(Per : HONOURABLE MR.JUSTICE N.V. ANJARIA) State has filed Criminal Misc. Application No.12110 of 2011 for condonation of delay of 10 days in preferring Criminal Appeal No.1054 of 2011. Criminal Misc. Application No.12109 of 2011 is filed for leave to appeal. Both the applications as well as main Criminal Appeal are placed on Board.
1.1. The Criminal Appeal is directed against judgment and order dated 29.04.2011 by the Special Judge & Additional Sessions Judge, Himmatnagar, Sabarkantha, in Special (Electricity) Case No.6 of 2008, whereby respondent-accused is acquitted of charge of offence under section 135(1)(a) of the Electricity Act, 2003, (hereinafter referred to as 'the Act' for sake of brevity).
2. Learned Assistant Public Prosecutor made available copies of evidence adduced before the Trial Court, and took us through relevant evidence enabling us to take up consideration of appeal at this stage itself. We heard learned Assistant Public Prosecutor in detail.
3. As per the prosecution case arising upon the complaint (Exh.11) by Deputy Engineer, Uttar Gujarat Vij Company Limited (UGVCL), Sub Division Talod, that respondent committed offence of theft of electricity by having unauthorized connection at his residence at village Mahelav, Taluka Talod taken from low tension line of UGVCL passing nearby. The checking squad of the Vij Company on inspection in the house on 16.05.2006 found that even as respondent was not customer of the company, had taken electricity connection for domestic consumption directly from the nearby pole. Calculation report (Exh. 14) and supplementary bill dated 16.05.2006 (Exh. 13) for Rs.16,001.10 towards such electricity consumption came to be issued to the respondent.
3.1 Based on the complaint, FIR was registered and respondent was charged for offence under section 135(1)(a) of Electricity Act, 2003. The charge sheet came to be filed before learned Judicial Magistrate (First Class), and thereafter, the case was committed to the Court of Sessions where respondent-accused was tried.
4. The prosecution examined Chaganbhai Makwana (PW-1-Exh.10), who was complainant and employee of the Vij Company, working as Deputy Engineer at the relevant time. He deposed that upon inspection in the house of the respondent by the checking squad, theft of 210 watt electricity consumption was detected, pursuant to which statement of representative of respondent, came to be recorded and her thumb impression was taken. He stated that inspection report dated 16.05.2006 was given to him for further process, and in connection therewith, supplementary bill for theft of electricity for Rs.16,001.10ps was issued to respondent. Thereafter, in September 2006, complaint was lodged before Gujarat Electricity Board Police Station, Ahmedabad.
4.1 Shilpaben Amrutbhai Patel, employee and Deputy Engineer, UGVCL (PW-2, Exh.16), who headed the checking squad, and Mohamad Yunus, employee and Senior Engineer, UGVCL (PW-3, Exh. 18), who was member of the checking squad, were also examined by the prosecution. PW-2 stated in her deposition that when she had gone to village Mahelav with checking party, it was found that eventhough respondent was not customer of UGVCL, electrical connection was directly obtained by him from electricity lines passing nearby and electricity was being unauthorizedly consumed. Statement of one Ranjanben, occupant of house and described as representative and sister-in-law (Bhabhi) of respondent, was recorded and her thumb impression was obtained below her statement (Exh. 17). This witness stated that accused was not present at the time of checking, and further admitted in her cross-examination that she did not know the accused. She stated in cross that as Bhabhi of respondent informed that the house in question belonged to respondent, case was registered against respondent. PW-3 also stated similar facts, identified thumb impression of Ranjanben and signatures of himself as wells as PW-2.
4.2 Jitendrasinh Jujarsinh Rahevar, working as PSO at Sabarmati Police Station, (PW-4, Exh.25) stated that when he was on duty on 04.06.2007, Deputy Engineer of UGVCL forwarded written complaint, which he had entered in station diary and transmitted for further investigation. In his cross examination, he admitted that the complaint was lodged 8-10 months after the date of incident and no reasons were given for delay.
4.3 The last witness examined by the prosecution was Babubhai Ramabhai Chaudhary (PW-5, Exh. 27), the investigating officer. He stated that upon being handed over the papers for investigation on 04.06.2007, he had recorded statement of the complainant on 14.08.2007 and statements of other witnesses. He arrested the accused on 21.08.2007.
5. The investigating officer admitted in his cross examination that there were number of residential houses located in vicinity of the house where checking was done, however, statement of none of such residents residing nearby was recorded. He admitted that Panchnama of the place was not carried out, nor the Muddamal wires etc. were recovered in presence of Panchas and even Panchnama was never drawn to show any such recovery. He admitted that as per normal requirement, in the statement of consumer either signature of the consumer was obtained or, if it were thumb impression, signatures of two Panchas were obtained. However, statement (Exh. 17) did not bear signature of accused nor the thumb impression of the person present was verified by any panch. He admitted that he did not investigate as to who was Ranjanben. He admitted, after seeing envelop of the notice (Exh.15) sent to the accused that it had returned undelivered with the postal endorsement that no person named therein had been staying at Mahelav.
5.1 Having due regard to the evidence discussed above, the prosecution case stands crippled not only with paucity of evidence, but can be said to have been crumbled by total dearth of evidence necessary to prove the offence. Firstly, neither Panchnama of the place/ house where inspection was carried out was recorded nor was shown any recovery of wires/devices alleged to have been used for alleged theft of electricity and no recovery panchnama was done. Secondly, in statement of the occupant of house (Exh. 17), her thumb impression was not identified. Perusal of the Exh. 17 showed that there was only a thumb impression with words written just beside it that it was thumb impression `on behalf of Ranjanben'. Thus, on the very face, it was not shown to be the thumb impression of the person namely Ranjanben, who was stated to have given the statement (Exh. 17). Thirdly, the prosecution failed to show as to who was Ranjanben who was in occupation of house and posed as representative of the respondent. Fourthly, not only that respondent was not shown to be the owner of the house, but nature of his association or connection with the house at which raid was carried out was also not shown or established. Fifthly, the postal endorsement (Exh.15) suggested that in village Mahelav no person with respondent's name `Jayendrasinh Motisinh Zala', had been staying.
5.2 It was on such set of facts and evidence, both oral and documentary, that the trial court recorded acquittal. It is true that in cases of electricity theft, direct evidence to establish offence would rarely be available, and the investigation would be required to rest quite often mainly on circumstantial evidence. Therefore, while prosecuting for offences, such as for offence under Section 135 of the Act, competent authorities under the Act and prosecution have to conduct themselves with extra care and orientation. In present case, the investigation officer has not shown even recovery of wires/devices, which might have been used for extracting electricity. Though recovery of wire was mentioned in deposition of PW-2 and PW-3, that however, remained totally uncorroborated and unsupported.
5.3 From sequence of dates and events on record of the case it is seen that the process of lodging complaint by the competent authority under the Act, and the investigation thereafter, were tardy. The incident of the alleged theft and inspection by the checking squad was on 16.05.2006 and the complaint was forwarded after four months on 19.09.2006. F.I.R. was actually registered by the police as late as on 04.06.2007, which was after a gap of eleven months. Investigating officer recorded statement of the complainant on 14.08.2007 and thereafter statements of other witnesses were recorded.
5.4 The provision of Sec.135 of the Act, while fastening criminal liability for act of theft of electricity, starts with words `whoever, dishonestly'. The word `whoever', as rightly held by this Court in Barot Vitthalbhai Damodardas vs. Natwarbhai Umedbhai Patel (2009(2) GLH 135) would mean `person who is involved in commission of offence'. Any person found to have committed theft of electricity, whether customer or not and whether owner or not of the house/premises where stolen electricity is used, stands covered within the ambit of this Section. Therefore, it follows that a person in occupation of the premises/house wherefrom theft of electricity by any means is detected is also answerable and liable to be prosecuted and punished, and commission of offence may be established also against such person. However, in the present case, the complaint was registered against respondent only on the footing of information that he was owner of the house in question. The person who was in occupation of the house and whose statement was recorded by the checking squad, could have also been charged, but that was not done. Such disoriented or inapt investigation and prosecution cannot succeed in fulfilling the objective of discouraging theft of electricity which, the legislature in its wisdom, has made a serious and cognizable offence.
6. In view of the evidence on record, the findings recorded by the trial court are plausible, reasonable and proper. The order of acquittal recorded by the trial court is not liable to be interfered with.
7. Since the appeal itself does not deserve admission, condoning delay ex-parte will not cause any prejudice to the respondent. Therefore, delay of ten days is condoned by allowing Criminal Miscellaneous Application No.12110 of 2011. The application for leave to appeal is dismissed. Accordingly the Criminal Appeal also stands dismissed.
(D.H.WAGHELA, J.) (N.V.
ANJARIA, J.) (SN DEVU PPS) Top