Delhi District Court
State vs . Sampat Raj on 28 November, 2013
IN THE COURT OF MM06(SOUTH)
SAKET COURTS COMPLEX, NEW DELHI
Presided by : Ms. Manisha Tripathy
State Vs. Sampat Raj
FIR No. 16/2000
P.S. :Samaypur Badli
Unique ID No.R0058612001
Date of institution of case:02.02.2001
Date of reserving the judgment:28.11.2013
Date of pronouncement of judgment:28.11.2013
J U D G M E N T
1.Serial No. of the Case: 1771/07
2.Date of the Commission of offence: 27.12.1997
3.Date of Institution of the case: 02.02.2001
4.Name of the complainant: Sh S S Arora
5.Name of the accused, Sampat Raj,
Parentage & Address: S/o Santosh Chand Jain
R/o B78, Puru Apartment
Sector13, Rohini, Delhi
6.Offence complained or proved: U/s. 39/44 I.E.Act r/w s. 379 IPC
FIR NO. 16/2000 PS S P Badli State v. Sampat Raj 1/8
7.Plea of accused: "Not guilty"
8.Final order: Acquitted
9.Date of final order: 28.11.2013
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. The case of the prosecution is that on 27.12.1997, a joint raid was conducted by a team of DVB officials at Khasra No. 136/2, Village Samaypur Badli, New Delhi, within the jurisdiction of PS Samaypur Badli, where accused was found indulged in theft of electricity through tampered meter as seal of the electric meter was found fictitious. In this regard a complaint was lodged and an FIR bearing number 15/2000 under section 379 IPC r/w section 39/44 of I.E. Act was registered at Police Station S P Badli. 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 on 01.10.2011 to which the accused pleaded not guilty and claimed trial.
4. Vide order dated 22.09.2012, in compliance of the provisions of Section FIR NO. 16/2000 PS S P Badli State v. Sampat Raj 2/8 294 Cr.P.C., the accused was called upon to admit/deny the genuineness of FIR, which he admitted and the same was accordingly exhibited as Ex. F. In view of the admission made, the evidence of the duty officer HC Chander Bhan was dispensed with.
5. To prove its case, the prosecution has examined the following witnesses.
6. PW1 S S Arora is the complainant. He deposed that as per instructions from Enforcement & XEN District Rohini, meter box/meter were removed from the premises of Smt Saroj Devi (Kothari Cable, Village Badli) on 08.01.2000. He further deposed that he lodged a complaint Ex PW1/A to the police.
In his cross examination, he failed to depose the number of meter which were removed from the spot, any paper work done at the time of removal of meter or any document signed on that date. He stated that instructions were received from Enforcement & ZEN District Rohini for removal of the meter but the same is not on record.
7. PW2 S M Sharma is raiding party member. He deposed that on 27.12.1997, a joint raid was conducted at Badli Village where seal of the electric meter was found fictitious at Khasra no. 136/2, Village S P Badli. He further deposed that case property i.e. electric meter alongwith cables were removed. He stated that MTD report and JIR were prepared. He identified photocopied document Mark X & Y as copy of MTD report and JIR.
FIR NO. 16/2000 PS S P Badli State v. Sampat Raj 3/8 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.
8. PW3 Anand Ahuja is another raiding party member. He also deposed on the similar lines as PW3. Therefore, his deposition is being not reproduced for the sake of brevity.
9. PW4 HC Devender is the MHCM who produced DD entry Ex PW2/A and deposed that the case property pertaining to the present case has been deteriorate and even the case property does not bear any kind of identification mark and therefore, it is difficult to produce the case property in the court.
10. PW5 Retd. SI Man Chand (wrongly mentioned as PW6) is the investigating officer. He deposed that on receiving FIR Mark P and complaint Ex PW1/A, he met the complainant Sh S S Arora AE and procured documents and also prepared site plan Ex PW6/A. He proved the arrest of accused vide Ex PW6/B. He identified the accused.
In his cross examination, he admitted that he was not the member of raiding team. He further admitted that no public person joined during the investigation.
11. Thereafter, several opportunities were afforded to the prosecution to adduce the evidence requisite to prove the case against the accused. It is FIR NO. 16/2000 PS S P Badli State v. Sampat Raj 4/8 pertinent to note that the matter is subjudice since the year 2001 and the charge against the accused was framed on 01.10.2011. 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 23.08.2013 as the material witnesses were already examined.
12. Thereafter, the statement of accused under section 313 r/w section 281 Cr.P.C was recorded on 05.10.2013. In his statement, the accused claimed innocence and false implication. He did not not wish to lead defence evidence.
13. 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.
14. 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.
FIR NO. 16/2000 PS S P Badli State v. Sampat Raj 5/8
15. 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 or registered consumer of the meters. They also failed to testify as to role of the accused at the raiding premises and how raiding party came to the conclusion that accused was responsible for fraudulent abstraction 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.
16. 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 indulged in fraudulent abstraction of electricity.
17. Further, the Joint Inspection Report and MTD report which are the foundation of present case, has not been proved as per law as the same have not been exhibited by any prosecution witnesses. In fact, the original JIR and MTD report have not been filed with the chargesheet and only a copy thereof has been annexed. Under the circumstances, in absence of JIR being proved as per law, the raid itself becomes doubtful. FIR NO. 16/2000 PS S P Badli State v. Sampat Raj 6/8
18. Even otherwise, if prosecution had successfully proved the fact of raid and the fact that accused was registered consumer, then also the charges u/s. 39 of the Indian Electricity Act 1910 could not have been substantiated. The reason for the same is that theft of electricity is alleged because seals of the meters were found fictitious i.e. meters were tampered. It is settled proposition now that existence of mere tempered meter in absence of any artificial means for abstraction of energy would not be sufficient to charge the accused u/s. 39 of Indian Electricity Act 1910.
In Ramesh Chander vs State, 68 (1997) DLT 257, it was held "The mere existence of the tampered meters is not enough to attract the provisions of Section 39 of the Act. There is no presumption of dishonest abstraction, consumption or use of electric energy on discovery of tampered meters. The presumption under Section 39 will arise if artificial means were employed to abstract, consume or use energy. The Supreme Court in the case of Ram Chandra Prasad Sharma and others v. State of Bihar and another, held that the presence of a perfected artificial means which will render abstraction of energy possible has to be established by the prosecuting agency. Taking cue from this decision of the Supreme Court, it must be held that simply saying that the meter has been tampered with and that it was under
the control of the accused, would not be enough for the purposes of framing a charge under Section 39 of the Act. "
FIR NO. 16/2000 PS S P Badli State v. Sampat Raj 7/8
19. In the instant case, it is not the case of the prosecution that any foreign material or any artificial means were employed for abstraction of energy and therefore the ratio of abovesaid judgment is applicable to this case.
20. Further, the accused can't be held responsible for injuring the meter as well. None of the prosecution witnesses have testified that the accused was registered consumer of the meters or was in actual possession of the meters and as such, in absence of any evidence, he cannot be held responsible for injuring the meters.
21. Further, case property was never produced before the court and in absence of case property, prosecution version becomes doubtful.
22. 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 Sampat Raj is acquitted for the offences for which he was charged.
23. File be consigned to record room after necessary compliance. Announced in the open court on 28.11.2013 Manisha Tripathy MM06(South)/28.11.2013 Certified that this judgment contains 8 pages and each page bears my signatures.
Manisha Tripathy MM06(South)/28.11.2013 FIR NO. 16/2000 PS S P Badli State v. Sampat Raj 8/8