Judgment:
Huluvadi G. Ramesh, J.
1. This appeal is by the State against the order of acquittal passed by the X Additional City Civil and Sessions Judge, Bangalore City in Spl. C.C. No. 130 of 2004 for the alleged offence punishable under Sections 39 and 44 of the Indian Electricity Act, 1910 read with Section 379 of Indian Penal Code, 1860 against respondents 1 and 2, who are accused 1 and 2 namely, the husband and wife.
2. The house of the respondents is said to be standing in the name of respondent 2-the wife. On inspection by the Vigilance Squad on 19-8-2002 it is found that accused 1 has drawn electricity directly from the bus bar (prior to the meter board) by using the converter and managed not to record the meter and committed theft of electricity worth Rs. 2,26,192/-. Accordingly, charges were framed against the accused and since they pleaded not guilty the prosecution has examined in all seven witnesses and got marked six exhibits and M.Os. 1 to 3 namely the meter, bus bar and the starter and change over switch.
3. According to the prosecution on 19-8-2002 the Assistant Executive Engineer of the department along with the Inspector attached to the Vigilance and one more constable visited the spot and found that the electricity being drawn directly from the bus bar by using three phase converter and the accused were using the same for two borewells which were fitted with 5 HP and 10 HP motors.
4. The Trial Court after having examined several witnesses having noticed that the seizure and conducting of the mahazar have not been supported by the punch witness and also noting several admissions by the prosecution witnesses, the discrepancy in the complaint that nothing has been mentioned as to what is the capacity of the motor and also non-seizure of the wire used for drawing the electricity directly from the bus bar, noting that there is short of evidence regarding drawing of electricity through three phase cable and that nothing has been mentioned as to who is the registered consumer of the electricity and that there is no explanation as to why the complaint has been filed against both husband and wife, has acquitted the accused. As against the said order, the State has preferred this appeal.
5. Heard the learned Government Pleader and the learned Counsel appearing for respondents.
6. As per the argument of the learned Government Pleader, the reasons assigned by the learned Sessions Judge while acquitting the accused are erroneous. The evidence of P.W. 1 the police constable, P.W. 3-the Assistant Executive Engineer and P.W. 7, who is the Investigating Officer who conducted the mahazar and seized the incriminating articles and also drawn the mahazar has not been considered in proper perspective. Despite the independent witness turning hostile, the evidence on record is sufficient to hold the accused guilty of the offence. Without application of mind and without considering the material evidence on record, the Trial Court has acquitted the accused persons, which is erroneous and requires interference.
7. Per contra, the learned Counsel appearing for the respondents in support of the order of acquittal passed has submitted that there is no cogent evidence on record to hold the accused guilty of the offence. The evidence of P.Ws. 1, 3 and 7 is not cogent and consistent. Several vital admissions made by them in the course of cross-examination depict the fact that they have taken inconsistent stand and there is a discrepancy in the investigation. In the complaint itself nothing has been mentioned as to the capacity of the motor and in the absence of any cogent evidence of the panch witness who is an independent witness, the evidence of the witnesses of the prosecution who are very much attached to the department cannot be relied upon. It is further submitted that without proper calculation, only on presumption taking six months period as the period of drawing electricity illegally, it is alleged that to the tune of more than Rs. 2 lakhs worth electricity has been drawn. There are some insertions in the mahazar which clearly depict that it is concocted so as to build up the case against the respondents. Accordingly, sought for to dismiss the appeal filed by the State.
8. In the light of the arguments advanced the points that would arise for my consideration are:
(i) Whether the prosecution has proved beyond reasonable doubt that the accused have committed theft of electricity to draw the water from the borewell which was fitted with 10 HP motor?
(ii) Whether the prosecution is able to prove that the electricity was drawn directly from the bus bar using three phase converter and thereby the meter reading has not been recorded for using the borewells?
(iii) Whether the Trial Court has committed any error or illegality in acquitting the accused persons?
(iv) What order?
9. Ex. D. 1 is the licence given by the department to the accused to use the electricity connection one for domestic purpose and another for running submersible pump. The allegation against the accused is that they have drawn the electricity directly from the bus bar which is just prior to the meter so as to avoid the recording of the meter for having drawn the electricity, to supply water to some other persons for commercial purpose through the borewell which was fitted with 10 HP motor. The complaint is blank as to the capacity of the motor. There is also admission on the part of the prosecution witnesses regarding some additions/overwriting made in the last two lines of the second page of the panchanama.
10. P.W. 1 is the Head Constable who was deputed to work in the BESCOM vigilance cell. According to him, on 19-8-2002 he along with Engineer Mohd. Izaz Ahmed and Police Inspector had visited the spot in Akshaynagar near Kalkere Main' Road' on the information received regarding illegal drawing of electricity to the borewell, wherein, it is noticed that there were two borewells and there was a shed in between the two borewells, wherein a control switch was fitted and by using the change over switch they were drawing the electricity and in front of the said shed the converter Was fitted in the ground by digging the soil and that instead of drawing the electricity through the meter they were drawing it directly and using the pumpsets. He is also said to be the pancha for panchanama for seizure of one panel board, a meter, two bus bars and a change over switch and converter wire which were marked at M.Os. 1 to 3. He has admitted that he has not signed the mahazar although he was very much present at the time of conducting panchanama and seizure.
11. P.W. 2 is the independent witness who is said to be the pancha for the panchanama of the spot as well as for the seizure of M.Os. 1, 2 and 3. He has totally turned hostile to the version of the prosecution and also nothing has been elicited from him in the cross-examination.
12. P.W. 3-the Assistant Executive Engineer of BESCOM has also spoken similar to P.W. 1 on the material aspects regarding the presence of two borewells fitted with submersible pumps and according to his evidence, by converting single phase into three phase by using the change over switch the accused were drawing electricity and water. According to him, one motor was 5 HP and another was of 10 HP. He was conducted the mahazar as per Ex. P. 1 and also seized the articles at M.Os. 1 to 3 and gave the complaint as per Ex. P. 2 to the Inspector who accompanied him after the seizure of the incriminating articles in the presence of the mahazar witness. In the cross-examination he has admitted that, in the complaint he has not mentioned as to what is the HP power of the pump and also which company's trademark the motor was having. Further, he admitted that two licences were given to the accused one is for commercial purpose and another for domestic purpose and that Exs. D. 2 to D. 4 are the three electric bills wherein amount has been remitted by the accused for using the electricity. He has admitted that he does not remember the names of panchas. It is also stated that 720 capacity of three phase wire has been used which can also be used for 5 HP motor and that he does not mention as to what is the gaze wire used for 10 HP motor. He has also admitted that the slips bearing the signature of the panchas has not been affixed on the seizured articles.
13. P.W. 4 is the earlier owner of the house, which was sold in favour of accused 2 by him and he has also spoken about the electricity connection drawn to the house and the house being sold during 2001 to the accused.
14. P.W. 5 is the Sub-Registrar who got registered the house in the name of accused 2 from P.W. 4.
15. P.W. 6 is the officer of the BESCOM who said to have admitted that two electricity connections have been registered in the name of A. Madappa, the accused 1. He has prepared the back bill amounting to Rs. 2,15,884/- as per the ledger. In the cross-examination he has admitted that as per the request of the Assistant Executive Engineer and the Vigilance Officer, the back bill has been prepared and he has not verified any other documents. He has also admitted that he did not visit the spot and that he is not aware of how many HP motors were being used by the accused.
16. P.W. 7 is the Investigating Officer who has spoken about conducting of investigation, drawing of mahazar and also recording the statement of the witnesses and filing the charge-sheet. He has made several vital admissions in the cross-examination regarding non-issuance of notice and not recording the fact of keeping the converter below the soil and also that he did not record any statement as to whom the accused was supplying the water drawn from the borewell. He has also admitted regarding non-verification of the capacity of the motor and stated that there is one connection to the house and other connection to the borewell and that the connection taken to the borewell is shown as for commercial purpose.
17. The learned Trial Judge having taken into consideration certain of the vital admissions made by P.Ws. 1, 3 and 7 has opined that nothing has been mentioned in the complaint as to what is the capacity/HP of the motor through which electricity was drawn illegally and the wire used for drawing the electricity from the bus bar has not been seized and that for one of the motors the electricity licence was obtained for a commercial purpose. It has noted that even as per the evidence of P.W. 4-Gurudath, who said to have sold the house in the year 2001 in favour of accused 2, one connection was obtained for commercial purpose and accordingly, has opined that the evidence on record does not prove the illegal drawing of electricity directly from the bus bar by the accused persons. It has also noted the discrepancy found in registering the case against both accused 1 and 2 since the electricity connection has been taken in the name of accused 1 although the owner of the house is accused 2. Accordingly, holding that there is no cogent evidence to hold the accused guilty of the offence recorded the acquittal order.
18. On perusal of the evidence on record and also the vital admissions on the part of prosecution witnesses, I do not find any illegality or error in the finding recorded by the Trial Court in view of the various contractions and errors and that too when admittedly two electricity connections have been drawn one for commercial purpose and another for domestic purpose, which goes to show that the prosecution has not made out a case beyond reasonable doubt to hold the accused guilty of the offences.
Hence, appeal filed by the State is dismissed.