The main legal point established in the judgment is the court's interpretation of the evidence presented to find the accused guilty of theft of cable wire and burning it to obtain copper, leading to the upheld conviction under Section 379 IPC.

Chander Bhusan Barowalia, J.

1. The present appeal (Cr.A No.191 of 2008) is maintained by the State of Himachal Pradesh under Section 377 of the Code of Criminal Procedure for enhancement of sentence, passed by the learned Sessions Judge, Kinnaur, Sessions Division at Rampur Bushahr, H.P., where by the learned lower Appellate Court has acquitted the accused under Section 5 of the Indian Telegraph Act and upheld the sentence recorded by the learned trial Court under Section 379 IPC. However, the sentence is modified to the period already undergone. On the day the appeal was decided, the respondent-accused remained behind the bars for a little period of more than six weeks.

2. The second appeal (Cr.No.283 of 2008) is also maintained by the State of H.P. under Section 378 Cr.P.C., against the same judgment acquitting the accused persons (here in after referred to as the ‘accused’) by the learned lower Appellate Court for the offence committed under Section 5 of the Indian Telegraph Act, for setting aside judgment of the learned Sessions Judge and convicting the accused under Section 5 of the Indian Telegraph Act also.

3. Meaning thereby that both the appeals are directed against one judgment. However, the appeal No.191 of 2008 is for enhancement of the sentence under Section 379 IPC and Appeal No.283 of 2008 is separately moved for setting aside the judgment of acquittal and for convicting the accused under Section 5 of the Indian Telegraph Act. Both the appeals since arises from the same judgment and are being heard together and disposed of by a common judgment.

4. Briefly stating the facts giving rise to the present appeals are that as per the information received by the S.D.O.(Telecom) Rakesh Dutt, who appeared as PW1 in the learned trial Court on 9.7.2007 at about 2.00 P.M., some unknown persons had stolen 50 pairs of cable wire of about 1.5 kms laid by the B.S.N.L.(Telecom Deptt.) for providing telephone facility to the remote villages between H.P.M.C. Orchard, Rampur to Khanewali. The tentative cost of cable assessed by the S.D.O. concerned was Rs.81,000/-.

5. The S.D.O. (PW1) immediately reported the matter to the Police Station, Rampur, vide his written complaint Ex.PW-1/A. The Police registered FIR on the basis of the alleged complaint. During the course of investigation, copper wire, which was melted out of cable weighing 100 Kg was recovered from the house of accused Sanjeev Kumar in Case F.I.R. No.109/07, dated 9.7.2007, under Sections 342, 382, 506 I.P.C., which was found from the cable and was stolen by the accused persons from the place H.P.M.C. Orchard to Khanewali. As per prosecution, the accused persons had committed theft of the said cable and, thereafter, melted the same and converted into copper wire. The accused, Sanjeev had kept some of the wire in the forest and some wire in his house. The accused persons were also resorting the help of one more accused. The case property recovered from the house of the accused was taken into police custody. Accused persons failed to produce any document for keeping the copper wire. Both the accused persons were arrested on 10.7.2007.

6. On investigation, it has come on the record that the accused persons Sanjeev Kumar and Manoj Kumar had cut the cable along with one Jeewa Nand and converted the same into copper. The accused made the disclosure statement and the police, after recording the disclosure statement, recovered axe, Ex.PW-8/B used for cutting the cable, which was taken into possession by the police vide seizure memo Ex.PW-1/B. The Police prepared the site plan Ex.PW-8/A and the place of recovery of the axe, Ex.PW-8/B. The police took into possession site plan of place of recovery. Police took into possession burnt pieces of cable/wire, Ex.P-4 to Ex.P-81 vide seizure memo, Ex.PW-3/C and the site plan/demarcation was made vide memo, Ex. PW-3/B. Two bags containing copper wire weighing 100 kg. Ex.P-2 and Ex.P-3 were taken into possessions vide seizure memo, Ex.P