1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 399 OF 2007 Bhagwant Nivrutti Jadhav age 28 years, occupation : Labour, r/of Keshegaon, Tq. Appellant/ and District : Osmanabad. ori.accused. versus State of Maharashtra through Police Officer, Police Station, Bembli, Taluka and District Osmanabad. Respondent ------- Shri Santosh T. Ghute, Advocate, for appellant. Shri V.D. Rakh, A.P.P. for the Respondent-State. Coram : Shrihari P. Davare, J. Date : 11.03.2011. Oral Judgment (Per : Shrihari P. Davare, J.) 01. Heard Shri S.P. Ghute, learned Advocate for the appellant and Shri V.D. Rakh, learned A.P.P. for the Respondent-State. 02. This appeal is directed against the judgment and order dated 13.9.2007 rendered by the learned Special Judge, Osmanabad, in Special Case (Electricity) No.51 of 2006, thereby convicting the appellant (original accused) for the offence 2 punishable under Section 135 (a) of the Indian Electricity Act, 2003 ("The said Act" for brevity's sake) and sentencing him to suffer simple imprisonment for one month and to pay a fine of Rs. 1,376/= which is determined as civil liability, as contemplated under Section 154(5) of the said Act, with default condition, on non payment of fine, the appellant-accused shall further undergo simple imprisonment for two months. 03. The factual matrix of the present case can be summarized as hereunder; It is the case of the prosecution that the informant PW-3 Sanjay Ragit, Junior Engineer, attached to Unit office of the M.S.E.D.C., at village Bembli, Taluka and District Osmanabad, had come to Osmanabad on 14.7.2006, in connection with the meeting. After the meeting was over by about 1.00 p.m., he received a telephonic call from assistant lineman Mr. Kshirsagar, working within his jurisdiction, informing that some persons were committing theft of electricity at village Keshegaon. Hence, Junior Engineer Sanjay Ragit (PW-3) along with Deputy Executive Engineer Mr. Rakte (PW-1), Assistant Engineer Mr. Kothle (PW-2) and line staff, proceeded to village Keshegaon and further went to the house of the appellant-accused. On inspection, 3 it was found that the accused had placed a hook on LT supply line and from the hook, a 20 ft. black service wire was taken to the house of the accused, wherein two bulbs of 40 watts were being used with the help of said electricity supply. Accordingly, PW-3 Sanjay Ragit drew panchanama of the place of incident, which is at Exh.12, and attached the electricity service wire, thereunder. Moreover, PW-3 Ragit also prepared assessment sheet in respect of the theft of electricity, which is at Exhibit 18 and found that the accused committed theft of electricity to the tune of Rs.1,852/=. Thereafter, PW-3 went to Bembli police station and lodged a report against the accused, whereupon, Police Station Officer, Head Constable Kadam registered the crime under CR No. 16/2006 for offences under Sections 135, 139 and 151 of the said Act and handed over investigation to Head Constable Shri Akoskar (PW-4). 04. It is also the case of the prosecution that accordingly, PW-4 Head Constable Shri Akoskar received the papers and the seized articles and he recorded the statements of the staff of the electricity board, namely, Mr. Mulani and Mr. Bachate. Moreover, the accused was arrested on 18.7.2006 in connection with the aforesaid crime, after drawing arrest pancnahanama therefor. PW-4 Akoskar approached the Gram Sevak and obtained property 4 register extract in respect of the house of the accused, which is at Exhibit 22, and after completion of the investigation, he filed charge sheet against the accused, before the court. 05. Thereafter, accused appeared before the court and charge was framed against him at Exh. 6, on 5.4.2007, for offence under Section 135 (a) of the said Act and the same was read over and explained to the accused. However, the accused pleaded not guilty to the charge levelled against him and claimed to be tried. 06. To substantiate the charge levelled against the accused, the prosecution has examined inasmuch as four witnesses, as mentioned below. PW-1 Sharnappa Vishwanathappa Rakte, Deputy Engineer, MSEDC, Osmanabad. PW-2 Dipak Shrimantrao Kothle, Assistant Engineer, MSEDC, Osmanabad. PW-3 Sanjay Patruji Ragit, Jr.Engineer, MSEDC Sub Station,Bembli, Tq. & Dist.Osmanabad. PW-4 Raghuveer Janardhan Akoskar, Police Head Constable, Police Station, Bembli, and Investigating Officer. 5 07. The statement of the appellant-accused under Section 313 of the Code of Criminal Procedure, was recorded. The defence of the accused is of total denial and he stated that he has been implicated in the said case, falsely and, therefore, claimed to be innocent. However, the accused did not examine any defence witness in support of his contention. 08. After scrutinizing the evidence adduced and produced by the prosecution, on record, the learned Special Judge, Osmanabad, convicted the accused for offence under Section 135 (a) of the said Act and sentenced him as aforesaid for the said offence. Being aggrieved and dissatisfied by the said judgment and order, the accused-appellant has preferred the present appeal and prayed for quashment thereof. 09. Before adverting to the submissions advanced by the learned counsel for the parties, it is necessary to scrutinize the evidence adduced and produced by the prosecution. At the outset, coming to the testimony of PW-1 Sharnappa Rakte, who was serving as Deputy Executive Engineer with MSEDC, Osmanabad, he stated that PW-3 Sanjay Ragit was the Junior Engineer working at Unit office of MSEDC at village Bembli and Keshegaon is within the jurisdiction of his sub station. PW-1 identified the 6 accused in the court and stated that he is resident of village Keshegaon. The witness has also stated that on 14.7.2006, he had accompanied PW-3 Sanjay Ragit and technician PW-4 Dipak Kothle, to Keshegaon and further they went to the house of the accused, where they found a hook placed on LT supply line near the electric pole and a 20 ft. service wire was attached to the hook and its another end was taken to the house of the accused, with the help of which, 40 watt bulb was being run in the house of the accused. Accordingly, PW-3 Ragit prepared spot panchanama (Exh.12) and attached the said hook and wire thereunder. PW-3 Rakte also stated that the accused was present at his house at the said time. Thereafter, PW-3 Ragit lodged a complaint with Police Station, Bembli. 10. During the cross examination, it was suggested to PW-1 Rakte that he did not go to the house of the accused, but the same was denied by him. A suggestion was also given to him that the accused did not commit theft of electricity and did not run 40 watt bulb in his house and that he deposed falsely, but the same was denied by the witness. It was further suggested to him that the pancnahanama was drawn at the office of the MSEB, but said suggestion was also denied by the witness. The witness has also stated in the cross examination that the villagers did not gather at 7 the spot and that same kind of wire is stored at his office. PW-1 was unable to give gram panchayat number of the house which he had visited and, therefore, a suggestion was given to him that he did not visit the house of the accused, but the same was also denied by him. Apparently, mere suggestions are given to PW-1 in his cross examination, which were denied by him. However, although the witness has stated that the villagers did not gather at the spot and that same kind of wire was available at his office, but beyond that, there is nothing in the cross examination, beneficial to accused. 11. That takes me to the deposition of PW-2 Dipak Kothle, Assistant Engineer, MSEDC. He has stated that village Keshegaon was within the jurisdiction of his branch office at Bembli and PW-3 Sanjay Ragit was working as Junior Engineer at the said branch office. He has stated that on 14.7.2006, he had been to the Sub Divisional Office, Osmanabad and that he received information in respect of the theft being committed at village Keshegaon. Accordingly, he went to Keshegaon, along with PW-1 Rakte, in a vehicle, and PW-3 Sanjay Ragit and Mr. Chavan arrived there. They saw the house of the accused and found that a hook was placed on the LT supply line and with the help of 20 ft. black wire, two bulbs were being run in the house of the accused. 8 Accordingly, panchanama was drawn which is produced at Exh.12, which bore his signature and that of Mr. Rakte and Mr. Chavan. PW-2 Kothle, further stated that PW-3 Mr. Rakte took the attached wire and the hook to the Police Station, and the witness identified the accused in the court. 12. In the cross examination of PW-2, suggestions were given that he did not go to the house of the accused and accused did not commit theft of electricity and did not run 40 Watt bulb in his house, but the said suggestions were denied by the witness. It was also suggested to him that the panchanama was drawn at the office of the MSEB, but he denied the same. He was also suggested that the villagers had not gathered at the spot and that same type of wire is stored at his office. The witness stated that he cannot give gram panchayat number of the house which he had visited and, therefore, it was suggested to him that they had not gone to the house of the accused, but he denied the same. It appears that there is nothing in the cross examination of PW-2, beneficial to the accused, except few suggestions given by him, but which were denied by the witness. Hence, it is apparently clear from the suggestions given in the cross examination of the witnesses that stereotype questions were put to PW-1, as well as PW-2. 9 13. Coming to the testimony of complainant PW-3 Sanjay Ragit, Junior Engineer, attached to Bembli Unit. He stated that on 14.7.2006, he was attached to Bembli office and stated that he knows the accused. He stated that on 14.7.2006, there was meeting at Osmanabad, which was over by about 1.00 p.m. Then he received phone-call from Assistant lineman Vilas Bhimrao Chavan that some persons were committing theft of electricity at village Keshegaon. Accordingly, he himself, Deputy Executive Engineer Mr. Rakte and line staff went to the spot and reached the house of the accused and they found that the accused had supplied a hook on LT supply line and attached to it, a 20 ft. black coloured wire and its another terminal was taken to the house of the accused. They entered the house of the accused and found that he was running two bulbs of 40 watt with the help of said supply of electricity. Accordingly, he stated that the accused used 231 electricity unit worth Rs.1852/-. Accordingly, they attached the wire and drew panchanama and signed the same, which is produced at Exh.12. The witness has also stated that he also prepared assessment sheet which bears his signature and produced the same at Exh.18. He further stated that they attached the wire also, and then he went to Bembli Police Station and lodged the report, which is at Exh.19 which bore his signature. The witness also identified the accused in the court and 10 stated that he is the same person who was present in the house at the time of raid. He also identified the property attached from the house of the accused. 14. During the cross examination, he stated that earlier he had not gone to Keshegaon. He also stated that on the relevant date, he filed in all 11 reports against the persons from Keshegaon, and about 15 to 20 persons had gathered at the place of occurrence. He further stated that he cannot tell gram panchayat number of the house of the accused and, therefore, a suggestion was given that he drew the panchanama at his office, but the witness denied the suggestion. He also stated that such kind of wire was stored in his office and, therefore, a suggestion was given that the attached wire belonged to his office, but same was denied by him. 15. Considering testimony of PW-3 Sanjay Ragit, it is apparent that he had not gone to village Keshegaon, earlier and Vilas Chavan, who accompanied him, was the lineman at Keshegaon and before this incident, about 11 reports were filed against the persons from Keshegaon. He also stated that about 15 to 20 persons had gathered at the place of incident and that he cannot give gram panchayat number of the house of accused and hence, two suggestions were given to the witness in that respect, which 11 were denied by him. 16. Testimony of PW-4 Head Constable Raghuveer Akoskar, is the deposition of the Investigating Officer, who arrested the accused under arrest panchanama (Exh.21), and also obtained the extract of the property register in respect of the house of accused which is produced at Exh.22, and after completion of investigation, he filed charge sheet. 17. On the background of aforesaid evidence, Mr. Ghute, learned counsel for the appellant-accused, canvassed that the prosecution has not examined any independent witness to substantiate the charge levelled against the accused and the witnesses examined, belong to Respondent No.1, and therefore, they are interested witnesses. It is also submitted by learned counsel that there is variance between the spot pancnahanama (Exh.12) and the property extract No.8 (Exh.22), more particularly in respect of boundaries of the house, and therefore, it was further canvassed that the house, on which the alleged raid was conducted, did not belong to the accused. It was further submitted that although 15 to 20 persons from the village had gathered as stated by PW-3 Sanjay Ragit, but the prosecution did not examine anybody from them, as independent witness, and none of 12 the witnesses examined by the prosecution could state the gram panchayat number of the house of the accused. 18. In the said context, according to learned Counsel for the appellant-accused, the trial court proceeded on the assumption that the villagers do not come forward as witnesses at the time of raid being effected on the house of another villager. It is further canvassed that there is no independent witness to the spot panchanama (Exh.12) and the panchas used for the said panchanama, are PW-1 to PW-3, who belong to the department of Respondent No.1 and, therefore, such panchanama cannot be believed. In the circumstances, learned counsel for the appellant- accused urged that the present appeal be allowed and the appellant-accused be acquitted for the charge levelled against him, by quashing and setting aside the conviction and sentence inflicted by the impugned judgment and order. 19. Learned A.P.P. Shri Rakh for respondent-State, countered the arguments advanced by learned counsel for appellant, and resisted and opposed the present appeal, vehemently. He canvassed that as per the property register extract (Exh.22), the accused, namely, Bhagwant Nivrutti Jadhav, is the owner of house No.371 and the spot panchanama (Exh.12) categorically discloses 13 that the theft of electricity was found to have been committed at the said house of Bhagwant Nivrutti Jadhav, only. Learned APP further submitted that the argument in respect of difference in boundaries of the house of the appellant, bears no substance, and there is no question of any mis-identity of the house of the accused, as alleged. 20. Learned A.P.P. Shri Rakh further submitted that about 11 cases were registered against the persons from village keshegaon, on 14.7.2006 and, therefore, although 15 to 20 persons had gathered at the time of incident, but none of them came forward as witness, since they belong to the same village, and hence, the prosecution was required to take PW-1 to PW-3 as witnesses to the spot panchanama (Exh.12) and there is nothing wrong in that, and in the said context, he relied upon the observations made by the Hon'ble Supreme Court in the case of Manish Dixit vs. State of Rajasthan, AIR 2001 SC 93, and more particularly on paragraphs 22 to 24 thereof, which read as under:- "22. According to the learned senior counsel, recovery of the revolver was in violation of Sections 165 and 166(3) of the Code. Regarding Section 165, it is admitted that for the search conducted at Alka Hotel, Connaught Place, New Delhi, no independent witness of the locality was called despite the fact that 14 it is very populous area of the metropolis. True no independent witness has affixed signature on exh. P-80-Seizure Memo. The police officer said that they made an effort to secure at least two persons from Connaught Place but none was willing to be a witness. It is no surprise that any of the traders of Connaught Place would be unwilling to offer his service as a witness to any police action if he knew that he would have to bear all the sufferings thereafter, to give evidence in a Criminal Court, more so, when that Court would be at a far off place in a different State altogether. City People are quite conscious of such consequences and they would normally be wary to signify to such witnessing. The evidence of the police officer that nobody was willing to stand as a witness in Ext. P-80 cannot, therefore, be spurned down as improbable. 23. Section 166 of the Code deals with searches made outside the limits of the police station concerned. Sub-section (1) thereof enables the officer in charge of one police station to require the services of the officer in charge of another police station. It is optional on the former to do so. Sub-section (2) enjoins a duty on the latter to conduct the search on being so requisitioned by the former. Sub-sections (3) and (4) are relevant as PW 35 (Umed Singh) and PW 41 (Dr. P.S. Manocha) (Himant Singh) (both investigating officers from Jaipur) opted to conduct the search for A2 (Manish Dixit) at Delhi, by themselves. Those two sub-sections read thus: "(3) Whenever there is reason to believe that the delay occasioned by requiring an officer in charge of another police station to cause a 15 search to be made under sub-section (1) might result in evidence of the commission of an offence being concealed or destroyed, it shall be lawful for an officer in charge of a police station or a police officer making any investigation under this Chapter to search, or cause to be searched, any place in the limits of another police station in accordance with the provisions of Section 165, as if such place were within the limits of his own police station. (4) Any officer conducting a search under sub- section (3) shall forthwith send notice of the search to the officer in charge of the police station within the limits of which such place is situate, and shall also send with such notice a copy of the list (if any) prepared under Section 100, and shall also send to the nearest Magistrate empowered to take cognizance of the offence, copies of the records referred to in sub- sections (1) and (3) of Section 165." 24. It is evident from sub-section (3) that it permits an investigating officer belonging to one police station to search any place falling within the limits of another police station in certain exigencies. One such exigency is when there is possibility of delay in requisitioning the services of police personnel of another police station and such delay could defeat the very purpose of the search, then the investigating officer can proceed to that other place and conduct the raid or search by himself. However, when he does so he is obliged to conform to certain requirements as prescribed in sub- section (4). One is that he shall inform the officer in charge of the other police station and send him a copy 16 of the list prepared by him in the search. Second is that he should send the copies of the search documents to the nearest Magistrate who has the competence to take cognizance of the offence. " 21. Learned A.P.P. Shri Rakh further stated that the assessment sheet of the theft was prepared by PW-3 Sanjay Ragit to the tune of Rs.1,852/- which is produced at Exh. 18, considering the electricity units allegedly used by the accused by way running of two bulbs of 40 watts for the last two years, but the trial court adopted procedure to be followed by the court under Section 154 (5) of the said Act and calculated the theft of electricity to the tune of Rs.1,376/= and, therefore, submitted that no interference therein is called for. Learned A.P.P. canvassed that evidence of PW-1 to PW-3 is consistent and same has not been demolished in the cross examination, and therefore, same is required to be accepted, and hence, any interference in the conviction and sentence imposed upon the accused by the trial court, is not warranted and consequently, urged that the present appeal be dismissed. 22. I have perused the oral and documentary evidence adduced and produced on record, as well as perused the impugned judgment and order dated 13.9.2007 rendered by the learned 17 Special Judge, in Sessions Case (Electricity) No. 51 of 2006, thereby convicting and sentencing the accused for the offence under Section 135 (a) of the said Act, and also considered the submissions advanced by the learned counsel for the parties, anxiously, as well as perused the observations made in the judicial pronouncement cited by the learned A.P.P. for the Respondent- State carefully, and it is apparently clear that the evidence of PW-1 Sharnappa Rakte, PW-2 Dipak Kothle and PW-3 Sanjay Ragit, is consistent in respect of theft of electricity by the accused, by placing hook on the LT supply line of electricity pole and connecting service wire of 20 ft. to the hook and taking its another end to his house for supply of electricity to 40 watt bulbs, and the said testimonies of the witnesses have not been demolished in the cross examination, and therefore, the said testimonies are required to be held to be trustworthy to connect the appellant- accused with the crime. True it is, about 15 to 20 persons had gathered at the place of the incident, as stated by PW-3 Sanjay Ragit, but none of them was used by prosecution as independent witness, as well as no independent panch witness was taken for the spot panchanama (Exh.12), but admittedly, as stated by PW-3 Sanjay Ragit, about 11 cases were registered by him against the persons from village Keshegaon on relevant date i.e. 14.7.2006 and, therefore, as observed by learned trial court, nobody came 18 forward from the same village to act as panch or to be independent witness against the villagers from the same village and, therefore, the view adopted by the trial court cannot be faulted with, considering the observations made by the Hon'ble Supreme Court in the case of Manish Dixit (supra). Accordingly, ocular evidence put forth by the prosecution, substantiates the documentary evidence, such as, spot panchanama (Exh.12) and property extract (Exh.22) and there is no dispute that house No.371 belongs to the appellant-accused only, in view of the said extract of property, where the raid was effected and theft of electricity was found to have been committed by the accused as mentioned hereinabove, and hence, the prosecution has established nexus between the accused, his house and the crime. Hence, I am not inclined to accept the submission advanced by learned counsel for the accused. 23. Besides that, the view adopted by the trial court is a possible view to be adopted, after scrutinizing and assessing the evidence led before it, and same does not appear to be perverse, and apparently, there is no flaw in the reasoning given therefor by the learned trial judge, nor it can be faulted with, and hence, this is not a fit case, wherein interference is called for. 19 24. In the result,