KRISHNAPPA @ KITTAPPA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THIS appeal is by the accused challenging the order of conviction and sentence passed by the I Addl. Sessions Judge, Kolar, in EACC No. 16/2010, dated 3.7.2010 in convicting the accused for the offence punishable under Section 135 of the Electricity Act, 2003 and sentencing him to pay a fine of Rs. 31,804/ - to the Asst. Executive Engineer, BESCOM, Mulbagal Sub -Division, in default, to undergo simple imprisonment for a period of six months.

(2.) AS per the prosecution, on 20.4.2009 around 11.00 a.m. the Asst. Executive Engineer of the Vigilance Cell of BESCOM, Kolar Division alongwith his staff, inspected the electric installation bearing RR No. IP 575 belonging to accused No. 2 -Akkayyamma and accused No. 1 -Krishnappa is said to have obtained electricity connection illegally for the borewell by fixing 3 HP electric motor to lift water for sand filtering work and committed theft of 4028 units of electricity and caused loss to the tune of Rs. 29,804/ - as back billing charges and Rs. 12,000/ - as compounding charges. Accordingly, alleging the offence punishable under Section 135 of the Electricity Act, 2003, complaint was filed and after receipt of charge sheet, case was registered and the accused was tried since he pleaded not guilty. The prosecution has examined in all, 7 witnesses and got marked 9 documents and also seized M.Os. 1 to 4. After hearing, the learned Sessions Judge based on the evidence of BESCOM Inspector and the Asst. Executive Engineer, convicted and sentenced the accused. Hence, this appeal.

(3.) THE argument of the learned Counsel for the appellant -accused is that, the appellant had no reason to draw illegal electricity from the main line for filtering the sand, he could have very well made use of the bore well which is at a distance of 60 ft. from his land and there is nothing on record to indicate that this appellant is involved in the theft of electricity. In the absence of evidence of independent witnesses to show that this appellant is involved in the commission of offence, the trial Court ought not to have held him guilty of the offence. Even the witnesses who have been examined on behalf of the prosecution for the seizure of wire and electric motor, have turned hostile and the same is not proved and no photographs are produced regarding the seizure. Merely, based on the evidence of the official witnesses, the trial Court has rendered the conviction calculating the theft of electricity for a period of six months as 4028 units, as if electricity was supplied for all the 24 hours and, imposed penalty. It is not the case of the prosecution that the accused was apprehended at the time of commission of the offence. Just because the land of the accused was adjacent to the alleged spot, under the presumption that the accused must have committed the offence, he has been charge sheeted, which is illegal and erroneous.