Delhi District Court
State vs . Abhay Arora on 23 May, 2014
Page No. 1 of 9
IN THE COURT OF SH. ANKIT SINGLA
MM03(SOUTH DISTRICT), SAKET, NEW DELHI
STATE Vs. Abhay Arora
FIR NO. : 758/97
P.S. : Dabri
U.S. : 39 /44 of IE Act & 379 IPC
J U D G M E N T
a. Sl. No. of the case and : 638/2007 dt. 07.02.2007 date of its institution b. Name of the complainant : Sh. B.S. Kainth, Retd.AE, DVB.
c. Date of commission of
offence : 27.11.1997
d. Name of the accused : 1. O.P.Popli S/o Sh. Tulshi Dass Popli R/o RZE33, Raghu Nagar, Gali No.7 New Delhi Present Address - 13, BD Block MIG Flat, Janakpuri, Delhi.
(Already convicted vide order dtd.
07.05.2013)
2. Abhay Arora S/o Sh. J.L.Arora R/o :C2D/32C, Janakpuri, N.Delhi.
3. Moti Lal (Already PO vide order dt.
15.02.2012)
e. Offence complained of : U/s 39/44 I.E. Act r/w 379 IPC
f. Plea of accused : Pleaded not guilty
FIR No. 758/97 State Vs. Abhay Arora
Page No. 2 of 9
g. Case reserved for orders : 23.05.2014
h. Final order : Acquit
i Date of such order : 23.05.2014
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. By way of this judgment, I shall disposed off present FIR which was lodged on the complaint of complainant on 27.11.1997.
2. The brief fact of the case are that on 27.11.1997, a raid was conducted by DVB officials and accused persons were found to be stealing electricity directly from DVB LV main in the area of falling within the jurisdiction of PS Dabri and thereby committed an offence punishable u/s. 39/44 of of IE Act & 379 IPC
3. After completion of the investigation, the chargesheet was filed in the Court. Copies were supplied to accused and after completion of necessary formalities, on 06.05.2013 charge for commission of the above said offence was framed upon the accused Om Parkash Popli and Abhay Arora to which he pleaded not guilty and claimed trial. Accused O.P.Popli pleaded guilty & he was convicted vide order dated 7.05.13.
FIR No. 758/97 State Vs. Abhay Arora Page No. 3 of 9
4. The prosecution to prove its case examined (07) seven witnesses. Statement of accused Abhay Arora was recorded U/sec. 313 Cr.PC whereby accused denied the story of the prosecution. The relevant and material extract of evidence produced by the prosecution are as mentioned in the paragraphs below.
5. PW1 C.P.Pahuja Retd. AM, BSES deposed that on 27.11.1997, he was posted as Suptd., Technical Enforcement in DVB at Shankar Road ; a joint raid was conducted comprising the official from MTD, Enforcement Zone and ocal police at Raghu Nagar, Dabri Extension, New Delhi ; direct theft of electricity through LV Main was found to be indulged by the residents i.e. Accused Abhay Arora at 1st Floor, RZ15, Gali No 6, Raghu Nagar, New Delhi, accused Om Prakash near pole no. 76, Opp. H. No. E46, Raghu Nagar, New Delhi and M/s. Gautam Agency RZ15/6 Raghu Nagar, New Delhi ; illegal electric wires were removed in his presence from these premises ; photographs Mark Y (colly) of the spot were also taken (witness correctly identified the same) ; JIR report was prepared and photocopy of the same is Mark X. This witness correctly identify the case property as Ex P1. However MHCM has produced the case property in unsealed condition and FIR No. 758/97 State Vs. Abhay Arora Page No. 4 of 9 without any identification Mark ; he further deposed that he cannot say whether accused persons were present at the spot or not.
6. PW2 Shri B.S. Kainth, Retd AE, DVB also deposed in line of PW1.
In addition to above, this witness further deposed that he had brought the original JIR Ex PW2/A ; he further deposed that he cannot say whether accused persons were present at the spot or not ; on 27.11.1997 he made a complaint Ex PW2/B to SHO of PS Dabri ; he handed over the case property to police who seized the same vide memo ExPW2/C ; he also gave sanction Ex PW2/D (colly) u/s. 50 of I.E. Act to the police and after 2/3 days he handed over the photographs to the police.
7. PW3 Insp Om Prakash deposed that on 27.11.97 he was SI at PS Dabri ; received copy of FIR Ex PW3/A from DO along with complaint Ex PW2/B ; met complainant PW2 ; procure necessary documents i.e. JIR ; tried to search the accused but could not find him ; he seized the case property vide memo Ex PW2/C. On 3.12.1997, accused Moti Lal who was having on anticipatory bail was formally arrested ; his personal search was conducted vide memo Ex PW3/B ; accused was released on furnishing personal FIR No. 758/97 State Vs. Abhay Arora Page No. 5 of 9 bail bond ; he recorded the statement of witnesses ; then got transferred and further investigation was marked to SI Jas Mahinder. In the testimony of this witness case property was also produced in unsealed condition without any identification mark. Case property is Ex P1.
8. PW4 Kamal Singh deposed that he does not know anything about the present case. This witness was cross examined by Ld. APP.
9. PW5 Insp. Jasmohinder Chaudhary deposed that on 20.12.1997 he was posted as SI at PS Dabri ; further investigation was assigned to him ; on 22.1.1998 accused Abhay Arora was formally arrested when he appeared in court . On 5.5.1998, accused O.P.Popli was formally arrested and his personal search was conducted vide memo Ex PW5/A. ; recd. sanction u/s. 50 of IE Act and recorded the statement of witnesses ; prepared the challan.
10. PW6 Sh N. Choudhury, Dy General Manager, BSES, BRPL deposed in the line of PW1 and PW2.
11. PW7 Y.P.Saluja, Retd. Suptd. BRPL also deposed in line of PW1 , PW2 and PW6.
12. No other witness was examined by the prosecution and PE was closed by Ld. Predecessor vide order dt. 18.11.2013.
FIR No. 758/97 State Vs. Abhay Arora Page No. 6 of 9 Statement of the accused u/s 313 Cr.PC was recorded wherein accused Abhay Arora denied the allegation leveled against him.
13. Arguments as advanced by Ld. APP as well as Defence counsel were heard.
14. I have carefully perused the material on record and gone through the submissions of Ld. APP for the State and 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 persons who were the user of the electricity at the time of raid.
FIR No. 758/97 State Vs. Abhay Arora Page No. 7 of 9 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 persons with the raided premises. Further, none of the witnesses could testify as to owner or user of the raided premises. They also failed to testify as to role of the accused persons at the raided premises and how raiding party came to the conclusion that accused persons were 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. Further photograph does not throw any light regarding ownership of accused in respect of premises in question. The oral testimony of witness is immaterial in absence of prosecution producing the proof of ownership or proof of accused being user of the property in question. Further, all witnesses admitted that no documentary proof was collected to connect the accused with raided premises.
17. Thus, it is needless to say that the prosecution has miserably failed to prove that the accused persons were the consumer at the time of the raid and were abstracting the electricity by applying FIR No. 758/97 State Vs. Abhay Arora Page No. 8 of 9 some artificial means.
18. Further, another, lacunae in the prosecution case regarding the production of the case property in the unsealed condition. Accused person was found to be indulged in direct theft of electricity by tapping the DVB LV Mains through illegal wires at their respective premises. Raiding party members also deposed that the case property was removed from the premises of the accused persons. However, case property pertaining to present case was produced before the court in unsealed condition. In absence of case property i.e. the medium through which theft of electricity was being carried by accused person, it cannot be safely hold that theft of electricity was being carried out as alleged by the prosecution.
19. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
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20. As a result, I find that Prosecution has failed to prove its case against the accused persons beyond reasonable doubt and they are given the benefit of doubt and therefore, the accused Abhay Arora is acquitted for the offences for which he has been charged with.
21. File be consigned to record room.
Announced in open court (Ankita Singla)
on 23.05.2014 M.M.03(South District) / Saket
FIR No. 758/97 State Vs. Abhay Arora