THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL APPEAL No.872 OF 2005 Dated:27.10.2009 Between: Koduri Anjaneyulu .. Appellant And The State, Inspector of Police, A.P.T.S., P.S., Ongole, rep., by the Public Prosecutor, High Court of Andhra Pradesh, Hyderabad .. Respondent JUDGMENT: The accused in S.T.C.No.77 of 2001, on the file of the Special Tribunal under the Indian Electricity Act, Prakasam District, Ongole, filed the appeal against the conviction and sentence imposed by the judgment of the trial Court, dated 03.06.2005. The appellant was prosecuted in Crime No.325 of 2001 of A.P.T.S., Police Station, Ongole, alleging that when the Assistant Engineer and Assistant Divisional Engineer, Andhra Pradesh Transco, Ongole inspected the premises of Service Connection No.239 of Motumala Village, Kothapatnam Mandal on 27.04.2001 at 10.45 a.m., they found that the appellant indulged in theft of energy for his salt and prawn culture by utilizing the supply by connecting all the incoming and outgoing side phase and neutral wires on outside the meter terminal block. Then for the pilferage of energy, the loss for the Andhra Pradesh Transco was estimated at Rs.42,370=20 ps. The Assistant Engineer prepared an inspection notes attested by the Assistant Divisional Engineer and Purini Venkata Rao. A report was sent to the A.P.T.S.P.S., and the Inspector of Police, Vigilance, registered the case and investigated into it. The Assistant Engineer, Operation, issued a certificate about the Service Connection being in the name of the accused. Hence, the charge. During the trial, the trial Court examined the accused, who pleaded not guilty and then examined PWs.1 to 5 and marked Exs.P1 to P8. During examination under Section 313 Cr.P.C., the accused denied the incriminating circumstances appearing against him in the evidence, but did not produce any defence evidence. The trial Court in the impugned judgment firstly found that the competence of the Assistant Engineer to prosecute the accused cannot be in question in the light of the precedent cited before it. The trial Court also found that the Service Connection stood in the name of the accused, according to the evidence of PW.1, though there was no proof to whom the land belongs. Exs.P1 to P3 disclosed that the Service Connection No.239 was standing in the name of the accused. The pilferage of energy was found by the trial Court to have been proved by the evidence of PW.1 corroborated by Exs.P1 to P3 and consequently the trial Court concluded that the evidence of PWs.1 and 5, who were officers, need not be discarded for want of corroboration, when they were discharging their official duties without any motives. The trial Court, hence, felt that the accused was proved to have committed theft of energy punishable under Section 39 of the Indian Electricity Act, 1910. After questioning the accused about the quantum of sentence, the trial Court considered the lenient view that can be taken to result in sentencing the accused to Rigorous Imprisonment for one year and a fine of Rs.5,000/-, with a default sentence of Simple Imprisonment for a period of three months. The accused challenged the said judgment herein contending that the evidence of the prosecution was discrepant, untrustworthy and uncorroborated. He contended that in the absence of any independent evidence, the offence could not have been attributed to him and no material evidence was placed before the trial Court to prove the pilferage of energy, worth Rs.42,370=20 ps. The very fact that the accused was regularly paying electricity consumption charges every month disproves the prosecution case and hence the accused desired the judgment and conviction and sentence to be reversed and the fine amount of Rs.5,000/- to be refunded. Heard Sri M.Sreerama Murthy, learned counsel for the appellant and Sri K.Venkateswar Rao, learned counsel representing the learned Public Prosecutor, at length. The point that arises for consideration in this appeal is: Whether the prosecution proved the guilt of the accused for an offence punishable under Section 39 of the Indian Electricity Act, 1910 and what would be the reasonable and proportionate punishment for the offence, if proved? POINT: PW.1 was the Assistant Engineer, who along with PW.5, conducted the inspection in question, in the premises in which Service Connection No.239 was operating in the name of the accused. He spoke about the inspection, in the presence of PW.2 and P.Venkateswarlu, during which it was noted that the meter disk was not found rotating in all the three phases, when the 5 H.P. motor was put on. He also stated that detailed examination disclosed connection of all the incoming and outgoing phases and neutral wires on outside of the meter terminal block, leading to the meter not recording any consumption. The claim was that Ex.P1 - assessment report and Ex.P2 - inspection report were accordingly drafted and Ex.P3 report was consequently given. It is true that PW.1 was ignorant about the lineman of Motumala Village or the ownership of the land, in which the Service Connection exists, and it is also true that he admitted not preparing any mediators report with reference to their inspection. However, these deficiencies need not throw any doubts on his credibility, as he is obviously discharging his official duty at the time of the inspection and absolutely no link, between PW.1 and the accused, was even alleged to consider the actions or the evidence of PW.1 to be motivated by any other reasons. PW.1 spoke about the assessment of the value of pilfered energy to be Rs.42,370=20 ps. and though it is true that PWs.2 and 3, the independent witnesses examined, turned hostile and denied stating to the police as in Exs.P4 and P5 respectively, the evidence of PW.5 offers corroboration to the claims of PW.1. PW.5, who was the Assistant Engineer, who accompanied PW.1 during the inspection, corroborated the evidence of PW.1 in all aspects. He was also ignorant about the ownership of the land in which the Service Connection in question existed or the identity of the lineman of the village. It is further seen from the evidence of PW.4, the Inspector of Police, who registered the crime on the report of PW.1, that he visited the village and also recorded the statements of the witnesses and found the allegations to be worth being acted upon. The Inspector of Police also did not verify the ownership of the land, but the same may not be a crucial factor when there were no specific denials of the Service Connection standing in the name of the accused and for being a consumer of electricity in any property, the consumer need not necessarily be the owner of the property. As to in what manner, the consumer is connected with the property in question need not be gone into for supply of electricity and the Inspector of Police also had verified the meter in question and there appeared no positive reason for discarding the evidence of PWs.1, 4 and 5, the public servants, corroborated by the earliest versions recorded in Exs.P1 to P3 and P6 - First Information Report. While Ex.P8 Service Connection certificate issued by the Additional Assistant Engineer (Operation) confirms the release of the Service Connection in the name of the accused, the conclusions of the trial Court, under the circumstances about the accepted detailed version of the prosecution, do not appear either unreasonable or to be not based on the evidence before the trial Court and, therefore, to the extent of the conclusion of the trial Court, that the offence under Section 39 of the Indian Electricity Act was proved beyond all reasonable doubt against the accused, the same is not subject to any different view in this appeal. However, the trial Court, while stating that it considered the plea of the accused for a lenient view, imposed a sentence of one year imprisonment and fine of Rs.5,000/- provided under Section 39 of the Indian Electricity Act, 1910. Either Section 39 or Section 44 of the Indian Electricity Act, provide for such imprisonment or fine in the alternative and the accused was not alleged to be having any past criminal record against him. It is also seen from the record that he is engaged in salt and prawn culture in the land and not any significant industrial activity, which would have provided for any scope for pilferage of substantial quantum of electric energy. The learned counsel for the appellant had stated that he was instructed that the appellant had paid the value of loss of energy assessed by the prosecution at Rs.42,370=20 ps. The learned counsel for the appellant also stated that the appellant had paid the fine imposed by the impugned judgment. The appellant had also suffered the prospect of being imprisoned, since the impugned judgment in 2005 and the pendency of the criminal proceedings since 2001, for eight years, which would have imposed sufficient stress and agony on the appellant, who lived under the continuous prospect of the likelihood of his being imprisoned for the offence for which he was prosecuted. It is also noted that there was no direct evidence of the connection of wires in question outside the meter terminal block being indulged in by the accused himself though he was undoubtedly the beneficiary of the pilferage and could not have been blind to such usage of electric energy. There was also no dispute that whatever billing was done since the connection was taken till the inspection, the accused was regularly paying the monthly bills and obviously there was no suspicion or allegation against the accused prior to the inspection about committing any such offences earlier. Taking all these circumstances into account, and more particularly the nature of the offence and character of the accused, a lenient view may be taken by confining the sentence to be imposed, to the sentence of fine only, while erasing the sentence of imprisonment and modification of the judgment of the trial Court accordingly will be in the interests of justice. Therefore, the conviction of the accused for an offence punishable under Section 39 of the Indian Electricity Act, 1910 by the judgment, dated 03.06.2005 in S.T.C.No.77 of 2001 of the Special Tribunal, Indian Electricity Act, Prakasam District, Ongole is confirmed, but the sentence imposed by the said judgment punishing the accused with Rigorous Imprisonment for one year and fine of Rs.5,000/- is modified by confining the sentence only to the sentence of fine of Rs.5,000/-. The Criminal Appeal is ordered accordingly. ___________________ G. BHAVANI PRASAD, J 27th October 2009 KH