Delhi District Court
State vs . Raja Ram on 30 March, 2011
1
IN THE COURT OF SH. DEEPAK SHERAWAT
METROPOLITAN MAGISTRATE, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
FIR NO. 1304/99
P.S. Sultan Puri
U/s 39/44 of I.E. Act
STATE VS. RAJA RAM
JUDGMENT :
a. Sl. No. of the case : 504/07
b. Date of Institution : 02.03.2001
c. Date of Commission of Offence : 04.08.1999
d. Name of the complainant : Sh. R.N. Garg, AE
DVB, Zone 518
e. Name of the accused and his : Raja Ram
parentage and address S/o Sh. Shyam Lal
R/o I59, Mangol Puri
Delhi
f. Offence complained of : U/s 39/44 of I.E. Act
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 30.03.2011
i. Final Order : Acquitted
j. Date of such order : 30.03.2011
1. The accused was put on trial for the facts that on 04.08.1999, at Shed No. B5, Opposite B7, DSIDC, F Block, Sultan Puri 2 accused was found committing theft of electricity dishonestly by way of direct tapping from DVB Mains 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 witnesses were recorded and a chargesheet was filed against the accused under section 39 of I.E. Act.
2. A prima facie offence having been made out against the accused, charge was framed against him under section 39/44 of I.E. Act vide order dated 03.01.2002 to which he pleaded not guilty and claimed trial.
3. To prove its case the prosecution has examined three witnesses namely HCt. Hayat Ram as PW1, M.K. Kochar as PW2 and R.N. Garg as PW3.
4. PW1 HC Hayat Ram has testified that on 27.11.1999, he received a complaint of R.N. Garg on the basis of which he recorded the present case FIR which is Ex. PW1/A. Accused did not prefer to cross examine this witness.
5. PW2 M.K. Kochar has testified that on 4.08.99, he alongwith D.K. Rastogi, C P Dua, V K Sharma, Naveen Kumar and photographer went to conduct the raid the area of Shani Bazar Road 3 DSIDC Shed, Sultanpuri and raided shed no. B1, DSIDC sheds, F Block, Sultanpuri where direct theft of electricity was found to be committed from L V Mains and workers at the site informed them that user of said premises is Raja Ram. Wires were removed from the spot, photographs were taken Mark A1 to A3, thereafter JIR was prepared at the spot Ex.PW2/A and illegal wires were handed over to zonal staff. Wires produced before the court are shown to witness who identified the same as Ex.P1.
Cross examination of this witness deferred at the request of accused.
6. PW3 R.N. Garg has testified that on 4.8.99, a raid was conducted by DVB officials and he was also the member of the raid but he does not remember the addresses of the premises raided and later on he made complaint in PS Ex.PW3/A and he also gave permission U/s. 50 of I.E. Act which is Ex.PW3/B. JIR was prepared vide Ex.PW2/A and photographes at the site were also taken which is Mark A1 to A3.
Cross examination of this witness deferred at the request of accused.
8. Thereafter, several opportunities were afforded to the prosecution to adduce the evidence requisite to prove the case against the accused. It is pertinent to note that the matter is subjudice since the year 2001 and the charge against the accused was framed on 4 03.01.2002 for the offence punishable under section 39/44 of I.E. Act. Thereafter despite several opportunities having been provided to the prosecution for leading the evidence, the prosecution has been able to produce only three witnesses and since 24.02.2006 no further witness was examined. After giving sufficient opportunities for leading evidence, the right of the prosecution to lead further evidence was closed on 08.03.2011.
9. After closing of prosecution evidence, the statement of accused u/s 281 Cr.P.C r/w. 313 Cr.P.C was recorded on 16.03.2011. In his statement he denied to have committed the offence and claimed to be innocent and to have been falsely implicated in the present case. He did not lead any evidence in defence.
10. 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 5 evidence of such dishonest abstraction. It has been 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.
11. 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.
12. To prove its case, the prosecution has examined three 6 witnesses out of which PW 1 is a formal witness being DO and he only proved FIR Ex.PW1/A. PW2 and PW3 are the material witnesses being members of the raiding team. None of them identified the accused in the court nor any documentary evidence has been produced to prove the identity of the accused. PW2 has testified that workers at the site informed them that the user of the premises in question is Raja Ram but those workers were not made witness to prove this fact. PW3 testified that though he was member of raiding team but he does not remember the addresses of the raided premises. The prosecution is required to prove that at the time of raid, the accused was either user of the electricity or the meter was registered in his name but no such fact has been proved by the prosecution. Even it has not been proved that the premises in question was owned by the accused. Member of the raiding team got to know about this fact from the workers that the accused was residing in the premises but none of the workers has been examined as a witness.
13. Moreover it is on record that case property i.e. wires were removed from the spot which fact came in the testimony of PW2 who testified that illegal wires were handed over to zonal staff but whether same were seized by the police has not come on record as IO has not been examined by the prosecution to prove this fact. Even at the time of production of case property Ex.PW1 before the court during examination of PW2 it was not mentioned whether it was sealed or 7 unsealed and same was not produced before the other raiding team member i.e. PW3 so possibility of tampering with the case property cannot be ruled out. It is also on record that photographs Mark A1 to A3 were taken at the time of raid but the genuineness of photographs is doubtful as photographs have been placed on record without any negatives. Only evidence which is come on record and which has been duly proved is FIR Ex PW 1/A and JIR Ex.PW2/A, but the FIR and JIR are not sufficient evidence and accused cannot be held at guilty only on these grounds.
14. 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.
16. 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 Raja Ram 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 30.03.2011 Metropolitan Magistrate
South District/New Delhi
8
FIR No. 1304/99
PS Sultan Puri
u/s 39/44 of I.E. Act
30.03.2011
Present: Ld. APP for the State.
Accused Raja Ram on bail.
Final arguments heard.
Put up for orders at 3.00 p.m.
Deepak Sherawat)
MM/South Delhi/ 30.03.2011
At 3.00 p.m.
Present: As before.
Vide my separate judgment dictated and announced in the open court accused 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/ 30.03.2011 9