Delhi District Court
State vs . on 18 December, 2017
IN THE COURT OF SH. DEVENDRA KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE,
SPECIAL COURT (ELECTRICITY), EAST DISTT.,
KARKARDOOMA COURTS, DELHI
SC No : 1647/16
FIR No: 150/05
P.S. Dilshad Garden, DELHI
U/S 138 OF THE ELECTRICITY ACT, 2003
STATE
(THROUGH: M/S B.S.E.S. YAMUNA POWER LIMITED)
VS.
1. Sh. Sanjay Singh,
S/o Late Sh.Jai Chand
R/o D132, Shiv Gali,
West Karawal Nagar, Delhi.
2. Sh. Monu Sharma,
S/o Sh. Jugal Kishore,
R/o 6917, Arya Samaj Gali,
Gandhi Nagar, Delhi.
3. Sh. Naresh Gaur @ Narender Gaur
S/o Sh. Rajender Dutt Sharma,
R/o 9A, Tagore Gali, Babarpur, Delhi.
........... Accused Persons
DATE OF INSTITUTION OF THE CASE : 03.10.2007
DATE ON WHICH JUDGMENT WAS RESERVED: 12.12.2017
DATE OF PASSING OF JUDGMENT : 12.12.2017
1/27
JUDGMENT
1. A Complaint was filed in the Court by (Enforcement)/Authorized Officer of BSES YPL company (in short to be called as Complainant Company hereinafter) against the accused persons namely Sanjay Singh, Monu Sharma and Naresh Gaur for the offences punishable u/s 135/136/137/138 of the Electricity Act, 2003 (in short called as Act hereinafter) for an offence of electricity theft against the above named accused persons.
(A) FACTS :
2. The main allegations made in the said complaint were to the effect, inter alia, that on 05.05.2005 at about 11 :
00 a.m, all the three accused persons in furtherance of their common intention, dishonestly induced Smt. Reena Sharma, R/o 172D, PocketE, GTB Enclave, Delhi to get, her electric meter installed in the aforementioned premises, slowed down so as to cause interference with the proper and accurate registration of energy for illegal consideration of Rs. 1500/. On this a telephonic message was given by her to Sh. Vijay Aggarwal (Business Manager, DNNG), BSES YPL and thereafter a team comprising of officials of complainant company was formed and sent at the aforementioned house of Smt. Reena Sharma at about 11.30 pm and the deal was negotiated for Rs. 1300/ to be paid for tampering the meter in the presence of Sh. Vinay Bhardwaj and Sh. Bhupinder 2/27 Chaudhary. It is further alleged that upon such deal the electric meter bearing no. 23108975 was removed and opened by removing the plastic seal existing on the top side and hologram seals on the left and right side of this meter with the help of some chemical and thereafter all the accused inserted/soldered four numbers of resistance in the circuit of this meter and when this process was going to be finished, they all were detained by the members of the team and handed over to the police alongwith incriminating articles found in their possession.
3. With these allegations, the present Complaint was filed against the accused persons for initiating legal action as per law. Upon the said complaint, Sh. Sanjay Sharma, Ld. MM directed the SHO, PS Dilshad Garden to register the FIR. Hence the present FIR No. 150/05 for offences punishable U/Sec.135 of Act was registered on 30.05.2005 against all the accused persons.
(B) INVESTIGATION :
4. After registration of FIR, investigation was conducted. During investigation, I.O./PW9 had arrested the accused Naresh Gaur on 02.11.2005 and accused persons namely Monu Sharma and Sanjay Singh on 21.11.2005 and their disclosure statement was recorded by the IO. During further investigation, he recorded the statement of the witnesses. After completion of investigation, the present 3/27 chargesheet U/Sec.173 of Criminal Procedure Code (in short Cr.P.C) was filed against all the above named accused persons. All the accused persons were summoned.
(C) CHARGE :
5. After compliance of provision U/Sec.207 of Cr.P.C, on 24.03.2009 a common charge was framed against all the three accused persons namely Sanjay Singh, Monu Sharma and Naresh Gaur for the offence punishable u/s 138 of the Electricity Act by the Ld. Predecessor Court to which they pleaded not guilty and claimed trial. After that matter was fixed for prosecution evidence.
(D) PROSECUTION EVIDENCE :
6. In support of its case, the Prosecution has examined 9 witnesses in order to substantiate the allegations : (1) HC Kavinder, Duty Officer was examined as PW1, who got FIR of the present case registered and has tendered carbon copy of FIR during examinationin chief as Ex.PW1/A and also proved the endorsement on the rukka as Ex. PW1/B. (2) Sh. K.L. Arora, Office Superintendent, Manager of BSES YPL as PW2 who has deposed that on 05.05.2005 at about 11.00 am he was present in the office. He has further deposed that Smt. Reena Sharma made a telephonic call to him 4/27 that three boys were making offer to slow down the speed of meter in lieu of Rs. 1500/ to 2000/. He has further deposed that he conveyed this information to Sh. Vijay Aggarwal, Business Manager and he told to Smt. Rena Sharma to keep those boys busy in talking. He has further deposed that Sh. Vijay Aggarwal organized a raiding party comprising of Sh. Bhupinder Chaudhary, Vinay Bhardwaj, Rakesh Kataria and security officer Rakesh Kumar, Suresh Kumar and N.C. Bhatta (security officer) reached at flat no. 172, PocketI, GTB Enclave, Delhi. He has further deposed that Sh. Vijay Aggarwal had sent Sh. Bhupinder Chaudhary and Sh. Vinay Bhardwaj to the house of Smt. Reena Sharma to talk with the accused persons and settled the deal. He has further deposed that Sh. Vijay Aggarwal called the remaining members of the raiding party inside the flat. He has further deposed that deal was finalized for a sum of Rs. 1300/ or Rs. 1500/ and accused persons started to tamper the meter. He has further deposed that the raiding party apprehended the accused persons at the spot. He has further deposed that their business manager called the PCR and accused persons were apprehended and handed over to the police. This 5/27 witness was cross examined at length by ld. Defence counsels.
(3) Smt. Reena Sharma was examined as PW3 who has deposed that she was going to deposit the school fee of her son on 05.05.2005. She has further deposed that she was getting down the stairs when she saw the three accused persons present near meter room and then she asked them as to why they were present there. She has further deposed that accused persons told her that they have come from BSES to change the electricity meters. She has further deposed that they told her that meter installed by BSES were running very fast and they further told that they would slow down the speed of the said meters for charging Rs. 2000/. She has further deposed that her husband was not present at home and she told the accused persons that she would inform them after consulting with her husband. She has further deposed that she telephoned Mr. K.L. Arora who used to work in BSES, GT Road and informed about the accused persons and recording conversation between them. She has further deposed that Mr. K.L. Arora told her that she should check the identity cards of accused persons and she checked their identity cards which were found issued from 6/27 BSES. She has further deposed that she again talked to Mr. K.L. Arora and informed him that she had checked the identity cards of accused persons which were issued by BSES. She has further deposed that after about 1 /2 hours two officials of BSES namely Vinay Bhardwaj and Sh. Bhupinder Chaudhary came to her flat whereas the other team members remained present down stairs. She has further deposed that she talked to accused persons and finally they settled Rs. 1500/ for slowing down the speed of her electricity meter. She has further deposed that the above named BSES officials told the accused persons that they should slow down the speed of the electricity meter and accused persons brought the electricity meter and opened it. She has further deposed that the accused persons had fixed some part in her electricity meter and it was resealed by them in my presence and in the presence of above named BSES officials. She has further deposed that the tampered meter, instruments for slowing down the speed and other material were seized by BSES officials from the accused persons. She has further deposed that she did not remember the names of all the accused persons present however one of the three was named as Sanjay. She has further identified the 7/27 case property i.e. screw driver, one medium screw driver, one big screw driver, one plier, one wire, one cutter plyer, one red colour wire with bulb holder, two steel chimties, one knife cutter, one pillar, one white colour plastic small bottle containing some liquid, one clamp meter, two syringes, nails of the small screw drivers, some small screws with three resistances in a small plastic box and one blue colour plastic electric tape. as Ex. PW3/1 and electricity meter as Ex. PW3/2 correctly. This witness was cross examined at length by ld. Defence counsel for accused persons. (4) HC Manoj Kumar was examined as PW4, who is a formal witness in nature. He has deposed that he had joined the investigation with the IO and accused Naresh Gaur was arrested by the IO vide arrest memo Ex. PW4/A and personal search vide Ex. PW4/B of accused was also conducted in his presence. He has further deposed that disclosure statement of accused was recorded by the IO at the spot vide Ex. PW4/C. He has further deposed that accused had also pointed out the place of spot in respect of which pointing out memo was prepared vide Ex. PW4/D. (5) Ct. Ombir Singh was examined as PW5 who joined the investigation with the IO and accused Monu 8/27 Sharma was arrested by the IO in his presence vide arrest memo Ex. PW5/A and personal search vide Ex. PW5/B of accused was also conducted in his presence. He has further deposed that disclosure statement of accused was recorded by the IO at the spot vide Ex. PW5/C. He has further deposed that accused had also pointed out the place of spot in respect of which pointing out memo was prepared vide Ex. PW5/D. He has further deposed that accused Monu Sharma stated in his disclosure statement that he can also get accused Sanjay Singh arrested from the area of Geeta colony and accused Monu Sharma led them to Geeta Colony and he pointed out towards the accused Sanjay Singh who was present outside PS Geeta Colony. He has further deposed that accused Sanjay Singh was apprehended and interrogated by the IO and he was arrested by the IO vide arrest memo Ex. PW5/E and personal search vide Ex. PW5/F of accused was also conducted in his presence. He has further deposed that disclosure statement of accused Sanjay Singh was recorded by the IO at the spot vide Ex. PW5/G. He has further deposed that accused had also pointed out the place of spot in respect of which pointing out memo was prepared vide Ex. PW5/H. He has further deposed that from 9/27 the search of accused Sanjay Singh identity card purported to be issued by BSES was also recovered and the same was seized vide memo Ex. PW5/J. He has also identified the accused Monu Sharma and Sanjay Singh at the time of his deposition. This witness was cross examined by ld. Defence counsels.
(6) Sh. Bhupinder Chaudhary was examined as PW7 who had deposed that his business manager Sh. Vijay Aggarwal has received a telephonic complaint from Smt. Reena Sharma that three persons have come to her premises and offered her to tamper/slow down the electricity meter illegally by demanding bribe of Rs. 1500/. He has further deposed that Mr. Vijay Aggarwal constituted a team including K.L. Arora, Rakesh Katariya, Suresh Kumar, Rakesh Kumar, Vinay Bhardwaj and himself as they reached to the premises of Smt. Reena Sharma where all the three accused persons were present. He has further deposed that for the tampering of meter/slow down of the meter, the deal was finalized for Rs. 1300/. He has further deposed that after the deal, one accused present in the Court today removed the meter from meter board which was installed at ground floor and brought the same into the house of Smt. Reena 10/27 Sharma. He has further deposed that the accused persons present in the Court started to slow down the meter in front of him and Vinay Bhardwaj by using the resistance into the meter and after tampering /slow down the meter, the meter was resealed. He has further deposed that he immediately called the other team members of the inspection team who were waiting outside. He has identified the accused persons and case property correctly. This witness was cross examined by ld. Defence counsel for accused persons.
(7) Sh. Rakesh Kataria, Assistant GradeI of BSES YPL was examined as PW7 who was member of the raided team and deposed on the same lines of PW6 and has relied upon the same documents which were relied upon by PW6. This witness was cross examined at length by ld. Defence counsel for accused persons.
(8) Sh. Rajiv Manchanda, Assistant Vice President of BSES YPL as PW8, who deposed that he had handed over the case property to SI Kiran Pal IO vide seizure memo already Ex. PW7/A. He has further deposed that the seizure memo was prepared by SI Kiran Pal in his presence. He has also identified the case property correctly. This witness was cross examined at length by ld.
11/27Defence counsel for accused persons.
During his crossexamination, he has stated that his statement was recorded by the police on 05.12.2006. He has testified that the seizure memo was prepared by police official on 05.12.2006 in his presence. He has further testified that he did not count the tools at the time of handing over the case property to the police officials. He has further testified that he did not remember whether IO had recorded the statement of any other persons on that day in their office. He has further testified that initially the case property was sealed with the seal of BSES and subsequently IO affixed his seal. He has denied the suggestion that the case property was not handed over by him to the IO.
(9) Inspector Kiran Pal was examined as PW9, who was the IO of the present case and deposed that he received a complaint Ex. PW6/A from Sh. Vijay Aggarwal and he made the endorsement Ex. PW9/A on the complaint and handed over to the duty officer for registration of the case. He has further deposed that after registration of FIR Ex. PW2/A, the investigation of the present case was assigned to him. He has further deposed that on the same day he had visited the house of the witness Smt. Rina Sharma i.e. place of incident. He has further 12/27 deposed that the house was found locked on 30.05.2005 and therefore he could not contact Smt. Rina Sharma. He has further deposed that on 19.06.2005 he had again visited the house of Smt. Rina Sharma and inspected the place of incident and prepared site plan at her instance as Ex. PW9/B. He has further deposed that on 10.07.2005 he had examined and recorded the statements of BSES officials namely Rakesh Kumar Kataria, Suresh Kumar, Rakesh Kumar S/o Pokhpal Singh and Sh. K.L. Arora u/s 161 Cr.P.C. He has further deposed that on 02.11.2005 he alongwith Ct. Manoj Kumar were present at Tagore Gali Babarpur, Delhi and there he had received a secret information that accused Naresh Gaur wanted in this case would be visiting his house. He has further deposed that at about 5.45 pm one person was seen coming in Tagore gali and the secret informer pointed out towards the accused Naresh Gaur and he had interrogated and arrested the accused Naresh Gaur and conducted his personal search. He has also identified the accused Naresh Gaur. He has further deposed that he had recorded the disclosure statement of accused as Ex. PW4/C and pointing out memo as Ex. PW4/D. He has further deposed that on 21.11.2005 he had received a secret 13/27 telephonic information to the fact that other accused wanted in this case namely Monu Sharma and Sanjay Singh were residing in the area Arya Samaj Gali, Gandhi Nagar. He has further deposed that he reached at house no. 6917, 2nd floor and the accused Monu Sharma was found there. He had interrogated and arrested the accused Monu Sharma and conducted his personal search. He has correctly identified the accused Monu Sharma. He has further deposed that he had also recorded the disclosure statement of accused Monu Sharma. He has further deposed that thereafter on the same day, he had asked accused Monu to call accused Sanjay telephonically and thereupon accused Monu had called accused Sanjay. He has further deposed that accused Sanjay told to accused Monu that he would be reaching at B block, Geeta Colony. He has further deposed that he had deployed Ct. Ombir with accused Monu and instructed him to go to B Block as Ct. Ombir was in civil dress. He has further deposed that he had also followed Ct. Ombir and accused Monu by keeping a distance with them and at B block, accused Monu had pointed out towards a person who was apprehended. He has further deposed that on enquiry that person disclosed his name as Sanjay Singh, he was interrogated and 14/27 arrested. He has further deposed that on search of the accused Sanjay two identity cards Ex. PW5/K (colly.) of BSES bearing no. N375 and valid from 19.03.2005 to 30.04.2005 were recovered which were seized vide memo as Ex. PW5/J. He has further deposed that the accused had stated that he used to use the ID cards to induce the BSES consumers to believe that he is from BSES company. He has further deposed that he had conducted the personal search of accused Sanjay Singh. He has also identified the accused Sanjay Singh. He has further deposed that he had also recorded the disclosure statement of accused Sanjay Singh which is Ex. PW5/G. (10) He has further deposed that in pursuance of disclosure statement of accused Monu Sharma also pointed out to the place of incident by leading them to the house of the witness Smt. Reena Sharma where accused Sanjay Singh had also pointed out the place of incident and a pointing out memos in respect of their pointing out Ex. PW5/D and Ex. PW5/D1 respectively were prepared. He has further deposed that on 05.12.2006, he had visited the office of BSES where Sh. Rajeev Manchanda had handed over a sealed parcel containing the case property of this case which was stated to be 15/27 containing meter and other articles and same were seized vide seizure memo Ex. PW7/A. This witness was cross examined by ld. Defence counsel for accused persons.
(11) Thereafter prosecution evidence was closed on the oral submissions vide order dated 02.11.2017 and matter was fixed for statements of accused persons u/s 281 read with section 313 Cr.P.C.
7. (E) STATEMENT OF ACCUSED PERSONS :
On 08.11.2017, statement of the accused persons namely Naresh Gaur @ Narender Gaur, Monu Sharma and Sanjay Singh U/sec.281 r/w Sec.313 Cr.P.C were recorded explaining all the incriminating evidence against them on record which they denied as false & incorrect. Accused Naresh Gaur, Monu Sharma and Sanjay Singh @ Jeet Singh have admitted their visit to the house of Smt. Reena Sharma/ PW3 but they denied that in any manner they have induced her or tampered with the meter of PW3. They have further admitted that they introduced themselves to be the employee of BSES. They have further pleaded that they have been falsely implicated in the present matter and they are innocent. However they did not prefer to lead defence evidence and accordingly DE was closed on 08.11.2017. Matter was fixed for final arguments.16/27
(G) FINAL ARGUMENTS & RELEVANT PROVISION OF LAW
8. I have heard final arguments advanced on behalf of the parties. I have also perused the record as well as written submissions filed on record.
Before going through the facts of the present case, it would be relevant to reproduce the relevant provisions of Electricity Act for ready reference :
Section 138 Interference with meters or works of licensee : whoever,
(a) unauthorizedly connects any meter, indicator or apparatus with any electric line through which electricity is supplied by a licensee or disconnects the same from any such electric line; or
(b) unauthorizedly reconnects any meter, indicator or apparatus with any electric line or other works being the property of a licensee when the said electric line or other works has or have been cut or disconnected; or
(c) lays or causes to be laid, or connects up any works for the purpose of communicating with any other works belonging to a licensee; or
(d) maliciously injures any meter, indicator, or apparatus belonging to a licensee or wilfully or fraudulently alters the index of any such meter, indicator or apparatus or prevents any such meter, indicator or apparatus from duly registering ..................17/27
9. Thus, in the light of aforesaid provisions, Complainant Company is required to prove as under :
(a) That there was malicious injury to the meter/dishonest interference with the meter by tempering the meter etc.
(b) That it was done by the accused persons.
(G) FINDINGS :
10. In the present case, all the accused persons have been charged with the charge of interfering with meter unauthorizedly belonging to Smt. Reena Sharma (PW3) by dishonestly inducing her that meter installed in her premises no. 172D, Pocket E, GTB Enclave Delhi will be slow down so as to interfere with accurate registration of energy for illegal consideration. The defence of the accused persons are that none of the witnesses could disclose the meter number nor the accused were apprehended on 05.05.2005 i.e. the alleged date of tampering. The other defence taken interalia are that the FIR is registered belatedly on 30.05.2005 without any explanation, there is no documents of conversation between PW3 and other witnesses regarding information given by the PW3, Mr. Vinay Bhardwaj and Bhupinder Chaudhary were not made accused though they were present on the spot at the time of alleged meter tampering, no photograph was taken, no signatures of the accused persons were obtained upon the 18/27 alleged seizure memo, the case property i.e. screw, meter and other materials were not sent to the Forensic examination for obtaining the finger prints etc, witness PW3 only identified and disclosed the name of accused Sanjay and there was no police complaint made at the time of tampering of the meter.
11. In the present case PW3 Smt. Reena Sharma is the star witness of the prosecution and she has been cross examined at length on behalf of the accused persons. In her examination in chief she has clearly deposed that all the three accused approached her as BSES officials and even had shown the ID cards issued from the BSES. She has further clearly deposed that they demanded Rs. 2000/ for slowing down the meter installed at her premises. She has further clearly deposed that this information was given to witness PW2 Sh. K.L. Arora and upon his instructions, she stopped the accused persons by engaging them in the talk and in the meantime two officials of BSES namely Vinay Bhardwaj and Bhupinder Chaudhary, PW6 with other members reached on the spot/i.e. at her floor and other members remained down stairs. She has further clearly deposed that after negotiation, the accused settled the amount of Rs. 1500/ for slowing down the speed of meter of PW3 and infact the accused persons brought the meter and after opening the same, they fixed some part in the meter in the presence of those two BSES officials.
19/2712. She has further clearly testified that after resealing the meter by the accused persons the other members of BSES team were called up stairs and call at 100 number was made. She has further testified that the meter, instruments and other case property was seized by BSES officials and she correctly identified the case property as Ex. PW3/1 and Ex.PW3/2. However she has deposed that she does not remember the name of all accused but one of them was named as Sanjay. In her crossexamination she has clearly explained that she engaged the accused persons by telling that her husband was likely to come and they were to wait till the arrival of her husband. She has admitted that she did not give any money to the accused. She has further testified that Mr. Vinay and Mr. Bhupinder asked the accused to remove the meter from the meter room of the inspected building. She has further admitted that she does not know the number of meter. She has denied the suggestion that accused persons were falsely implicated in collusion with Mr. K.L. Arora and one contractor Sh. Ved Prakash. Thus, in her testimony PW3 has clearly proved the presence of accused, tampering with the meter by them as nothing has come in the crossexamination of PW3 to dis believe her testimony qua these facts.
13. So far as identification of the accused persons is concerned, in the entire crossexamination she was never asked to identify the accused persons. Even in the examination in chief she has only stated that she does not remember the name 20/27 of accused persons but she has nowhere stated that she can not identify the accused persons. It is noted to be here that she was examined for the first time on 25.08.2012 i.e. after about a gap of seven years of the incident and in such circumstances if she has forgotten the name of accused persons, it is quite probable. Moreover the testimony of the witness is tested on the touch stone of veracity and not of her memory. In the present case the witness has given all the relevant and necessary details of the incident. Even she has passed the rigorous test of crossexamination and has explained all the material particulars with precision.
14. The witness PW2 Sh. K.L. Arora has corroborated the testimony of PW3 regarding the call made by her about the incident including the time of call. He has further proved the formation of raiding team comprising of witness PW6 and PW7 including other members. In his crossexamination he has admitted that he does not remember the meter number. Here it is to be noted that the witness PW2 and PW3 could not disclose the meter number. However mere non disclosure of meter number by the witnesses after about 7 years of the incident can not be said to be causing any prejudice to the case of prosecution.
15. Further witness PW6 Sh. Bhupinder Chaudhary in his testimony has proved that one of the accused person 21/27 removed the meter and brought to the house of witness PW3 and there all the three accused started tampering the meter in his presence as well as in the presence of Mr. Vinay Bhardwaj by using resistance into the meter and after tampering, meter was resealed. He has also corroborated the version of PW3 in this regard. Further he has proved the name and identity of all the three accused in his testimony and also proved the written complaint Ex. PW6/A. He has further proved the electricity meter bearing no. 23108975 which was tampered by the accused persons and has further proved that on checking it was found slow about 89.6%. He has further proved the seizure of meter and correctly identified the case property as well as accused persons. In his crossexamination he has testified that complaint was lodged on the same day. In his lengthy cross examination nothing has come on record to disbelieve his testimony and his testimony remained unshakened.
16. Witness PW7 Sh. Rakesh Kataria has corroborated the testimony of PW3 and PW6 on all material particulars regarding the tampering in the meter by the accused persons by using the resistance into the meter, making call to the police, filing written complaint etc. He has also correctly identified the case property and accused persons. This witness has again given the details of meter i.e. meter no. and make. Despite lengthy crossexamination, nothing has come on record to dis believe his testimony.
22/2717. Witness PW1 has duly proved the recording of FIR Ex. PW1/A on 30.05.2005, witness PW4, PW5 & PW9 have proved the arrest of accused persons, preparation of pointing out memo as well as seizure of the identity card. Witness PW8 has proved the handing over the case property to PW9 vide memo Ex. PW7/A. In his deposition PW9 /IO has stated that on the search of accused Sanjay two ID cards were recovered which were being used by him to induce the BSES consumers to believe that he is from BSES company. This testimony of the witness remained uncontroverted.
18. Nothing has come out in the crossexamination of any of the witnesses or there is nothing on record to disbelieve the testimonies of aforesaid witnesses as their testimony remained unrebutted and unshakened despite lengthy cross examination on behalf of the accused persons.
19. The argument advanced on behalf of accused persons regarding delay in registration of FIR is of without any merit. In the present case the raid was conducted on 05.05.2005 and complaint was made by the BSES on the same day i.e. 05.05.2005. However as per record the FIR was registered on 30.05.2005. Thus, there was no delay in lodging the complaint by the complainant company. It is further to be noted that in the present case initially FIR was not registered 23/27 and it was register only when there was direction on 24.05.2005 for registration of FIR in the present matter by the Ld. Court. Thus, it cannot be said that there was delay and thus, in these circumstances the delay is well explained.
20. The argument advanced on behalf of the accused for arraying Mr. Vinay Bhardwaj and Mr. Bhupinder chaudhary is misconceived. They were the member of raiding team and in these circumstances they can not be said to be the accused merely being present at the time of tampering by the accused persons. As a matter of fact they have been arrayed as a witness in the present case.
21. The argument that the accused were not arrested on the date of incident i.e. on 05.05.2005 does not make any difference considering the facts of the present case where the police initially did not register the FIR and therefore, there was no question of arrest of accused persons on the date of incident. Moreover under the Electricity Act the officials of BSES has only power of search and seizure but has no power of arrest. In this regard it is to be noted that only after amendment w.e.f. 15.06.2007 the cognizance of electricity theft can be taken on the police report u/s 173 of Cr.P.C.
22. So far as taking of photograph is concerned considering the urgency of the present case facts and 24/27 circumstances, it cannot be said that non taking of photograph of the incident is fatal in any manner to the case of prosecution. Moreover the accused persons themselves have admitted their visit to the house of PW3 but they have not disclosed for what purposes they were visiting the house of PW3. Perusal of the ID card Ex. PW3/K (colly.) make it clear that it was valid only upto 30.04.2005 and in the present case there visit is on 05.05.2005 i.e. beyond the authorised period. It is further to be noted that said ID card was in the name of one Mr. Netra Lal. Thus all these circumstances suggests that accused persons were visiting the house of PW3 with a view to induce her impersonating themselves to be the employee of BSES.
23. There is nothing on record to suggest that there was any enmity between accused persons and officials of Complainant Company or he has been falsely implicated in the present case by PW3. Moreover, it has been categorically held in judgment titled as "Punjab State Electricity Board & Anr. Vs. Ashwani Kumar" in Civil Appeal No.3505/07 alongwith Civil Appeal No.,3506/07, decided on 08.07.2010, reported in 2010(7) SCC 569, which is reproduced for ready reference : "The report prepared by the Officer of the Electricity Board is an act done in discharge of their duties and could not be straight away reflected or disbelieve unless and until there was definite and cogent material on record to arrive at such a finding. It has been further observed in the said judgment 25/27 that the inspection report is a document prepared in exercise of its official duty by the officers of the corporation. Once an act is done in accordance with law, the presumption is in favour of such act or document and not against the same. Thus, there was specific onus upon the consumer to rebut by leading proper and cogent evidence that the report prepared by the officers was not correct"
24. It is well settled principle of law that the onus to prove the false implication is on the person/accused who pleads false implication. In the present case, no cogent evidence has been brought on record by the accused that any of the documents/case property were falsely fabricated and implicated upon them. The accused have taken a vague plea that they have been falsely implicated in the present case.
25. Thus, from the above testimonies of PWs coupled with admission by the accused persons of their visit as well as the documentary evidence, it is proved that at premises no. 172D, Pocket E, GTB Enclave Delhi belonging to PW3 Smt. Reena Sharma, all the three accused persons in furtherance of their common intention maliciously injured the meter bearing no. 23108975 installed at the said premises so as to prevent the electricity meter from duly registering/ recording of the electricity consumption unauthorizedly.
26. From the record it is clear that the defence of the 26/27 accused that they were not involved in meter tampering or interference with the meter is meritless. (H) CONCLUSION :
27. In the light of the aforesaid discussion, it has been proved on record beyond any reasonable doubt that at premises no. 172D, Pocket E, GTB Enclave Delhi belonging to PW3 Smt. Reena Sharma, all the three accused persons in furtherance of their common intention maliciously injured the meter bearing no. 23108975 installed at the said premises so as to prevent the electricity meter from duly registering/ recording of the electricity consumption unauthorizedly. Accordingly, all the three accused persons namely Sanjay Singh @ Jeet Singh, Monu Sharma and Naresh Gaur @ Narender Gaur are held guilty and convicted for the offence punishable u/s 138 of the Electricity Act.
Main file be consigned to record room after due compliance as per rules.
Ahlmad is directed to prepare the miscellaneous file for the purpose of arguments on Sentence.
Be put up for arguments on the point of sentence on 18.12.2017 as prayed.
ANNOUNCED IN THE OPEN COURT TODAY ON 12th DECEMBER, 2017 (DEVENDRA KUMAR SHARMA) ASJ/ SPECIAL ELECTRICITY COURT EAST DISTT./ KKD COURTS/DELHI (Total 27 no. of pages) (One Spare copy is attached) 27/27 IN THE COURT OF SH. DEVENDRA KUMAR SHARMA ADDITIONAL SESSIONS JUDGE, SPECIAL COURT (ELECTRICITY), EAST DISTT., KARKARDOOMA COURTS, DELHI SC No : 1647/16 FIR No: 150/05 P.S. Dilshad Garden, DELHI U/S 138 OF THE ELECTRICITY ACT, 2003 STATE (THROUGH: M/S B.S.E.S. YAMUNA POWER LIMITED) VS.
1. Sh. Sanjay Singh, S/o Late Sh.Jai Chand R/o D132, Shiv Gali, West Karawal Nagar, Delhi.
2. Sh. Monu Sharma, S/o Sh. Jugal Kishore, R/o 6917, Arya Samaj Gali, Gandhi Nagar, Delhi.
3. Sh. Naresh Gaur @ Narender Gaur S/o Sh. Rajender Dutt Sharma, R/o 9A, Tagore Gali, Babarpur, Delhi.
......Convicts ORDER ON SENTENCE :
18.12.2017 Pr : Sh. Taufiq Ahmed, ld. Addl.PP for the State.
The Convict Sanjay Singh is present alongwith Ld. Counsel Sh.
28/27R.P. Singh.
Sh. Mukesh Sharma, AR for the Complainant Company. Heard.
Perused the record.
It has been submitted on behalf of the convict Sanjay Singh that he is having 5 children except one all are minor, unmarried and school going and there is no one to look after his family as he is sole bread earner of the family. He is having no permanent job, but working as a daily wager. Thus, it is prayed that a lenient view may kindly be taken and convict may kindly be released on Probation as there is no previous involvement of the convict nor he has been convicted in any other case.
On the other hand, it is submitted on behalf of the complainant company that no leniency should be shown to such offenders who are committing economic offences and burdening the society as a whole by their conduct. Thus, it is prayed that maximum sentence kindly be awarded.
Law on the point of sentence is settled in the Ankush Maruti Shinde vs. State of Maharashtra, IV (2009) SLT 470= III (2009) DLT (Crl.) 16 (SC) (2009) 6 SCC 667, the Supreme Court relied upon its earlier judgments and in particular upon the following extract from the judgment rendered in State of Madhya Pradesh vs. Munna Choube, I (2005) SLT 628=I (2005) CCR 105 (Sc)= 2 SCC 710: (SCC, Page 714) has held as under : "9. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a crosscultural conflict 29/27 where living law must find answer to the new challenges and the Courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of 'order' should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that : 'State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society'. Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. For instance a murder committed due to deepseated mutual and personal rivalry may not call for penalty of death. But an organized crime or mass murders of innocent people would call for imposition of death sentence as deterrence. In Mahesh v. State of M.P. this Court while refusing to reducing the death sentence observed thus: (SCC p.82, para
6) It will be a mockery of justice to permit [the accused] to escape the extreme penalty of law when faced with such evidence and such cruel facts. To give the lesser punishment for the accused would be to render the justicing system of the country suspect. The common man will lose faith in Courts. In such cases, he understands and 30/27 appreciates the language of deterrence more than the reformative jargon.
10. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society could not long endure under such serious threats. It is, therefore, the duty of every Court to award proper sentence having regard to the nature of the offence and manner in which it was executed or committed, etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of T.N.
1. The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that special facts of reach case. Judges in essences affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic result of his crime. Inevitably these considerations cause a departure from just deserts as the basis of punishment and create cases of apparent injustice that are serious and widespread.
12. Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilised societies, but such a radical departure from the principle of proportionality has disappeared 31/27 from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences.
1. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court."
In the circumstances of the case, I am of the considered opinion that this is an economic offence wherein the society as a whole is the victim and the honest payers of electricity charges are the sufferers on account of the proved conduct of the convict. Such convict is getting unearned benefit at the costs of others, who are the legitimate consumers and they have to bear the cost of electricity theft. Even the theft of electricity not only put the convict at the risk of his own life, but it causes danger to the life of other persons also. One can imagine that there may be people in the country, who may be genuinely not in a position to pay like the persons below the poverty line, farmers, can also come into this category atleast in times of distress, due to faming or hailstorm if not at all time. But the persons failing in the other category i.e. being in a capacity to pay, if involved in electricity theft cannot said to be 32/27 person in whose favour the leniency should be taken. Initially the persons in authority were found involved in electricity theft. But for a period of time the privilege of these elite class got extended to their kith and kin. Now it has spread like cancer and the mass theft of power has reached frightening proportions to say the least. As of today about 12 % distribution loss/loss due to electricity theft is reported and if it is converted into the revenue it is in crores. It may be summarised in the world' of Song by Billy Joely from his Storm Front album titled, We didn't start the Fire. "It was always burning, since the world's been turning", goes the next line. People can say the same about the power theft situation in India today. We didn't start it. It seems like it's been always happening.
In the present case also, the Convict was found indulged in tampering of the meter so as to cause the interference with due recording of consumption of electricity with a view to cause wrongful loss to the complainant company. Thus, in the circumstances there is no ground for taking lenient view or releasing the accused on Probation. Hence prayer for releasing the accused on Probation is declined. The interest of justice shall be served by directing the convict to undergo SI for a period of six month and a fine amount of Rs. 25000/. In case of default in deposit the fine amount, the convict shall serve the sentence of one month SI. At this stage, an application on behalf of the convict Sanjay Singh is filed for suspension of the sentence and fine and for granting bail till the filing of appeal. Heard.
The sentence is suspended alongwith deposit of fine till the next date of hearing.
33/27Through out the trial the convict was on bail and there is nothing on record to suggest that he misused this liberty. Hence Convict is admitted to bail subject to furnishing a personal bond in the sum of Rs.10,000/ and a surety in the like amount. Bail bond is furnished and is accepted till 19.01.2018. Ahlmad is directed to maintain the miscellaneous file and be put up for report on 19.01.2018 alongwith the B/B. Copy of this order alongwith judgment be given dasti free of costs to the convict forthwith for necessary compliance.
ANNOUNCED IN THE OPEN COURT TODAY ON 18th December, 2017 (DEVENDRA KUMAR SHARMA) ASJ/ SPECIAL ELECTRICITY COURT EAST DISTT./ KKD COURTS/DELHI (Total 7 no. of pages) (One Spare copy is attached) 34/27 IN THE COURT OF SH. DEVENDRA KUMAR SHARMA ADDITIONAL SESSIONS JUDGE, SPECIAL COURT (ELECTRICITY), EAST DISTT., KARKARDOOMA COURTS, DELHI SC No : 1647/16 FIR No: 150/05 P.S. Dilshad Garden, DELHI U/S 138 OF THE ELECTRICITY ACT, 2003 STATE (THROUGH: M/S B.S.E.S. YAMUNA POWER LIMITED) VS.
1. Sh. Sanjay Singh, S/o Late Sh.Jai Chand R/o D132, Shiv Gali, West Karawal Nagar, Delhi.
2. Sh. Monu Sharma, S/o Sh. Jugal Kishore, R/o 6917, Arya Samaj Gali, Gandhi Nagar, Delhi.
3. Sh. Naresh Gaur @ Narender Gaur S/o Sh. Rajender Dutt Sharma, R/o 9A, Tagore Gali, Babarpur, Delhi.
......Convicts ORDER ON SENTENCE :
18.12.2017 Pr : Sh. Taufiq Ahmed, ld. Addl.PP for the State.35/27
The Convict Naresh Gaur is present alongwith Ld. Counsel Sh. R.P. Singh.
Sh. Mukesh Sharma, AR for the Complainant Company. Heard. Perused the record.
It has been submitted on behalf of the convict Naresh Gaur that he is having 2 children, both are minor, unmarried and school going and there is no one to look after his family as he is sole bread earner of the family. He is having no permanent job, but working as a daily wager. Thus, it is prayed that a lenient view may kindly be taken and convict may kindly be released on Probation as there is no previous involvement of the convict nor he has been convicted in any other case.
On the other hand, it is submitted on behalf of the complainant company that no leniency should be shown to such offenders who are committing economic offences and burdening the society as a whole by their conduct. Thus, it is prayed that maximum sentence kindly be awarded.
Law on the point of sentence is settled in the Ankush Maruti Shinde vs. State of Maharashtra, IV (2009) SLT 470= III (2009) DLT (Crl.) 16 (SC) (2009) 6 SCC 667, the Supreme Court relied upon its earlier judgments and in particular upon the following extract from the judgment rendered in State of Madhya Pradesh vs. Munna Choube, I (2005) SLT 628=I (2005) CCR 105 (Sc)= 2 SCC 710: (SCC, Page 714) has held as under : "9. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a crosscultural conflict 36/27 where living law must find answer to the new challenges and the Courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of 'order' should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that : 'State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society'. Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. For instance a murder committed due to deepseated mutual and personal rivalry may not call for penalty of death. But an organized crime or mass murders of innocent people would call for imposition of death sentence as deterrence. In Mahesh v. State of M.P. this Court while refusing to reducing the death sentence observed thus: (SCC p.82, para
6) It will be a mockery of justice to permit [the accused] to escape the extreme penalty of law when faced with such evidence and such cruel facts. To give the lesser punishment for the accused would be to render the justicing system of the country suspect. The common man will lose faith in Courts. In such cases, he understands and 37/27 appreciates the language of deterrence more than the reformative jargon.
11. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society could not long endure under such serious threats. It is, therefore, the duty of every Court to award proper sentence having regard to the nature of the offence and manner in which it was executed or committed, etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of T.N.
2. The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that special facts of reach case. Judges in essences affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic result of his crime. Inevitably these considerations cause a departure from just deserts as the basis of punishment and create cases of apparent injustice that are serious and widespread.
13. Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilised societies, but such a radical departure from the principle of proportionality has disappeared 38/27 from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences.
2. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court."
In the circumstances of the case, I am of the considered opinion that this is an economic offence wherein the society as a whole is the victim and the honest payers of electricity charges are the sufferers on account of the proved conduct of the convict. Such convict is getting unearned benefit at the costs of others, who are the legitimate consumers and they have to bear the cost of electricity theft. Even the theft of electricity not only put the convict at the risk of his own life, but it causes danger to the life of other persons also. One can imagine that there may be people in the country, who may be genuinely not in a position to pay like the persons below the poverty line, farmers, can also come into this category atleast in times of distress, due to faming or hailstorm if not at all time. But the persons failing in the other category i.e. being in a capacity to pay, if involved in electricity theft cannot said to be 39/27 person in whose favour the leniency should be taken. Initially the persons in authority were found involved in electricity theft. But for a period of time the privilege of these elite class got extended to their kith and kin. Now it has spread like cancer and the mass theft of power has reached frightening proportions to say the least. As of today about 12 % distribution loss/loss due to electricity theft is reported and if it is converted into the revenue it is in crores. It may be summarised in the world' of Song by Billy Joely from his Storm Front album titled, We didn't start the Fire. "It was always burning, since the world's been turning", goes the next line. People can say the same about the power theft situation in India today. We didn't start it. It seems like it's been always happening. In the present case also, the Convict was found indulged in tampering of the meter so as to cause the interference with due recording of consumption of electricity with a view to cause wrongful loss to the complainant company. Thus, in the circumstances there is no ground for taking lenient view or releasing the accused on Probation. Hence prayer for releasing the accused on Probation is declined. The interest of justice shall be served by directing the convict to undergo SI for a period of six month and a fine amount of Rs. 25000/. In case of default in deposit the fine amount, the convict shall serve the sentence of one month SI. At this stage, an application on behalf of the convict Naresh Gaur is filed for suspension of the sentence and fine and for granting bail till the filing of appeal.
Heard.
The sentence is suspended alongwith deposit of fine till the next date of hearing.
Through out the trial the convict was on bail and there is 40/27 nothing on record to suggest that he misused this liberty. Hence Convict is admitted to bail subject to furnishing a personal bond in the sum of Rs.10,000/ and a surety in the like amount. Bail bond is furnished and is accepted till 19.01.2018. Ahlmad is directed to maintain the miscellaneous file and be put up for report on 19.01.2018 alongwith the B/B. Copy of this order alongwith judgment be given dasti free of costs to the convict forthwith for necessary compliance.
ANNOUNCED IN THE OPEN COURT TODAY ON 18th December, 2017 (DEVENDRA KUMAR SHARMA) ASJ/ SPECIAL ELECTRICITY COURT EAST DISTT./ KKD COURTS/DELHI (Total 7 no. of pages) (One Spare copy is attached) 41/27 IN THE COURT OF SH. DEVENDRA KUMAR SHARMA ADDITIONAL SESSIONS JUDGE, SPECIAL COURT (ELECTRICITY), EAST DISTT., KARKARDOOMA COURTS, DELHI SC No : 1647/16 FIR No: 150/05 P.S. Dilshad Garden, DELHI U/S 138 OF THE ELECTRICITY ACT, 2003 STATE (THROUGH: M/S B.S.E.S. YAMUNA POWER LIMITED) VS.
1. Sh. Sanjay Singh, S/o Late Sh.Jai Chand R/o D132, Shiv Gali, West Karawal Nagar, Delhi.
2. Sh. Monu Sharma, S/o Sh. Jugal Kishore, R/o 6917, Arya Samaj Gali, Gandhi Nagar, Delhi.
3. Sh. Naresh Gaur @ Narender Gaur S/o Sh. Rajender Dutt Sharma, R/o 9A, Tagore Gali, Babarpur, Delhi.
......Convicts ORDER ON SENTENCE :
18.12.2017 Pr : Sh. Taufiq Ahmed, ld. Addl.PP for the State.42/27
The Convict Monu Sharma is present alongwith Ld. Counsel Sh. R.P. Singh.
Sh. Mukesh Sharma, AR for the Complainant Company. Heard.
Perused the record.
It has been submitted on behalf of the convict Monu Sharma that he is having 5 children except one all are minor, unmarried and school going and there is no one to look after his family as he is sole bread earner of the family. He is having no permanent job, but working as a daily wager. Thus, it is prayed that a lenient view may kindly be taken and convict may kindly be released on Probation as there is no previous involvement of the convict nor he has been convicted in any other case.
On the other hand, it is submitted on behalf of the complainant company that no leniency should be shown to such offenders who are committing economic offences and burdening the society as a whole by their conduct. Thus, it is prayed that maximum sentence kindly be awarded.
Law on the point of sentence is settled in the Ankush Maruti Shinde vs. State of Maharashtra, IV (2009) SLT 470= III (2009) DLT (Crl.) 16 (SC) (2009) 6 SCC 667, the Supreme Court relied upon its earlier judgments and in particular upon the following extract from the judgment rendered in State of Madhya Pradesh vs. Munna Choube, I (2005) SLT 628=I (2005) CCR 105 (Sc)= 2 SCC 710: (SCC, Page 714) has held as under : "9. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law.
43/27Undoubtedly, there is a crosscultural conflict where living law must find answer to the new challenges and the Courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of 'order' should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that : 'State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society'. Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. For instance a murder committed due to deepseated mutual and personal rivalry may not call for penalty of death. But an organized crime or mass murders of innocent people would call for imposition of death sentence as deterrence. In Mahesh v. State of M.P. this Court while refusing to reducing the death sentence observed thus: (SCC p.82, para
6) It will be a mockery of justice to permit [the accused] to escape the extreme penalty of law when faced with such evidence and such cruel facts. To give the lesser punishment for the accused would be to render the justicing system of the country suspect. The common man will lose 44/27 faith in Courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon.
12. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society could not long endure under such serious threats. It is, therefore, the duty of every Court to award proper sentence having regard to the nature of the offence and manner in which it was executed or committed, etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of T.N.
3. The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that special facts of reach case. Judges in essences affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic result of his crime. Inevitably these considerations cause a departure from just deserts as the basis of punishment and create cases of apparent injustice that are serious and widespread.
14. Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilised societies, but such a radical departure from the 45/27 principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences.
3. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court."
In the circumstances of the case, I am of the considered opinion that this is an economic offence wherein the society as a whole is the victim and the honest payers of electricity charges are the sufferers on account of the proved conduct of the convict. Such convict is getting unearned benefit at the costs of others, who are the legitimate consumers and they have to bear the cost of electricity theft. Even the theft of electricity not only put the convict at the risk of his own life, but it causes danger to the life of other persons also. One can imagine that there may be people in the country, who may be genuinely not in a position to pay like the persons below the poverty line, farmers, can also come into this category atleast in times of distress, due to faming or hailstorm if not at all time. But the persons failing in the other category i.e. being in a capacity to pay, if involved in electricity theft cannot said to be 46/27 person in whose favour the leniency should be taken. Initially the persons in authority were found involved in electricity theft. But for a period of time the privilege of these elite class got extended to their kith and kin. Now it has spread like cancer and the mass theft of power has reached frightening proportions to say the least. As of today about 12 % distribution loss/loss due to electricity theft is reported and if it is converted into the revenue it is in crores. It may be summarised in the world' of Song by Billy Joely from his Storm Front album titled, We didn't start the Fire. "It was always burning, since the world's been turning", goes the next line. People can say the same about the power theft situation in India today. We didn't start it. It seems like it's been always happening. In the present case also, the Convict was found indulged in tampering of the meter so as to cause the interference with due recording of consumption of electricity with a view to cause wrongful loss to the complainant company. Thus, in the circumstances there is no ground for taking lenient view or releasing the accused on Probation. Hence prayer for releasing the accused on Probation is declined. The interest of justice shall be served by directing the convict to undergo SI for a period of six month and a fine amount of Rs. 25000/. In case of default in deposit the fine amount, the convict shall serve the sentence of one month SI. At this stage, an application on behalf of the convict Monu Sharma is filed for suspension of the sentence and fine and for granting bail till the filing of appeal. Heard.
The sentence is suspended alongwith deposit of fine till the next date of hearing.
Through out the trial the convict was on bail and there is 47/27 nothing on record to suggest that he misused this liberty. Hence Convict is admitted to bail subject to furnishing a personal bond in the sum of Rs.10,000/ and a surety in the like amount. Bail bond is furnished and is accepted till 19.01.2018. Ahlmad is directed to maintain the miscellaneous file and be put up for report on 19.01.2018 alongwith the B/B. Copy of this order alongwith judgment be given dasti free of costs to the convict forthwith for necessary compliance.
ANNOUNCED IN THE OPEN COURT TODAY ON 18th December, 2017 (DEVENDRA KUMAR SHARMA) ASJ/ SPECIAL ELECTRICITY COURT EAST DISTT./ KKD COURTS/DELHI (Total 7 no. of pages) (One Spare copy is attached) 48/27