Delhi District Court
State vs . Nageshwar Prasad on 27 January, 2014
IN THE COURT OF MM03(SOUTH)
SAKET COURTS COMPLEX, NEW DELHI
Presided by : Ms. Manisha Tripathy
State Vs. Nageshwar Prasad
FIR No. 145/99
P.S. : Dwarka
Unique ID No. 02403R0679452006
Date of reserving the judgment: 27.01.2014
Date of pronouncement of judgment: 27.01.2014
J U D G M E N T
1.Serial No. of the Case: 1053/07
2.Date of the Commission of offence: 08.04.1999
3.Name of the complainant: Sh J S Dadwal, AE
4.Name of the accused, Nageshwar Prasad,
Parentage & Address: S/o Sh Mahender,
R/o I15, Raj NagarI,
Palam, New Delhi.
5.Offence complained or proved: U/s. 39 I.E.Act r/w s. 379 IPC
6.Plea of accused: "Not guilty"
FIR NO. 145/99 PS Dwarka State v. Nageshwar Prasad 1/7
7.Final order: Acquitted
8.Date of final order: 27.01.2014
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. The case of the prosecution is that on 08.04.1999, a joint raid was conducted by a team of DVB officials at Gali No.10, Raj Nagar PartII, Mehrauli Road, New Delhi, within the jurisdiction of PS Dwarka, where accused was found indulged in direct theft of electricity from DVB LV Mains. In this regard a complaint was lodged and an FIR bearing number 145/99 under section 379 IPC r/w section 39 of I.E. Act was registered at Police Station Dwarka. 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 of I.E. Act was framed against the accused by my Ld. Predecessor on 20.05.2008 to which the accused pleaded not guilty and claimed trial.
4. To prove its case, the prosecution has examined the following witnesses.
5. PW1 P K Vashisht is a raiding party member. He deposed that on FIR NO. 145/99 PS Dwarka State v. Nageshwar Prasad 2/7 08.04.1999, a joint raid was conducted in Zone1503 i.e. Manglapuri, Palam where 11 premises were raided on that day. He further deposed that they found that some welding work was going on and theft of electricity with the help of two core wires was being conducted. He further deposed that JIR was prepared. He identified photocopied document Mark A as photocopy of JIR. He also identified the accused.
In his cross examination, he expressed his ignorance regarding owner of premises and admitted that he had not collected the documentary proof regarding ownership. He further admitted that he had made no enquiry regarding the owner. He failed to state the exact distance between the pole and the raided premises and also failed to depose regarding boundaries of place of occurrence. He stated that there was no meter at the spot.
6. PW2 S S Rana is the complainant and raiding party member. He also deposed on the similar lines as PW1. Therefore, his deposition is being not reproduced for the sake of brevity. In addition, he deposed that he seized the case property and also handed over written complaint Ex PW2/A along with case property to AE Zone. He further deposed that photographs of the spot were taken. He identified the photographs as Ex PA (Colly) as well as case property which was produced before the court in unsealed condition without any mark of identification as Ex P1 FIR NO. 145/99 PS Dwarka State v. Nageshwar Prasad 3/7
7. PW3 SI Rajeev Yadav is the investigating officer. He deposed that on receiving copy of FIR Ex PW3/A and complaint, he met the complainant Sh J S Dadwal, AE and procured documents i.e. JIR, photographs and case property and also prepared site plan Ex PW3/C. He further deposed that he seized the case property vide Ex PW3/D. He further deposed that he arrested the accused and conducted his personal search vide Ex PW3/E & PW3/F respectively. He further deposed that he received sanction U/s 50 I E Act from concerned authority and identified photocopied document Mark X as photocopy of sanction u/s 50 I E Act. He also identified the photographs. He further identified the accused as well as the case property.
8. PW4 Y P Saluja is another raiding party member. He also deposed on the similar lines as PW1. Therefore, his deposition is being not reproduced for the sake of brevity.
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 photographs Ex PA (colly) are not annexed with negatives. He further admitted that no public witness was asked to join the raid.
9. Thereafter, several opportunities were afforded to the prosecution to adduce the evidence requisite to prove the case against the accused. It is FIR NO. 145/99 PS Dwarka State v. Nageshwar Prasad 4/7 pertinent to note that the matter is subjudice since a long time and the charge against the accused was framed on 20.05.2008. 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 29.10.2013 as the material witnesses were already examined.
10. Thereafter, the statement of accused under section 313 r/w section 281 Cr.P.C was recorded on 28.11.2013. In his statement, the accused claimed innocence and false implication. He did not not wish to lead defence evidence.
11. 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
12. 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 FIR NO. 145/99 PS Dwarka State v. Nageshwar Prasad 5/7 facie evidence of such dishonest abstraction.
13. 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. They also failed to testify as to role of the accused at the raided premises and how raiding party came to the conclusion that accused was 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.
14. Thus, it is needless to say that the prosecution has miserably failed to prove that it was the accused who was the consumer at the time of the raid and was abstracting the electricity by applying some artificial means.
15. Further, the Joint Inspection Report which is the foundation of present case, has not been proved as per law. The original JIR has not been produced. No explanation has been offered as to why original JIR is not produced. The entitlement to prove the JIR by way of secondary evidence was neither raised nor proved. Under the circumstances, the FIR NO. 145/99 PS Dwarka State v. Nageshwar Prasad 6/7 photocopied document purporting to be the copy of JIR, is not to be read in evidence.
16. Another lacunae in the prosecution case regarding the unsealed condition of the case property which was produced before the court and it was also not having any identification mark. In absence of any mark of identification and due to non- sealing of case property, it cannot be safely hold that the case property is the same which were removed from the raided premises.
17. 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 Nageshwar Prasad is acquitted for the offences for which he was charged.
18. File be consigned to record room after due compliance. Announced in the open court on 27.01.2014 Manisha Tripathy MM03(South)/27.01.2014 Certified that this judgment contains 7 pages and each page bears my signatures.
Manisha Tripathy MM03(South)/27.01.2014 FIR NO. 145/99 PS Dwarka State v. Nageshwar Prasad 7/7