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Madhya Pradesh High Court · body

2013 DIGILAW 457 (MP)

Hakku Kaurav v. State of M. P.

2013-04-04

N.K.GUPTA

body2013
JUDGMENT : The applicant was convicted for the offence punishable under section 39 of the Electricity Act and section 506 (Part-I) of IPC vide judgment dated 8.2.1999 passed by the JMFC, Gadarwara (Shri Amitabh Mishra) in criminal case No.359/1995 and sentenced for 1 year's rigorous imprisonment with fine of Rs.500/- and 6 months' rigorous imprisonment respectively. In criminal appeal No.27/1999 the learned Additional Sessions Judge, Gadarwara District Narsinghpur vide judgment dated 27.12.1999 dismissed the appeal in toto. Being aggrieved with the judgments passed by both the Courts below, the applicant has preferred the present revision. 2. The prosecution’s case in short, is that, on 7.4.1995, Shri Pankaj Yadav (P.W.5) J.E., MPEB alongwith linemen Ramkishore (P.W.2), Sitaram (P.W.4) and Ramesh Verma (P.W.6) went to the village Kheri (Police Station Gadarwara, District Narsinghpur) for checking. He was informed that the applicant was using his electric pump without a valid connection. At about 2 p.m., he found that the applicant was irrigating his crops by a 5 HP motor. A starter and chord wire were seized by Shri Pankaj Yadav and thereafter they went to the well of one Ummed. In the meantime, the applicant had stolen the starter and when they came back, the applicant abused them and asked for the return of starter. He brought a farsa and threatened the complainant and his companions for return of the starter. Thereafter, the lineman Ramesh was directed to call for the police and when the applicant suspected that the police was arriving, he left the spot. Thereafter, Shri Pankaj Yadav took the motor from the well of the applicant and seized it alongwith wires, starter and pipes. An FIR, Ex.P/7 was sent to the Police Station Gadarwara, which was registered on the next day morning. After due investigation, a charge-sheet was filed before the trial Court. 3. The applicant abjured his guilt. He took a specific plea that he did not have any land or well. He was falsely implicated in the matter by the staff of Electricity Board. In defence, one Dangal (D.W.1) was examined. 4. The learned Judicial Magistrate First Class, after considering the evidence adduced by the parties, convicted and sentenced the applicant as mentioned above, whereas, the appeal filed by the applicant was dismissed in toto. 5. I have heard the learned counsel for the parties. 6. In defence, one Dangal (D.W.1) was examined. 4. The learned Judicial Magistrate First Class, after considering the evidence adduced by the parties, convicted and sentenced the applicant as mentioned above, whereas, the appeal filed by the applicant was dismissed in toto. 5. I have heard the learned counsel for the parties. 6. The learned counsel for the applicant has submitted that the applicant was not in possession of any field and therefore, nothing was seized from him. No revenue paper was filed by the prosecution to show that the applicant had a field. He was convicted without any basis. In alternate, it is submitted that he could be given the advantage of Probation of Offenders Act. It is also submitted that the applicant remained in the custody for 10 days and therefore, he may not be sent to the jail again. 7. On the other hand, the learned Panel Lawyer has submitted that there is a concurrent finding of conviction by both the Courts below, which cannot be disturbed unnecessarily. 8. After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it appears that there is a lot of contradiction between the statements of various employees of MPEB. The most important document, Ex.P/2 appears to be fishy and it indicates that some interpolation had been done in that document. The learned JMFC as well as the learned Additional Sessions Judge have committed an error in appreciating the evidence. The independent witnesses Girdhari (P.W.1) and Jagdish Prasad (P.W.7) have turned hostile. Ramkishore (P.W.2), Sitaram (P.W.4), Pankaj Yadav (P.W.5) and Ramesh Verma (P.W.6) have stated about the incident but, some of them informed that the applicant brought an axe, whereas, it was mentioned in the FIR, Ex.P/7 that the applicant brought a Farsa. However, one Gandasa was seized from the spot. The police could neither seize a Farsa, nor an axe. 9. Similarly, it is stated by the witnesses that they went to the well of the applicant and he was irrigating his crops. Connection papers were demanded and he could not show any paper, therefore, starter and wire chord were seized and thereafter, the witnesses went to the well of one Ummed. In this connection, if the seizure memo, Ex.P/2 is perused then, it would be apparent that no starter or wire was found seized from the spot. Connection papers were demanded and he could not show any paper, therefore, starter and wire chord were seized and thereafter, the witnesses went to the well of one Ummed. In this connection, if the seizure memo, Ex.P/2 is perused then, it would be apparent that no starter or wire was found seized from the spot. It was mentioned in the memo Ex.P/2 that the motor was affixed inside the well and therefore, its nameplate was not visible but, after completion of the entire memo, 5 items were listed in that memo, which were seized from the spot including a motor (bearing name of its maker), cut-out alongwith main switch, pipe, wires and a Gandasa. If Shri Pankaj Yadav and his companions took the starter and wires from the well of the applicant then, the seizure of starter and wire should have been shown in the seizure memo, Ex.P/2, which was not shown in that memo. If the starter and wire were taken without their seizure then, it was an illegality committed by Shri Pankay Yadav. No explanation was given by Shri Pankaj Yadav as to why both such things were not shown to be seized in the memo, Ex.P/2. It appears that the memo Ex.P/2 was prepared on 7.4.1995, whereas the seized items were added by interpolation in that memo thereafter. 10. No recovery of starter and wire is shown in the seizure memo, Ex.P/2, which indicates that the story of seizure of starter and wire was not a correct story. It is a cooked story. In the FIR, it was suspected that the starter was taken by the applicant but, it was not claimed in the FIR that anyone saw the applicant when he was taking the starter. One starter was seized from the applicant on 5.5.1995. If a case was registered on 8.4.1995 then, the applicant could be interrogated by the police and starter could be recovered from him within 2-3 days of the incident but, starter was seized after 4 weeks, which indicates that the applicant was forced to purchase a starter of a particular company and to provide it to the police. Under such circumstances, the facts relating to the seizure of the starter and its theft appears to be incorrect and Shri Pankaj Yadav and his companions are telling a falsehood against the applicant. 11. Under such circumstances, the facts relating to the seizure of the starter and its theft appears to be incorrect and Shri Pankaj Yadav and his companions are telling a falsehood against the applicant. 11. Secondly, it is mentioned in the seizure memo, Ex.P/2 that the motor was affixed in the bottom of the well and therefore, its nameplate was not visible. It is told by Shri Pankaj Yadav that when the police came to the spot, they could seize the motor, pipe, wire and cut-out etc. from the applicant, whereas, the lineman Sitaram has accepted in para 9 of his cross-examination that the police had seized all such things from the spot. If the police came to the spot and according to Shri Pankaj Yadav that he gave a written report, Ex.P/7 within one hour of the incident, then what was the problem to the police in registering the case on the same very day. The incident took place at 2 p.m. and therefore, the report, Ex.P/7 must have been submitted at about 3 p.m. but, the police registered the case on 8.4.1995, at about 10 a.m. By the FIR, Ex.P/5, it is apparent that neither the written report Ex.P/7 was submitted to the police on the same very day, nor it indicates that the police went to the spot and seized the entire material directly. The police has prepared a seizure memo, Ex.P/3 by which the entire material was seized on 8.4.1995 from Shri Pankaj Yadav. These documents indicate that no police came to the spot and Shri Pankaj Yadav etc. took the motor and other articles from the well by a seizure memo, Ex.P/2, whereas, Ex.P/2 was prepared at the time when the alleged starter was seized though not shown in the seizure memo, Ex.P/2 and articles seized from the applicant were shown by an interpolation in the memo, Ex.P/2 thereafter. 12. Such contradictions in various documents of the police and the documents of Shri Pankaj Yadav indicate that Shri Pankaj Yadav and his companions are not telling the true story. They were creating a case against the applicant by hook or crook. In this connection, the statement given by the lineman Ramkishore appears to be important. He has accepted that the well in the field of the applicant was dug one year ago. They were creating a case against the applicant by hook or crook. In this connection, the statement given by the lineman Ramkishore appears to be important. He has accepted that the well in the field of the applicant was dug one year ago. By a memo, Ex.P/2, it is apparent that motor affixed in the well was affixed since a long period and therefore, its nameplate was muddy and name of the company could not be seen without cleaning the motor. It means that the applicant was using the motor since last one year. If it was in the knowledge of the lineman, then why a raid was not done by the higher authorities within a span of that one year. Ramkishore has admitted that there was some amount due towards the electricity charges, which was not paid by the applicant and therefore, an arrears of the bill was demanded and thereafter, the starter and wire were removed. The witness Ramkishore was not declared hostile and therefore, his testimony is binding upon the prosecution. Looking to the statements given by Ramkishore and seizure memo, Ex.P/2, it appears that since the applicant had not paid the arrears of electricity bill therefore, his starter was removed, without making any seizure, to terrorize the applicant, whereas, if Shri Pankaj Yadav had disconnected the connection of the applicant then, he should have prepared a memo accordingly. It appears that Shri Pankaj Yadav was not entitled to disconnect the connection of the applicant but, he wanted to recover the arrears and therefore, he did an illegal act of removing the starter and wire from the well of the applicant and that starter and wire were not shown to be seized in the memo, Ex.P/2. Thereafter, Shri Pankaj Yadav lost that starter and it was not taken by the applicant, otherwise, it could be recovered by the police soon after the incident but, ultimately, the applicant was directed to provide the starter of the same company, after four weeks, which was seized by the seizure memo, Ex.P/1. Under such circumstances, the testimony of the witness Ramkishore indicates that the applicant had a valid connection and he was using his motor through that connection. He could not pay the bill of electrical energy. Non payment of a bill is not a crime. Under such circumstances, the testimony of the witness Ramkishore indicates that the applicant had a valid connection and he was using his motor through that connection. He could not pay the bill of electrical energy. Non payment of a bill is not a crime. The remaining charges of electrical energy could be recovered by the MPEB and the connection could be disconnected according to the rules. Instead of doing so, Shri Pankaj Yadav made a case of theft of electrical energy in such a fashion otherwise, if the starter was removed in a valid manner then, as to why its seizure was not shown in the memo, Ex.P/2. 13. Under such circumstances, there is a lot of contradictions between the evidence of Shri Pankaj Yadav and his companions. Ramkishore has accepted that after removal of starter and wire, Shri Pankaj Yadav did not visit to the well of the applicant. On the contrary, Ramkishore and Sitaram went to the well of the applicant for the second time and they removed the motor, pipe and each and everything from the well to show that the applicant was using his motor, without any valid connection. The statement of the witness Ramkishore appears to be acceptable because the lineman Ramesh Verma (P.W.6) could not say about the second incident, which took place at the well of the applicant. As mentioned above, it would be apparent that no police came to the spot but, the seizure of motor and other articles was made and list of such articles was interpolated in the memo, Ex.P/2, which was prepared in the first round. Shri Pankaj Yadav himself could not say anything about the second incident in detail. It is possible that the police must have seized all the articles from the spot on the next day morning. 14. On the basis of the aforesaid discussion, it appears that the applicant had a valid connection and since he could not pay the arrears of electricity bill, therefore, a false case of theft of electrical energy was created against the applicant. As mentioned above, if someone does not pay the electricity bill then, it cannot be said that he has committed theft of electrical energy. Both the Courts below have committed an error of law in convicting the applicant for the offence punishable under section 39 of the Electricity Act. 15. As mentioned above, if someone does not pay the electricity bill then, it cannot be said that he has committed theft of electrical energy. Both the Courts below have committed an error of law in convicting the applicant for the offence punishable under section 39 of the Electricity Act. 15. So far as the offence punishable under section 506 (Part-I) is concerned, it is apparent from the evidence given by Shri Pankaj Yadav and others that Shri Pankaj Yadav successfully took the starter and wire from the spot and went to the field of one Ummed. In this procedure, the applicant did not interfere. It is also apparent that Shri Pankaj Yadav did not visit for the second time to the well of the applicant. He does not say that the incidence of the threat was committed by the applicant at the well of Ummed and therefore, looking at the statement of Shri Pankaj Yadav, it appears that the applicant never gave any threat to anyone because Shri Pankaj Yadav did not visit to his well for the second time. Consequently, no police came to the spot and the linemen Sitaram and Ramkishore were successful in taking all the articles from the spot or they did not visit to the spot and they shown the recovery of such articles, whereas, the police seized those articles. Therefore, it cannot be said that the applicant gave any threat to Shri Pankaj Yadav or his companions. It is not a case that threat was given to the companions of Shri Pankaj Yadav but, it is alleged that threat was given to Shri Pankaj Yadav himself. According to the evidence given by these witnesses, no threat was given by the applicant but, starter was removed. The applicant did not visit to the well of Ummed and Shri Pankaj Yadav did not visit to the well of the applicant for the second time then, the story of threat given by the applicant appears to be a falsehood. Under such circumstances, the witnesses are telling about the incident by their own imagination that the applicant brought a Farsa or an axe, whereas no Farsa or axe could be recovered. One Gandasa was recovered. Under such circumstances, the prosecution could not prove beyond doubt that the applicant had given any threat to Shri Pankaj Yadav or his companions. Under such circumstances, the witnesses are telling about the incident by their own imagination that the applicant brought a Farsa or an axe, whereas no Farsa or axe could be recovered. One Gandasa was recovered. Under such circumstances, the prosecution could not prove beyond doubt that the applicant had given any threat to Shri Pankaj Yadav or his companions. The learned JMFC as well as the learned Additional Sessions Judge have committed mistake in convicting the applicant for the offence punishable under section 506 (Part-I) of the IPC. 16. On the basis of the aforesaid discussion, it appears that the applicant was in arrears of non payment of electricity bill and therefore, a false case was created against him by Shri Pankaj Yadav. The applicant could not be convicted either for the offence punishable under section 39 of the Electricity Act or for the offence punishable under section 506 (Part-I) of IPC. Both the Courts below have committed an error of law in convicting the applicant and therefore, it is a composite error of facts and law. Both the judgments suffers by perversity. Hence, it is a fit case, in which an interference is required from the side of this Court, by way of a revision. The revision filed by the applicant appears to be acceptable and consequently, it is hereby accepted. The conviction as well as the sentence directed against the applicant for the offence punishable under section 39 of the Electricity Act and section 506 (Part-I) of IPC are hereby set aside. The applicant is acquitted from the aforesaid charges. He would be entitled to get the fine amount back, if he has deposited the same before the trial Court. 17. At present, the applicant is on bail. His presence is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged. 18. A copy of the order be sent to the trial Court as well as to the appellate Court alongwith their records for information and compliance.