Madhya Pradesh High Court
State Of M.P. vs Ajmeri Khan on 13 July, 2017
Author: G.S. Ahluwalia
Bench: G.S. Ahluwalia
1 CRA 714/2006
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
PRESENT:
HON'BLE MR. JUSTICE G.S. AHLUWALIA
Criminal Appeal 714/2006
State of M.P.
Vs.
Ajmeri Khan and Another
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Shri Prakhar Dhengula, Panel Lawyer for the
appellant/State.
Shri Subhash Saxena, Advocate on behalf of Shri KS
Shrivastava, Advocate for the respondents.
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JUDGMENT
(13/07/2017) This appeal under Section 378 of CrPC has been filed against the judgment dated 28/02/2006, passed by Judicial Magistrate First Class, Guna in Criminal Case No.345/1999 by which the respondents have been acquitted of the charge under Sections 294, 353 of IPC and Section 39 of the Indian Electricity Act, 1910.
(2) The necessary facts for the disposal of the present appeal in short are that on 26/11/1999, at about 12:00 pm Shri Prashant Yadav (PW1), Junior Engineer, MP Electricity Board, Bamori, District Guna carried out a search and found that the respondent No.2 was running a 10 HP motor by taking a direct electricity connection in an illegal manner. At the time when an action was being taken by the officers of the Electricity Board, the respondent No.1 also came there and he abused the complainant. A Panchnama Ex.P/2 with regard to illegal electricity connection was prepared. A written complaint Ex.P/1 was made to the SHO, Police Station Bamori on the basis of 2 CRA 714/2006 which the police registered the FIR for offence under Sections 353, 293, 379 of IPC and under Section 39 of the Indian Electricity Act, 1910. During the investigation, vide seizure memo Ex.P/3 the electric wires were seized, the statements of the witnesses were recorded, spot map Ex.P/4 was prepared, the respondents were arrested and after completing the investigation, the police filed the charge-sheet against the respondents for offence under Sections 353, 294, 379 of IPC and under Section 39 of the Indian Electricity Act, 1910. The trial Court by order dated 21/08/2000 framed charges against the respondents under Sections 294, 353 of IPC and under Section 39 of the Indian Electricity Act, 1910.
(3) The respondents abjured their guilt and pleaded not guilty. The prosecution in order to prove its case, examined Prashant Yadav (PW1), Hari Singh (PW2), Nand Kishore (PW3), Devi Lal (PW4), Safiq Khan (PW5) and Radheshyam (PW6). The respondents examined Govind Shrivastava (DW1) in their defence.
(4) It is submitted by the counsel for the appellant/ State that the findings recorded by the trial Court are perverse and are based on misreading of evidence. Only one view pointing towards the guilt of the respondents, beyond reasonable doubt is possible but the trial Court has erroneously taken a view in favour of the respondents for acquitting them. It is further submitted that the theft of electricity is an offence against the society and it has to be checked with all seriousness and merely because the field where the tube-well was installed and 10 HP motor was being operated with the help of illegal electricity connection, belonged to the father of the respondent No.2, the respondents should not have been given benefit of doubt. (5) Per contra, it is submitted by the counsel for the respondents that the field where the incident is alleged to have taken place, is recorded in the name of the father of the 3 CRA 714/2006 respondent No.2 and, therefore, if any offence was committed then it was the father of the respondent No.2. It is further submitted that the respondent had examined Govind Shrivastava (DW1) who is the Patwari of locality and he has specifically stated that there is no tube well in the field of the father of the respondent No.2, therefore, there is no question of installation or operation of 10HP motor by taking electricity connection illegally. It is further submitted that after appreciating the evidence, the trial Court has acquitted the respondents and it is well-established principle of law that when two views are possible and the trial Court has taken a view favouring the respondents then the same should not be interfered with unless and until the findings are perverse. (6) Heard the learned counsel for the parties. (7) Prashant Yadav (PW1) has stated that when he along with the Lineman Hari Singh (PW2) and Helper Lakhan went to the tube-well of the respondent No.2 at about 11:00- 12:00 in the afternoon, he found that the respondent No.2 was running the tube-well by taking a direct electricity connection from the transformer of the Electricity Department without any permission. It is further stated that the respondent No.2 has not taken any electricity connection from the Department. Earlier, an amount of Rs.20,000/- was outstanding against the electricity connection and since the said amount was not paid, therefore, the electricity was disconnected permanently. When he was carrying out necessary proceedings, at that time the respondent No.1 also came there and started abusing him and he felt annoyed because of abusive language and the respondent No.1 also scuffled with him. After the incident, this witness could not perform his official duty. Panchnama was prepared vide Ex.P/2 and thereafter, written complaint Ex.P/1 was made to the SHO, Police Station Bamori, District Guna. About 200 feet long aluminum wire was handed over to the police by the witness, 4 CRA 714/2006 which was seized vide seizure memo Ex.P/3. The spot map Ex.P/4 was prepared which bears his signature from ''A to A''. The authority letter issued by his Department is Ex.P/5 and the FIR is Ex.P/6. This witness was cross-examined and he was cross-examined mainly on the competency of this witness to carry out the search. In cross-examination, this witness admitted that there was no electricity connection in the name of the respondent No.2 but he explained that initially the electricity connection was in the name of the father of the respondent No.2 which has been disconnected permanently because of non- payment of electricity charges.
(8) Hari Singh (PW2) has also stated that when he went to the field of the respondent No.2 he found that the respondent No.2 was running a tube-well motor taking electricity connection directly from line without electricity connection. The electric wire was seized. Panchnama Ex.P/2 was prepared and the motor was of 10 HP and the spot map Ex.P/4 was prepared. This witness was cross-examined and in cross-examination, this witness admitted that the place where the tube-well is installed, is not in the name of the respondent No.2. It was also accepted by this witness that the tube-well is also not in the name of the respondent No.2.
(9) Nand Kishore (PW3) has also stated in the same line. He also stated that Prashant Yadav (PW1) was abused in his presence. This witness was cross-examined but nothing could be elicited from the cross-examination which may make the evidence of this witness unreliable or untrustworthy. (10) Devi Lal (PW4) has also stated that when he reached on the spot he found that Hari Singh (PW2) and Nand Kishore (PW3) were packing the electric wire and he was informed that the respondent No.2 was operating the tube-well by taking the electricity connection directly in an illegal manner. He further stated that the respondent No.1 had abused Prashant Yadav 5 CRA 714/2006 (PW1).
(11) Safiq Khan (PW5) is an independent witness who has also stated that when he reached on the spot, at that time the respondents were abusing Prashant Yadav (PW1). Further, he has stated that the theft of electricity was not found in his presence and no Panchnama was prepared. This witness was partially declared hostile. However, it is clear from the evidence of Safiq Khan (PW5) that in his presence the respondents had abused Prashant Yadav (PW1).
(12) Radheshyam (PW6) is the Investigating Officer who had investigated the matter. This witness has stated that he has investigated Crime No.110/1999. During investigation, he had prepared the spot map Ex.P/4. Vide seizure memo Ex.P/3 he had seized an aluminum wire on the production of the same by Prashant Yadav (PW1). The statements of the witnesses were recorded and the arrest memo of the accused is Ex.P/7. This witness was cross-examined and in cross-extermination, no question was put to this witness that the presence of the tube well has been wrongly shown in the spot map Ex.P/4 but an evasive question to this witness was put that tube well is not in the name of respondent No.2 Bablu. It was further asked by the counsel for the respondents in the cross-examination to this witness that the land where the incident had taken place, was also not in the name of the respondent No.2- Bablu. Thus, it is clear that the tube-well shown in the spot map prepared by this witness has not been disputed by the respondents. (13) Govind Shrivastava (DW1) who is the Patwari of the locality, had brought Khasra Panchshala to show that the land in question is in the name of father of the respondent No.2 and there is no land in the name of the respondent No.2. This witness has also stated that there is no tube-well in the land belonging to the father of the respondent No.2. (14) Thus, from the evidence available on record, the 6 CRA 714/2006 following circumstances would emerge, which are as under:-
(i) Search was carried out by Prashant Yadav (PW1) in which it was found that the respondent No.2 was running a tube-well motor by taking direct electricity connection in an illegal manner.
(ii) Initially, the electricity connection was given in the name of the father of the respondent No.2 and since an amount of Rs.20,000/- was outstanding which was not paid, therefore, the electricity connection given in the name of the father of the respondent No.2 was permanently disconnected.
(iii) Prashant Yadav (PW1) had seized aluminum wire and a Panchnama Ex.P/2 was prepared. After six days of the incident, he lodged a FIR by making a written complaint to the police.
(iv) Radheshyam (PW6) while carrying out the investigation had prepared a spot map in which the tube-well was shown, which was not disputed by the respondents.
(v) No question was put to Radheshyam (PW6) with regard to correctness of the spot map Ex.P/4 prepared by him and no question was put to this witness suggesting that he had wrongly shown the tube-well in the land in question.
(vi) Even a suggestion was given to Hari Singh (PW2) to the effect that the field where the tube-well was installed, is not in the name of the respondent No.2 Bablu.
(vii) Further, the suggestion was given to Hari Singh (PW2) that the tube-well was not in the name of the respondent No.2.
(viii) Govind Shrivastava (DW1) who is the Patwari of the locality, has not stated that he had physically visited the land of the father of the respondent No.2 and had not seen any tube-
well. It appears that as the tube well is not mentioned in the revenue records, therefore, this witness has stated on the basis of revenue records, that there is no tube-well on the land in 7 CRA 714/2006 question.
(15) Considering the above-mentioned circumstances, it is clear that Prashant Yadav (PW1) had found that the respondent No.2 was running the electric motor by taking electricity connection in an illegal manner and when action was being taken the respondent No.1 was also came on the spot and started abusing Prashant Yadav (PW1) in the presence of other witness and abusive languages used by the respondents had caused annoyance to Prashant Yadav (PW1) as well as to other prosecution witnesses.
(16) The Supreme Court in the case of Jagmodhan Mehatabsing Gujaral and Others vs. State of Maharashtra, reported in (2006) 8 SCC 629 has held as under:-
"29. Large-scale theft of electricity is a very alarming problem faced by all the State Electricity Boards in our country, which is causing loss to the State revenue running in hundreds of crores of rupees every year. In our considered view, after proper adjudication of the cases of all those who are found to be guilty of the offence of committing theft of electricity; apart from the sentence of conviction, the court should invariably impose heavy fine making theft of electricity a wholly non-profitable venture. The most effective step to curb this tendency perhaps could be to discontinue the supply of electricity to those consumers temporarily or permanently who have been caught abstracting electricity in a clandestine manner on more than one occasion. The legislature may consider incorporating this suggestion as form of punishment by amending Section 39 of the Electricity Act, 1910."
The trial Court has acquitted the respondents by taking a very technical stand that the land in question does not belong to the respondent No.2. The trial Court has failed to consider the fact that since the land in question belongs to the father of the respondent No.2, therefore,it cannot be said that the respondent 8 CRA 714/2006 No.2 has no business to run an electric motor by taking the connection directly. The submissions made by the counsel for the respondents that in fact the father of the respondent no.2 should have been made an accused, cannot be accepted because only that person is liable to be punished for the theft of electricity who had taken electricity connection in an illegal manner. The another ground which has been taken by the trial Court to acquit the respondents is that the electric wire was not resisted. From the evidence, it is clear that Prashant Yadav (PW1) had seized the electric wire which was used for taking electricity connection in an illegal manner and Panchnama was prepared and subsequently, the electric wire was handed over to the police which was seized by the police vide seizure memo Ex.P3. The trial Court has also come to the conclusion that there is a delay of six days in lodging the FIR. Under the facts and circumstances of the case, if there is a delay of six days in lodging the FIR, then it cannot be said that it is an undue delay in view of Panchnama Ex.P/2 prepared by Prashant Yadav (PW1) on the spot itself mentioning in detail that the theft of electricity was being committed by the respondent No.2. The next reason assigned by trial Court to acquit the respondents is non-seizure of motor. According to the prosecution story, when the action was being taken, at that time, the respondents not only abused the complainant Prashant Yadav (PW1) but he was pushed also. Thus, it is clear clear that as the respondents had shown aggressive resistance then it was not possible for the search party to seize the motor also, which was attached to the tube- well. It is further stated by Prashant Yadav (PW1) that when he was taking action in the matter, then he was also abused by the respondent No.1 which caused annoyance to him. Thus, in the considered opinion of this Court, the trial Court has acquitted the respondents on the findings which are perverse and hence, the same cannot be allowed to stand. Accordingly, this Court is of 9 CRA 714/2006 the view that the respondent No.1 has committed offence punishable under Sections 294, 353 of IPC and the respondent No.2 has committed offence under Sections 294, 353 of IPC and under Section 39 of Indian Electricity Act, 1910. (17) Accordingly, the judgment dated 28/02/2006 passed by Judicial Magistrate First Class, Guna in Criminal Case No.345/1999 is hereby set aside.
(18) The counsel for the respondents is also heard on the question of sentence.
(19) It is submitted by counsel for the respondents that the offence was committed in the year 1999 and 18 long years have passed and the respondents have also undergone the agony of facing trial as well as the appeal, therefore, they may not be awarded jail sentence, as the same is not mandatory. (20) Considering the submissions made by the counsel for the respondents, it is directed that the respondents No.1 and 2 shall deposit fine of Rs.5,000/- for offence under Section 294 of IPC and Rs.5,000/- for offence under Section 353 of IPC. The respondent No.2 shall also deposit fine of Rs.5,000/- for offence under Section 39 of Indian Electricity Act, 1910 within two months from today. In default of payment of fine, the respondents shall undergo the rigorous imprisonment of two months for each default.
(21) The appeal accordingly succeeds and is hereby allowed.
(G.S. Ahluwalia) Judge 13/07/2017 MKB