Delhi District Court
State vs . Sudhir Kumar Bhatnagar on 24 January, 2014
IN THE COURT OF MM03(SOUTH)
SAKET COURTS COMPLEX, NEW DELHI
Presided by : Ms. Manisha Tripathy
State Vs. Sudhir Kumar Bhatnagar
FIR No. 505/01
P.S. : Model Town
Unique ID No.R0971862004
Date of institution of case:16.08.2004
Date of reserving the judgment: 24.01.2014
Date of pronouncement of judgment: 24.01.2014
J U D G M E N T
1.Serial No. of the Case: 562/07
2.Date of the Commission of offence: 24.08.2001
3.Date of Institution of the case: 16.08.2004
4.Name of the complainant: Sh A K Gupta, AE
5.Name of the accused, Sudhir Kumar Bhatnagar
Parentage & Address: S/o J M L Bhatnagar,
FIR NO. 505/01 PS Model Town State v. Sudhir Kr Bhatnagar 1/8
R/o B2/3, MCD Flat,
Vivekanand Puri, Karte
Khan, Delhi.
6.Offence complained or proved: U/s. 39/44 I.E.Act r/w s. 379 IPC
7.Plea of accused: "Not guilty"
8.Final order: Acquitted
9.Date of final order: 24.01.2014
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. The case of the prosecution is that on 24.08.2001, a joint raid was conducted by a team of DVB officials at 219, Rajpura Gurmandi, Delhi, within the jurisdiction of PS Model Town, where accused was found indulged in theft of electricity directly from DVB LV Mains. In this regard a complaint was lodged and an FIR bearing number 505/01 under section 379 IPC r/w section 39/44 of I.E. Act was registered at Police Station Model Town. On completion of investigation, chargesheet under section 173 Cr.P.C was filed in the court.
2. The copies of chargesheet and annexed documents were supplied to the accused in compliance of S.207 Cr.P.C.
3. On the basis of the chargesheet and annexed documents, prima facie FIR NO. 505/01 PS Model Town State v. Sudhir Kr Bhatnagar 2/8 case was made out, charge for the offence punishable under section 39 of I.E. Act was framed against the accused by my Ld. Predecessor on 07.08.2008 to which the accused pleaded not guilty and claimed trial.
4. To prove its case, the prosecution has examined the following witnesses.
5. PW1 HC Harish is the duty officer. He proved the registration of FIR Ex PW1/A.
6. PW2 Dinesh Kumar is photographer. He deposed that he was called by S K Sahu and he accompanied him to Village Rajpur where raid was conducted. He further deposed that he took the photographs of the raided premises and handed over the negatives to S K Sahu, AE. He identified the photographs as Mark A1 to A60.
7. PW3 S K Gupta is complainant and raiding party member. He deposed that on 19.08.2001, a joint raid was conducted in the area of Rajpura Gurmandi including premises no. 219, Rajpura Gurmandi. He further deposed that case property i.e. electricity wire were removed. He further deposed that on 24.08.2001, he given a complaint Ex PW3/A about the theft of electricity to SHO PS Model Town. He further deposed that thereafter, JIR was prepared and he handed over the photographs and case property to the IO vide seizure memo Ex PW3/B. He identified photocopied document Mark A as photocopy of JIR.
8. PW4 Jai Bhagwan is public witness. He deposed that he knows the FIR NO. 505/01 PS Model Town State v. Sudhir Kr Bhatnagar 3/8 accused since childhood and had arranged to provide him a rented accommodation through one Kaushal Jee at Gurmandi, Rajpura Village. During the cross examination by Ld APP for the state, he admitted that accused was arrested and personally searched vide Ex PW4/A & PW4/B. He further admitted that IO recorded his statement and a raid was conducted on 19.08.2001.
9. PW5 N S Chauhan is another raiding party member. He also deposed on the similar lines as PW3. Therefore, his deposition is being not reproduced for the sake of brevity. In addition, he deposed that photographs of the spot was taken. He identified the photographs Mark A1 to A60. He also identified the case property i.e. electric wires of different sizes which was produced before the court in unsealed condition.
10. PW6 SI Ashish Kumar is the investigating officer. He deposed that during the investigation, he met the complainant Sh A K Gupta, AE and procured relevant documents and also prepared site plan Ex PW6/A. He deposed that he seized the cable, leads and 62 photographs vide Ex PW3/B. He proved the arrest and personal search of accused vide Ex PW4B & PW4/A. He further deposed that he recorded the statement of witnesses and owner of the raided premises. He further deposed that complainant had handed over him photocopies of five electricity bills which he seized FIR NO. 505/01 PS Model Town State v. Sudhir Kr Bhatnagar 4/8 vide Ex PW6/B. He identified the accused as well as photographs as Mark A1 to A60.
In his cross examination, he admitted that he had not investigated regarding electrification of the Rajpura Gurmandi Colony. He failed to state the existence of electricity pole or pole number from the site plan from which the theft of electricity was being conducted. He further admitted that he was not the member of raiding team. He further failed to state the measurements / weight of the case property. He stated that case property pertains to total five premises raided on that day. He failed to identify as to which wires were removed from which premises. He further admitted that wires which were seized in the present matter, are also easily available in the market. He further stated that he had not verified as to the person who claimed to be owner was actually owner of the premises or not and statement was recorded without any verification.
11. PW7 Insp Pramod Gupta is another formal investigating officer. He deposed that he recorded the statement of witnesses and also searched the coaccused persons but to no avail. In his cross examination, he admitted that he only recorded the statement of Pankaj, owner of photo studio.
12. Thereafter, several opportunities were afforded to the prosecution to adduce the evidence requisite to prove the case against the accused. It is FIR NO. 505/01 PS Model Town State v. Sudhir Kr Bhatnagar 5/8 pertinent to note that the matter is subjudice since the year 2004 and the charge against the accused was framed on 07.08.2008. Thereafter, despite several opportunities having been provided to the prosecution for leading the evidence, the prosecution has been able to produce only above mentioned witnesses. After giving sufficient opportunities for leading evidence, the right of the prosecution to lead further evidence was closed on 17.12.2013 as the material witnesses were already examined.
13. Thereafter, the statement of accused under section 313 r/w section 281 Cr.P.C was recorded on 09.01.2014. In his statement, the accused claimed innocence and false implication. He did not not wish to lead defence evidence.
14. I have carefully gone through the record and heard the arguments advanced by Ld. APP for state as well as Ld. Counsel for the accused
15. In a criminal case, it is incumbent upon the prosecution to prove the case against the accused beyond reasonable doubt. In the present case, to bring home the charges, the prosecution was required to adduce evidence against the accused to show that at the time when the raid was conducted, the accused was the consumer receiving electricity from the complainant company and when the raid was conducted, he was found abstracting, consuming or using the electricity dishonestly. The existence of any artificial means of such abstraction shall be deemed to be a prima FIR NO. 505/01 PS Model Town State v. Sudhir Kr Bhatnagar 6/8 facie evidence of such dishonest abstraction.
16. In the instant case, no evidence, in the first place, has been adduced by the prosecution to show that it was the accused who was the user of the electricity at the time of raid. The accused must be shown to be a consumer within the meaning of section 2(c) of the Act to prove his guilt. No documentary proof whatever has been placed on record to connect the accused with the raided premises. Further none of the witnesses could testify as to owner of the raided premises. The owner of the raided premises has not been examined to establish the tenancy of usage of the raided premises by the accused. The prosecution witnesses also failed to testify as to role of the accused at the raided premises and how raiding party came to the conclusion that accused was responsible for theft of the electricity at the raided premises. In the absence of any proof, it cannot be said that the premises where theft of electricity is stated to have been committed, in any manner, belonged to the accused.
17. Thus, it is needless to say that the prosecution has miserably failed to prove that it was the accused who was the consumer at the time of the raid and was abstracting the electricity by applying some artificial means.
18. Further, the Joint Inspection Report which is the foundation of present case, has not been proved as per law. The original JIR has not been produced. No explanation has been offered as to why original JIR is not FIR NO. 505/01 PS Model Town State v. Sudhir Kr Bhatnagar 7/8 produced. The entitlement to prove the JIR by way of secondary evidence was neither raised nor proved. Under the circumstances, the photocopied document purporting to be the copy of JIR, is not to be read in evidence.
19. Another lacunae in the prosecution case regarding the unsealed condition of the case property which was produced before the court and it was also not having any identification mark. In absence of any mark of identification and due to nonsealing of case property, it cannot be safely hold that the case property is the same which were removed from the raided premises.
20. As a result, I find that Prosecution has failed to prove its case against the accused beyond reasonable doubt and he is given the benefit of doubt and therefore, the accused Sudhir Kumar Bhatnagar is acquitted for the offences for which he was charged.
Announced in the open court on 24.01.2014 Manisha Tripathy MM03(South)/24.01.2014 Certified that this judgment contains 8 pages and each page bears my signatures.
Manisha Tripathy MM03(South)/24.01.2014 FIR NO. 505/01 PS Model Town State v. Sudhir Kr Bhatnagar 8/8