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2019 DIGILAW 1986 (HP)

State Of Himachal Pradesh v. Shiv Kumar

2019-12-19

SURESHWAR THAKUR

body2019
JUDGMENT Sureshwar Thakur, J. - The instant appeal, stands directed, by the State of Himachal Pradesh, against, the judgment of acquittal rendered on 12.2.2009, by the learned Additional Chief Judicial Magistrate, Court No. 1, Mandi, District Mandi upon criminal case No. 2- III/02. 2. The brief facts of the case are that on the basis of written complaint Ext. PW1/A of PW-1. B.R. Mahajan Retired Sr. Executive Engineer, police of Police Station Balh, District Mandi, H.P. has registered the FIR Ext.PW8/A and endorsement to this effect is Ext. PW8/B. During the couse of investigation, I.O. has prepared site plan of the spot of the occurrence Ext. PW7/A and took into possession electricity meter Ext. P-1, alongwith Photostat copies record vide memo Ext. PW1/B in presence of Amrit Sagar Sharma Addl. Superintendent Engineer Flying Squad office Chief Engineer Commercial Vidyut Bhawan Shimla-4. Sh. B.R. Mahajan, SDO HPSEB Sub-Division Ner Chowk District Mandi, H.P. and Sh. Umesh Gupta AAE Flying Squad Office Chief Engineer Commercial Vidyut Bhawan Shimla, H.P., I.O. has given an application to Assistant Executive Engineer, Electricity SubDivision HPSEB, Ner Chowk, District Mandi, Ext. PW7/B and obtained record Ext. PW4/A. I.O. has also taken into possession statement showing energy consumption Ext. PW7/C and letter Ext. PW7/G of Assistant Executive Engineer Ner Chowk. The I.O. has recorded the statements of witnesses under Section 161 Cr. P.C. 3. On conclusion of the investigations, into the offences, allegedly committed by the accused, a report under Section 173 of the Code of Criminal Procedure, was prepared, and, filed before the learned trial Court. 4. The accused, stood charged, by the learned trial Court, for theirs'' committing offences, punishable under, Section 39 of Indian Electricity Act. In proof of the prosecution case, the, prosecution examined 9 witnesses. On conclusion of recording, of, prosecution evidence, the statement of the accused, under, Section 313 of the Code of Criminal Procedure were recorded, by the learned trial Court, wherein, the accused claimed innocence and pleaded false implication in the case. Accused examined one witness, in his their defence. 5. On an appraisal of evidence existing on record, the learned trial Court, returned findings of acquittal, upon, the accused/respondents herein, for his committing offences punishable under Section 39 of the Indian Electricity Act-1910. 6. The State of H.P., stands aggrieved, by the judgment of acquittal recorded, upon, the accused/respondent. Accused examined one witness, in his their defence. 5. On an appraisal of evidence existing on record, the learned trial Court, returned findings of acquittal, upon, the accused/respondents herein, for his committing offences punishable under Section 39 of the Indian Electricity Act-1910. 6. The State of H.P., stands aggrieved, by the judgment of acquittal recorded, upon, the accused/respondent. The learned Additional Advocate General appearing for the State, has concertedly, and, vigorously contended, qua the findings of acquittal recorded by the learned trial Court standing not based on a proper appreciation, "by it", of the evidence on record, rather, theirs standing sequelled by gross-misappreciation, "by it", of the material on record. Hence, he contends qua the findings of acquittal warranting reversal by this Court in the exercise of its appellate jurisdiction and theirs standing replaced by findings of conviction. 7. On the other hand, the learned counsel appearing for the accused/respondent herein has with considerable force and vigour, contended qua the findings of acquittal recorded by the learned Additional Chief Judicial Magistrate, Court No. 1, Mandi, standing based on a mature and balanced appreciation, by him, of the evidence on record, and, theirs not necessitating any interference, rather theirs meriting vindication. 8. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 9. The afore electricity meter, Ext. P-1, was taken into possession, through memo, borne in Ext. PW1/B. The afore memo was prepared, in pursuance, to, a complaint, embodied in Ext. PW1/A. PW-9, in his deposition, has made echoing(s), qua his alongwith Inspector Kali Dass, being, a member of the flying squad, hence constituted on 19.4.2001. However, the afore made deposition, vis--vis, his, alongwith Sub-Inspector Kali Dass, being member(s), of, the duly constituted flying squad, is, not meted corroboration by PW-7, Inspector Kali Dass Sharma, (i) given the latter being reticent, vis-a-vis his alongwith PW-9, being available, on 19.4.2001, alongwith the other members, of, the flying squad, for theirs'' hence conducting a raid, upon, the premises owned, by, the respondent/accused. The afore interse contradiction, interse the deposition(s), of, PW-9 and of, PW-7, when becomes, conjoined, alongwith, their existing further interse contradiction(s), in the deposition(s), rendered by PW-9, inasmuch, as, his making, a, testification, qua on, 19.4.2001, his taking, through, memo, borne in Ext. PW1/B, hence possession, of, the electricity meter, and, vis--vis, Ext. The afore interse contradiction, interse the deposition(s), of, PW-9 and of, PW-7, when becomes, conjoined, alongwith, their existing further interse contradiction(s), in the deposition(s), rendered by PW-9, inasmuch, as, his making, a, testification, qua on, 19.4.2001, his taking, through, memo, borne in Ext. PW1/B, hence possession, of, the electricity meter, and, vis--vis, Ext. PW1/B, wherein the date, of its, becoming prepared, is, echoed, rather as 3.5.2001, visibly does, obviously engender a conclusion, vis--vis, (a) the raid of, the premises, of the respondent/accused, as made, on 19.4.2001, and, also, the, thereat, made hence apt seizure, both becoming falsified, and, wherefrom, the, further concomitant inference, hence becomes sparked, is, qua the genesis, of, the prosecution case, qua, the flying squad, visiting the premises, of the accused, on 19.4.2001, also becoming belied. Further accentuation, vis--vis, the afore inferences, becoms garnered, from the testification, rendered by PW-7, wherein, he has echoed, vis--vis, the electricity meter, embodied, in Ext. P-1, becoming seized, through, memo borne, in Ext. PW1/B, and, preparation thereof, occurring on 3.5.2001. Significantly, reiteratedly, hence the prosecution case, becomes, rather capsized. 10. Be that as it may, the unrebutted testification, of DW-1, makes candid underlining(s), qua, two electricity meter(s), occurring in the premises of the accused, inasmuch, as one purveying light, vis--vis, the house of the respondent/accused, and the other purveying power, for, the established therein industry, of, the accused, (i) and, also with his thereafter, deposing, that even after, the, installation, of, the new electricity meter, on 4.5.2001, in the premises, of, the accused, the meter reading(s), thereof, not revealing there occurring any increase(s) in the consumption, of, electricity, both, in the house of the accused, or in the industry, operated by him, (iii) and, imperatively, thereupon an inference, becomes bolstered vis--vis, the consumption, of, electricity, by the accused, both, for, the apt commercial, and, for residential purpose, hence prior to the installation, of the new meter, falling squarely, rather at par, with the recorded consumption, in the apt electricity meter(s), as became installed subsequently. The further effect, thereof, is that, the charge against the accused, becoming staggered 11. The further effect, thereof, is that, the charge against the accused, becoming staggered 11. Dehors the above, the, wants on the part of the Investigating Officer, to, obtain, from the expert concerned, after the latter being purveyed, the, electricity meter, hence vis--vis, their being any inculpable tamperings therewith, does, also constrain a firm conclusion, from this Court, vis--vis, the charge against the accused, becoming, rather not clinchingly proven by the prosecution, (i) and moreso, when, at the time of seizure of P-1, through memo, borne in Ext. PW1/A, despite availability, of, independent witnesses, in the neighborhood, of, the premises concerned, none of the available witnesses, became joined in the relevant seizure, hence, by the Investigating Officer concerned, whereas, given the afore rife interse contradiction, interse the testification, of, PW-9 and, of, PW-7, and also, for, want of the opinion of the expert, vis--vis, Ext. P-1, becoming obtained, rather, the, association of the independent witnesses, in the relevant seizure, was imperative, hence for scuttling, the, rearing of any inference, vis--vis, hence skewed, and, slanted investigation, becoming conducted, into, the alleged offences, rather by the Investigating Officer Concerned. Contrarily, wants thereof, constrain this Court, not, to believe the skewed, and, slanted investigation, conducted into the offences, by, the Investigating Officer concerned. 12. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court has appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned appellate Court, does not, suffer from any perversity or absurdity of mis-appreciation and non-appreciation of evidence on record. 13. Consequently, there is no merit in the instant appeal which is accordingly dismissed. The Judgment impugned before this Court is maintained and affirmed. Records be sent back forthwith.