THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL NO.1005 OF 2004 ORDER: This appeal is directed against the judgment of conviction passed by the I Additional District and Sessions Judge – cum – Special Judge for Transco Cases, Kurnool in Transco C.C.No.18 of 2003 on 24.03.2004. The appellant herein was prosecuted for the offence under Sections 39 and 44 of Indian Electricity Act alleging that on 26.07.2001 at about 15.55 hours P.Ws.1, 2 and other staff inspected the Flour mill premises of the accused bearing ISC No.39 at Chintalayapalli village of Kolimigundla Mandal of Kurnool district and found him committing theft of electrical energy by jointing M & L copper wires in R, Y and B phases outside the meter, by suppressing actual consumption by bypassing the meter and illegally using it for flour mill purpose during the disconnection period of the service. On the complaint of P.W.1, P.W.5 registered the case in Crime No.1454 of 2001 on 27.07.2001 at about 18.00 hours and after investigation filed the charge sheet against the accused. The accused pleaded not guilty for the said charges when he was examined under Section 251 Cr.P.C. In order to establish the said charges, the prosecution examined P.Ws.1 to 5 and got marked Exs.P.1 to P.8 and M.Os.1 and 2. The learned Special Judge by taking into consideration of the said oral and documentary evidence found the accused guilty for the offence under Sections 39 and 44 of Indian Electricity Act and convicted and sentenced to undergo simple imprisonment for a period of 2 years and to pay a fine of Rs.2,000/- in default to undergo simple imprisonment for 6 months for the offence under Section 39 of Indian Electricity Act and also further convicted to undergo simple imprisonment for a period of one year and also to pay a fine of Rs.2,000/- in default to undergo simple imprisonment for 6 months for the offence under Section 44 of Indian Electricity Act. Aggrieved by the said conviction and sentence, the present appeal is filed. Now, the point that arises for consideration is: Whether the prosecution could able to establish the offence under Sections 39 and 44 of Indian Electricity Act against the accused beyond reasonable doubt? P O I N T: According to the prosecution the accused was running the flour mill in Chintalayapalli Village of Kolimigundla Mandal and his service connection was disconnected on 30.11.2000 for non payment of consumption charges. On 26.07.2001 P.Ws.1 and 2 and another P.Joji Reddy inspected the premises of the accused at 15.55 hours and found the accused running the flour mill with the help of electrical energy during the disconnection period. They found the meter disk was not rotating in forward direction and on a detailed examination, they found the meter terminal cover seals were found cut and after opening meter terminal cover, M and L wires of 320 PVC black in colour and 720 PVC copper in yellow colour were found twisted outside the meter consuming the electricity bypassing the meter in all the three phases. P.W.1, then A.D.E. of DPR, Kurnool, has stated about his inspecting the premises of the accused on 26.07.2001 and found the accused running the flour mill with the help of electrical energy. According to him the service connection of the accused was disconnected on 30.11.2000 for non payment of consumption charges. He also found the meter disk was not rotating when he tested with 2 K.W. heater. On a detailed examination, he found the meter terminal cover seals were found cut. After opening the meter terminal cover, M and L wires of 320 PVC black in colour and 720 PVC copper in yellow colour were found twisted outside the meter consuming the electricity bypassing the meter in all three phases. P.W.2 has prepared the inspection report on his instructions and he obtained the signature of the accused in column Nos.2 (b) and 10 of inspection notes. Ex.P.1 is the inspection notes. He seized the meter terminal cover seal bit bearing No. 880087 with seal impression of APSEB number –82- A.T.J. He also seized the joints twisted portion of wires in 3 numbers under Ex.P.1 during his inspection. On the dictation of the accused, one Dasthagiri P.W.3 wrote remarks in column No.10 of Ex.P.1 and also signed under it. On the same day, he prepared the inspection report assessing the loss to APCPDCL at Rs.1,82,156/-. Ex.P.2 is the inspection report prepared by him. M.O.1 is the seal bit. M.O.2 is the 3 number twisted M and L wire pieces. On 27.07.2001, he preferred a complaint to S.H.O, APTS, Vigilance and handed over Exs.P.1, P.2, and M.Os.1, 2 and positive and negative photos. Ex.P.3 is the original complaint dated 27.07.2001 and Ex.P.4 is two positive photographs with negatives. P.W.2 Additional Assistant Engineer, D.P.E., Kurnool, who accompanied P.W.1 has supported the version of P.W.1 with regard to the accused running flour mill during disconnected period and found the meter cover seals were tampered and electricity is being consumed bypassing the electricity in all the three phases. Learned counsel for the appellant has pleaded that P.Ws.1 and 2 has not inspected the premises of the accused and they have foisted a false case only for the statistical purpose, as such they are not aware what was the material available in the mill of the accused at the time of inspection and there are no independent witnesses for the said inspection even though as admitted by P.W.1 the premises is located in the middle of residential locality and the accused has not signed on Ex.P.1 and the alleged Dasthagiri, who has examined as P.W.3 has not supported the case of the prosecution, as such the accused is entitled for benefit of doubt. Learned counsel for appellant has further pleaded that when the service connection was disconnected on 30.11.2000 there is no possibility for the accused to extract the electricity bypassing the meter in all the three phases. On behalf of the Public Prosecutor, it is argued that the evidence of P.Ws.1 and 2, who are the officials of A.P.C.P.D.C.L., is sufficient to establish the commission of the offence by the accused and there is no necessity of examining any independent witnesses and there is no enimity between the accused and P.Ws.1 and 2 to foist a false case against them. The accused is denying about the very inspection of P.Ws.1 and 2. Both P.Ws.1 and 2 have stated about their inspection of premises of the accused on 26.07.2001 at 15.55 hours. P.W.1, in the cross-examination, has stated that he do not know the name of the local line-man of that village. He admitted that the electricity connection would be given from the electric pole. He did not know the date of original connection given to the premises of the accused. He did not note the pole number from which the service connection was given. He admitted that when it was disconnected, the wires were disconnected from L.T. lines at the pole itself. He do not know the name of the person, who disconnected the service connection of the premises of the accused. He has not mentioned the date of disconnection in Ex.P.1. P.W.1 has further stated that at the time of his inspection the accused milling jowar. The other witness, P.W.2 in the cross-examination also stated that he do not know the name of the local line-man of that area at the time of inspection. He also could not able to say the pole number and the name of the person, who disconnected the I.S.C.No.39 of Chintalayapalle village. According to him, by the time of inspection some customers were present and they were milling their paddy in the huller. From the above admissions made by P.Ws.1 and 2 in their cross-examination, the appellant’s counsel has pleaded that the very inspection by P.Ws.1 and 2 is doubtful. P.W.1 has stated that Jowar is being milled in the mill of the accused at the time of the inspection, whereas P.W.2, who was present along with him, has stated that customers are milling paddy in the huller at the time of inspection. Admittedly, the mill of the accused is flour mill, therefore the question of hulling paddy in the flour mill does not arise, that itself creates a doubt with regard to the presence of P.W.2 at the time of inspection and also about the running of mill at the time of alleged inspection by P.Ws.1 and 2. According to the prosecution, the service connection of accused was disconnected on 30.11.2000 and the inspection was made on 26.07.2001 and they found the meter cover seals were found cut and after opening the meter terminal cover, M and L wires of 320 PVC black in colour and 720 PVC copper in yellow colour were found twisted outside the meter consuming the electricity bypassing the meter in all three phases. Therefore, the allegation of the prosecution is that the accused consuming electricity bypassing the meter by tampering with the seals of the meter covers. Admittedly, the service connection was disconnected on 30.11.2000. When the service connection was disconnected, the disconnection will be made at the pole itself. Therefore, the question of passing electricity up to the meter does not arise. It is not the case of the prosecution that the accused has committed the theft of electricity by laying a line from the pole to his premises and it is only alleged that the accused has tampered the meter and bypassed the meter in all the three phases and consumed the electricity. When the service connection itself is disconnected, there is no possibility of supply of electricity to the premises of the accused as admitted by P.W.1. Therefore, the question of accused tampering with the meter and consuming electricity by by-passing the meter in all the three meters is also doubtful. With regard to the presence of the accused at the time of inspection, P.Ws.1 and 2 have stated that the accused was present at the time of inspection and as per his instructions Dasthagiri, (P.W.3) has recorded the information in column No.10 of Ex.P.1 and thereafter he signed on it. The said Dasthagiri, (P.W.3) turned hostile to the prosecution. According to him, he was not present at the time of inspection and the signature in column No.10 of Ex.P.1 does not belong to him and he was not the scribe of Ex.P.1 as mentioned in column No.10. But subsequently, he admitted that he signed in Ex.P.1 at the instance of Line-man Subbaiah due to his friendship with him. P.W.5 is the investigating officer. In his cross-examination, he admitted that P.Ws.1 and 2 stated to him that the accused himself scribed the remarks under column No.10 of Ex.P.1. He also did not enquire the name of the employee, who disconnected the service connection of the accused premises. In column No.10 of Ex.P.1 the matter was written by Dasthagiri (P.W.3) on 26.07.2001 and signed by the accused herein. The investigating officer P.W.5 has stated that P.Ws.1 and 2 stated to him that the accused himself scribed the said explanation under column No.10 of Ex.P.1. Moreover, P.W.3 has admitted his signature in column No.10 of Ex.P.1, but he denied about the drafting of the said explanation. The learned Sessions Judge has compared the signature of P.W.3 in column No.10 of Ex.P.1 with that of the signature on deposition and came to the conclusion that he signed in column No.10 of Ex.P.1, even otherwise also P.W.3 admitted his signature on Ex.P.1 at column No.10 of Ex.P.1, but he stated that it was affixed by him at the instance of line-man, but according to him, he has not drafted the explanation in column No.10 of Ex.P.1. The learned Sessions Judge has found that in the entire cross- examination of P.Ws.1 and 2 the accused has not denied his signature in column Nos. 2 (b) and 10, but whereas in the cross- examination of P.W.1, a suggestion was put to him that a false case was foisted against the accused and P.W.3 never signed on Ex.P.1. P.W.2 has stated that they did not try to know the father name of Dasthagiri (P.W.3) and the accused. The evidence of investigating officer P.W.5 about the signature of accused on Ex.P.1 is contrary to the evidence of P.Ws.1 and 2. Therefore, the signature of accused on Ex.P.1 is also creates a doubt. The learned Sessions Judge has observed that the accused committed theft of energy bypassing the meter using black and yellow colour PVC copper wires and twisting outside meter terminal black by bypassing the meter from recording the electricity consumption, directly from nearby distribution pole. But there is no evidence on record as discussed above that the accused has directly got electricity connection from the nearby distribution pole. Therefore, as discussed above the very factum of using electricity by the accused bypassing the meter when the service connection itself was disconnected during that period, was not established by the prosecution. Therefore, I hold that the accused is entitled for benefit of doubt. In the result, the appeal is allowed. The conviction and sentence passed by the I Additional District and Sessions Judge – cum – Special Judge for Transco Cases, Kurnool in Transco C.C.No.18 of 2003 on 24.03.2004 is hereby set aside and the accused is accordingly acquitted for the offences under Sections 39 and 44 of Indian Electricity Act. _______________________ P.DURGA PRASAD, J 27th July, 2011 KSP