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2023 DIGILAW 1160 (GUJ)

PATEL KANTILAL SHANKARBHAI v. STATE OF GUJARAT

2023-12-08

A.Y.KOGJE

body2023
JUDGMENT : A.Y. KOGJE, J. 1. The present appeal is filed against judgment and order dated 04.09.2009 passed by the Special Judge (Electricity), Mehsana in Special Electricity Case No. 24 of 2008. By the impugned judgment and order, the Special Judge has convicted the appellant for offence under Section 135(1)(B) of the Indian Electricity Act and imposed rigorous imprisonment of 9 months with fine of Rs.2,500/-. 2. Learned Advocate for the appellant at the outset submitted that an error is committed by the Special Judge to proceed with the trial on the basis that the present was the second offence with previous antecedent which came to be compounded. According to learned Advocate for the appellant, this finding is factually erroneous as on previous occasion, there was no offence of theft against the appellant. 2.1 Learned Advocate for the appellant thereafter has taken this Court through the evidence of two important witnesses, first being Patel Ramanbhai Joitabhai-PW-2, Exh.19, who is the complainant and officer of GEB and other being Patel Mithabhai Ramanlal-PW-1, Exh.14, who is employee of GEB and who carried out inspection. Learned Advocate submitted that combined reading of evidence of both these witnesses would suggest that the chronology in which the inspection was carried out and the theft was detected cannot be believed. In this regard, learned Advocate submitted that PW-1 had proceeded for inspection at 07:00 am whereas the complaint registered by PW-2 would reveal the time of inspection as 06:00 am on the same day and therefore, timing of inspection does not telly between these two witnesses. 2.2 Learned Advocate for the appellant submitted that over and above, theft detected of that of the appellant, PW-1 has deposed that he had undertaken inspection of 40 other connections after inspection in case of the appellant and prior thereto, he had undertaken inspection of 15 connections. However, this witness has deposed that he returned to his office within a period of half an hour that he left the office in the morning. Therefore, according to learned Advocate, act of inspection on the part of this witness was never undertaken and merely a report was prepared and handed over to superior officer. However, this witness has deposed that he returned to his office within a period of half an hour that he left the office in the morning. Therefore, according to learned Advocate, act of inspection on the part of this witness was never undertaken and merely a report was prepared and handed over to superior officer. 2.3 Learned Advocate for the appellant submitted that investigation in entirety cannot be relied upon as during entire inspection, no independent panch witness was present nor there is any independent witness to support the case of prosecution except for the officers who are working with the complainant-GEB. Learned Advocate for the appellant therefore relied upon decision of this Court in case of State of Gujarat Vs. Khumansinh Ranjitsinh Jadeja, 2022 JX (Guj.) 1093. Learned Advocate particularly relied upon observation of this Court that in absence of any independent person to support the inspection or the panchnama of the scene of incident, the prosecution would have failed to prove the case beyond reasonable doubt. 2.4 Learned Advocate for the appellant submitted that there is delay of 7 days in lodging the complaint and that the delay per se may not be fatal to the prosecution, but the failure on the part of the prosecution to explain such delay would certainly be fatal to the case of prosecution. 2.5 Learned Advocate for the appellant lastly submitted that the inspection carried out at the place of the appellant is also doubtful as admittedly, signature obtained on the inspection report is that of a person other than the appellant, who is holder of connection from GEB. 3. As against this, learned APP for the respondent-State, in support of the impugned judgment and order, has submitted that the Special Judge has assigned sufficient and cogent reasons in recording conviction and that submission on the part of learned Advocate for the appellant of mere variation in timing cannot set aside entire case of prosecution. Learned APP has drawn attention of this Court to the version of this witness to indicate that in answer to the question put in cross-examination, the witness has given only the probable timing taken for the purpose of inspection, but the same cannot be applied strictly to mean that there was no inspection at all. 4. Learned APP has drawn attention of this Court to the version of this witness to indicate that in answer to the question put in cross-examination, the witness has given only the probable timing taken for the purpose of inspection, but the same cannot be applied strictly to mean that there was no inspection at all. 4. Having heard learned Advocates for the parties and having perused documents on record, so far as first point argued by learned Advocate for the appellant that an error is committed in treating the present offence as second offence, otherwise provision of law provides for first offence to be treated as compoundable offence. Hence, the present offence being first, instead of trial, the offence ought to have been compounded and there being no previous offence in this regard, trial itself was not warranted. For this argument, the Court has taken into consideration the evidence of the complainant-Patel Ramanbhai Joitabhai-PW-2, Exh.19, where he has deposed regarding registration of the offence on 19.02.2017 under the Electricity Act with Sabarmati Police Station and has also produced on record the relevant documents vide Exhs.21 to 23 and therefore, submission of learned Advocate for the appellant that the entire trial was on an erroneous footing is required to and is hereby rejected. 5. The Court has thereafter taken into consideration deposition of Patel Mithabhai Ramanlal-PW-1, Exh.14, who is employee of GEB and had undertaken inspection of domestic electric connection on the premises of the appellant. In the cross-examination, this witness has deposed that on the day of inspection, i.e. 12.06.2007, he had left the office at 07:00 am and had reached the site of inspection at Motipura village at 07:30 am and before inspecting the connection in question, he had undertaken inspection of 15 other connections. It is also deposed that after the inspection of the connection in question, this witness had proceeded to undertake inspection of 14 other domestic connections and thereafter, he proceeded to reach his office. According to this witness, he had reached his office by 08:00 am. It is also deposed that after the inspection of the connection in question, this witness had proceeded to undertake inspection of 14 other domestic connections and thereafter, he proceeded to reach his office. According to this witness, he had reached his office by 08:00 am. In the opinion of the Court, when these categoric timings have come on record that this witness had undertaken inspection of connections between 07:00 am to 08:00 am and his deposition to the extent that inspection of each connection would consume approximately 10 minutes, the Court finds it difficult to accept version of this witness that he had genuinely undertaken inspection to find out theft, particularly submersible white wire inserted to bypass the electricity meter. 6. The Court has also taken into consideration the document which has come on record through PW-2, Exh.19, which is complaint dated 19.06.2007 addressed by PW-2 to the concerned Police Station, wherein it is indicated that the inspection was carried out on 12.06.2007 at 06:00 am. This variation in timing also creates doubt on the credibility of entire process of inspection and finding out of the device by which electric theft was committed. 7. The Court has perused evidence of other witnesses, viz. Anvarhussain Shaikh-PW-3, Exh.24 and Sureshbhai Parmar, PW-4, Exh.26, both being police personnel and were involved in carrying out investigation. From the deposition of these witnesses, it is coming out that device (submersible white wire), which according to case of prosecution was the device for committing electricity theft, was not seized by following due process, but was simply handed over back to the complainant for preservation and therefore, the muddamal article in the form of device also cannot be treated as having been legally seized and preserved for the purpose of trial. 8. The aforesaid point gains much importance as the prosecution has not placed on record any document which is recording the process of carrying out of inspection by panchnama and for that, no independent person examined to support carrying out of inspection or panchnama with regard to inspection and seizure of the device allegedly utilized for the purpose of committing electricity theft. 9. In this regard, it would be appropriate to rely upon decision of this Court in case of State of Gujarat Vs. Khumansinh Ranjitsinh Jadeja, 2002 (0) AIJEL-HC 244888, where, in Para-11, this Court has held as under: “11. 9. In this regard, it would be appropriate to rely upon decision of this Court in case of State of Gujarat Vs. Khumansinh Ranjitsinh Jadeja, 2002 (0) AIJEL-HC 244888, where, in Para-11, this Court has held as under: “11. Considering the evidence on record, it has come out that the checking party has not taken any panchnama of the scene of offence nor any muddamal is seized by drawing panchnama to that effect nor in presence of any independent witness, nor statement of the independent persons who are having shops adjacent to the place of incident have been recorded by the checking party and also the complaint of the incident has been lodged after a delay of six months from the date of incident, for which no explanation has been tendered by the complainant. This Court is of the opinion that when a case of theft of electricity is alleged to have been occurred by the electricity Company, and when the checking is conducted, there should be panchnama of the scene of incident to clarify as to what was the position of the Wires and Meter and as to how the theft of electricity has been committed by the offender. Here, apparently panchnama is not drawn, though the muddamal Meter and the Wires are seized, no statement of the persons residing nearby are recorded. The muddamal which was seized was never sent to the police.” 9.1 The Court has taken into consideration the impugned judgment and order and in the opinion of the Court, the judgment and order proceeds on surmises as there is no discussion with regard to evidence. 10. With regard to contention of learned Advocate for the appellant regarding carrying out of inspection itself being doubtful on account of signature obtained of the customer on the inquiry report not belonging to the present appellant, this contention has been dealt with by the Special Judge by holding that as there was a previous inspection on previous occasion, where the same person had signed on behalf of the appellant, therefore inspection was carried out at the same premises. This, in the opinion of the Court, is a finding which is not based on any evidence led by the prosecution to establish the inspection site and connecting it with the present appellant. 11. This, in the opinion of the Court, is a finding which is not based on any evidence led by the prosecution to establish the inspection site and connecting it with the present appellant. 11. In view of the aforesaid, the Court finds that the judgment and order is erroneous and based on the evidence which is sufficient to bring and establish charge of theft by the appellant beyond reasonable doubt. The conviction thus recorded is required to be quashed and set aside. 12. In view of the aforesaid discussion, the appeal is allowed. The impugned judgment and order dated 04.09.2009 passed by the Special Judge (Electricity) in Special Electricity Case No. 24 of 2008 is quashed and set aside. The appellant is ordered to be set at liberty, if not required in any other offence. Bail bond of the appellant stands discharged. R&P to be sent back to the concerned trial Court.