CR.A/930/2007 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 930 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= SURESH RAMJIBHAI RATHOD - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR YJ PATEL for Appellant(s) : 1,MR PP MAJMUDAR for Appellant(s) : 1, MS HANSA PUNANI, APP for Opponent(s) ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 22/01/2008 ORAL JUDGMENT The appeal is directed against the judgment and order dated 13th June 2007 passed by the learned Special Judge, Surendranagar in Special Electricity CR.A/930/2007 2/6 JUDGMENT Case No.15/06. 2. The appellant was the original accused charged for offence punishable under section 135 of the Electricity Act, 2003. It was alleged that in a rented premise which he was occupying, upon a surprise check on 27.9.2005 it was revealed that without electricity connection being provided and though the appellant was not a legal consumer of the Gujarat Electricity Board, by connecting wires through low tension wires of the Board, he had been using electricity connection of 240W. in his residence. He had thereby committed theft of electricity amounting to Rs.10,174/- and thus committed offence punishable under section 135 of the Electricity Act, 2003. 3. PW-3, Bharatkumar Shrimali was examined at Ex.19. At the relevant time, he was discharging duty as a Deputy Engineer in Jamnagar Sub-Division. He along with other staff had gone for checking of misuse of electricity. He had raided the house of the accused and found that though no connection was legally given to him, the accused had drawn a line from the wires of the Electricity Company by attaching 15 meter long flexible cable. He was using electrical appliances in the house requiring 240 W. of electricity. The accused was present in the house when the checking was conducted. The checking sheet was prepared by the raiding party. His signature was sought, but he refused to sign the papers. Rozkam was CR.A/930/2007 3/6 JUDGMENT drawn and wire seized. The witness identified the accused before the Court. He denied that the checking sheet and rozkam was prepared in the office and the accused was falsely implicated. 4. Natubhai Vania, PW-2 Ex.24 was also an employee of the Electricity Company who was part of the checking squad. He also supported the version of PW- 1 regarding the accused having unauthorizedly drawn the electric connection from the wires of the Company. 5. PW-3, Ex.25, Nathalal Kambhoya was also part of the checking squad. He also supported the prosecution in the like manner. In cross- examination, he appears to have stated that checking sheet and rozkam had not contained his signature. To this aspect, I will revert to at a later stage. 6. Ketansinh Jhala, PW-4. Ex.26 was the IO who conducted the investigation. In his cross- examination, he admitted that he was not provided the muddamal wire seized by the GEB. 7. On the basis of the above evidence, the charge was sought to be proved against the appellant. 8. Learned advocate Shri Majmudar for the appellant submitted that the charge was not proved. He submitted that no independent witness was examined. Muddamal wire was not produced before the CR.A/930/2007 4/6 JUDGMENT police. He highlighted the aspect that PW-3, Nathalal had in his cross-examination admitted that checking sheet and rozkam did not carry his signatures. He, however, drew my attention to checking sheet Ex.20 to point out that the same did carry the purported signature of PW-3. He, therefore, submitted that the entire case was concocted. 9. I have also heard learned APP Ms.Punani for the State. 10. I do not find that the learned Judge committed any error in convicting the appellant. Through three eye witnesses, the events were established on record. There is no enmity between the appellant and any of the witnesses. The appellant has also not been able to bring anything on record to suggest why the Electricity Company would have been interested in prosecuting him falsely. Additionally, I also find that all three witnesses have concurrently stated that upon checking, it was found that in the premise occupied by the appellant as a tenant there was an unauthorized electricity connection drawn by him by connecting cable wire to his house from the electricity wires of the Company. This evidence has remained unshakable and the conviction based on such evidence would be perfectly justified. 11. The statement of PW-3 in the cross- CR.A/930/2007 5/6 JUDGMENT examination, however, has to be seen in light of the question put to him. Exact answer of PW-3 is as follows: “It is true that Ex.21 which is shown to me i.e. checking sheet and rozkam do not contain my signature”. Ex.21 is the rozkam. Thus what was shown to the witness was rozkam and not the checking sheet. Checking sheet is produced at Ex.20. Thus the advocate for the appellant put a question which was not quite accurate and ought to have been disallowed by the learned Judge at the outset. However, having put a question in this form, the answer of the witness has to be viewed in light of the question asked. Answer of PW-3 therefore was that Ex.21 rozkam did not contain his signature which is the correct fact. He was never shown Ex.20 checking sheet and any misstatement on his part, therefore, cannot be fatal to the prosecution. Further, in view of the overwhelming evidence, non production of muddamal article wire would also not be fatal to the prosecution. 12. Apparently, the appellant has served out the main substantial sentence. Since he is not able to pay the fine, he is serving out the default sentence. The Court had put to the counsel for the appellant whether the appellant would be willing to deposit at least the basic amount of electricity consumed by CR.A/930/2007 6/6 JUDGMENT him. He, however, under instructions showed the inability of the appellant to do so. Under the circumstances, I have no option but to reject the appeal in toto. 13. In the result, conviction and sentence of the appellant is upheld. Appeal fails and is hereby dismissed. (Akil Kureshi, J.) (vjn)