Delhi District Court
State vs . Sanjay Kumar on 30 October, 2013
IN THE COURT OF MM06(SOUTH)
SAKET COURTS COMPLEX, NEW DELHI
Presided by : Ms. Manisha Tripathy
State Vs. Sanjay Kumar
FIR No. 309/99
P.S. : Rohini
Unique ID No. R0060572001
Date of institution of case:21.07.2001
Date of reserving the judgment:07.10.2013
Date of pronouncement of judgment: 30.10.2013
J U D G M E N T
1.Serial No. of the Case: 774/07
2.Date of the Commission of offence: 13.04.1999
3.Date of Institution of the case: 21.07.2001
4.Name of the complainant: Sh V P Khurana,AE
5.Name of the accused, Sanjay Kumar,
Parentage & Address: S/o Sh Hari Singh,
R/o H. No. 625, Pocket6
Sector2, Rohini, N Delhi
FIR NO. 309/99 PS Rohini State v. Sanjay Kumar 1/8
6.Offence complained or proved: U/s. 39 I.E.Act r/w s. 379 IPC
7.Plea of accused: "Not guilty"
8.Final order: Acquitted
9.Date of final order: 30.10.2013
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. The case of the prosecution is that on 13.04.1999, a joint raid was conducted by a team of DVB officials in the area of Sector2, Rohini including premises at H. No. 625, Pocket6, Sector2, Rohini, Delhi, within the jurisdiction of PS Rohni, where accused was found indulged in theft of electricity through LV Mains. In this regard a complaint was lodged and an FIR bearing number 309/99 under section 379 IPC r/w section 39 of I.E. Act was registered at Police Station Rohini. 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 case was made out, charge for the offence punishable under section 39/44 of I.E. Act was framed against the accused by my Ld. Predecessor FIR NO. 309/99 PS Rohini State v. Sanjay Kumar 2/8 on 23.01.2012 to which the accused pleaded not guilty and claimed trial.
4. To prove its case, the prosecution has examined the following witnesses.
5. PW1 ASI Sangeeta is the duty officer. She proved the registration of FIR vide Ex PW1/A and endorsement on the rukka vide Ex PW1/B.
6. PW2 V P Khurana is a raiding party member. He deposed that on 13.04.1999, a joint raid was conducted in the area of Sector2, Rohini where direct theft of electricity was detected from DVB Main. He further deposed that photographs were taken vide Ex P1 & P2. He further deposed that load report was taken and electric wires were removed and seized vide Ex PW2/B. He further deposed that he made a complaint Ex PW2/A to SHO PS Rohini Sector 7.
In his cross examination, he admitted that no documentary evidence was collected to connect the accused as user or owner of the raided premises. He further admitted that no public witness was asked to join the raid. He also admitted that accused was not present at the spot.
7. PW3 SI Maonj Kumar is formal police witness who joined the DVB raiding team for their protection along with Ct Hukum Chand and Ct Manoj.
8. PW4 HC Mahesh is the MHCM who brought Register No.19 of the year 1999 and deposed that there is no case property deposited in the Malkhana of PS Rohini pertaining to present case.
9. PW5 Shish Pal is another raiding party member. He deposed that on 13.04.1999, a joint raided was conducted at Rohini, New Delhi including FIR NO. 309/99 PS Rohini State v. Sanjay Kumar 3/8 the premises No. H. No. 625, Pocket6, Sector2, Rohini where direct theft of electricity through LV Mains was detected. He further deposed that case property i.e. two PVC wires weighing around 40 grams were removed, photographs of the spot were taken and JIR report was prepared. He identified photocopied document Mark X as copy of JIR.
In his cross examination, he admitted that no documentary evidence was collected to connect the accused as user or owner of the raided premises. He further admitted that accused was not present at the spot. He further admitted that no public witness was asked to join the raid.
10. PW6 ASI Rajender Singh is the investigating officer. He deposed that on receiving copy FIR Ex PW1/A and complaint Ex PW2/A, he met the complainant Sh V P Khurana, AE and procured documents i.e. JIR, seizure memo of case property Ex PW2/B and two photographs. He deposed that on 05.12.1999, accused for formally arrested vide Ex PW6/A. He further deposed that case property of the present case was not handed over to him by the complainant and the same was promised to be produced in the court by the complainant himself. He identified the photographs. He further identified the accused.
In his cross examination, he admitted that no documentary evidence was collected to connect the accused as user or owner of the raided premises. He further admitted that no public witness was asked to FIR NO. 309/99 PS Rohini State v. Sanjay Kumar 4/8 join the raid.
11. PW7 SI Amar Singh is another investigating officer. He deposed that on receiving copy of FIR Ex PW1/A and complaint Ex PW2/A, he met the complainant Sh V P Khurana, AE and procured documents i.e. JIR etc and also prepared the site plan vide Ex PW7/A at the instance of complainant. He identified the photographs as Ex P1 & P2.
In his cross examination, he failed to answer as to whether the case property of the present case was handed over to him or not or whether he seized the same or not. He admitted that no documentary evidence was collected to connect the accused as user or owner of the raided premises. He further admitted that no public witness was asked to join the investigation. He further admitted that site plan does not bear the signature of complainant.
12. 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 23.01.2012. 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 17.07.2013 as the material witnesses were already examined. FIR NO. 309/99 PS Rohini State v. Sanjay Kumar 5/8
13. Thereafter, the statement of accused under section 313 r/w section 281 Cr.P.C was recorded on 31.07.2013. 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 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. They also failed to testify FIR NO. 309/99 PS Rohini State v. Sanjay Kumar 6/8 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 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 relates to nonproduction of case property. None of the investigating officers examined by the prosecution, have deposed regarding seizure of the case property. In fact, PW6/IO ASI Rajender Singh had deposed that complainant had promised to produce the case property before the court himself. The direct theft of electricity as alleged, can be done only by means of electricity wires and production of such electricity wires by which theft was being committed, is FIR NO. 309/99 PS Rohini State v. Sanjay Kumar 7/8 necessary to establish the guilt of the accused. In the present case, electricity wires are stated to have been removed by PW2, however, no explanation has come on record as to why same were not handed over to the IOs or not produced before the court. In absence of case property, it cannot be safely held that the theft of electricity was being done by the accused as alleged by the prosecution.
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 Sanjay Kumar is acquitted for the offences for which he was charged.
Announced in the open court on 30.10.2013 Manisha Tripathy MM06(South)/30.10.2013 Certified that this judgment contains 8 pages and each page bears my signatures.
Manisha Tripathy MM06(South)/30.10.2013 FIR NO. 309/99 PS Rohini State v. Sanjay Kumar 8/8