M.B. Sharma, J.
1. The above-named accused-appellant a consumer of electricity for agricultural purposes, has been convicted under Sections 333 and 379 of the Indian Penal Code read with Section 39 of the Indian Electricity Act (hereinafter referred to as 'the Act') and under Section 342 of the Indian Penal Code. Under the former count he has been sentenced to five years 5 rigorous imprisonment; under the second count, to one year's and six months rigorous imprisonment and under the third count also to the same imprisonment. The substantive sentences on each count were to run concurrently.
2. In brief, the case of the prosecution is that in village Dhankoli, the accused-appellant has lands measuring 17 Bighas, and the fields are irrigated from a well. The accused appellant has electric connection on his well and as such he is a consumer of electricity of the Rajasthan State Electricity Board (RSEB). There were same complaints about the low voltage, and therefore, on January 19, 1975, Assistant Engineer, O. P. Sharma, PW 8 who was then posted at Deedwana, along with Junior Engineer, Mohan Narain Mathur, PW 1, Bhanwar Lal, PW 2, Aja Ram PW 3, helper, went in a jeep of the department to village-Dhankoli, When the party, headed by O. P. Sharma reached the well of the accused-appellant at about 12.00 noon, Hukmi Chand the son of accused-appellant ran away towards the 'Kothari', where the pumping set was installed. But, before Hukmi C(sic) and reached the 'Kothari' O. P. Sharma, PW 8 and others reached there and found that though the meter was stop but the motor and the pumping set were working. He also noticed that there was a minute whole on the side of meter and a wire was introduced through it, as a result of which, the motor and the pumping set were working, but, the consumption of the electricity was not being recorded in the meter. Hukmi Chand, the son of the accused-appellant ran away, and thereafter, the accused-appellant arrived there with a lathi in his hand It is alleged that the accused appellant gave a 'lathi' blow on the foot of O.P. Sharma, as a result of which, he received injury. When Mohan Narain Mathur, PW 1 Intervened, he was also given beating. Farther, the case of the prosecution is that she accused-appellant did not allow O. P. Sharma and the others to proceed, and they were wrongly confined for about four hours. Thereafter, on the intervention of the brother of the accused O.P. Sharma and the other were allowed to proceed. On January 20, 1975 a report, Ex. P. 1, was lodged by O.P. Sharma in Police Station-D edwana. There a case was registered, and the investigation was set in motion. The injuries of O. P. Sharma, PW 8 and Mohan Narain Mathur, PW 1, were examined by Dr. Laxman Singh, PW 7, who en examining O.P. Sharma found that there was a fracture of right fibule lower and swelling of right foot on dorsum and lower part of right leg and swelling of ring finget of the left hand. Injury No 1 was grievous while Nos 2 and 3 were simple. An X Ray was taken by the technician under the supervision of Dr. Laxman Singh. and it revealed a fracture. On examining Mohan Narain Mathur, the doctor found that there was 6' x 3' on lateral side of left leg in middle. After investigation, a charge-sheet was filed against the accused and others. But, the others were acquitted, and the accused was convicted and sentenced as aforesaid. The plea of the accused appellant was of bare denial. But, Hukmi Chand, the son of the accused, appellant came out with a plea that seeing the jeep he ran away, and the person belonging to the Electricity Department also chased him, and while so chasing, they fell on the ground and received injuries. The accused persons examined one Rikhma Ram, the brother of accused, in defence.
3. The first contention of the learned Counsel for the accused-appellant is shat for an offence under Section 39 of the Indian Electricity Act, 1910, a prosecution can only be instituted against a persuant the instance of the Government of the Electrical Inspector or any 'person aggrieved'. He submits that an Assistant Engineer of Rajasthan State Elcetricity Board cannot be said to be a such person and as such no proceeding under Section 39 of the Act, can be instituted at his instance under Section 50 of the Act In support his contention, the learned advocate has placed reliance on Doolchand v. State 1956 R. L. W. 327. It was held in that case that the person was only a Government servant, and as such cannot be said to be a 'person aggrieved' within the meaning of Section 50 of the Act. With respect, the view of the learned Judge docs not appear to be correct An Assistant Engineer in-Charge of a Sub-Divisional Office of the Rajasthan State Electricity Board is a 'person aggrieved' in case a theft of electricity takes place in his area. In Avtar Singh appellant v. State of Punjab respondent : 1965CriLJ605 It has been held by their Lordships of the Supreme Court that the object of Section 50 is to prevent prosecution for offence against the Act being instituted by any one who chooses to do so because the offence can be proved by msn possessing special qualifications. That is why it is left only to the authorities concerned with the offence and the 'person aggrieved' by it to initiate the prosecution. It was further held that tie onus of proving the fact that prosecution has been instituted at the instance of one of persons mentioned in Section 50 of the Act, is on the prosecution. In Om Prakash v. State 1972 WLN 449 it was held that a person directly in charge of the property of the Bond will be covered by the description 'person aggrieved' occurring in Section 50 of the Act. In that case the Assistant Engineer of the Rajasthan State Electricity Board, Sujangarb, had reported the thefs. It was held that he obviously acted for and on behalf of the Board and therefore, the prosecution must be regarded as regularly instituted at the instance of the 'pan On aggrieved' as laid down in Section 50 of the Act. In Ram Chandra Prasad Sharma and Ors. appellants v. State of Bihar and Anr. respondents : 1967CriLJ409 their Lordships observed that the P.E. S. Co., however, is a body corporate and must act only through its directors or officers. It can, therefore, be said that as the Rajasthan Slate Electricity Board is a body corporate, is can only act through its officers. A report lodged by the Assistant Engineer of Sub-Division of the Rajasthan Electricity Board is covered by the description of 'person aggrieved' within the meaning of Section 50 of the Act, and as such he can institute the prosecution.
4. The second contention of the learned advocate is that there is no material on record that the accused appellant know to the fact that Om Prakash and his companions were the employees of the Rajasthan State Electricity Board, and as such the case would not fall under Section 333 of the Indian Penal Code, but it would fall within the ambit of Section 325 of the Indian Penal Code.
5. I have gone through the record of the case and not even a single word has not been siated by the witnesses for the prosecution either that the accused was knowing that they were officers or servant of the Rajasthan State Electricity Board, or that it was disclosed to them that they were the officers of the Rajasthan Slate Electricity Board. Therefore in the absence of an evidence to this fact, it cannot be said that the accused bad knowledge that the injured persons were the officers of the Rajasthan State Electricity Board. An offence under Section 333 of the Indian Penal Code can only be made out when a person voluntarily causes grievous hurt to a person who is a public servant and he is discharging his duty as such. Therefore, in the absence of any evidence as aforesaid no offence under Section 333 of the Indian Penal Code is made out and the accused cannot be convicted under Section 333 of the Indian Penal Code. But, there is sufficient material on record that it was the accused-appellant who gave two lathil blows to Om Prakash and one blow to Mohan Narain. The accused-appellant, therefore, voluntarily caused simple hurt by a blunt weapon to Mohan Narain, and thereby committed an offence punishable under Section 325 and 323 of the Indian Penal Code.
6. The learned Sessions Judge has also convict d and sentenced the accused-appellant under Section 39 of the Act read with Section 379 of the Indian Penal Code. But only an offence under Section 39 of the Act is made out. Their Lordships of the Supreme Court in Avtar Singh's Case (supra) have held that Section 39 of the Act extends application to Section 378 of the Indian Penal Code, by stating that it made something which was not a theft under Section 378, a theft within the meaning of that Section. Therefore, the accused can only be convicted under Section 39 of the Act. Dishonest abstraction, consumption, or use of electric energy it deemed to mean a theft within the meaning of Section 39 of the Act. O. P. Sharma, the Assistant Engineer bas clearly stated that the motor fitted on the well of the accused-appellant had three phases. The meter was of one phase, and in such a situation if the neutral wire is made loose then the meter will stop hut the motor shall continue to work. He further states that he found a minute hole and if a wire is introduced then the disk o(sic) the meter would stop as a result of which the reading would also not be recorded but the consumption shall continue. Therefore it can be said that at the time of inspection of the motor on the well of the accused-appellant, the motor was working, and the pumping set was operating, but the meter was not recording the consumption. It can, therefore, be said that there was dishonest abstraction of energy, and as such, under Section 39 of the Act, there was a prima facie offence of abstraction of energy by the accused-appellant. Their Lordships of the Supreme Court in Jagnnath Singh alias Jainath Singh and Anr. appellants v. B. S. Rama Swamy and Anr. respondents : 1966CriLJ697 have held that where the consumer of electric energy break the seal of the meter and exposes the stud-hole permitting the insertion of foreign material inside the meter retarding the rotation of the in(sic)ide disc, the exposure amounts to an 'artificial means' within meaning of Section 44(c) for preventing the meter from duly registering the energy supplied. It can, therefore, be said that in the instant case, because a wire had actually been introduced through the minute hole in the meter it was an artificial means for abstraction of energy. It was not even challenged before the trial court that the accused appellant was not consumer of electric energy. It may also be mentioned here that it is not a case where the meter had stopped recording reading, because of any mechnical defect It has come in the evidence of O.P. Sharma that no sooner the wire was removed from the hole, the meter started recording reading of consumption. The meter was sealed on the spot, and was sent for examination to the Director State Forensic Science Laboratory, Rajasthan, Jaipur who, vide his report October 24, 1975, after examining the meter recorded that it was in working order. It can therefore, be said that the offence under Section 39 of the Act is clearly made out against the accused appellant, and the accused appellant, has therefore, rightly been convicted for the said offence.
7. The offence for which the accused has also been convicted and sentenced is under Section 342 of the Indian Penal Code. It has come in the statement of Mohan Narain Mathur, PW 1, that after the incident, the accused appellant restrained them from proceeding from the place of occurrence and it is only when the brother of the accused intervened, be and the others were allowed to proceed after about four hours. Surprisingly, he was not crossexaminer Bhanwarlal, PW 2 the other employee of the Rajasthan State Electricity Board, who was present on the spot at the time of the incident, has also stated that for about 3 4 hours, Nanda Ram, accused-appellant, bad not allowed them to go from there and only on the intervention of the brother of Nanda Ram accused-appellant, they were allowed to proc ed. He too war not cross examined en this aspect of the case. Arja Ram, PW 3 also has stated similarly, and surprisingly, no cross-question was put in his cross-examination. PW 8 Om Prakash Sharma has also stated similarly. A look at the first Information Report will show that this fact also finds mention there. It can, therefore be said on the evidence on record which remains uncontroverted that the accused-appellant obstructed O. P. Sharma and others for about four hours, and therefore, an offence under Section 342 IPC has rightly been made out against the accused-appellant.
8. The contention of the learned advocate is that the occurrence took place in the year 1975. The accused has only been held guilty by this Court under Section 325 of the Indian Penal Code, under Section 39 of the Act and under Section 342 of the Indian Penal Code. He submitted that the case is such tint can be dealt with either under Section 360 of the Code of Criminal Procedure or under the provisions of the Probation of Offenders Act, 1958. Therefore, the learned advocate submits that the case of the accused may be so dealt with. The learned advocate submits that no injury was caused on the vital part of Om Prakash Sharma or Mohan Narain Mathur.
9 Tome, locking to the facta and circumstances of the case, more so, the fact that the appeal is pending for the last five years and the case of the accused is such which can be dealt with either under Section 360 of the Criminal Procedure or under the provisions of the Probation of Offenders Act, 1958, it will not be proper if the accused is now sentenced to undergo the imprisonment. Compensation can be awarded to the injured persons under Section 5 of the Probation of Offenders Act, 1958.
10. In the result, I accept the appeal in part. While the accused is acquitted of the charge under Section 333 of the Indian Penal Code, he is convicted under Section 325 of the Indian Penal Code. His conviction under Section 39 of the Indian Electricity Act, 1910, as well as under Section 342 of the Indian Penal Code, is upheld. But, looking to the fact that the appeal is pending for the last five years and the accused has been on bail throughout, it is hereby directed that the benefit of Section 4 of the Probation of Offenders Act is extended to the accused, and the accused appellant shall be released on probation on his entering into a bond in a sum of Rs. 4,000/- and one surety in the like amount to the satisfaction of the trial court, and to receive sentence as and whenever called upon to do so during a period of one year, and in the mean time to keep the peace and be of good behaviour.
11. In the facts and circumstances of the case, it is further directed under Section 5 of the Probation of Offenders Act, 1958 that the accused-appellant shall pay a sum of Rs 1000/- to Shri Om Prakash Sharma and a sum of Rs. 200/- to Shri Mohan Narain Mathur and also a sum of Rs. 500/- as compensation to the Rajasthan State Electricity Board. The accused-appellant will deposit the above amount within a period of two months, failing which, the trial court shall take appropriate steps against the accused. The bonds too should be furnished in the trial court within one month.