Raju vs The State Nct Of Delhi
2007 Latest Caselaw 337 Del

JUDGMENT

S. Ravindra Bhat, J.

1. This revision petition challenges an order of the Additional Sessions Judge, upholding the conviction and sentence, imposed upon the petitoner for commission of offences under Section 39, Indian Electricity Act (hereafter "the Act").

2. The case of the prosecution was that on 25.11.1999, as per the instruction of Enforcement department of the Delhi Vidyut Board (DVB) and Executive Engineer, SET II a joint raid was allegedly conducted by the team of DVB officials at three premises including the premises No. B/I/110, Maddi Wali Gali, Vishnu Garden, New Delhi. Direct theft of electricity was alleged from DVB O/H LV mains. On the basis of a joint inspection report and complaint, an FIR was registered at Police Station, Tilak Nagar, Delhi. A charge sheet was filed by the police, alleging that the petitioner and his brother had committed offences under Section 39 of the Act. Thereafter a charge was framed against them, to which they pleaded not guilty and claimed trial. The prosecution had examined seven witnesses, in the course of trial.

3. The statement of the petitioner was recorded under Sections 313/281 Cr.P.C where he expressed ignorance of the raid conducted by the DVB or any alleged theft of electricity committed on 25.11.1999. He also alleged his false implication in the case, His statement was also recorded as DW-1; he deposed that he was a carpenter by profession and was working as such for the previous eight years, and was not doing anything else. In his cross examination, he denied the suggestion put by the prosecution that he was carrying on the business of power press at B-1/110, Maddi Wali Gali, Khyala Village, Delhi.

4. By judgment and order dated 24.2.2005, of the metropolitan magistrate ("trial court") the petitioner was convicted of the offence, under Section 39 of the Act; and by order dated 28.2.2005 he was sentenced to undergo RI for one year and to pay a fine of Rs. 3000/-. He preferred an appeal, which was dismissed by the ASJ by the impugned order, confirming the conviction and sentence of the trial court.

5. Counsel for the petitioner submitted that the courts below fell into grave error, in not noticing that there was no worthwhile evidence, implicating the petitioner. Learned Counsel submitted that the principal witnesses, namely PW-5 and PW-7 had not supported the prosecution case, and even his identity was not proved in the trial. Yet, the courts below concluded, on a complete misappreciation of the facts, that he was guilty of direct theft.

6. Learned Counsel took me through the depositions of PW-1 to PW-4, PW-5 and PW-7 in support of his submissions. He also submitted that even the concerned officer of DVB, i.e the Junior Engineer, who claimed to have visited the site, was unaware of the petitioner. It was submitted that the co-accused was convicted, and sentenced to pay fine of Rs. 5000/-. Even though the petitioner's presence and allegations of theft by him could not be established, yet the courts wrongly convicted him.

7. PW-1 A.K. Bagga, AE, deposed that the inspector, P.K. Gulati had not brought any ownership document to disclose whether accused persons were in occupation of, and using the premises. He had lodged the FIR, as per his statement, only on the verbal information received from the said P.K. Gulati. PW-3-Gian Chand, JE deposed in his cross-examination that he could not tell the number of the premises of the accused persons. He admitted that the accused petitioner was not present during investigation and therefore he could not identify him in the court. PW-4-S.K. Rai, JE, deposed in his cross-examination that he was unaware about the accused persons prior to the raid. He also stated that the raiding party did not ask the name of the person who revealed the user at the premises as Richhpal and Raju. Interstingly, he stated that the alleged wires used were not sealed for being produced in the proceedings.

8. PW-5 Suraj Bhan was declared a hostile witness; he was cross examined by the prosecution; he deposed that the police never recorded his statement. He denied the suggestion that the premises No. B-1/110, was let out to the accused Richhpal and Raju or that he used to collect the rent amount from them which was Rs. 500/- per month. PW-6 deposed that there was a probability that several persons with similar name, i.e. Raju were there in the same village. PW-7 Roop Chand was unable to identify the accused after both of them were shown to him and he stated that none of the accused were his tenant.

9. The revision petitioner had apparently urged all the grounds in his appeal to the Additional Sessions Judge. A reading of the impugned judgment reveals that the court took into consideration the depositions of PW-5 and PW-7, and was influenced by the fact that they were "won over". It relied upon the deposition of PW-6, Daya Ram, a police witness, to support the conviction. That witness had deposed that the petitioner surrendered before the court. This, coupled with the omission by the petitioner to query about father's name of Raju, impelled the court to conclude that the trial court had correctly convicted him.

10. PW-6 mentioned that he was not present at the time of the raid; he was brought into the picture, when the seizures were made. He also deposed that there was a possibility that more than one person with the same name were living in the village. In addition, this witness also stated that he recorded the statement of the lineman and the photographer; he admitted that the premsies were locked at the relevant time.

11. The picture which emerges from the above narrative is that the mainstay of the prosecution version were PW-5 and PW-7; they did not support the charge. PW-1 and PW-3 as well as PW-4 were unaware as to the identity of the accused, or the petitioner. The accusation was that the petitioner was using the premises, clandestinely for some non-residential purpose, and indulging in theft. PW-6 was the principal witness; even he was unsure about the identity of the petitioner. He also deposed that the premises were locked, and there was a possibility of other persons with the same name living in the vicinity, who were also tenants of the landlord. What weighed with the appellate court was the evidence of this witness, that the petitioner surrendered, and that the petitioner did not put some questions about his father's name.

12. None of the witnesses could identify the petitioner; he even entered the witness box, as a defense witness. His link with the premises could not be established. The main prosecution witnesses were in the dark, even about the identity of the premises. Admittedly the petitioner did not own it; no attempt was made even to seal the wires seized, in a proper manner, by the raiding staff. The observations and reliance by the learned ASJ, on the failure of the petitioner to cross-examine PW-6 about his father's name, in my view cannot lead to conclusion of his guilt. The prosecution's obligation to prove its case was in no way relieved by such perceived failure of the defenses. Thus, the prosecution version contained glaring omissions and gaps. Unfortunately, the courts below did not notice these, and proceeded to convict the petitioner, who was even sentenced to under go rigorous imprisonment for one year.

13. In Dulichand v. Delhi Administration the Supreme Court held that the High Court in revision, exercises supervisory jurisdiction of a restricted nature and, therefore, it would normally be justified in refusing to re-appreciate the evidence for the purposes of determining whether the concurrent finding of fact reached by the trial and appeallate courts are correct. Yet, the High Court can review the materials for the purpose of satisfying itself that there was evidence in support of the findings of fact reached by the subordinate courts and that the finding of fact is not unreasonable or perverse. Earlier, in D. Stephens v. Nosibolla it was held that revisional jurisdiction should not be lightly exercised, and should be invoked only in exceptional cases to correct a manifest illegality or to prevent gross miscarriage of justice.

14. The facts of this case show that the courts below overlooked the material portions of deposition of PW-6 and gave no weight to the fact that PW-5 and PW-7 did not support the prosecution. Indeed, there was no evidence showing that the petitioner resided or used the premises, as alleged. There was evidence showing that some other persons with the same name were living in the vicinity; neither the raiding party, nor the police thought it appropriate to investigate the matter further. No witness identified the petitioner, as the culprit. In the absence of any direct evidence, it was incumbent upon the prosecuiton to lead strong circumstancial evidence to show the petitioner's guilt; such evidence, too, was lacking. The inevitable conclusion therefore, is that the prosecution failed to prove its allegations. The findings of the courts, that the petitoiner had indulged in theft, and was guilty, are in complete variance with the evidence. This has led to manifest failure of justice, warranting exercise of revisional jurisdiction.

15. In view of the above discussion, and conclusions, I am of the opinion that this petition has to succeed; it is accordingly allowed. The impugned order, and the judgment of the trial court, convicting the petitoner, and imposing the sentence upon him, are hereby set aside. The petition is allowed in the above terms.