Document Fragment View

Matching Fragments

7. In appeal, the learned lower Appellate Court has acquitted the accused under Section 5 of the Indian Telegraph 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 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 .

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:

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.