Karnataka High Court
A S Subramanya @ Subbanna vs State By Yagati Police on 22 June, 2023
Author: K.Natarajan
Bench: K.Natarajan
-1-
NC: 2023:KHC:21615
CRL.A No. 260 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
CRIMINAL APPEAL NO. 260 OF 2012
BETWEEN:
1. A S SUBRAMANYA @ SUBBANNA
S/O SATHYANARAYANA @ SATHYAPPA
AGED ABOUT 43 YEARS
TEACHER, GOVT. HIGHER PRIMARY SCHOOL
HIREGARJE,
RA/T ANTHARAGATTE VILLAGE
KADUR TALUK,
CHIKMANGALORE DISTRICT
2. MANJAPPA @ MANJUNATHA
S/O DUTHAPPA
AGED ABOUT 41 YEARS
SCRAP MERCHANT,
R/AT BEHIND CANARA BANK
HOSADURGA TOWN,
PERMANENT R/O NEERAGUNDA VILLAGE,
HOSADURGA TALUK
CHITRADURGA DISTRICT
Digitally signed by ...APPELLANTS
BHAVANI BAI G
Location: High Court of
(BY SRI. RASHMI M.R., AMICUS CURIAE)
Karnataka
AND:
1. STATE BY YAGATI POLICE
KADUR TALUK
...RESPONDENT
(BY SRI. S. VISHWA MURTHY,ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED:12.1.12 PASSED
BY THE ADDL. DIST., AND S.J., CHIKMAGALUR IN SPL.C.NO.24/2009
- CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCE P/U/S
379 OF IPC AND 136 OF ELECTRICITY ACTAND ETC.
-2-
NC: 2023:KHC:21615
CRL.A No. 260 of 2012
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellants-accused Nos.1 and 2 under Section 374(2) of Cr.P.C. for setting aside the judgment of conviction and sentence passed by the Additional District and Special Judge, Chikmagalur in Special Case Nos.24/2009 and 52/2009 in common judgment dated 12.01.2012 for having found the appellant Nos.1 to 3 guilty for the offence punishable under Section 379 of IPC read with Section 136 of Indian Electricity Act, 2003 and sentenced to undergo simple imprisonment for a period of one month and also given set off by acquitting accused Nos.4 and 5.
2. Heard Ms. Rashmi M.R., learned counsel as amicus curiae for the appellants and learned High Court Government Pleader for the respondent-State.
3. The rank of the parties before the Trial Court is retained for the sake of convenience.
4. The case of the prosecution is that the PW.1- M.Krishnappa who is working as the Section Officer at MESCOM -3- NC: 2023:KHC:21615 CRL.A No. 260 of 2012 has filed a complaint to the Police as per Ex.P.1 alleging that on the night of 20.05.2008, he came to know from the villagers and lineman that the some unknown persons have committed theft of copper wires belonging to MESCOM, Kadur, installed in electricity poles situated in Garje Village. After informing to the Higher Officer, he went to the spot along with the wireman and then lodged the complaint to the Police as per Ex.P.1. Then the Police came to the spot, prepared the panchanama and took up the matter for investigation. During the investigation, accused Nos.1 to 5 were arrested by the Police and after the investigation, filed the charge sheet.
5. The Trial Court has split up the case against accused No.4 as he was remained absent, secured the presence of accused Nos.1, 2, 3 and 5 and later and a joint trial in Special Case Nos.24/2009 and 52/2009 taken together for common disposal. The charges were read over to the accused persons, they pleaded not guilty and claimed to be tried. Accordingly, in the Special Case No.24/2009, there were 10 witnesses examined as per PWs.1 to 10, got marked 15 documents as per Exs.P.1 to P.15 and 2 Material Objects. In Special Case No.52/2009, the same witnesses once again were -4- NC: 2023:KHC:21615 CRL.A No. 260 of 2012 examined as PWs.1 and 10 and the same documents relied by the prosecution. After conclusion of the evidence, the statement of the accused under Section 313 of Cr.P.C. were recorded. The case of the accused were total denial, but not entered into any defence. After hearing the arguments, the trial Court found accused Nos.1 to 3 guilty and acquitted accused Nos.4 and 5 in Spl. Case No.52/2009, convicted and sentenced to undergo imprisonment for a period of 30 days which is under challenge. Hence, accused Nos.1 and 2 are before this Court and no appeal is preferred by accused No.3.
6. The learned counsel for the appellants has contended that the trial Court committed error in accepting the case where there is no independent witnesses supported the prosecution case. There is inconsistency in the evidence. All the witnesses have only spoken about the theft of wire, except the evidence of PW.10-Police Officer who is the Investigation Officer relied by the prosecution. There is no independent witnesses supported the prosecution case. Therefore, the trial Court instead of acquitting the appellants, convicted for the period of one month which is only a moral conviction. Hence, prayed for allowing the appeal.
-5-
NC: 2023:KHC:21615 CRL.A No. 260 of 2012
7. Per contra, learned High Court Government Pleader supported the case of prosecution and the judgment of conviction passed by the Trial Court and contended that the sentence passed by the Trial Court is meager which is of 30 days. Hence, prayed for dismissing the appeal.
8. Having heard the arguments and on perusal of the records, the points that arise for my consideration are:
"Whether the prosecution proves that on 20.05.2008, accused Nos.1 to 3 committed the theft of copper wire and aluminum wire from the electric line worth of Rs.30,000/-, thereby committed offence under Section 379 of IPC read with Section 136 of Karnataka Electricity Act ?"
9. Before appreciation of the evidence on record, it is worth to mention the evidences adduced by the prosecution.
(a) PW.1-M.Krishnappa, is the complainant who is the Section officer at MESCOM has stated that he came to know about the theft of copper wire belong to MESCOM. Hence, he lodged the complaint as per Ex.P.1. The police came to the spot, prepared panchanama as per Ex.P.2 and also contended -6- NC: 2023:KHC:21615 CRL.A No. 260 of 2012 that the Police shown the seized copper wire of 30 kgs and he has identified the same as M.O.2.
(b) PW.2-Chandranaika, a villager and panch witness to Ex.P.2. He has supported the case stating that the Police visited the spot and prepared the panchanama.
(c) PW.3-K.M.Mallikarjuna, a panch witness for seizure of the Motorcycle from the accused persons under the panchanama Ex.P.3, but he has turned hostile and not supported the prosecution case.
(d) PW.4-K.H.Mallikarjuna, another panch witness for seizure of the motorcycle under Ex.P.3. He has supported the case. However, the motorcycle was not marked by the Court.
(e) PW.5-Kumar Swamy is a panch witness to Ex.P.5.
He has stated that the Police took him to the shop of accused No.2 where accused No.2 was present and seized the copper wire from his gujari shop and identified the same as M.O.2.
(f) PW.6-G.L.Krishnamurthy who is one of the villager who speaks about the theft of copper wire from the electric line which is not in dispute. He is only a circumstantial evidence. -7-
NC: 2023:KHC:21615 CRL.A No. 260 of 2012
(g) PW.7-M.N.Sathish, a lineman who has deposed about the missing of the copper wire from the electric line which is also not in dispute.
(h) PW.8-Purushothama Nayak, Assistant Superintendent of Police who apprehended accused Nos.1 to 3 on 25.09.2008 and along with the motorcycle produced before the PSI and gave report as per Ex.P.6 and he also speaks that subsequently he has accompanied PSI for recovery of the materials at the instance of the accused persons. Then, they visited the gujari shop of accused No.2 and seized the material objects and he has identified accused Nos.1 to 3.
(j) PW.9-S.Yogish, Sub-Inspector who received the complaint from PW.1 as per Ex.P.1 and he issued FIR as per Ex.P.10. He visited the spot, prepared the spot panchanama as per Ex.P.2 and handed over the investigation to PW.10.
(k) PW.10-K.Nagesh, Police Sub-Inspector who took the further investigation, prepared the spot panchanama and he prepared a sketch as per Ex.P.11. Thereafter, recorded the voluntary statement of accused Nos.1 to 3 as per Exs.P.13 to
15. Then accused led them to the shop of the accused No.2 -8- NC: 2023:KHC:21615 CRL.A No. 260 of 2012 where in the godown the copper wires and many items were seized from the custody of the accused No.2. Due to his transfer, he has handed over the further investigation to PW.8- ASI and in turn, PW.8 filed the charge sheet.
10. On perusal of the entire evidence on record, the theft of copper wire from the electric pole is not in dispute. In the complaint-Ex.P.1 filed by PW.1, PW.2-spot panch witness, PW.7-lineman and the evidence of PWs.2, 6-circumstantial evidence and 7, the fact of theft of copper wire has been proved by the prosecution.
11. The evidence of PW.8-Purushothama Nayak, ASI who apprehended accused Nos.1 to 3 on 25.09.2008 and produced before PSI and in turn, PW.10-PSI recorded the voluntary statement as per Exs.P.13 to 15. Then the accused lead them to the shop of accused No.2 and seized the copper wire and other stolen materials from the godown of accused No.2 under the panchanama Ex.P.4. The factum of seizure of the wire at the instance of accused Nos.1 to 3 on the voluntary statement has been proved through the evidence of PW.8-ASI, PW.10-PSI and PW.5-Kumar Swamy who are the independent -9- NC: 2023:KHC:21615 CRL.A No. 260 of 2012 witnesses has also deposed that the police took him along with them to the shop of accused No.2 and seized the copper wire under the panchanama. He also identified M.O.2 as copper wire. Thereby, the prosecution able to prove the theft of stolen material which has been seized at the instance of the accused which is admissible under Section 27 of the Indian Evidence Act. The Police Officer who investigated the matter and filed the charge sheet were all corroborates with each other in respect of theft of copper wire from the electric line and seizure of the same at the instance of the accused which connect the accused with the crime. Thereby, the prosecution is successful in proving the guilt of the accused for having stealing the copper wire from the electric line by accused Nos.1 to 3 from the custody of accused No.2 in the shop. Therefore, this Court do not find any error in finding the guilt of the accused for having committed the offence of theft of copper wire. However, the trial Court while passing the sentence, only 30 days has been awarded to the appellants. On perusal of the reason given by the trial Court that the accused persons are already involved in so many cases and they are in custody for long time and hence, awarded 30 days. Of course, the in
- 10 -
NC: 2023:KHC:21615 CRL.A No. 260 of 2012 adequacy of sentence has not been challenged by the prosecution while filing any appeal under Section 377 of Cr.P.C.
12. Now coming to the sentence aspect, appellant No.1- accused No.1 was already in custody from 20.10.2008 to 24.02.2008 and thereafter, he was in jail from 13.04.2009 to 17.09.2009 almost more than five months. Therefore, appellant No.1 entitled for set off for 30 days granted by the Trial Court under Section 428 of Cr.P.C.
13. As regards to accused No.2, he was in custody for 5 days from 20.10.2008 to 24.10.2008. Subsequently he was released on bail by the Trial Court. But prior to that, the appellant-accused No.2 was in custody in some other case and therefore, the charge sheet came to be filed by the Police with the request to issue a body warrant in this case.
14. On perusal of the records, accused No.2 also arrested on 25.09.2008 and remanded to the judicial custody in some other case and involved in so many cases. Therefore, it appears he was in custody in other cases and also in this case, may be more than 30 days. Therefore, I am of the view, instead of sending him to custody for remaining days, if he is
- 11 -
NC: 2023:KHC:21615 CRL.A No. 260 of 2012 given set off as already undergone, it will meet the ends of justice. Accordingly, I proceed to pass the following order:
The appeal is allowed in-part.
The judgment of conviction and sentence passed by the Additional District and Special Judge, Chikmagalur in Special Case No.24/2009 dated 12.01.2012 is hereby confirmed.
However, the sentence passed by the Trial Court for one month is already undergone by the appellant-accused persons and accused Nos.1 and 2 are given set off under Section 428 of Cr.P.C.
The Registry is directed to pay the Honorarium as per Rules to Ms. Rashmi M.R., learned Amicus Curiae, who has assisted this Court, in this matter.
Office to send the copy of the judgment and Trial Court records to the Court concerned.
Sd/-
JUDGE GBB List No.: 1 Sl No.: 26