Jeet Pal vs State
1996 Latest Caselaw 771 Del

JUDGMENT

M.S.A. Siddiqui, J.

(1) This is a revision against the judgment dated 4-3-1996 of the Additional Sessions Judge. Delhi in Crl. Appeal No.42/95 affirming the conviction of petitioners/accused under Section 39 of the Indian Electricity Act of which they had been convicted by the Metropolitan Magistrate, Delhi and sentenced in consequence to rigorous imprisonment for six months as wall as a fine of Rs.5000.00 each, the sentence in default of payment of fine being simple imprisonment for three months.

(2) Shorn of verbiage, the prosecution case is that on 14.8.1989, a raid was conducted by the Special Cell of Desu consisting of the Supdt. R.N.Maini (Public Witness 2), S.S.Gupta (Public Witness 3) and R.K.Anand (Public Witness 1) at the building bearing No.618 Dr. Mukherjee Nagar and it was found that the accused persons were committing theft of electrical energy from their domestic lighting meters for industrial purpose and it was also noticed that this theft was being committed with the help of a shunt wire from the incoming terminal to the outgoing terminals of phase wires vide inspection report (Ex PW1/B). On 15.8.1989, R.K.Anand (Public Witness 1) lodged the Fir (Ex PW1/A) at the P.S.Mukherjee Nagar to the same effect. Investigation thereafter followed. On completion of the investigation, the accused persons were put on trial. Both the Trial Court as well as the appellate court on consideration of the evidence came to the conclusion that the accused persons are guilty of the offence punishable U/s 39 of the Indian Electricity Act and it is the correctness of that finding which is being assailed in the present revision.

(3) Learned counsel for petitioners assails correctness of the impugned order of conviction on the ground that the same suffers from the vice of non-consideration of evidence and non-application of judicial mind. On the other hand learned counsel for the State submitted that the revision involved only appreciation of evidence and this court may not interfere with the findings of facts resulting from appreciation of evidence. It is true that in a revision U/s 401 Cr.P.C.court does not normally re-appreciate the evidence by itself and go into the question of credibility of the witnesses and the assessment of the evidence by the Courts below is accepted by this Court as final unless, of course, the appreciation of evidence and finding is vitiated by an error of law of procedure, misreading of the evidence, or where the conclusions of the courts below are manifestly perverse and unsupportable from the evidence on record. The jurisdiction vested in this Court u/s 401 Cr.PC is not to be confused with an ordinary statutory appellate jurisdiction.

(4) The facts found out by the courts below on the basis of the testimony of R.K.Anand (Public Witness 1) and R.N.Maini (Public Witness 2) are that:- (a) On 14.8.89, the accused persons were in occupation of the building bearing No. 618, Mukherjee Nagar; (b) two meters (Ex P-1 & Ex P-2) installed in the premises were meant for domestic consumption; (c) a portion of the said premises was being used for industrial purposes; (d) on 14.8.89, a raid was conducted by the special cell of Desu consisting of R.N.Maini (Public Witness 2), S.S. Gupta (Public Witness 3) and R.K. Anand (Public Witness 1) at the aforesaid premises; (e) during the raid, it was found that one of the meters was being used for industrial purposes and the accused persons were committing theft of electrical energy by providing a shunt wire on the incoming terminal to the outgoing terminals of phase wires vide inspection report (Ex PW1/B); (f) all the machines installed in the premises were connected with the main meters and (g) the meters (Ex P-1 & P-2) were seized from the said premises.

(5) To ascertain whether any or all of the above findings of the courts below can be sustained or not, I have gone through the evidence adduced by the prosecution. Having done so, I am unable to hold that the findings are patently wrong or perverse so as to entitle this court to disturb the same. This case primarily hinges on the testimony of R.K.Anand (Public Witness 1) and R.N.Maini (Public Witness 2). Learned counsel for the petitioners contended that the evidence of the said witnesses is replete with material contradictions and deviations and the courts below have committed a patent illegality in convicting the accused persons on the basis of their flimsy evidence. According to the learned counsel, R.K. Anand (Public Witness 1) testified that both the accused persons were present at the time of the raid but that fact has not been mentioned in the inspection report (Ex PW1/B). Similarly, this witness has pleaded ignorance about running condition of both the meters (Ex P1 & P2) and also about working condition of the shunt wire whereas R.N.Maini (Public Witness 2) testified that meters were not working at the time of raid but the shunt wire was in working condition. He has also pointed out that there is a material contradiction in the testimony of both these witness with regard to disconnection of electric supply after detection of the alleged theft of electrical energy. It was to be borne in mind that the raid was conducted on 14.8.1989, both the witnesses were examined in the trial court on 12.10.1990 and on that date their examination - in - chief remained incomplete. However, examination - in - chief of R.K.Anand (Public Witness 1) and R.N.Maini (Public Witness 2) was resumed on 9.3.1995 and 29.3.1995 respectively. These witnesses were deposing to an incident which occurred 5/6 years back the very fact that there are some minor discrepancies, instead of diminishing the worth of their evidence, gives at a stamp of genuineness. The discrepancies referred to by the learned counsel for the petitioners are, in my view, miner, insignificant, natural and not material. These discrepancies are due to normal errors of memory due to lapse of time and they also do not relate to main substratum of the prosecution case. Both the courts below have rightly not attached much importance to these discrepancies which do not shake the basic version of the prosecution.

(6) Next, it is contended by the learned counsel for petitioners that the shunt wire which was allegedly being used by petitioners as an artificial means for dishonest abstraction of electrical energy had not been seized during investigation and non - production of the said shunt wire knocks the bottom out of the prosecution case. In my opinion, non - seizure of the shunt wire does not affect the credibility of R.K. Anand (Public Witness 1) and R.N.Maini (Public Witness 2), who had no axe to grind against any of the accused persons. Consequently, the prosecution case cannot be rejected on the ground of non - seizure of the shunt wire.

(7) In a last ditch attempt and indeed what appears to me an argument of desperation, learned counsel for the petitioners has attempted to contend that the Fir (Ex PW1/A) does not contain important facts of the case which is fatal to the prosecution case. According to the learned counsel the Fir is conspicuous by the absence of factum of presence of the accused persons on the spot at the time of the alleged raid and further it does not mention about the working condition of meters or machines installed in the premises in question or whether the electrical energy was being used by the accused persons. It is true that omission of important facts in F.I.R. affecting the probabilities of the prosecution case is relevant U/s 11 of the Evidence Act in judging its veracity as well as the credibility of the prosecution witnesses. In the instant cases the inspection report (Ex PW1/B) is the basis of the Fir (Ex PW1/A) and both these documents clearly reveal that on 14.8.1989, a raid was conducted by the special cell of Desu and it was found that the accused persons were committing theft of electrical energy from their domestic lighting meters for industrial purposes. The inspection report (Ex PW1/B) further shows that on inspection it was discovered that this theft was being committed with the help of a shunt wire from the incoming terminal to the out going terminals of phase wires. Thus the Fir (Ex PW1/A) contains the pith and substance of the prosecution case. Both these documents have also lent material corroboration to the testimony of R.K. Anand (Public Witness 1) and R.N. Maini (Public Witness 2). Consequently, I find that the concurrent findings recorded by the courts below are based on adequate evidence and are not shown to be perverse.

(8) I find no such error or infirmity in the impugned judgment to justify interference in the present revision. The revision is, therefore, dismissed. The petitioners, who are on bail, shall surrender to the bail bonds and serve the sentence imposed on them.