Bombay High Court
The State Of Maharashtra vs Basavraj Sidramappa ... on 9 May, 2017
Bench: Naresh H. Patil
OJ APEAL 822 OF 2002.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.822 OF 2002
State of Maharashtra ] Appellant
Through : ] Original
Jail Road Police Station, Solapur ] Complainant
V/s.
Basavraj Sidramappa Kandalgaonkar ] Respondent
age: 53 years, Occn. Service ] Original
r/o block No.10, Vijapur Road ] Accused
Solapur ]
Mr. Amit Palkar, for the State
Mr. Ujwal Agandsurve, for the Respondent.
CORAM : DR.SHALINI PHANSALKAR-JOSHI, J.
CLOSED FOR ORDER ON : O8th MAY, 2017.
JUDGMENT PRONOUNCED ON : 9TH MAY 2017.
JUDGMENT
1] By this appeal, the State is challenging the judgment and
order dated 27th February, 2002 passed by the Judicial Magistrate
First Class No.3, Solapur, in R.C.C. No.117 of 1998 thereby
acquitting respondent for the offence punishable under Sections 420,
OJ APEAL 822 OF 2002.odt
511, 427 of Indian Penal Code and Sections 39, 44 and 56
punishable under Section 138 of the Indian Electricity Act.
2] Brief facts of appeal can be stated as follows :-
P.W.1 Birajdar was serving in Maharashtra State
Electricity Board, at Sub Division Kavita Nagar, Solapur, since 1993
as Junior Engineer and was allotted the work to inspect the electric
meters, to entertain complaints of consumers and to find out cases
relating to the theft of electric energy. It is the case of prosecution
that on 18.5.1998 at about 11.00 a.m. while P.W.1 Birajdar was
present in his office, P.W.7 Manik Yedur came to his office and
informed him that the respondent, who was serving in M.S.E.B. as
Electric Meter Reader, has approached P.W.7 Yedur on 17.5.1998
with an assurance of reducing actual consumption of electric meter
installed in his textile company, on payment of Rs.6,000/- for the
said work. P.W.7 Yedur further informed P.W.1 Birajdar that he has
told respondent that he will think about the proposal given to him.
P.W.1 Birajdar, then suggested to P.W.7 Yedur that he should accept
the said proposal of respondent so that respondent can be trapped in
committing such dishonest act of tampering with the electric meter
OJ APEAL 822 OF 2002.odt
and reducing reading of the electric meter thereby causing financial
loss to the M.S.E.B. Accordingly, P.W.7 Yedur informed respondent
and it was decided that respondent would visit the factory premises
of P.W.7 Yedur on 29.5.1998 in between 6.00 a.m. to 8.00 a.m. for
reducing the electric meter reading.
3] Accordingly a trap was arranged by P.W.1 Birajdar with
the assistance of his superior officer and also P.W.2 Abhimanyu
Deokar- Assistant Engineer working with M.S.E.B. Police help was
also sought. On that day, they visited the premises of P.W.7 Yedur at
6.30 a.m. There, they trapped respondent while breaking open the
seals of the electric meter installed in the factory premises of P.W.7
Yedur and thereby reducing the meter reading and actual
consumption. P.W.1 Birajdar clicked photographs while respondent
was breaking open the seals and reducing the meter reading.
Respondent was caught raid handed and from his possession various
articles used for breaking open the seals and reducing consumption
were seized under panchnama. The statement of respondent also
came to be recorded in which he admitted the commission of such
act. Then P.W.1 Birajdar, took respondent and seized articles to Jail
OJ APEAL 822 OF 2002.odt
Road police station and there lodged complaint Exh.27 against
respondent.
4] On his complaint, C.R.No.122 of 1998 came to be
registered against respondent. During the course of investigation,
statements of witnesses came were recorded. Respondent was
arrested and after completion of due investigation, chargesheet came
to be filed in the court of Judicial Magistrate First Class No.3,
Solapur.
5] On appearance of respondent, trial Court framed charge
against respondent vide exh.7. Respondent pleaded not guilty and
claimed to be tried, raising the defence of denial and false
implication.
6] In support of its case, the prosecution examined in all 7
witnesses and on appreciation of their evidence and in view of
interse contradictions and inconsistencies in their evidence, trial
Court was pleased to hold that charge against respondent is not
proved beyond reasonable doubt. As a result the trial Court acquitted
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the respondent of all the charges levelled against him.
7] This judgment of the trial Court is challenged in this
appeal by learned APP by submitting that the trial Court has given
undue importance to the contradictions and inconsistencies which
are of a very minor nature. It is the contention of the learned APP
that in this case there is consistent evidence of P.W. l Birajdar and
P.W.2 Deokar, supported with evidence of P.W.6 Constable Gobre
P.W.5 Yeshwant Bidwali, who was working as Executive Engineer
and had obtained permission for prosecution of respondent. This
oral evidence was fully corroborated from the photographs and
panchnama. In the face of such strong evidence, according to learned
APP, the trial Court has committed a grave error in acquitting the
respondent, by extending him the benefit of doubt on exaggerating
the minor contradictions and omissions in the evidence of these
witnesses. According to learned APP, therefore, the impugned
judgment and order is required to be quashed and set aside.
8] Per contra, learned counsel for respondent has fully
supported the impugned judgment and order by pointing out that
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the material witness in the case, namely P.W.7 Yedur has given fatal
admissions in his cross examination, thereby completely disowning
the case of prosecution. Despite that he was not declared hostile or
cross examined by the P.P. In such situation, according to learned
counsel for respondent, interested version of P.W.1 Birajdar and
P.W.2 Deokar, who were working alongwith respondent and were on
cross terms with respondent, cannot be relied upon as gospel truth.
It is submitted that, even both the panch witnesses P.W. 3 Bhimrao
Mitha and P.W.4 Kankayya Yemul, to the panchnama, have not
supported the prosecution case and hence there is no independent
corroboration to the evidence of P.W.1 Birajdar and P.W.2 Deokar.
According to learned counsel for respondent, therefore, the
impugned judgment and order passed by the trial Court being just,
legal and correct, in the appeal against the acquittal, having regard
to the limited scope of jurisdiction of the Appellate Court, this Court
should not only be slow but should also restrain itself from
interfering with the impugned judgment and order of the trial Court.
9] In the opinion of this Court also, as rightly submitted by
learned counsel for respondent, this appeal being directed against
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the judgment of acquittal, the scope of jurisdiction of this Court
needs to be kept in mind The law relating to the same also is fairly
well settled in the plethora of the judgments of Apex Court, one of
such judgment being in case of Tota Singh -vs- State of Punjab,
A.I.R. 1987 SC 1083. In this case, the Apex Court was pleased to
observe as under :-
"The jurisdiction of the appellate Court, in dealing
with the appeal against the order of acquittal is
circumscribed by the limitation that no interference
is made with the order of acquittal unless the
approach taken by the lower Court to the
consideration of the evidence in the case is vitiated
by some manifest illegality or the conclusion
recorded by the court below is such which could
not have been possibly arrived at by any Court
acting reasonably and judiciously and is therefore
liable to characterized as perverse. Where two
views are possible on an appraisal of the evidence
adduced in the case and the Court below has taken
a view which is a plausible one, the appellate Court
cannot legally interfere with an order of acquittal
even if it is of the opinion that the view taken by
the Court below on its consideration of the
evidence is erroneous."
OJ APEAL 822 OF 2002.odt
10] In another decision with C. Antony -vs- K.G. Raghavan
Nair A.I.R. 2003 SC 182, the Apex Court was further pleased to
observe,
"Though the appellate Court has power to review the
evidence upon which the order of acquittal is passed
still while exercising such an appellate power in a
case of acquittal, the appellate Court is under an
obligation to first come to a conclusion that the
conclusions arrived at by the trial Court for good
reasons are either unreasonable or contrary to the
material on record. In the absence of any such
finding, the High Court could not take a contra view
merely because another view was possible on the
material on record".
11] In the light of this settled legal position, if this Court
appreciates the evidence on record, it is found that the genesis of
the prosecution case is on the information given by P.W.7 Yedur.
According to prosecution case, it was P.W.7 Yedur, who has
informed P.W.1 Birajdar that respondent has approached him on
17.5.1998 and given a proposal of reducing the actual consumption
of electric meter so as to reduce the electricity bill of P.W.7 Yedur,
on his giving an amount of Rs.6,000/- in consideration thereof.
OJ APEAL 822 OF 2002.odt
12] According to further prosecution case, as deposed by
P.W.1 Birajdar, that he told P.W.7 Yedur to accept this offer of
respondent. Accordingly on 28.5.1998, trap was arranged in the
early morning. It is the evidence of P.W. 1 Birajdar and P.W.2
Deokar that at the time of trap, they found respondent breaking
open the seal of one of the electric meter of the factory premises of
P.W.7 Yedur and reducing reading of electric meter. They caught
him raid handed. They also took photographs of respondent while
doing this act and then respondent admitted commission of such act.
Panchnama was drawn accordingly and respondent was taken to
police station, where complaint was lodged against him vide exh. 27.
13] Thus, the material evidence in this case was that of
P.W.7 Yedur. In his examination-in-chief no doubt he has deposed
that of respondent making such proposal; he had made oral
complaint to P.W.1 Birajdar about it and on 28.5.1998 P.W.1 visited
his factory and noted down the meter number and meter reading. He
has also deposed that thereafter on 29.5.1998, respondent came to
his factory and while respondent was busy in work of tampering with
OJ APEAL 822 OF 2002.odt
the meter reading, P.W.1 Birajdar came there, took some
photographs and made panchnama. However, in his cross-
examination, this witness has given a totally different version. He has
stated that he had not met P.W.1 Birajdar either on 17.5.1998 or on
18.5.1998. He also stated that contents in the complaint which he
has lodged with P.W.1 Birajdar and the xerox copy of which he has
produced on record, were written as per instructions of
P.W.1.Birajdar. Further he has admitted in his cross-examination
that respondent has never visited his factory prior to the date of
incident or unless he was called. He has also admitted that he is
unable to tell the reading of which electric meter was decided to be
reduced. He is also unable to tell the exact meter reading and
payment regarding any of the meter as on 28.5.1998. According to
him, on 29.5.1998, on the receipt of phone call from P.W.1 Birajdar,
he came to the factory and there he found some wire pieces lying in
the meter room. According to him, respondent did not do anything
with the meter on that day in his presence; even the photographs
which were produced on record by P.W.1 Birajdar vide Exh. 16 to 25
were not taken in his presence, therefore, he has no idea who has
actually taken those photographs. Further he has admitted that,
OJ APEAL 822 OF 2002.odt
merely on the basis of those photographs, he cannot give any details
about the actual things which happened on that day. He has further
stated that electric meters were not seized from him and he has also
not checked or verified their readings. He is also unable to say as to
who had accompanied P.W.1 Birajdar on 29.5.1998. According to
him after testimony of P.W.1 Birajdar was recorded in Court in this
case, on 12.9.2000, P.W.1 Birajdar had come to his factory and
requested him to give two electric meters, as same were required in
the Court. Accordingly he gave those meters to P.W.1 Birajdar and
P.W.1 Birajdar assured him to replace remaining 10 meters after
recording of his evidence. He is, however, unable to tell the reason
why those two particular meters were chosen.
14] Thus, even a cursory glance to the cross examination of
this witness makes it clear that that he has not supported the
prosecution case, though he was a star witness of prosecution. It is
surprising to note that despite his giving such fatal admissions to the
defence counsel in his cross examination, this witness is not
disowned or declared hostile by prosecution, with permission of
Court to cross examine him further. As a result, what is admitted by
OJ APEAL 822 OF 2002.odt
him in his cross examination, has remained unshattered on record
and these admissions go to show that this witness cannot be relied
upon to prove prosecution case.
15] The other two independent witnesses who have not
supported the prosecution case are panchas, namely P.W.3 Bhimrao
and P.W.4 Kankayya. Both of them were workers in the factory of
P.W.7 Yedur. However, both of them have denied the execution of
panchnama Exh.26 in their presence. Both of them were declared
hostile and cross examined by the learned APP, but nothing
worthwhile is elicited in their cross examination to prove prosecution
case. As a result independent independent corroboration to the
testimony of P.W 1 Birajdar, is not coming from panchnama or
evidence of panchas.
16] For that matter even P.W.2 Deokar, who as per
prosecution case, had accompanied P.W.1 Birajdar at the time of trap
and in whose presence panchnama was made, has admitted in his
cross examination that he does not know who had signed the
panchnama and when it was prepared. Furthermore, he has also
OJ APEAL 822 OF 2002.odt
admitted that he does not know how many photographs were taken
by P.W.1 Birajdar and what was its chronological order. He has
further admitted in his cross examination that he has not stated
before the police in his statement that he and P.W.1 Birajdar were
sitting in one room at the factory premises of P.W.7 Yedur on
29.5.1998 and he had seen respondent and P.W.7 Yedur entering
into one room. After panchnama, he had also not accompanied
P.W.1 Birajdar to Police station.
17] As regards evidence of P.W.6 Police Constable
Bhalchandra Gobre, who had accompanied P.W.1 at the time of
laying trap, he has admitted that he was not given in writing any
order to do so. He has further admitted that he does not remember
which articles were seized under panchnama and who dictated the
contents of panchnama. According to him, after the trap P.W.1
Birajdar and P.W.2 Deokar had came to the police station together;
whereas P.W.2 Deokar has denied the said fact.
18] Coming to the evidence of P.W.1 Birajdar, he has
admitted that the only case of M.S.E.B. against respondent is that
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seal of meter No.1108919 was broken. He has further admitted that
there are no allegations of theft of electricity through the said meter.
According to him, he has not taken any acknowledgement of seal of
any electric meter from P.W.7 Yedur. Moreover when he had visited
the factory premises of P.W.7 Yedur on 28.5.1998, he had not
drawn panchnama of the seals of meters and reading of the meters.
Further he has admitted that the testing report of the meter was not
produced at the time of filing complaint. He has also admitted that
he has not verified the original seal numbers of the said meters prior
to the raid. Further he has admitted that there was no financial loss
to the M.S.E.B. in the instant case.
19] Significantly, his evidence that respondent admitted
before him, everything including payment of Rs.6,000/- and also
tampering with the seals with a view to reduce the electric meter
reading is also difficult to be digested. It is to be noted that
respondent was very much working in the M.S.E.B., as Meter
Inspector. Therefore, it is not probable that respondent will admit
such things in the presence of his superior. The trial Court has, has
thus, rightly disbelieved the evidence of P.W.1 Birajdar on this
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aspect. The trial Court, in its judgment also considered various other
interse contradictions between the evidence of this witness and other
witnesses like it is nowhere stated in the complaint Exh.27 that
P.W.1 Birajdar visited the factory premises of P.W.7 Yedur on
28.5.1998 and took meter reading, which was material fact in order
to confirm that on the next day respondent, by tempering with the
meter reduced its reading. He has also not stated as to which
method was adopted by respondent for reducing meter reading, out
of several methods. The trial Court has also considered specific
defence raised by the respondent that he and P.W.1 Birajdar are
belonging two different unions of workers and they are on cross
terms with each other, therefore, the possibility of respondent being
implicated falsely in this case, out of enmity cannot be ruled out.
20] Thus, from perusal of the impugned judgment and order
of the trial Court, it cannot be said that the view adopted by the trial
Court is unreasonable or perverse, in the sense it is contrary to the
material on record. In the absence of such finding, this Court cannot
take contra view merely because another view may be possible on
the basis of material on record. As a result, no interference is
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warranted in the impugned judgment and order of the trial Court as
the view adopted by the trial Court is also plausible view. Hence
following order.
Order
Appeal stands dismissed.
[DR.SHALINI PHANSALKAR-JOSHI, J.]
