DABHI MANUBHAI SUKHABHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present Criminal Appeal is filed by the appellant - original accused challenging the order of conviction dated 2.4.2016 passed by the learned 7th Special Judge, Limbdi in Special Electricity Case No.92 of 2014.

(2.) The case of the prosecution is that the complainant - Dhirajkumar Pitambardas Makwana, an engineer of Paschim Gujarat Vij Company Ltd., Chuda Division (hereinafter referred to as 'the PGVCL') inspected the agricultural field of the appellant on 10.11.2008 and found some irregularity being committed by the appellant and it was found that appellant was using the electricity by connecting wires on the pole. Resultantly, a theft case was registered and the bill was issued to the extent of Rs.6882.80 ps. and also a bill of Rs.3000/- for compounding offence and thereby, the said officer lodged the complaint under the provisions of Section 135 of the Electricity Act, 2003 . In this connection, it appears that FIR has been lodged which was registered as II 654 of 2009 before the PGVCL Police Station, Bhavnagar. Pursuant to such FIR, investigation was entrusted in which the statement of relevant witnesses have been recorded in view of Sections 154 to 172 of the Act and the panchnama was also drawn. A report of the Commission for offence under Section 135 of the Electricity Act came to be submitted and since the appellant could not pay the amount of Rs.3000/- for compounding offence, the case appears to have proceeded further.

(3.) Mrs.Rekha H. Kapadia, learned advocate appointed by the HCL Committee to represent the appellant accused, has contended specifically that a false case has been made out against the appellant accused. To substantiate this plea, she has drawn the attention of the Court to a deposition of PW1 - Khemrajsinh Yashwantsinh, examined at Exh.11 and contended that this witness has indicated that except putting the signature, he does not know anything and in his entire deposition, it clearly transpires that nothing is recovered. She has further taken the Court to a panchnama at Exh.12 drawn which indicate that in the agricultural field, there appears to be electricity pole but having no electricity and it has also been reflecting from the said panchnama that nothing is recovered by the police from the agricultural field when the panchnama was drawn. In addition to it, she has also drawn the attention of the Court PW2- Tusharbhai Bhupatbhai, examined at Exh.15, who happened to be Deputy Engineer of Vigilance Department of GEB, Baroda, who along with Assistant Lineman went to the spot for checking purpose on 10.11.2008. From the said deposition, Mrs.Rekha Kapadia, learned advocate is pointing out that there were no numbers were written where the line was drawn from the transformer. It was found that there was no electricity connection and as per the say of this witness, direct wiring was laid down from the line. Learned advocate, while drawing the attention, has contended that the deposition is indicating that during the checking, wires of 15 mtrs. in length was recovered and there was a water pump of 3 horsepower was working. The testimony of this witness is indicating that on the place itself, Rojkam was undertaken which is reflecting at Exh.17 of the paper book compilation. Along with the wire, starter is also recovered and that has been reflected in Annexure4 which was personally drawn by him. But this testimony, as per the learned advocate for the appellant accused, is falsified as the panchnama of scene of offence is not reflecting anything nor recovery even stated in it. In cross-examination, it has been accepted by this witness that for checking, there was no written document obtained and no independent persons were kept present at the time when checking was to be made. Said witness has also indicated clearly in cross-examination that whether the land belonging to the appellant accused or not, he has not verified the revenue record as well. Mrs.Rekha Kapadia, learned advocate has further pointed out from the cross-examination of this witness that muddamal recovery of wire as well as starter appears to have not been kept in the Court as muddamal and this electric wire is easily available from the market and, therefore, by drawing the attention to this, she has submitted that this testimony of PW2 is quite in contrast to the panchnama which has been drawn by the authority.