Karnataka High Court
Vishwanath vs The State Of Karnataka on 22 August, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 22ND DAY OF AUGUST, 2012
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL No. 904/2007
BETWEEN:
Vishwanath
S/o. Balappa Hiremani
Age. 23 years,
Occ. Agriculture,
R/o. Nidagundi,
Tq. Ron, Dist. Gadag.
...Appellant
(By Sri Rajendra S. Ankalkoti, Advocate)
AND:
The State of Karnataka
Represented by its
State Public Prosecutor
High Court of Karnataka
Bangalore.
...Respondent
(By Sri V.M. Banakar, Additional State Public
Prosecutor)
This Criminal Appeal is filed under Section 374(2) of
the Code of Criminal Procedure, 1973, against the judgment
dated 26.04.2007 passed by the District and Sessions
Judge, Gadag in SPL. I.E. Act C.C. No. 13/2005 convicting
the appellant/accused No.2 for the offence punishable under
2
Section 135 of the Electricity Act and sentencing him to pay
a fine of Rs.10,000/-, in default of payment of fine amount,
he shall undergo simple imprisonment for a period of six
months.
This appeal coming on for final hearing this day, the
Court made the following:
JUDGMENT
Heard the learned counsel for the appellant and the learned Additional State Public Prosecutor.
2. The facts of the case are as follows- The Police Sub-Inspector, Karnataka Power Transmission Corporation Limited (Vigilance Squad), had alleged that the appellant and his father were guilty of an offence punishable under Section 135 of the Electricity Act, 2003. It transpires that, when a raid was conducted by the Squad headed by the complainant on 08.11.2004, it was found on inspection of the installation at the premises of the appellant that parallel to the main cover on the electricity meter, a small hole had been made and a stick had been inserted 3 in order to obstruct the disc, which recorded the consumption of electricity by rotation had been stopped and thereby committed theft of electricity, which was assessed at Rs.1,02,524/- equivalent to 8790 units of electricity, and hence the complaint. The accused had pleaded not guilty and claimed to be tried. Accused No.1 was the father of the appellant and accused No.2 is the appellant himself. In support of the case of prosecution, nine witnesses had been examined and the meter board itself was marked as M.O. No.1 and a service wire was marked as M.O. No.2. On the basis of the evidence and the rival contentions, the following points were framed for consideration:
1. Whether the prosecution has proved the charges as levelled against the accused?
2. What order?
3. The point No.1 was held partly in the affirmative and accused No.1 was acquitted, while 4 accused No.2 was sentenced to pay a fine of Rs.10,000/-. It is that which is under challenge in the present appeal.
4. The learned counsel for the appellant while taking this Court through the record would seek to demonstrate that there are material inconsistencies in the evidence of the several witnesses, which are incapable of being reconciled and in this regard he would seek to draw attention to particulars such as the allegation that in tampering the installation, a hole had been made and an agarbathi stick had been inserted, as stated in the complaint, is not consistent with the statement of the engineer, who had conducted the inspection and who in his evidence has stated that a match stick was inserted in the hole made in the meter and similarly he would also draw attention to the further circumstance that the panchanama witness fielded by the prosecution had been treated as a hostile 5 witness, and therefore, the seizure of the installation, or the service wire, is not established. It is also pointed out that there are no independent witnesses, apart from the official witnesses that are examined in order to establish the case of the prosecution, and therefore, it could not be said that the accusations have been proved beyond all reasonable doubt.
5. It is also contended that it is customary for Hindus to conduct poojas even in respect of meter boards and an agarbathi having been found in the hole in the meter cannot by itself be a proof of tampering with the installation. While the learned Additional State Public Prosecutor would seek to justify the judgment of the Court below.
6. On a careful examination of the record and as regards the contentions urged by the learned counsel for the appellant, it is to be noticed that the very 6 contentions urged in the present appeal had been raised before the trial Court itself and the Court below has met the same. In any event, the broad allegations are that the installation had been tampered by drilling a small hole next to the disc, which records the consumption of electricity and prevented it from rotating by insertion of a small stick, it matters little whether it was an agarbathi stick or a match stick. The learned counsel seeking to rely on the alleged inconsistency that there was no clarity as to what kind of stick was used in tampering with the meter is not material and is an insignificant inconsistency. If it is to be otherwise accepted that there was indeed a hole in the meter, which enabled such tampering. Further, the panchanama witness having turned hostile would not by itself be fatal to the prosecution. It is a mere formality to have panchanama witness to evidence collection of the material evidence, since he had not supported the case of the prosecution. The witness 7 having been treated as hostile witness, does not weaken the case of the prosecution when there is other material evidence to establish such case. Similarly, the absence of independent witnesses is also not material as there are no malafides that can be found evident from the case sought to be foisted against the appellant. The installation itself stood in the name of grandfather of the present appellant and apparently because accused No.1 was not involved in the operation of the flourmill, he has been acquitted and since accused No.2 has been found by the Court below to have been in charge of the mill at the relevant point of time, the punishment of fine having been imposed is just and reasonable and since there is no substance in the several grounds, as already stated, the appeal stands dismissed.
Sd/ JUDGE hnm/-