Bombay High Court
Devidas Janoji Gopnarayan vs State Of Mah. Thru Pso on 12 December, 2017
Bench: R. B. Deo
1 apeal683.06
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 683 OF 2006
Devidas Janoji Gopnarayan,
Aged about 60 years,
Occupation - Labour,
R/o Achalpur, Abbaspura,
Tq. Achalpur, District Amravati. .... APPELLANT
VERSUS
State of Maharashtra,
through P.S.O. Achalpur, District
Amravati. .... RESPONDENT
______________________________________________________________
None for the appellant,
Shri A.V. Palshikar, Additional Public Prosecutor for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 12
DECEMBER, 2017
th
ORAL JUDGMENT :
Challenge is to the judgment and order dated 03-11-2006
passed by the learned Ad hoc Additional Sessions Judge (Court 2),
Achalpur in Sessions Trial 68/2006, by and under which the appellant
is convicted for offence punishable under Section 135 of the Electricity
Act, 2003 ("Act" for short) and is sentenced to suffer rigorous
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imprisonment for two months and to payment of fine of Rs.6,000/-.
2. None appears for the appellant. However, with the fair
assistance of the learned Additional Public Prosecutor Shri
A.V. Palshikar, I have scrutinized the record and having done so, I find
the conviction wholly unsustainable.
3. The case of the prosecution is that in the morning hours at
1-00 a.m. on 21-9-2005, pursuant to information received P.W.1 Satish
Kanade raided the house of the accused. It was noticed that the
accused was committing theft of electricity by diverting electricity from
the low tension line with the aid of a hook, P.W.1 Satish and P.W.2
Shamrao called out the accused, a panchanama was prepared, the hook
and a wire was seized and a police report lodged at 4-00 p.m., on
21-9-2005
4. The panchas to the spot panchanama and the seizure have
not been examined.
5. P.W.2 Shamrao fairly states that in view of darkness, he
did not see the face of the accused. On the morning of the raid ten to
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fifteen houses were raided, is the deposition. However, neither of the
two witnesses is in a position to disclose the details muchless the
location of the house of the accused or for that matter the details of the
other houses reaided. Neither P.W.1 nor P.W.2, have concededly seen
the accused before the raid or visited the house of the accused. The
witnesses are not in a position to disclose even the very bare particulars
pertaining to the house which they claim to have raided. P.W.1 also
admits, that several other houses were raided although he limits the
number to four to five whereas P.W.2 deposes that ten to fifteen houses
were raided on that day.
6. The deposition of P.W.1 is that the copy of the spot
panchanama was handed over to the police at the time of lodging the
first information report. However, there is nothing on record to
substantiate this version of P.W.1.
7. In view of the fact that neither P.W.1 nor P.W.2 are in a
position to depose as to the particulars of the house of the accused and
the undisputed position that neither P.W.1 nor P.W.2 visited the
residence of the accused or saw the accused prior to the raid, there is
no cogent or reliable evidence on record to prove that that accused was
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committing the theft of the electricity. It may be noted that P.W.1 has
not identified the accused. P.W.2 does depose at the fag end of the
examination-in-chief that the accused present in the Court is the same,
however, the said statement is of no significance since fairly admits not
to have seen the face of the accused in view of the darkness.
8. The judgment and order impugned is unsustainable and is
set aside.
The accused is acquitted of offence punishable under
Section 135 of the Act.
Fine paid by the accused, if any, shall be refunded to him.
The appeal is allowed accordingly.
JUDGE
adgokar
