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2023 Supreme(Telangana) 685
IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
K.Surender, J.
Mohd Baba - Appellant
Versus
State of Andhra Pradesh - Respondent
Criminal Appeal No. 1610 of 2008
Decided On : 28-06-2023
Mohammad Adnan, Advocate
IMPORTANT POINT
The lack of evidence and the hostility of witnesses can lead to the failure of the prosecution to prove the accused's guilt beyond a reasonable doubt.
Headnote:
Electricity Act - Theft of Electricity Material - The court found that the prosecution failed to prove that the accused was in possession of stolen electricity material, as there was no evidence or proof that theft was committed. The court emphasized the lack of evidence and the hostility of witnesses, concluding that the appellant's conviction cannot be sustained.
Fact of the Case:
The appellant/accused was convicted for the offence of possessing electricity material without consent, based on the seizure of 250 kgs of wire from an auto. The prosecution's case relied on the testimony of PW-7, as other witnesses turned hostile.
Finding of the Court:
The court found that the prosecution failed to prove that the appellant was in possession of stolen electricity material, emphasizing the lack of evidence and the hostility of witnesses. The court concluded that the appellant's conviction cannot be sustained.
Issues: The main issue was whether the appellant was in possession of stolen electricity material, and whether the prosecution's evidence was sufficient to prove the offence.
Ratio Decidendi: The court emphasized the lack of evidence and the hostility of witnesses, concluding that the appellant's conviction cannot be sustained.
Final Decision: The appellant's appeal was allowed, and the court discharged the bail bonds. Miscellaneous applications pending, if any, shall stand closed.
JUDGMENT
1. The appellant/accused was convicted for the offence punishable under Sec. 136(1)(b) read with Sec. 137 of Electricity Act (for short "the Act") and sentenced to undergo two (02) years of imprisonment in Spl.C.C.No.8 of 2008. The appellant/accused is arrayed as accused No.6.
2. It is the case of the prosecution that PW-7 viz., DVP Raju who was the Sub-Inspector of Police, on credible information proceeded to a place in front of Sunder Ispat Iron Factory situated at Ippalapally area around 5:30 am. In the meanwhile, one auto bearing No.AP 28 W 3149 came there and stopped. The appellant/accused was found driving the said auto and accused Nos.1 to 4 were also there in the said auto. In all PW-7 and his team detected aluminum electricity conductor wire in the auto. PW-7 and others questioned the accused Nos.1 to 5 and recorded their confession. Pursuant to the said confession, the said 250 kg of electricity conductor wire was seized. According to the prosecution, the said 250 kgs of wire was subject matter of theft of aluminum wire pertaining to crime Nos. 54, 55 and 56 of 2007.
3. The investigation was done by PW-7-Sub-Inspector of Police, who concluded the investigation and filed charge sheet. During the course of cross examination, there were eight witnesses who were examined and all the independent mediators in the said case turned hostile to the prosecution. Only on the basis of PW-7 who was present at the scene and seized the auto had narrated regarding the appellant/accused and accused Nos.1 to 4 being caught along with 250 kgs of wire. Accused Nos.1 to 4 were convicted for the offences punishable under Sec. 136 (1)(a) which reads as follows;
(1) Whoever, dishonestly -
a. Cuts or removes or takes way or transfers any electric line, material or meter from a tower, pole, any other installation or place of installation or any other place, or site where it may be rightfully or lawfully stored, deposited, kept, stocked, situated or located including during transportation, without the consent of the licensee 1 Subs. by Act 26 of 2007, Sec. 13 for the words "Any officer authorized" (w.e.f. 15/6/2007) 2 Subs. by Act 57 of 2003, Sec. 5 for the words "has been or is being or is likely to be" (w.e.f. 27th January, 20004). The Electricity Act, 2003 - 102 - or the owner, as the case may be, whether or not the act is done for profit or gain;
4. The appellant/accused No.6 was convicted under Sec. 136 (1)(b) which reads as follows;
b. Stores, possesses or otherwise keeps in his premises, custody or control, any electric line, material or meter without the consent of the owner, whether or not the act is committed for profit or gain;
5. The learned counsel appearing for the appellant/accused would submit that the learned sessions judge committed an error in convicting the appellant/accused when all the witnesses of the prosecution turned hostile. There is no evidence of any confession or seizure that was done at the instance of this appellant/accused. Only on the basis of evidence of PW-7 who is interested witness the conviction cannot be sustained. Accordingly, prayed to acquit the appellant.
6. On the other hand, the learned Public Prosecutor would submit that though the independent witnesses turned hostile, the evidence of PW-7 can be relied upon to convict the accused. The learned Sessions Judge had rightly found that the evidence of PW-7 was sufficient to infer that theft was committed and since the material was in possession of accused Nos.1 to 5 prosecution has proved its case. Accordingly, prayed to dismiss the appeal.
7. The allegation against this appellant/accused is for possessing the electricity material. On the said date i.e., 7/10/2007 all the accused were apprehended along with the wire weighing 250 kgs. It is nowhere in the evidence of any of the witnesses, including PW-7 investigation officer as to how the police have identified that entire 250 kgs pertain to four different theft cases. No witnesses who were examined
