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2017 DIGILAW 1938 (RAJ)

DINESH MEENA v. JAIPUR VIDHYUT VITRAN NIGAM LTD.

2017-08-30

DEEPAK MAHESHWARI

body2017
ORDER : Deepak Maheshwari, J. This appeal has been preferred on behalf of accused-appellant Dinesh Meena to assail the judgment impugned dated 28.6.2011 passed by learned Special Judge, Electricity Cases, Sawaimadhopur, whereby the learned Trial Court has convicted the accused for the offence punishable under section 136 of the Electricity Act, 2003 ('the Act') and sentenced him with rigorous imprisonment for two years along with a fine of Rs. 20,000/-. Default sentence for four months rigorous imprisonment has also been awarded. 2. None came present on behalf of the accused-appellant to argue the matter, despite Ms. Bharti Sharma has been appointed as Amicus Curiae to represent him and her name being shown in the cause list. 3. Learned Counsel Mr. B.S. Sandhu is also not present on behalf of respondent-Jaipur Vidhyut Vitran Nigam Limited ('JVVNL') to advance his arguments, despite his name being shown in the cause list. 4. I have perused the judgment impugned and the material available on record. 5. An F.I.R. Ex.P-3 was lodged by Vinit Rav, J.En., Head Quarter, Sawaimadhopur mentioning therein that the oil has been stolen from the transformers installed in village Bahated, Chakeri and Taranpur on 15.2.2010, 19.2.2010 and 20.2.2010 respectively. A loss of Rs. 90,000/- has been caused to JVVNL by committing these theft. This F.I.R. was lodged against unknown offender. 6. After conducting investigation, charge-sheet was filed against the accused-appellant Dinesh Meena for the offence aforesaid. After conducting trial, learned Trial Court convicted the accused-appellant for the offence under Section 136 of the Act. 7. On perusal of the material available on record, it is found that the accused-appellant has not been named in the F.I.R. He has been roped in for the offence on basis of recovery of 10 ltrs. of oil, which was recovered on the information given by him. Two Motbir witnesses PW-1 Dharmendra and PW-7 Bhupendra have been examined by the prosecution to prove the recovery memo Ex.P-1. Both these witnesses have admitted in the cross-examination that the place from which the recovery was effected, was accessible to public at large. They have also admitted that they could not identify as to from which D.P. the oil was stolen, which was recovered from the possession of the accused. It has also been admitted by them that no independent witness or the person residing nearby the place of recovery was made Motbir. They have also admitted that they could not identify as to from which D.P. the oil was stolen, which was recovered from the possession of the accused. It has also been admitted by them that no independent witness or the person residing nearby the place of recovery was made Motbir. The Investigating Officer PW-8 Omprakash Sharma has also admitted that the place where from the recovery was made, is nearby the agricultural fields from where public in general pass while going to their fields. He has also admitted that no independent witness was made Motbir of recovery memo Ex.P-1. He himself was not able to tell from which D.P. the recovered oil was stolen. He has also admitted that none of the employees or J.En. of JVVNL was not called by him at the time of recovery to identify the stolen oil. In light of the admissions made by these prosecution witnesses, it is apparently clear that no connecting evidence has been produced to prove that the oil recovered from the possession of accused-appellant was the same as was stolen from the transformers situated at Bahated, Chakeri and Taranpur. 8. On perusal of the judgment impugned, it is found that the learned Trial Court has assumed the fact that the oil recovered from the possession of accused, was the same as was stolen from the transformers. It has been mentioned by learned Trial Court that the Motbirs of the recovery memo cannot be disbelieved only on the ground that they were police personnel's. It is true that their evidence cannot be discarded only for this reason but it appears that the learned Trial Court has brushed aside the admitted fact that the place of recovery was accessible to the public at large. Further the recovered oil has not been identified by the Motbirs or any of the technical employees of the complainant-JVVNL. In absence of the evidence to this effect, in my considered view, the accused-appellant cannot be held liable for the alleged offence of theft of the transformers oil. Learned Trial Court has swayed away in arriving at its conclusion by the fact that the numerous thefts are being frequently committed from the transformers of JWNL. Of course, it is a serious offence, which causes huge financial loss to JVNNL and the public at large. Learned Trial Court has swayed away in arriving at its conclusion by the fact that the numerous thefts are being frequently committed from the transformers of JWNL. Of course, it is a serious offence, which causes huge financial loss to JVNNL and the public at large. But this cannot be a ground to convict the accused-appellant in absence of incriminating evidence connecting him to the offence committed. 9. On careful scanning of the evidence available, no cogent evidence is found to hold the accused-appellant guilty for the offence alleged. 10. In the result, the appeal succeeds and the judgment impugned dated 28.6.2011 is quashed and set aside. 11. The Registry is directed to take follow up steps in regard to the decision of the appeal.