The prosecution must prove criminal intent and establish all elements of theft, linking the accused to the crime beyond reasonable doubt.

JUDGMENT :

VENKATESH NAIK T., J.

1. Criminal Appeal No.623 of 2012 is filed by the appellants/accused Nos.4 and 5, Criminal Appeal No.644 of 2012 is filed by the appellant/accused No.1 and Criminal Appeal No.899 of 2012 is filed by the appellants/accused Nos.2 and 3 praying to set-aside the judgment of conviction and order on sentence dated 30.04.2012 passed by learned Additional Sessions Judge, Hassan, in Special Case No.27 of 2011, whereby they were held guilty for the offences under Section 136 of the Indian Electricity Act, 2003, and Section 379 of Indian Penal Code, 1860 (for short ' IPC ') and were sentenced to undergo Simple imprisonment for two years each for the aforesaid offences.

2. Brief facts of the prosecution case are that on 18.08.2010 at about 12.00 midnight, there was interruption in supply of electricity at Beluru 66 K.V. Line. Hence, the complainant along with his staff went to inspect the line and found that, within the limits of Kuppalli and Janivera limits, some miscreants had cut and stolen the copper wires, which was drawn between Tower 658 to 663 weighing 213kgs 780grams and the total value of the wires was Rs.41,478/-. Hence, on 21-8-2010 at 10:30 a.m., he lodged a complaint. Based on the complaint, the case has been registered, the matter was investigated and the Investigating Officer laid the charge-sheet against the accused.

3. After receipt of the charge-sheet, the trial Court complied with Section 207 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C') by supplying prosecution papers and framed charges against the accused for the aforesaid offences. The accused pleaded not guilty and claimed to be tried. Thus, the prosecution in order to prove its case, examined in all ten witnesses as PW1 to PW10, got marked eleven documents as per Exs.P1 to P11 and thirty one material objects as per MOs.1 to 31. Assessing the entire evidence, the trial Court arrived at a conclusion that, the accused committed the offences charged against them and thus, convicted them for the offences punishable under Section 136 of Electricity Act and under Section 379 of IPC . Being aggrieved by the same, the accused have preferred the appeals.

4. Heard the learned counsel for the appellants and the learned High Court Government Pleader for the respondent-State.

5. Sri P.B. Umesh and Sri B.S. Prasad, learned counsel for the appellants, have contended that the conviction and sentence passed by the trial Court is contrary to law, evidence and probabilities of the case. The prosecution is guilty of material suppression of evidence and has not come forward with true origin of the incident. There is delay in filing the complaint and the delay has been conveniently used by the prosecution to foist a false case against the accused. The trial Court has mainly relied on the evidence of PWs.1 to 3 and 8 to 10, which is full of material omissions, contradictions, and suffers from infirmities. The trial Court also relied upon the evidence of PW1, Investigating Officer, and voluntary statement of accused No.1. In fact, such voluntary statement appears to be implanted for the purpose of this case. The evidence of PW3 about the alleged recovery of the material objects along with Tata Sumo vehicle is doubtful, as no mahazar was drawn at that time, which goes to the very root of the case. Further, the Investigating Officer has not followed due procedures while seizing the articles and therefore, the recovery itself is doubtful. The trial Court should have given the benefit of doubt and acquitted the accused. The trial Court ought to have extended the benefit available under Sections 3 and 4 of