Delhi District Court
) Brief Facts Of The Case Are That On ... vs K. Negi on 30 July, 2016
IN THE COURT OF MS. SWARANA KANTA SHARMA
ASJ( ELECTRICITY) :NW DISTRICT:ROHINI: DELHI
Session Case No. 53164/16
FIR No. 1138 of 2015
Police Station : Jahangir Puri
Title: State
v.
Shekh Shiddik
S/o Shekh Amir Ali
R/o Main Road, GBlock Jhuggi,
Near MCD Primary School,
Jahangir Puri, Delhi.
Under Section 135 of the Electricity Act, 2003
Date of Institution: 09.5.2016
Date of Reserving for Order: 29.7.2016
Date of Pronouncement: 30.7.2016
(Appearances)
Sh. V.K. Negi, Ld. Additional PP for the State.
Sh. Mahender Kumar, Ld. Counsel for accused Shekh Shiddik.
JUDGMENT
1) Brief facts of the case are that on 27.11.2015, a raid was conducted by the joint inspection team of the complainant company at the premises i.e. Main Road, GBlock Jhuggi, Near MCD Primary School, Jahangir Puri, Delhi. The case of prosecution is that during the inspection, members of the joint inspection team had found that accused Shekh Siddik was committing direct theft of electricity by tapping TPDDL Low Voltage. At the time of inspection, a load of 18.850 KW was found connected for commercial purpose. On the basis of the inspection, a complaint was lodged with SHO Police FIR No. 1135/15 PS Jahangir Puri State v. Shekh Shiddik Page No. 1 / 10 Station Jahangir Puri by Shri Ram Narayan, Head of Group (CEG), UP Samaj Building, Parwana Road, Pitam Pura, Delhi. On the basis of the said complaint, the present FIR was registered on 19.12.2015 for commission of offence under Section 135 of the Electricity Act.
2) After completion of investigation, chargesheet was filed on 09.5.2016.
3) After appearance of the accused, documents were supplied to him and charge for committing offence under Section 135 of the Electricity Act, 2003 was framed against accused Shekh Shiddik to which he pleaded not guilty and claimed trial.
4) The prosecution in support of its case has examined six witnesses.
5) PW1 Shri Rinku Aggarwal, Senior Manager, TPDDL stated that on 27.11.2015 he alongwith Sh. Ravi Kishan, Sh. Rocky Singh, Sh. Prashant Singh, Sh. Pratap Singh and photographer Sh. Kishore from Adcom Media had gone to Main Road, G Block Jhuggi, Near MCD Primary School, Jahangir Puri, Delhi for conducting inspection. He stated that they had found that direct theft of electricity was being committed by tapping TPDDL LV Mains. He correctly identified the accused present in the court to be the same person who was found present at the site in question. He stated that they had inspected the spot in the presence of the accused. He stated that they had seized PVC two core black colour cable of length 8 meters and two core blue colour service cable length 11 meters which were being used for committing theft of electricity. He FIR No. 1135/15 PS Jahangir Puri State v. Shekh Shiddik Page No. 2 / 10 proved the same as Ex. PW1/A. He stated that they had prepared the inspection report. He proved the same as Ex. PW1/B. He stated that the electricity was being used for commercial purpose and a total connected load of 18.850 KW was found connected. He proved the seizure memo as Ex. PW1/C and site plan as Ex. PW1/D. On being crossexamined by Sh. Mahender Kumar, Ld. Counsel for accused Shekh Shiddik he admitted that the accused is physically handicapped. He further admitted that he cannot walk as both of his legs suffer from infirmity. He admitted that the spot where the theft of electricity was detected is not the house of the accused. He admitted that the accused was not interrogated by the Investigating officer in his presence.
6) PW2 Shri Ravi Kishan stated that on 27.11.2015, he alongwith Sh. Rinku Aggarwal, Sh. Rocky Singh, Sh. Prashant Singh, Sh. Pratap Singh and Sh. Kishore (Photographer) had gone to Main Road, GBlock Jhuggi, Near MCD Primary School, Jahangir Puri, Delhi. He stated that they had found that direct theft of electricity was being committed by tapping from TPDDL LV Mains. The witness correctly identified the accused to be the same person who was present at the spot at the time of inspection. He stated that the photographer had taken thirty eight photographs Mark A1 to Mark A
38. He stated that he had also conducted videography of the proceedings. He stated that they had seized PVC two core black colour wire approximately eleven meters in length, two core 2/16 black colour cable of length 8 meters and two core blue colour service cable length 11 meters vide seizure memo Ex. PW1/A. He stated that electricity was being used for commercial purpose and a total connected load of 18.850 KW was found connected.
FIR No. 1135/15 PS Jahangir Puri State v. Shekh Shiddik Page No. 3 / 10On being crossexamined by Sh. Mahender Kumar, Ld. Counsel for the accused he admitted that the accused is physically handicapped. He further admitted that the accused cannot walk as both his legs suffer from infirmity. He admitted that the spot where the theft of electricity was detected is not the house of the accused. He admitted that there was no public witness of the proceedings when they had seized the case property Ex. P1, Ex. P2 and Ex. P
3.
7) PW3 Shri Ram Narayan proved the complaint filed by him as Ex. PW3/A. On being crossexamined by Sh. Mahender Singh, Ld. Counsel for the accused he admitted that he was not the member of the inspection team. He had only forwarded the complaint for registration of the FIR on the basis of inspection carried out by the members of the inspection team.
8) PW4 Shri Kishore, photographer proved photographs which were taken by him as Ex. PW4/A1 to Ex. PW4/A38. He has also proved CD as Ex. PW4/B and certificate under Section 65B of the Indian Evidence Act as Ex. PW4/C. On being cross examined by Sh. Mahender Kumar, Ld. Counsel for the accused he deposed that he had not received any order in writing from his superior to accompany the members of the inspection team. The witness correctly identified the accused in the court to be the same person who was present at the spot. He stated that the accused was sitting on a wheel chair at the spot.
9) PW5 ASI Sushil Kumar proved copy of FIR as Ex.
FIR No. 1135/15 PS Jahangir Puri State v. Shekh Shiddik Page No. 4 / 10PW5/A, endorsement on the complaint as Ex. PW5/B and certificate under Section 65B of Indian Evidence Act as Ex. PW5/C. The witness was not examined by Ld. Counsel for the accused despite opportunity given to him.
10) PW6 Head Constable Ranbir Singh proved the site plan as Ex. PW6/A. He stated that he had collected the identity proof of the accused i.e. Aadhar Card which was marked as MarkB. On being crossexamined by Sh. Mahender Kumar, Ld. Counsel for the accused he stated that he had received the complaint and other documents from the Reader of the SHO. He stated that he had made inquiries from the witnesses of TPDDL during investigation. He deposed that he was not an eye witness to the inspection proceedings.
11) Prosecution Evidence was closed by Shri V. K. Negi, learned Addl. PP for State vide his separate statement.
12) Statement of Accused under Section 313 Cr.P.C. was recorded on 21.7.2016 wherein he has denied the allegations levelled against him. He stated that he has been falsely implicated in the present case with the connivance of TPDDL. He stated that he wanted to lead defence evidence.
13) The accused has examined one witness in his defence.
14) DW1 Shri Shekh Maqsood stated that he knows the accused for the last 67 years. He stated that accused used to live at GBlock Footpath. He stated that accused Shekh Shiddik is FIR No. 1135/15 PS Jahangir Puri State v. Shekh Shiddik Page No. 5 / 10 physically handicapped and he is unable to walk due to infirmity of both legs. He stated that he had heard that the accused had been booked in theft of electricity case. He stated that the accused had never indulged in any theft of electricity in the area of GBlock, Jahangir Puri, Delhi.
On being crossexamined by Sh. V.K. Negi, Ld. PP for the State he denied that the accused was living in a Jhuggi GBlock, Main Road, Near MCD Primary School, Jahangir Puri, Delhi where theft of electricity had been detected.
15) Defence Evidence was closed by Ld. Counsel for the accused vide his separate statement recorded on 26.7.2016.
16) Final arguments were heard on behalf of learned Addtional PP for State and learned defence counsel. I have also gone through the case file, statement of witnesses and the photographs which have been filed on record.
17) Section 135 of the Electricity Act, 2003 under which charge has been framed against the accused, reads as under : "Section 135 Theft of Electricity : Theft of electricity [(1) Whoever, dishonestly,
(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier, as the case may be; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop FIR No. 1135/15 PS Jahangir Puri State v. Shekh Shiddik Page No. 6 / 10 connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity; or
(d) uses electricity through a tampered meter; or
(e) uses electricity for the purpose other than for which the usage of electricity was authorised, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both: "
18) In the light of above law, let me examine the testimony of witnesses to conclude as to whether the prosecution has been able to prove its case beyond reasonable doubt against accused or not.
19) A perusal of the testimonies of the witnesses shows that all the witnesses have stated that at the time of raid, the accused was found sitting on a wheel chair as he is handicapped and cannot walk as both of his legs are deformed since birth. They have also admitted in their crossexamination that the accused was merely found sitting on a wheel chair at the spot as he is handicapped and cannot walk. They have also stated in their crossexamination that the premises in question does not belong to the accused and he resides at a different address. The accused has also led defence evidence and DW1 Sh. Shekh Maqsood has stated that he knows the accused for last several years and that the accused lives at G Block footpath and had no connection with the premises in question.FIR No. 1135/15 PS Jahangir Puri State v. Shekh Shiddik Page No. 7 / 10
The main contention and defence of Ld. Defence Counsel is also that accused Shekh Shiddik has no connection with the premises in question whatsoever. Another contention of Ld. Counsel for the accused is that the accused is handicapped and cannot walk and, therefore, was in no position to commit theft of electricity. It will be useful to refer to Section 56 of Indian Evidence Act, 1872 which reads as under:
"Section 56 of Indian Evidence Act, 1872 : Fact judicially noticeable need not be proved - No fact of which the Court will take judicial notice need to be proved."
20) Since, accused Shekh Shiddik has appeared before this court, this court has taken judicial notice of the fact that the accused is unable to walk since both his legs are deformed. Therefore, in my opinion, since he suffers from congenial deformity of legs that has incapacitated him to walk, therefore, it would not have been possible for him to have run the entire parking of ERickshaws for illegally charging ERickshaws as alleged by the prosecution. The wires through which theft of electricity was being committed by tapping TPDDL LV mains are also as per the photographs filed by the prosecution situated at more than 25 feet above the ground where it is impossible for the accused to reach.
21) Moreover, a perusal of testimonies of all the witnesses of the prosecution as well as defence show that they have deposed that accused was merely sitting on a wheel chair at the spot in question which is further corroborated by the photographs which have been relied upon by the prosecution.
FIR No. 1135/15 PS Jahangir Puri State v. Shekh Shiddik Page No. 8 / 1022) A perusal of photograph Mark Y shows that in this photo election identity card of accused is being shown in support of the case that he was using the premises in question. However, a perusal of the said photograph and the details mentioned in the election identity card clearly show that the address mentioned in the Election identity card depicts the address of the accused as G460, G Block T Huts, Jahangir Puri, Delhi. Whereas, the address of the premises in question where inspection had been conducted is Main Road, GBlock Jhuggi, Near MCD Primary School, Jahangir Puri, Delhi. Therefore, the photograph filed by the prosecution itself support the statement of DW1 Sh. Shekh Maqsood that the accused was not residing, nor he was connected with the premises in question. It seems that the accused has been made an accused only on the basis of his presence at the spot without verifying his connection with the alleged offence.
23) No independent witness has been examined to prove that the accused was charging money from the owners of ERickshaws for recharging the batteries with stolen electricity. No details of the ERickshaws and their owners have been mentioned in any documents to support the claim that the accused was unauthorizedly charging ERickshaws.
The ERickshaws have not been seized which were case property to support the oral testimony of the witnesses.
24) In light of the discussion made above, I am of the opinion that the prosecution has not been able to prove its case beyond reasonable doubt against the accused. I, therefore, acquit accused FIR No. 1135/15 PS Jahangir Puri State v. Shekh Shiddik Page No. 9 / 10 Shekh Shiddik of the charged offence.
25) Accused Shekh Shiddik is directed to furnish a personal bond of Rs. 10,000/ with one surety (latest passport size photo and residential address proof) of the like amount in compliance of Section 437A Cr.P.C. for a period of six months with the condition that he shall appear before the Hon'ble Appellant Court as and when called for.
26) Previous bail bond of accused Shekh Shiddik stands cancelled. His previous surety stands discharged. Documents, if any, be released to him after cancellation of endorsement, if any.
27) Case property be destroyed as per law.
28) File be consigned to record room.
Announced in the open Court (SWARANA KANTA SHARMA)
On 30th day of July, 2016 ASJ (ELECTRICITY) NW
ROHINI : DELHI
FIR No. 1135/15 PS Jahangir Puri State v. Shekh Shiddik Page No. 10 / 10