Delhi District Court
State vs . Abdul Rahim on 14 July, 2011
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IN THE COURT OF SH. DEEPAK SHERAWAT
METROPOLITAN MAGISTRATE, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
FIR NO. 721/1999
P.S. Shalimar Bagh
U/s 39 I.E. Act
STATE VS. ABDUL RAHIM
JUDGMENT :
a. Sl. No. of the case : 942/07
b. Date of Institution : 16.12.2000
c. Date of Commission of Offence : 20.09.1999
d. Name of the complainant : Sh. S.K. Mittal,
A.E. Zone506,
Shalimar Bagh,Delhi
e. Name of the accused and his : Abdul Rahim
parentage and address S/o Abdul Shakur
R/o 744/11, Ambedkar
Nagar, Haider Pur, Delhi
f. Offence complained of : U/s 39 of I.E. Act.
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 14.07.2011
i. Final Order : Acquitted
j. Date of such order : 14.07.2011
1. The accused was put on trial for the facts that on 2 20.09.1999, at H.no.744/11A, Ambedkar Nagar, Extension, Village Haider Pur, Delhi, accused was found committing theft of electricity directly by tapping the DVB L.V. Mains and thereby committed an offence punishable under section 39 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 of I.E. Act vide order dated 10.07.2006 to which he pleaded not guilty and claimed trial.
3. To prove its case the prosecution has examined only four witnesses namely S.K. Mittal as PW1, Ct. Sanjeev Kumar as PW2, ASI Shradhanand as PW3 and HC Harnam as PW4.
4. PW1 S.K. Mittal has testified that on 20.09.1999, a joint raid was conducted at H.no. 744/11A, Ambedkar Nagar, Extension, by a joint team comprising of himself, A.K.Sharma, V.K. Sharma, Anoop Nandi, D.K. Rastogi, V.K.Lawania, alongwith photographer and CISF where accused Abdul Rahim was found indulged in direct theft of electricity from DB LV Mains and accused was running buffing addas. Photographs Mark A1 to A5 were taken by the photographer and 3 connected load 8.846 KW was taken. JIR was prepared at the spot which is PW1 Mark A. PW1 further testified that the accused Abdul Rahim, present in the court, was also present at the raided premises and was running the buffing addas. He further testified that labourers identified Abdul Rahim. Illegal wires were removed and taken into custody vide seizure memo Ex. PW1/A. Thereafter the case property was handed over to police officials of PS Shalimar Bagh on 08.10.99 vide handing over memo Ex. PW1/B. Thereafter a bill was raised and failing in payment of bill, he made a complaint on 05.10.99 in PS Shalimar Bagh which is Ex. PW1/C. Site plan was prepared at his instance. Further chief of PW1 was deferred for want of case property and original FIR.
5. PW2 Ct. Sanjeev Kumar has testified that on 20.09.1999, he was called by DVB Officials at H.no.744/11A, Ambedkar Nagar Extension, VillageHaiderpur for the purpose of raid and the premises of Abdul Rahim was raided who was the user of the aforesaid premises. He further testified that he was in the Haiderpur Beat in which raided premises comes and therefore, he know the accused very well prior to the raid. He further testified that raid was conducted in his presence and photographs were taken by the photographer. In raid accused was found indulged in direct theft of electricity from DVB LV Mains. Case property was removed in his presence and during the course of investigation on 17.10.99, accused Abdul Rahim was arrested in the 4 present case vide arrest memo Ex. PW2/A. He further testified that the accused was running the factory of buffing adda.
In his cross examination PW2 has testified that he was not the member of the raiding party. He further testified that he was revealed from the IO that Abdul Rahim was the user of the premises. IO did not collect any documentary proof to connect the accused with house no.744/11A, Ambedkar Nagar in his presence during the investigation. He further testified that he did not know about the accused prior to the raid and no raid was conducted in his presence. He further testified that he was with IO at the time of arrest on 17.10.1999. The accused was arrested at premises no. 744/11A, Ambedkar Nagar, Haiderpur, Delhi.
6. PW3 ASI Shradha Nand has testified that on 08.10.1999, investigation of this case was marked to him. During the investigation, he prepared the site plan Ex. PW3/A. Accused present in the court today was arrested and his personal search was conducted on 17.10.1999 vide memo Ex. PW2/A and PW3/B. Case property in the present case was also handed over to him i.e. wire and meter which were taken into possession vide memo Ex. PW2/B. PW3 correctly identified the case property which is Ex. P1.
In his cross examination, PW3 has testified that he did not verify into whose name the meter was registered. He also did not verify regarding the ownership of the premises in question. He further 5 testified that no documentary proof was collected from any concerned department in respect of registration and with the day to day business of the premises in question. He further testified that he was not the member of the raiding party.
7. PW4 HC Harnam has testified that on 08.10.1999, he recorded the formal FIR which is Ex. PW4/A. Ld. counsel for accused did not prefer to cross examine PW4.
8. After closing of prosecution evidence, the statement of accused u/s 281 Cr.P.C r/w. 313 Cr.P.C was recorded on 28.06.2011. 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.
9. 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.
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10. To bring home the charge under section 39 of the 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.
11. 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 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.
12. In another case, Jagannath Singh vs. B.S. Ramaswamy, 1966 A.I.R.(SC)849, it was observed that energy may be dishonestly abstracted by artificial means or unauthorized devices. For instance, energy before it passes through a consumer's meter may be abstracted from the main of the electric company by an unauthorized wire connecting the main with a private terminal; the connecting wire is the artificial means for abstraction. Again, by tampering with the meter and causing it too record less than the units actually passing through it, the consumer may take the unrecorded energy without 7 paying for it.
13. Another essential requirement for law for prosecution under the I.E. Act is that the prosecution must be instituted at the instance of a person named in Section 50 of the Act and the prosecution in respect of that offence would be incompetent unless requisite condition stipulated under the section 50 is fulfilled.
14. 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. In the absence of such proof, it can not be said that the premises where the commission of the offence of theft of electricity is stated to have been committed, in any manner, belonged to the accused. There is, moreover, no material on record to prove that the meter in question was registered in the name of the accused. PW1 who is the only raiding witness in his cross examination in chief has testified that labourers present at the spot identified the accused Abdul Rahim but neither the said labourer nor the chowkidar has been made as a witness by the prosecution nor have they been examined. PW 2 in his cross examination has testified that IO did not collect any documentary proof 8 to connect the accused with House no. 744/11A, Ambedkar Nagar in his presence. PW3 who is the IO of this case, in his cross examination in chief has also testified that he did not verify into whose name the meter was registered and he also did not collect any documents regarding the ownership of the premises in question. Further no documentary proof was collected from any concerned department in respect of registration and with the day to day business of the premises in question. Further the testimony of PW2 is totally contradictory. In his examination in chief, PW2 has testified that he was in the Haiderpur Beat in which raided premises comes and therefore, he know the accused very well prior to the raid. But in his cross examination in chief, PW2 has testified that he did not know about the accused prior to the raid and no raid was conducted in his presence. PW2 has further testified that he was with IO at the time of arrest of accused on 17.10.1999. On the other hand, PW3 has not deposed a single word about the presence of witness PW2 at the time of arrest of accused. Therefore, the evidence brought forth by the prosecution does not connect the accused with the offence in any manner.
15. The existence of some artificial means which was used by the accused to commit the theft is another condition which the prosecution carries the onus to establish. Such artificial mean must be a perfected means shown to be in possession and control of the accused. As per the prosecution story, the energy was being abstracted 9 by the accused by connecting the lines with transformer lead of DVB. Thus, the connecting wire is the artificial means for abstraction. However, in the present case, the recovery as well as seizure of such article itself is unreliable. The recovered article which was allegedly used for the commission of offence has been produced before this court in unsealed condition so possibility of tampering with the case property also can not be ruled out.
16. The prosecution case becomes all the more unreliable for nonassociation of any public witness at the time of raid. It is quite inconceivable that no public person was present at the place when the raid was conducted. The record does not show if any endeavor was made to involve any public person in the course of raid. All the witnesses who joined the raid are government officials with no independence witness to corroborate them. PW1 who is the only raiding witness in his cross examination in chief has testified that labourers present at the spot identified the accused Abdul Rahim but neither the said labourer nor the chowkidar has been made as a witness by the prosecution nor have they been examined.
17. There is also requirement of law under the I.E. Act that the prosecution of the accused must initiated by a competent person as contemplated by section 50 of the Act. It has been observed in Avtar Singh v. State of Punjab, (SC) 1965 A.I.R.(SC) 666 that the object of 10 Section 50 is to prevent prosecution for offences against the Act being instituted by anyone who chooses to do so because the offences can be proved by men possessing special qualifications. That is why it is left only to the authorities concerned with the offence and the persons aggrieved by it to initiate the prosecution.
18. In the instant case, no sanction u/s 50 of the Act has been proved by the prosecution and as such the prosecution of the accused in respect of the present offence is incompetent.
19. PW1 has testified that photographs Mark A1 to A5 were talem but the same have not been proved as the negatives of the same have not been placed on record so the genuineness of photographs is doubtful. Moreover, the JIR has not been proved as original of the same has not b een produced, which form the basis of the charges made against the accused. Only FIR, arrest and seizure memo are not substantive piece of evidence and solely on the basis of these documents, the charge can not be proved against the accused.
20. 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.
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21. 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 Abdul Rahim is acquitted for the offence punishable U/s 39 of I.E. Act for which he stands charged.
Announced in the Open Court (DEEPAK SHERAWAT)
On 14.07.2011 Metropolitan Magistrate
South District/New Delhi
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FIR No. 721/99
PS Shalimar Bagh
u/s 39 I.E. Act
14.07.2011
Present: Ld. APP for the State.
Accused Abdul Rahim on bail with counsel.
Vide my separate judgment dictated and announced in the open court accused Abdul Rahim is acquitted for the offence punishable U/s 39 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/ 14.07.2011