Mohan Joshi stated that he has partly investigated the present case and that, on 12.7.2007, he, alongwith accused Manoj Kumar, Constable Ashok and Constable Gopal left to the place Bahli. He also associated one Aggar Dass and, on the identification of the accused at about half kilometers ahead of place village Kopri, accused Manoj Kumar got recovered one Gunny bag having copper ::: Downloaded on - 02/06/2017 00:01:13 :::HCHP 11 wire alongwith an axe. He deposed that accused disclosed to the police that he had hidden one bag having 60 kg. copper wire in the nearby bushes and the weapon of offence Axe (Ex.P-82), which was used for cutting the cable. He further .
stated that the Gunny bag containing wire and Axe was taken into custody by the police vide seizure memo Ex.PW1/B. He also identified the Borru and Axe to be the same. He also deposed that as per the demarcation of the accused site plan of the spot was prepared and that the site plan of the house of the accused Sanjeev Kumar was also prepared.
r He also stated that accused Sanjeev Kumar narrated to him that he had stolen the wire at Nogli. He also deposed that the case property in case F.I.R. No.109 of 2007 was taken into possession. Statements of the witnesses were also recorded as per their version. The case property was also identified by PW,Rakesh Dutt. He also prepared seizure memo, clicked photographs. In his cross-examination, he deposed that S.H.O. had already clicked the photographs in the present case. He also disclosed the place from where the cable had been stolen.
He also deposed that there were about 50 residents at village Bahli. He stated that there was one foot wire hanging nearby the Exchange. He admitted that the house of the accused was adjoining to a thoroughfare. He denied the suggestion that a ::: Downloaded on - 02/06/2017 00:01:13 :::HCHP 12 false case has been lodged against the accused. He admitted that there were shops, hotels and offices at Bahli Chowk. He also admitted that Axe becomes available in every house. He further admitted that the wire at the height of 22 feet cannot be .
cut with an axe. He denied the suggestion that he has implicated the accused persons in a false case.
18. PW9, ASI Hari Bhagat deposed that on 9.7.2007 he was at Bahli for investigation in case F.I.R. No.107/07, under Sections 342, 382, 506 IPC. During such investigation, one Jeewa Ram was rescued from the house of accused wherein Gunny bags were recovered and the same were also taken into police custody under Section 102 Cr.P.C. He also proved seizure memo ExPW9/A. In his cross examination, he stated that he does not know that the house belonged to the accused Sanjeev Kumar. He further deposed that there was no search warrant was obtained. He admitted that there were Spray machine & drum etc. lying in the house. No inventory was prepared and no recovery effected in the present case.
19. PW10, S.I. Surat Ram stated that he remained associated with the investigation of the present case and that on 10.7.2007, accused persons were arrested. He admitted that the site plan was prepared and statement of the witnesses were recorded and he also clicked the photographs ::: Downloaded on - 02/06/2017 00:01:13 :::HCHP 13 Ex.PW-10/D-1 to Ex.PW-10/D-4. In his cross-examination, he also admitted that accused persons were already under arrest.
He also deposed that besides accused persons, one Jeewa Ram also cut the cable. He further deposed that no application .
was moved in this case to make accused Jeewa Ram as approver. He also stated that the Pradhan, Gram Panchayat, Bahli was also residing there and that there were many houses situated near the place. He further stated that the place from where the wire was recovered, was not having any door. He denied the suggestion that the accused persons did not steal and commit theft of the cable.
20. PW11, Swarn Chauhan stated that he was the Ward Member of Gram Panchayat, Bahli and he remained associated during the Investigation of the case. He has further stated that the place where the cable was burnt and copper wire was obtained by burning the cable, has been identified by Jeewa Ram (PW12) and the burnt cable was taken into custody by the police. He has further stated that he remained as marginal witness to seizure memo, Ex.PW-3/B to Ex.PW-3/C and proved the same on record. In his cross-
examination, he deposed that the police party met him at Rest House. He admitted that the place identified by the accused persons was in the shape of cave and the place was open and ::: Downloaded on - 02/06/2017 00:01:13 :::HCHP 14 anybody can pass through spot. He also admitted that the telephone of village Khanewali and Sobli were lying dead since March, 2007. He also stated that there were many houses situated nearby the house of the accused. He denied the .
suggestion that he is stating falsely. He further deposed that there was no statement made by the accused before him. He admitted that the cable was cut and stolen from place Khanewali to H.P.M.C. Orchard.
21. PW12, Jeewa Ram stated that in the year, 2007 accused Sanjeev Kumar met him at High School, Bahli and asked to bring his mobile from the house. When Jeewa Ram went to the house of the accused Sanjeev Kumar, then he was locked inside the store. Accused Sanjeev Kumar had sent PW Jeewa Ram alongwith accused Manoj. He again stated that he was kept in custody for three days by the accused persons and they also engaged him to cut and steal the cable. He also deposed that the accused persons use to cut the cable with an Axe (Ex.P-82) and, thereafter, the accused persons burnt the cable and converted the same into copper wire. He also stated that he was forcibly engaged by the accused persons in executing the work of cutting and stealing the cable. In cross-
examination he deposed that the house of Sanjeev Kumar is nearby a path and many people remain present in the High ::: Downloaded on - 02/06/2017 00:01:13 :::HCHP 15 School. He further deposed that he was being engaged for cutting the cable during night hours and he used to work under the light of the Lighter. Sanjeev Kumar used to provide him meal and liquor. He further denied that there was no cutting .
and stealing of wire, was done by him and the accused persons. He denied that he was deposing falsely. He admitted that he was working in the hotel of the father of the accused.
He also denied that he had stolen the cash amount from the hotel of the accused.
22. rFrom the perusal of the entire evidence on record, it seems that both the accused persons are involved in the commission of alleged offence. The recovery of two Gunny bags (Ex.P-2 and Ex.P-3) from the house of accused Sanjeev Kumar are itself sufficient to point out the guilt of the accused.
It has come on the record that the accused persons also kidnapped one Jeewa Ram and he was also recovered from the house of the accused. About 200 Kg. copper wire was found in both the bags, which were taken into custody by the police vide seizure memo, Ex.PW-9/A in case F.I.R. No.109/07.
Initially the case property i.e. two bags Ex.P-2 and Ex.P-3 having 100 kg. copper was obtained under Section 102 Cr.P.C.
The seizure memo, Ex.PW-9/A and F.I.R. No.109/07 were taken into police custody in this case. Both the Gunny bags ::: Downloaded on - 02/06/2017 00:01:13 :::HCHP 16 were further transferred to the present case and taken into police custody vide seizure memo Ex.PW-1/B-1. The seizure memo of Gunny bags, Ex.P-2 and Ex.P-3 were proved satisfactorily on record by PW-7 Kuldeep Kumar. These Gunny .
bags were identified by PW-1, Rakesh Dutt Sharma.
23. PW12 is a competent material witness and there is corroboration in material particulars by other witnesses of independent nature direct or circumstantial. I am of the considered view that on single testimony of PW-12, conviction cannot be held, but his testimony in the present case is corroborated in material particulars.
24. Now, coming to the question, whether it was a cable or not and the findings of learned Lower Appellate Court under Section 5 of the Indian Telegraph Act is maintainable? It is admitted by PW-1 that the diameter of the cable wire was less than 2mm. From a careful examination of the evidence discussed above, it is clear that the accused persons have been convicted by the trial Court for having committed the offence under Section 379 IPC and under Section 5 of the Telegraph Act. Section 2 of the Telegraphs Act, 1960, provides as under:
"2. Definitions. In this Act,
(a) "prescribed" means prescribed by rules made under this act;::: Downloaded on - 02/06/2017 00:01:13 :::HCHP 17
(b) "telegraph wire" means any copper wire with the diameter of which in millimeters, is,-
(i) not less than 2.43 and not more than 2.53; or
(ii) not less than 2.77 and not more than 2.87; or
(iii) not less than 3.42 and not more than 3.52."
.
25. Now, as far as the offence of theft stated to have been committed by the accused persons is concerned, the same is proved on record by the disclosure statement, which leads to the recovery and also of statement of PW12 Jeewa Ram. Further, on the disclosure statement given by the accused under Section 27 of the Evidence Act and also the statement of PW12 Jeewa Ram, who is stated to have been kidnapped and wrongfully confined by the accused in a store room and he was forced to cut and burn the telephone cables.
He has categorically stated that he had gone to bring mobile from the house of the accused Sanjeev Kumar, where he was wrongfully confined in the store and he was forced to cut and burn the telephone cable from Latohar and Bahli with the help of an axe. According to him, the cables were burnt in the dwar (Cave) and were melted and copper was obtained. He has also identified the place where the cables were burnt and burnt pieces were also found there which inspires confidence in the statement of this witness. He has also deposed that the ::: Downloaded on - 02/06/2017 00:01:13 :::HCHP 18 accused persons also used to climb on pole to cut the cable.
He has denied the suggestion that he used to cut cable, which shows that the accused admits that the telephone cables were cut. He has also deposed that he had been served meal in the .
store room and was forced not to leave that store room. The statement of this PW also finds corroboration from the statement of PW9 Hari Bhagat, who has conducted the investigation and got recovered PW12 from the room of accused Sanjeev Kumar and during recovery two Gunny bags Ex.P-2 and Ex.P-3, which were found containing burnt cable.
He has also deposed that he had received information that the accused had confined a person inside the room but there was no information about the room in which such person was confined. He has not obtained any search warrant and has also not prepared the inventory of other articles. As per him, PW12 was found in the house of the accused confined in a room. Statement made by PW3 (Govind Singh) also corroborates the above fact, who was also present at the time of recovery of Jiwa Ram (PW 12) from the house of Sanjeev Kumar. He has also deposed that the police had taken out Jeewa Ram from the possession of Sanjeev Kumar and the police had also enquired from Jeewa Ram, who told that the accused had been getting cables cut during night hours and ::: Downloaded on - 02/06/2017 00:01:13 :::HCHP 19 had also been burning the same and during the day time, he used to be locked inside the room. The police had also recovered 2 Gunny bags, which have been produced in the Court. It has also been stated that these Gunny bags were .
kept in the Orchard adjoining to the house of the accused. He has also deposed that accused Sanjeev Kumar has also identified the spot and signed the memo. He shown the places where the cable was burnt and also identified the place where the cable was cut. He has deposed that the accused had also taken the police to the cave, where the cable was burnt. PW2 Sher Singh had also admitted his signatures on the disclosure statement, but denied that the same had been made by the accused persons as he had turned hostile. PW4, HC Dharam Pal, has fully supported the prosecution case and stated that accused Sanjeev Kumar has given disclosure statement under Section 27 of the Evidence Act and also identified the place where the cable was cut and the place where the same was burnt, as also where the weapon was kept with which the cable was cut. On the same analogy, accused Manoj Kumar has deposed that one Gunny bag containing copper wire was recovered from Bahli. The prosecution case has also been supported by the statement of PW 6, who has stated to the effect that accused Manoj Kumar ::: Downloaded on - 02/06/2017 00:01:13 :::HCHP 20 has also identified the place at Bahli Kopri and also got recovered one Gunny bag and an axe and the weight of the Gunny bag Ex.P-1, was about 60 Kg. The accused admitted the recovery of the case property. So, the fact that the case .
property was lying near to the common path does not exonerate the accused from the commission of offence.
Therefore, the above evidence is sufficient to bring home the guilt of the accused persons to the effect that the accused had cut the cable and had burnt the same with the help of PW12 and melted the same and some of the pieces of the cable were also found on the spot and the accused had the knowledge of the places where they have burnt the wire and hidden the Gunny bags. The accused persons have no explanation how they came in possession of the burnt and melted copper wire.
The weight of one of the Gunny bag copper wire was about 60 Kg. in addition to another Gunny bag of the copper wire. No explanation is there on behalf of the accused as to how they were found in possession of the above quantity of the copper wire and the only presumption that can be drawn is that the accused had committed the offence of theft of the telephone cable. The accused persons in cross-examination of the prosecution witnesses have admitted the theft of cable was from the area of HPMC Orchard and Khanewali. No doubt, the ::: Downloaded on - 02/06/2017 00:01:13 :::HCHP 21 investigation has not been conducted properly by the Investigating Officer and similarly the prosecution has not been conducted the case properly, as a result of which, the prosecution case has not been linked properly, but the benefit .
of that cannot be given to the accused for the reason that the occurrence of such offences in such remote area is increasing at an alarming stage and it has become a big nuisance to the general public, where communication remained cut off for a considerable period and the Telegraph Department has also suffered huge loss due to the above mischievous activities of the anti social elements. The Ld. Counsel for the accused has contended before the learned lower Appellate Court that the recovery of the copper telegraph wire and the axe has not been made as per provisions of Sections 100(4) and 165 Cr.P.C. and, therefore, the accused cannot be held guilty for the offence of theft of the above wire. It has also been alleged that the I.O. has associated PW2, Sher Singh, as one of the independent witness, at the time of alleged occurrence, but since the above witness has been won over the accused and has not supported the prosecution case, therefore, there was sufficient compliance with the provisions of Section 100(4) Cr.P.C. and Section 165 Cr.P.C. The alleged recovery has been fully proved by P.W.4, H.C. Dharam Pal. Similarly, ::: Downloaded on - 02/06/2017 00:01:13 :::HCHP 22 although disclosure statements have not been supported by P.W.2 Sher Singh, who has turned hostile, but the same has been fully proved by P.W.4, H.C. Dharam Pal. However, even if the above statements are not taken into consideration, still .
there is sufficient evidence on record to connect the accused with the commission of the offence, as P.W. 12. Jeewa Ram has fully supported the prosecution case, who was wrongfully confined by the accused persons and was forced to commit illegal act of cutting cable, burning and melting the same and he was recovered from the house of one of accused Sanjeev Kumar. The conduct of the accused in pointing out the places from where they have cut the telephone cable and the places where they have burnt and kept the burnt cable also lead to irresistible conclusion that none else than the accused have committed the above offence. Therefore, the findings of the trial Court to this effect is sustainable.
26. Resultantly, it is clear that the acquittal of the appellants under Section 5 of the Telegraph Act is just reasoned as it is the prosecution, who has failed to prove the guilt of the accused under Section 5 of the Indian Telegraph Act beyond reasonable doubt. Hence, interference of this Court is ::: Downloaded on - 02/06/2017 00:01:13 :::HCHP 23 not required against the order of acquittal recorded by learned Lower Appellate Court. Resultantly, the appeal against acquittal is dismissed accordingly.
27. Now coming to the enhancement of the sentence, as .
awarded by the learned Court below. Section 379 IPC provides for sentence for a term which may extend to three years, or with fine, or with both. Meaning thereby that it can go up to three years. However, in the instant case, the facts, which have come on record, shows that the accused persons have remained behind the bar for a period of 07 months and 05 days, so, this Court finds that the sentence of the appellants for the above said period of 07 months and 05 days is just and reasoned keeping into consideration the age of the accused persons, as the accused were of tender age and also taking into consideration the nature and the manner in which the offence under Section 379 IPC, has been committed by the accused, this Court finds that there is no ground to enhance the sentence, as ordered by the learned lower Appellate Court.
28. Resultantly, both the appeals deserve dismissal and are dismissed.
29. Pending application (s), if any, also stand (s), disposed of.
(Chander Bhusan Barowalia) Judge June 01,2017 (M.gandhi) ::: Downloaded on - 02/06/2017 00:01:13 :::HCHP 24 .
::: Downloaded on - 02/06/2017 00:01:13 :::HCHP