Delhi District Court
State vs . Jagbir Singh on 26 April, 2011
1
IN THE COURT OF SH. DEEPAK SHERAWAT
METROPOLITAN MAGISTRATE, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
FIR NO. 645/99
P.S. S. N. Puri
U/s. 39/44 of I.E. Act
STATE VS. JAGBIR SINGH
JUDGMENT :
a. Sl. No. of the case : 1466/07 b. Date of Institution : 27.5.2000 c. Date of Commission of Offence : 22.06.99 d. Name of the complainant : Sh. B S Saini AE Zone No. 519 e. Name of the accused and his : Jagbir parentage and address S/o Sh. Chander Singh R/o Village Peepali, Distt. Sonepat (Haryana). f. Offence complained of : U/s. 39/44 of I.E. Act g. Plea of the accused : Pleaded not guilty h. Order reserved : 29.03.2011 i. Final Order : Acquitted j. Date of such order : 26.04.2011
1. The accused was put on trial for the facts that on 22.06.99, at Baraf Wali Gali, Nangloi Road,Pooth Kalan , Delhi the accused was found committing theft of electricity dishonestly directly by tapping DVB L.V. Mains directly through illegal wires and thereby committed an offence punishable under section 39/44 of I.E. Act. Thereafter, investigation was carried out. Site plan was prepared. Accused was arrested, statement of witness was recorded and a 2 chargesheet was filed against the accused under section 39/44 of I.E. Act.
2. A prima facie case having been made out against the accused, charge was framed against him under section 39/44 of I.E. Act on 16.08.2001, to which he pleaded not guilty and claimed trial.
3. To prove its case the prosecution has examined 5 witnesses namely HC Darshan as PW1, B S Saini as PW2, K P S Yadav as PW3,Gian Chand as PW4, and Insp. Nanak Chand as PW5.
4. PW1 Darshan Kr. has testified that on 26.6.99 he recorded present case FIR Ex.PW1/A on the basis of complaint duly endorsed by the SHO and thereafter copy of FIR and copy of complaint was handed over to SI Nanak Chand for investigation.
Accused did not prefer to cross examine this witness.
5. PW2, B.S. Saini has testified that on 22.6.99 he along with IG Enf. XEN R K Kachru, CISF, Surender,N K Parashar, Gian Singh, O P Sharma, K P S Yadav went to village Pooth Kalan and raided premises of one Jagbir and they raided 13 premises on that day and at the premises of Jagbir work of manufacturing of polythene bags was going on and factory was situated in Baraf Wali Gali, Poot Kalan,Nangloi Road and electricity was being stolen there directly from L V Mains by connecting the sigle core wire and no meter was installed there but factory was found running, photographs and connected load was taken, illegal wires were removed and handed over to police, JIR was prepared which is Ex.PW2/A, illegal wires were handed over to the police and he lodged complaint to police which is Ex.PW2/B and before lodging of FIR bill Ex.PW2/C was also 3 reaised upon the accused and he also lodged complaint u/s. 50 I.E. Act against accused which is ex.PW2/D and photographs are Mark A1 to A6 and IO also prepared site plan at his instance. PW2 identified the three wires of single core of black color as Ex.PW1 which were produced in unsealed condition.
Cross examination of this witness deferred at the request of accused.
6. PW3 K P S Yadav has testified that on 22.6.99 he was called by AE Zone to join the raid at Nangloi Road, Pooth Kalan where a raid was conducted at factory of Jagbir and name of accused Jagbir was revealed at the spot and plastic work was being running and electricity was being stolen directly from L V Mains by putting the wire. The illegal wires were removed, photographs were taken and JIR was prepared Ex.PW2/A and he deposited the case property in PS and police seized the same vide memo Ex.PW3/A and police recorded his statement and the photographs are Mark A1 to A6. PW3 identified the case property already produced as Ex.P1.
During cross examination PW3 has deposed that he joined raiding party at 5.00 pm and N K Parashar, Surender Singh and O P Sharma asked village persons about user of premises in question on 22.6.99 and name of Jagbir was came out and factory was in running condition. There were some workers found present or he does not remember whether accused present in the court was at the spot or not and he had put a slip as identification mark on the wires with Jagbir written over it but the case property does not contain any paper on which Jagbir is written and he denied the suggestion to the effect that no illegal wires were removed in his presence or that he had not joined the raiding team or that Jagbir has no concern with the day to day business of factory in question.
7. PW4 Gian Chand has testified that on 22.6.99 he along with Mr. BagchiIG Enf., Kachur, KPS Yadav,N K Parashar, Surender, CISF and 4 photographer went to conduct raid at Plastic factory of accused at Barafwali Gali, Pooth Kalan, Nangloi Road where they found the accused indulged in committing theft of electricity and the connected load was 44.9 KW for IP, illegal wires were removed by AE zone and photographs were taken Mark A1 to A6. Raided premised was used by accused for manufacturing PVC bag and fr that purpose stealing the electricity. JIR was prepared Ex.PW2/A. Case property is already shown and exhibited as Ex.P1.
During cross examination PW4 has deposed that they had conducted raid on 13 premises and they have not collected any documentary proof to connect the accused with raided premises or with business and name of accused was revealed from an informer who came along with IG Enf. and no specific mark of identification had put on the wires in his presence. PW4 also denied the suggestion that accused has not concern with premises or its business on 22.6.99 or that no illegal wires were removed from the spot.
8. PW5 Inspr. Nanak Chand has testified that investigation of present case was handed over to him on 26.6.99 so he prepared site plan Ex.PW5/A and collected photographes mark A1 to A6 and also collected the bill issued against accused Jagbir Ex.PW2/C and permission u/s. 50 I.E. Act was also taken Ex.PW2/C and on 7.7.99 he prepared the arrest memo Ex.PW5/B and conducted personal search vide memo Ex.PW5/C and on 5.4.2000 he seized illegal wires i.e. 25 meters three wires of black color vide memo Ex.PW3/A. PW5 identified the wires as Ex.P1 collectively.
During cross examination PW5 has testified that he had not obtained signatures of B S Saini on Ex.PW5/A and also does not remember the number of premises where theft of electricity was alleged to have been taken place and he had not recorded any independent witness regarding the user of the 5 premises on 22.6.99 as no one came forward to disclose the same neither he gave any notice u/s. 160 Cr.P.C. to any of the persons of locality so as to ascertain as to who was the actual user of raided premises and no documentary proof was collected to connect the accused with the raided premises with regard to the owner and user of raided premises and he admits that there is no specific identification mark put on the so as to ascertain that same were removed from the premises in question.
6. After closing of prosecution evidence, the statement of accused U/s. 281 Cr.P.C read with section 313 Cr.P.C was recorded on 772006. In his statement he denied to have committed the offence and that he never resided in the premises in question and his cousin brother Vijay used to reside there and was running ice factory which was closed down who informed him regarding raid so he appeared before PS Sultanpuri where he was arrested and he shows ignorance regarding preparation of JIR, FIR, photographs and removal of illegal wires and raising of theft bill against him and he claimed to be innocent and to have been falsely implicated in the present case by DVB officials in connivance with one Ramesh who was residing at raided premises conducting business there and due to dispute of some money he falsely implicated him in this case. Accused wants to lead evidence in defence.
9. In his defence accused has examined DW1 Satish and DW2 Satbir Singh.
10. DW1 Satish has testified that Jagbir is not having any residential accommodation or any business in Delhi, however Jagbir is having relative in Delhi at Village Pooth Kalan who is his uncle namely Ramesh and both accused and Ramesh used to quarrel on account of money transactions and there is no 6 cordial relation between Ramesh and Jagbir and accused was falsely implicated by Ramesh in connivance with DESU officials.
During cross examination by LD. APP DW1 has deposed that accused Jagbir used to reside in village Pipri at Sonepat and in the business of agricultural farming there.
11. DW2 Satbir Singh has testified that accused is farmer by profession in village Peepli and Ramesh is uncle of accused and Jagbir never conducted any business or run the factory in village Pooth Kalan and uncle accused namely Rameshis working as maali in MCD and also run the factory or ice and plastic materials in village Pooth Kalan and there was some dispute between Jagbir and Ramesh on account of money transaction and false case of theft of electricity has been planted upon Jagbir by Ramesh in connivance with DVB officials.
During cross examination by Ld.APP DW2 has deposed that he does not know anything about the raid conducted on 22.06.99 and on that day accused was present in village Peepli.
8. In a criminal case, it is incumbent upon the prosecution to prove the case against the accused beyond reasonable doubt. In the present case, 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 the electricity dishonestly. To bring home the charge under section 39 of I.E. Act, 1910, it is to be established by the prosecution that the accused was dishonestly abstracting, consuming or using the energy. The existence of any artificial means of such abstraction shall be deemed to be a prima facie evidence of such dishonest abstraction. It has been 7 held by the Supreme Court in Ram Chandra Prasad Sharma v. State of Bihar, (1967 A.I.R.(SC)349) that such artificial means must be a 'perfected' artificial means shown to be in a possession and control of the accused. Perfected artificial means denotes a wire or any other foreign matter which on being introduced in the meter would have the effect of stopping or retarding the progress of meter. Further the accused must be shown to be a consumer within the meaning of Section 2(c) of the Act. Again, in Jagannath Singh v. V.B.S. Ramaswamy 1966 A.I.R. (SC) 849 it was observed that whoever abstracts or consumes or uses electrical energy dishonestly commits a statutory theft. The word 'abstraction' in the context S.39 means taking or appropriation. Energy may be dishonestly abstracted by artificial means or unauthorised devices.
Under the section 44 of I.E. Act, it must be proved that the accused was the consumer having the custody or control of the meter and the meter was tampered with so as to prevent it from duly registering the energy consumed.
9. The evidence brought forth by the prosecution does not connect the accused with the offence in any manner. The prosecution is required to prove that at the time of the raid, it was the accused who was using the electricity and he was abstracting the electricity from the meter unauthorizedly by using some artificial means. However, in the present case, there is nothing on record to prove that it was the accused, who was the owner/user of the electricity the premises/factory in question. PW1 is a formal witness being the DO and he only proved the FIR Ex.PW1/A. PW2, 3 and 4 are members of the raiding team and PW5 is the IO of this case but nothing material came out during examination of all these witnesses which can connect the accused with the raided premises as PW4 during his cross examination categorically stated that they have not collected any 8 documentary proof to connect the accused with raided premises or with business and name of accused was revealed from an informer who came along with IG Enf. and PW5 who is the IO also deposed during his cross examination that he had not recorded statement of any independent witness regarding the user of the premises and no documentary proof was also collected to connect the accused with the raided premises. PW3 K.P.S. Yadav during his cross examination deposed that some raiding team member asked village persons about user of premises on 22.6.99 and name of Jagbir was revealed by them and there were also some workers present there but he does not remember whether accused present in the court was at the spot or not. However, the said persons have not been made witness in this case.
10. Further all the PWs in their statements has stated that the photographs of the spot were taken. However, the negatives of those photographs have not been placed on record so the genuineness of photographs is doubtful. Further, the case property produced in the court in unsealed condition so the possibility of tampering with the case property cannot be ruled out. It is also pertinent to mention here with PW3 during his cross examination testified that he had put a slip as identification mark on the wires with Jagbir written over it but when case property was produced before the court no identification mark/paper slip was found. Interestingly, PW4 and PW5 have deposed that no identification mark was put on the case property which create doubt.
11. Accused examined DW1 and DW2 in his defence and they both have deposed that accused used to reside in village Peepli, Sonepat and accused was present at village on 22.6.99. Only complaint, FIR, JIR, seizure memo are not substantive piece of evidence and solely on the basis of these documents, the 9 charge can not be proved against the accused.
12. 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.
13. In the 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 accused Jagbir is acquitted for the offence punishable U/s. 39 /44 of I.E. Act for which he stands charged.
Announced in the Open Court (DEEPAK SHERAWAT)
On 26.04.2011 Metropolitan Magistrate
South District/New Delhi
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FIR No. 645/99
PS S.N. Puri
U/s. 39/44 of I.E. Act
26.04.2011
Present : Ld. APP for the State.
Accused on bail with counsel.
Vide my separate judgment dictated and announced in the open court accused Jagbir Singh is acquitted for the offence punishable U/s. 39/44 I.E. Act for which he stands charged.
As per section 437A of the Cr.P.C, as amended vide the Amendment Act, which came into force on 31.12.2009, the accused as well as the surety shall remain bound by the personal and the surety bond respectively for a period of six months from today.
File be consigned to Record Room.
(Deepak Sherawat) MM/South Delhi/ 26.04.2011