Delhi District Court
State vs Sabbir Ali on 27 November, 2013
IN THE COURT OF SHRI RAJ KUMAR CHAUHAN: ASJ
SPECIAL ELECTRICITY COURT:NW DISTRICT:ROHINI: DELHI
FIR no. 325/13
Unique Case ID no. 02404R01775302013
Police station : Narela
U/S 135 of the Electricity Act, 2003
State V/s Sabbir Ali
1. Session Case no. : 61/13
2. Name of the accused : Sabbir Ali S/o late Shri
and parentage Karam Ali R/o House no. 247,
Gali no. 4 Village Kureni,
Narela, Delhi.
3. Date of commission of : 22/11/2012
offence
4. Arguments concluded : 12/11/2013
on
5. Date of Judgment 27/11/2013
JUDGMENT
1) The prosecution case in brief is that on 22/11/2012 a technical inspection was conducted by the team of the TPDDL/complainant at the premises no. 247, Nai Basti, Village Kureni, Narela Delhi. The inspection team revealed that direct theft of electricity was being committed in the said premises by taking supply directly and illegally tapping TPDDL illegal FIR no. 325/13 State Vs Sabbir Ali Page no.................. 1 / 15 meter,which was further connected to internal wirings of the premises. The connected load at the time of inspection was 2.460KW and stolen electricity was being used for domestic and commercial purposes; at the time of inspection accused Sabbir Ali was found present and refused to sign the inspection report as well as seizure memo prepared by the inspection team. Accordingly a complaint was lodged with the police against the accused at Police Station Narela where FIR was registered.
2) During investigation on 18/05/2013 accused was arrested and produced before the court. In his bail application, it was stated by him that he was having a legal connection and meter was installed in his house and because of burning of the cable his mother has sustained injuries and he did not inform the complainant and in the meantime an inspection was carried out and a false case was registered against him.
3) After completion of investigation, chargesheet was filed on 01/07/2013.
4) After hearing accused, Ld Amicus Curiae Shri Jairam Garg Advocate as well as Ld Addl. PP for the State, on 26/09/2013, a charge was framed against the accused to which he pleaded not guilty and claimed trial.
5) In support of its case prosecution has examined in total FIR no. 325/13 State Vs Sabbir Ali Page no.................. 2 / 15 8 witnesses.
6) PW1 Ct. Sarjeet Yadav has accompanied the IO during arrest and interrogation of the accused and has proved his arrest memo, personal search memo and disclosure statement as Ex.PW1/A to Ex. PW1/C respectively.
7) PW2 HC Ramesh Kumar is the duty officer who has recorded the FIR and proved its copy as Ex. PW2/A and his endorsement on rukka as Ex. PW2/B.
8) PW3 Rajeev Gupta is the complainant who got registered the FIR on the basis of complaint Ex. PW3/1.
9) PW4 Braja Nath Dey is the material witness/member of raiding party who has deposed that at the time of inspection direct theft of electricity was being committed by illegal tampering of service cable prior to the meter through two number single core red colour wire approximately one feet jointed with two number yellow colour PVC wire approximately ½ feet; at the time of inspection one meter bearing K no. 43204014900 was found in idle condition as electricity was being stolen.
10) PW5 Rajeev is another material witness who has fully supported and corroborated the version of PW4 on all material points.
FIR no. 325/13
State Vs Sabbir Ali Page no.................. 3 / 15
11) PW6 Prem Chand is the photographer who
accompanied the raiding team at the time of inspection and took the photographs on the instructions of raiding team members and proved the same as Ex.PW6/A1 to Ex. PW6/A13.
12) PW7 HC Ved Singh is the MHC(M) in the Police Station to whom the case property was deposited by the IO vide entry no. 263 in register no. 19.
13) PW8 HC Chander Bhan is the IO who prepared the rukka Ex PW8/A and arrested the accused on 18/05/2013 and seized the case property vide seizure memo Ex. PW8/A and prepared the site plan Ex. PW8/B. He has also identified the case property in the court as Ex. P1 to Ex. P4.
14) Accused was examined u/s 313 CrPC in which he has denied the allegations against him stating that he was appearing in the photographs as Ex. PW6/A9 and Ex. PW6/A12 as he was passing from the road opposite to his house where police stopped him and photographer took his photographs only to implicate him in this case. He has denied the allegations stating that he was innocent and falsely implicated in this case.
15) I have heard Shri Jairam Garg advocate for the accused who has argued that prosecution has failed to prove its case beyond reasonable doubt against the accused because of FIR no. 325/13 State Vs Sabbir Ali Page no.................. 4 / 15 following reasons :
(a) Electricity was being consumed through legal meter installed in the house of accused.
(b) Factum of direct theft is not proved because the wires on the wall by which the meter was bypassed for committing direct theft has not been established. It is so because it was nowhere proved in the evidence that the wall where the alleged wires were fixed was part of house of the accused .
(c) In the site plan Ex. PW8/B the place of theft was not shown and only house of the accused has been shown at pointA.
(d) The alleged case property i.e wires Ex. P1 to P4 were produced in unsealed condition which shows that same has been manipulated to make a false case and the witness has admitted that they had not sealed the case property at the time of inspection.
(e) There is no explanation as to why the signatures of the accused were not obtained on the inspection report despite that he was allegedly present on the spot at the time of alleged inspection.
(f) The case property i.e alleged wires Ex P1 to P4 which FIR no. 325/13 State Vs Sabbir Ali Page no.................. 5 / 15 were used for committing direct theft has not been duly identified by the witnesses as PW4 has stated in his cross examination that he has identified the case property on the basis of its colour and description and it is stated by him that he could not give any reply whether the company was having any patent about using of service cable of blue colour only.
(g) It is admitted that accused was registered consumer of the electricity and that complainant has not filed any document to show that meter was in idle condition.
Hence Ld counsel for the accused has argued that complainant has failed to link the accused with the premises as alleged and hence he was entitled to be acquitted.
16) Ld Addl. PP for the State assisted by Ld counsel for the complainant has argued that deposition of all the material witnesses is natural, straight forward and consistent and they have corroborated with each other on all material points. It is further argued that there is sufficient evidence to prove allegations that accused has bypassed the meter installed in his house for the purpose of committing direct theft of electricity. It is therefore stated that accused is liable to be convicted. FIR no. 325/13 State Vs Sabbir Ali Page no.................. 6 / 15
17) I have considered the rival submissions made at bar and carefully gone through the material on record.
18) In order to establish the guilt of accused it was incumbent upon the prosecution to prove the following three ingredients:
(a) At what premises the direct theft of electricity was being committed.
(b) By what means the direct theft of electricity was being committed in the said premises.
(c) By whom the said direct theft of electricity was being committed in the premises in question.
19) I have scrutinized the evidence of the witnesses examined by the prosecution to find out whether the above mentioned three necessary ingredients to establish offence of direct theft has been proved beyond reasonable doubt.
20) Regarding the identity of the premises it is admitted case of the accused that he is resident of house no. 247, Gali no. 4, Nai Basti Village Kureni, Narela Delhi. As per prosecution case inspection was carried at the above said premises. Moreover, at the time of bail in his application it was submitted on behalf of accused that alleged inspection was false and because of burning FIR no. 325/13 State Vs Sabbir Ali Page no.................. 7 / 15 of the wires his mother has sustained injuries and because of those injuries she expired after 45 months and officials of the NDPL were demanding Rs. 10,000/ at the time of inspection but he could not pay the said amount hence a false case has been booked against him. It is further submitted by him that he was having legal connection and meter was installed in his house and because of burning of the cable his mother sustained injuries and he could not inform the complainant company and in the meantime inspection was carried out and a false case has been registered against him. It was argued on behalf of accused that factum of direct theft and place on which meter was bypassed has not been established because site plan Ex. PW8/B has not shown the place of theft as it has shown only the house of the accused. It is further argued that it is nowhere established in evidence that the wall as shown in photograph markA3 where the alleged wires has been fixed for committing direct theft was wall of the house of the accused. The place depicted in photograph markA3 has not been shown in the site plan by the IO. In the site plan the house of the accused has been depicted and not the place of the theft. Moreover, it is stated by the witnesses that direct theft was found committed by illegally tampering of the service cable prior to the meter. On seeing the photograph markA3 where the FIR no. 325/13 State Vs Sabbir Ali Page no.................. 8 / 15 alleged service cable has been tampered there is no meter seen in the said photograph at the alleged place. These facts shows that place of theft has not been established beyond reasonable doubt.
21) Regarding the means for committing direct theft, according to the prosecution case, PW4 Brajanath Dey deposed that at the time of inspection direct theft of electricity was found committed by illegal tampering of the service cable prior to the meter through two number single core red colour wire approximately one feet jointed with two number yellow colour PVC wire approximately half feet; at the time of inspection one meter bearing K. no. 43204014900 was found installed but it was found in idle condition and electricity was being stolen. In his crossexamination he has admitted that case property Ex. P1 i.e NDPL service cable in blue colour does not have any identification mark i.e NDPL Logo. It is further admitted that on all the NDPL service cables the identification mark i.e NDPL Logo is found on it at a certain distance. He further admitted that he had identified the case property i.e Ex. P1 on the basis of its colour and description i.e 2X10mm square and it has two cores, one is of red colour and another is black colour. He further admitted that they have not placed any document on record which could show that Ex.P1 was purchased from any company FIR no. 325/13 State Vs Sabbir Ali Page no.................. 9 / 15 or from the market by the complainant company. In an another question put to the witness, he has replied as under: "Q: I put it to you that you have not prepared any document which could show that the meter was in idle condition at the time of inspection?
Ans: We have not filed any document because there is no document which could show that the meter was in idle condition.
22) He has further admitted that on the meter box the K no. and the date of installation of meter at the time of installation is written. He further stated that encircled portion i.e 12/200 written on the meter Ex. P4 brought in the court is not depicted in any of the photographs.
23) Other case property apart from Ex. P1 i.e service cable in blue colour as Ex P1, PVC wire of Red colour as Ex P2 and PVC wire of yellow colour as Ex. P3 which were allegedly used for committing direct theft for bypassing the meter. It is admitted by PW5 in his crossexamination that case property was not sealed and it was handed over to IO on 20/05/2013 in an unsealed manner. It is further stated by him that there is no document filed by them which could suggest that recovered meter was not FIR no. 325/13 State Vs Sabbir Ali Page no.................. 10 / 15 working at the time of inspection. He has also admitted that encircled portion i.e 12/200 on the meter Ex. P4 does not depict in any other photographs when produced in the court. It was argued by the Ld counsel for the accused that meter produced in the court was different from the meter which has been shown in the photographs which creates a doubt in whole prosecution case and the factum of direct theft at the time of inspection on the premises is not established beyond reasonable doubt.
24) Ld Addl. PP for the State and Ld counsel for the complainant has highly relied upon the photograph markA/3 which has shown the alleged wires of different colour. It is not clear as to which portion of the house/part is depicted in the photograph markA3. The site plan Ex. PW8/B does not mention about the site/portion of the house where those illegal wires were used for bypassing the meter. Moreover, there is no explanation from the witness of the prosecution/complainant as to what were the reasons for removal of the meter Ex. P4. It was simply stated that the meter was bypassed and not tampered with. It is admitted by the witnesses that they have not brought on record anything to show that the meter as Ex. P4 was lying in idle condition because of its bypassing through illegal wires. Because of the above discrepancies in the prosecution case the fact of direct theft by FIR no. 325/13 State Vs Sabbir Ali Page no.................. 11 / 15 illegal means has not been established beyond reasonable doubt.
25) Regarding as to by whom the direct theft was being committed, it was the case of the prosecution that accused was found present at the time of alleged raid and he was responsible for committing direct theft of electricity in his house by bypassing the meter.
26) It is admitted case of the prosecution that accused has not signed the inspection report. Accused has been shown in photograph Ex.PW6/A9 and Ex. PW6/A12, in one of the photograph he was seen standing in street alongwith police officials. If accused was present on the spot and there was police officer also present, it not explained as to what prevented the complainant from lodging the FIR on the same date as FIR has been registered on 15/05/2013 and it is very surprising to note that no date is mentioned on the complaint given by the complainant to the police. The inspection report was carried out on 22/11/2012 and there is no explanation about the delay of 45 months for lodging the FIR despite the fact that police officials were also present on the spot as shown in the photographs and a cognizable offence was disclosed from the alleged inspection. There is no explanation from the IO as to why FIR was not promptly registered despite the complaint of cognizable offence FIR no. 325/13 State Vs Sabbir Ali Page no.................. 12 / 15 from the complainant which is alleged to have been received by SHO, Narela on 03/01/2013. IO PW8 has admitted in his cross examination that there was delay in registration of FIR because of initial enquiry after receiving complaint from the NDPL. He has not explained as to what initial enquiry was conducted by him or by the SHO before registration of the FIR. All these facts cast a shadow of doubt in the prosecution story regarding the involvement of the accused in the direct theft of electricity.
27) In Balraj Singh Vs. The State of Punjab, 1976 CrlJ 1471 (DB) (Punjab) of Hon'ble High Court of Punjab and Haryana in which it was observed as follows: The guilt of accused is to be established by the prosecution beyond the possibility of any reasonable doubt on the basis of legal evidence and material on record. Even if, there may be an element of truth in the prosecution story against the accused and considered as a whole, the prosecution may be true, but between 'may be true' and 'must be true', there is invariably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted.
In Tika Vs. State of UP, AIR 1974 SC 155, it was held that: FIR no. 325/13 State Vs Sabbir Ali Page no.................. 13 / 15 "One of the cardinal principles which has always tobe kept in view, in our system of administration of justice for criminal cases, is that an accused is presumed to be innocent, unless, that presumption is rebutted by the prosecution by production of evidence which may show him tobe guilty of the offence with which he is charged."
In Bhikari Vs. State of U.P., AIR 1966 SC 1, the Supreme Court has held that: "Undoubtedly, it is for the prosecution to prove beyond reasonable doubt that the accused has committed offence with the requisite mens rea. Once it is done, the accused can rebut this presumption either by leading evidence or by relying on the prosecution evidence itself. If upon evidence adduced in the case, either by prosecution or by defence, a reasonable doubt is created in the mind of the court, regarding one or more ingredients of the offence including mens rea, then he would be entitled to be acquitted."
28) On carefully examining the evidence as discussed above, I am of the considered opinion that prosecution has failed to establish beyond reasonable doubt that it was accused who was responsible for committing direct theft of electricity in the premises in question. In view of these facts and circumstances, FIR no. 325/13 State Vs Sabbir Ali Page no.................. 14 / 15 accused is entitled to be given the benefit of doubt and he is accordingly, acquitted of the charge framed against him. Bail bonds of accused are cancelled and his surety discharged.
29) File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT
th
ON 27
November, 2013.
(RAJ KUMAR CHAUHAN)
ADDITIONAL SESSIONS JUDGE
SPECIAL ELECTRICITY COURT
NORTH WEST DISTRICT
ROHINI:DELHI:
FIR no. 325/13
State Vs Sabbir Ali Page no.................. 15 / 15