( 1 ) (CRIMINAL Appeal under Section 374 (2) Cr. P. C. against the Judgment dated 04/05/1999 made in Sc No. 60 of 1998 on the file of the Court of Sessions Judge, Adilabad.) subash Mandal-Sole accused in S. C. No. 60 of 1998 on the file of the Sessions Judge, Adilabad had preferred the present Criminal Appeal. ( 2 ) THE appellant-accused was found guilty for the offences under Section 304-II of the Indian Penal Code (IPC) and Section 39 of the Indian Electricity Act read with section 379 IPC and accordingly, the accused was sentenced to undergo Rigorous Imprisonment for a period of two years for the offence under Section 304-II IPC and three months for the offence under Section 39 of the Indian Electricity Act (hereinafter referred to in short as the Act) read with Section 379 IPC. Hence, the present criminal appeal. ( 3 ) SRI. H. Venugopal, learned Counsel representing the appellant had taken this Court through the finding recorded by the learned Judge and would contend that the findings cannot be sustained for the reason that none of the ingredients of the offence with which the accused had been charged with has been established by the prosecution. The learned Counsel also would submit that even otherwise for the offence under Section 39 of the Indian Electricity Act, the prosecution would be initiated only by the competent persons as specified in Section 50 of the Act and hence, on the ground of incompetence alone, the acquittal may have to be recorded. The learned Counsel also placed strong reliance on the decision of the Apex Court in Avtar Singh Vs. State of Punjab ( AIR 1965 SC 666 ). The learned Counsel also had taken this Court through the evidence available on record and had pointed out Exs. P2 and P5-relevant portions of 161 Cr. P. C. statements of P. Ws. 3 and 5 respectively. ( 4 ) PER contra, the learned Additional Public Prosecutor would contend that in the light of the evidence of P. Ws. 1 to 7 and also Exs. P-1 to P-8, the prosecution was able to establish the guilt of the accused and since the findings recorded by the learned Judge are well considered findings, the same have to be confirmed. ( 5 ) HEARD both the Counsel. 1 to 7 and also Exs. P-1 to P-8, the prosecution was able to establish the guilt of the accused and since the findings recorded by the learned Judge are well considered findings, the same have to be confirmed. ( 5 ) HEARD both the Counsel. ( 6 ) THE Sub-Inspector of Police, Easgaon filed the charge sheet against the accused for the offence under Section 304-II IPC and Section 39 of Indian Electricity Act read with Section 379 IPC in Crime No. 60 of 1996 of Easgaon Police Station on the ground that the accused had illegally taken electricity wire from the main pole to his house and negligently the deceased touched the wire and died on the spot. ( 7 ) THE case of the prosecution is that on 27. 11. 1996 at about 2. 00 p. m. , P. W. 1 came to the police station and presented report alleging that his sister Mekala Sathekka, while returning to Gannaram village through the pathway enrooting village No. 2, unmindfully came into contact with the electric shock due to the illegal connection from the pole to the house of the accused and died on the spot. Thereupon, the crime was registered and the Sub Inspector of Police visited the scene of occurrence, conducted inquest and seized the material objects before the panchas and post mortem examined was conducted over the dead body of the deceased. On 25. 12. 1996, the accused was arrested. The medical evidence shows that the cause of death is due to shock due to electrocution. Hence, the charge sheet was filed. ( 8 ) THE Judicial Magistrate of First Class, Sirpur had taken the case on file as PRC No. 51 of 1997, which was committed to the Court of Session and the learned Sessions Judge tried it as Sessions Case No. 60 of 1998, recorded the evidence of P. Ws. 1 to 7 and also marked Exs. P-1 to P-8 and ultimately held the accused guilty of the offence charged with. In Ex. P-1 no doubt, P. W. 1 specified that the accused had illegally drawn the electric connection to his house and these facts were deposed by P. W. 1 and P. W. 2 supported the version of P. W. 1. P. Ws. 3 and 5 were declared hostile and Exs. P-2 and P-5-relevant portions in 161 Cr. In Ex. P-1 no doubt, P. W. 1 specified that the accused had illegally drawn the electric connection to his house and these facts were deposed by P. W. 1 and P. W. 2 supported the version of P. W. 1. P. Ws. 3 and 5 were declared hostile and Exs. P-2 and P-5-relevant portions in 161 Cr. P. C. statements of P. Ws. 3 and 5 were marked respectively which were no doubt put to the Investigating Officer. The learned Judge had discussed the evidence of P. Ws. 1 and 2 in detail and also had taken into consideration the evidence of P. W. 4-Village Administrative Officer, who deposed about the observation report (Ex. P-3) and the inquest report (Ex. P-4) prepared in their presence and P. W. 4 also identified M. O. 1 electric wire through which connection was taken from the main line and M. O. 2-iron rod. ( 9 ) P. W. 6 is the Civil Assistant Surgeon who conducted post-mortem examination over the dead body of the deceased and found the following external injuries: 1. Impression of the electric wire on soles of both heels on the left heel 1 x 4 cm. , on the right heel 1 x 5 cms. (Measurements of the impressions ). 2. Skin is peeled off from the left little finger on the palmar aspect. Tendon is seen. 3. Skin is peeled off around the left middle finger. Tendon is seen. This witness deposed that the above injuries are ante mortem in nature. P. W. 6 did not find any internal injuries and the approximate time of death is 48 hours prior to examination and the cause of death is due to shock resulting from electrocution. This witness issued Ex. P-6-Post-mortem certificate. ( 10 ) P. W. 7 is the Sub-Inspector of Police who deposed the details of investigation and also about Exs. P-2 and P-5-161 Cr. P. C. statements of P. Ws. 3 and 5 respectively. This witness was cross-examined at length. ( 11 ) THE very case of the prosecution is that due to negligent act of the accused taking some illegal electrical connection, inasmuch as touching the said wire the deceased died. The ingredients of Section 39 of the Act read with Section 379 IPC and 304-II IPC are established. 3 and 5 respectively. This witness was cross-examined at length. ( 11 ) THE very case of the prosecution is that due to negligent act of the accused taking some illegal electrical connection, inasmuch as touching the said wire the deceased died. The ingredients of Section 39 of the Act read with Section 379 IPC and 304-II IPC are established. Section 39 of the Act reads as hereunder: theft of energy: Whoever dishonestly abstracts, consumes or uses any energy shall be punishable with imprisonment for a term which may extend to three years, or with fine which shall not be less than one thousand rupees, or with both, and if it is proved that any artificial means or means not authorized by the licensee exist for the abstraction, consumption or use of energy by the consumer, it shall be presumed, until the contrary is proved that any abstraction, consumption or use of energy has been dishonestly caused by such consumer. Likewise section 50 of the said Act reads as hereunder: institution of Prosecutions: No prosecution shall be instituted against any person for any offence against this Act or any rule, licence or order there under, except at the instance of the Government or a State Electricity Board or an Electrical Inspector or of a person aggrieved by the same. The question of competence for initiating prosecution under Section 39 of the Act had fallen for consideration in Avtar Singh Vs. State of Punjab (1 Supra) and Three Judge Bench of the Apex Court while dealing with this question held that next as to S. 39 not providing for a punishment, apart from the question whether an offence can be created by a statutory provision without that provision itself providing for punishment, on which we express no opinion, we think it clear that S. 39 must be read as providing for a punishment. First it is clear to us that the Act contemplated it as doing so, for Ss. 48 and 49 speak of penalties imposed by S. 39 and acts punishable under it. In 1964-77 Mad LW 271: ( AIR 1964 Mad 367 ) (FB) it was stated that the language used in Ss. 48 and 49 cannot be regarded as strictly accurate. Such an interpretation is not permitted for the words of an Act of Parliament must be construed so as to give sensible meaning to them. In 1964-77 Mad LW 271: ( AIR 1964 Mad 367 ) (FB) it was stated that the language used in Ss. 48 and 49 cannot be regarded as strictly accurate. Such an interpretation is not permitted for the words of an Act of Parliament must be construed so as to give sensible meaning to them. The words ought to be construed ut res magis valeant quam pureat, Curtis v. Stovin (1889) 22 QBD 513 at p. 517. And we find no difficulty in taking the view that S. 39 does provide for a punishment. It says that the dishonest abstraction of energy shall be deemed to be theft within the meaning of the Indian Penal Code. The section, therefore, makes something which was not a theft within that Code, a theft within it, for if the abstraction was theft within the Code, the section would be unnecessary. It follows from this that the section also makes that theft punishable in the manner provided in it, for if the act is deemed to be a theft within the Code it must be so deemed for all purposes of it, including the purpose of incurring the punishment. In AIR 1956 Bombay 354 it was also stated that the offence of abstraction of energy is by S. 39 expressly made punishable under S. 379. We find no such express provision in S. 39. Even if there was such a provision in the Act, the liability to punishment would arise not under the Code but really because of S. 39. It will be impossible to hold that S. 39 there is any liability to punishment under the Code for any abstraction of electrical energy. In 1964-77 Mad LW 271: ( AIR 1964 Mad 367 ) (FB) it was observed that since S. 39 created a theft within the meaning of the Indian Penal Code by means of a fiction, it followed that as the fiction could not be departed from, the offence so fictionally created was one under the Code. We are unable to appreciate this reasoning. We are unable to appreciate this reasoning. If a provision says that something which is not an offence within the meaning of another statute is to be deemed to be such, the offence, is, in our view created by the statute which rises the fiction and not by the statue within which it is to be deemed by that fiction to be included if the other view was correct, it would have to be held that the offence was one within the last mentioned statute proprio vigore and this clearly it is not. At this stage we might point out that in Abdul Wahabs case, 1964-77 Mad LW 271: ( AIR 1964 Mad 367 ) (FB) it was stated that It can be accepted that S. 39 of the Act creates an offence. It seems to us that if so much is conceded, it is impossible to say that S. 50 would not apply to a prosecution in respect of it for it applies to every prosecution for any offence against this Act. To put it shortly, dishonest abstraction of electricity mentioned in S. 39 cannot be an offence under the Code for under it alone it is not an offence; the dishonest abstraction is by S. 39 made a theft within the meaning of the Code, that is, an offence of the variety described in the Code as theft. As the offence is created by raising a fiction, the section which raises the fiction, namely S. 39 of the Act, must be said to create the offence. Since the abstraction is by S. 39 to be deemed to be an offence under the Code, the fiction must be followed to the end and the offence so created would entail the punishment mentioned in the Code for that offence. The punishment is not under the Code itself for under it abstraction of energy is not an offence at all. We may now refer to certain general consideration also leading to the view, which we have taken. First, we find that the heading which governs Ss. 39 to 50 of the Act is Criminal Offences and Procedure. Obviously, therefore, the legislature thought that S. 39 created an offence. We have also said that SS. 48 and 49 indicate that in the legislatures contemplation S. 39 provided for a punishment. First, we find that the heading which governs Ss. 39 to 50 of the Act is Criminal Offences and Procedure. Obviously, therefore, the legislature thought that S. 39 created an offence. We have also said that SS. 48 and 49 indicate that in the legislatures contemplation S. 39 provided for a punishment. That section must, therefore, also have been intended to create an offence to which the punishment was to attach. The word offence is not defined in the Act. Since for the reasons, earlier mentioned, in the legislatures view S. 39 created an offence, it has to be held that that was one of the offence to which S. 50 was intended to apply. Lastly, it seeks to us that the object of S. 50 is to prevent prosecution for offence against the Act being instituted by anyone who chooses to do so because the offences can be proved by men possessing special qualifications. That is why it is left only to the authorities concerned with the offence and the persons aggrieved by it to initiate the prosecution. There is no dispute that Section 50 would apply to the offences mentioned in Sections 40 to 47. Now it seems to us that if we are right in our view about the object of Section 50, in principle it would be impossible to make any distinction between S. 39 and any of the sections from S. 40 to S. 47. Thus, S. 40 makes it an offence to maliciously cause energy to be wasted. If in respect of waste of energy S. 50 is to have application, there is no reason why it should not have been intended to apply to dishonest abstraction of energy made a theft by S. 39. For all these reasons we think that the present is a case of an offence against the Act and the prosecution in respect of that offence would be incompetent unless it was instituted at the instance of a person named in S. 50. Learned counsel for the respondent also sought to contend that the present prosecution was at the instance of person aggrieved by the theft. We do not think we should allow him at this stage to go into that question. Learned counsel for the respondent also sought to contend that the present prosecution was at the instance of person aggrieved by the theft. We do not think we should allow him at this stage to go into that question. The appellant has all along been contending that his prosecution was bad because it was not at the instance of the Government or an Electrical Inspector or a person aggrieved by the theft. It was clearly for the respondent if it so minded to go into that question, to establish that the prosecution had been instituted at the instance of a person aggrieved as it now seeks to do. It has never been disputed at any earlier stage that the prosecution had not been at the instance of one of the persons mentioned in S. 50. The onus of proving that fact was clearly on the respondent. It is a question of fact and we have no material on the record by which we can decide it. We, therefore, think that this case must be decided on the basis, as it was in the courts below, that the prosecution would be incompetent under S. 50 if it was in respect of an offence against the Act. We have found that it was in respect of such an offence. ( 12 ) HENCE, in view of the authoritative pronouncement of the Apex Court, there cannot be any doubt or controversy that Section 50 of the Act is applicable even in case of prosecution under Section 39 of the Act and inasmuch as competent persons as specified under Section 50 of the Act had not launched the prosecution, the prosecution is bound to fail. It is also pertinent to note that none of the persons concerned with the electricity departments as such had been examined in the present case. When a specific statutory offence had been created under Section 39 of the Act and when the competent persons had not launched the prosecution, on this ground alone, an acquittal may have to be recorded. It is also pertinent to note that none of the persons concerned with the electricity departments as such had been examined in the present case. When a specific statutory offence had been created under Section 39 of the Act and when the competent persons had not launched the prosecution, on this ground alone, an acquittal may have to be recorded. Section 304 IPC reads as hereunder: punishment for culpable homicide not amounting to murder: whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extent to ten years, or with fine or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. ( 13 ) WHEN the very basis of the version of the prosecution is on the strength that an illegal connection relating to the electricity had been obtained and due to such negligent Act, the death occurred, when the very prosecution initiated under Section 39 of the Act is bound to fail on the ground of incompetency and in view of the fact that even if the evidence available on record viz. , the evidence of P. Ws. 1 and 2 and other witnesses if taken into consideration, the ingredients of Section 304-II IPC definitely are not satisfied for want of requisite intention or mens area. Hence, viewed from any angle the prosecution cannot succeed of any of the charges with which the appellant-accused had been charged with and hence, acquittal is hereby recorded of all the charges with which the appellant-accused had been charged with. ( 14 ) ACCORDINGLY, the criminal appeal is allowed. Bail bonds shall stand cancelled.