Received on : 03/12/2017

Registered on : 03/12/2017
Decided on : 27/02/2018

IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS COURT NO.07,

AT PUNE.
(Presided over by Y. P Marulkar)
Regular Criminal Case No.67/2017.
Exhibit No.44.

State of Maharashtra
(Through Hinjewadi Police
Station, Pune)
Versus. Prosecution.
1] Nitin Balasaheb Chandere,
Age : 27 yrs, Occup: Garage, Accused.
2] Dashrath Laxman Sasar, Age : 40 yrs,
Occup: Agri, Both R/at: Soos, T'al:
Mulshi, Pune.
•

Appearances:
Mr. R.Y. Suryawanshi, APP for the Stat Mr.
D.V.Sonawane, Adv for both accused.

JUDGMENT
(Delivered on 03/12/2017)
Accused no.1 and 2 have chargesheeted for the offence punishable under
sec.39 r/w.44 of the Indian Electricity Act.

2] In short the case of the prosecution is as under:

The informant namel y Rajiv Dev is working as Deputy Engineer in
MSEB Department. In the year 2017 he was working in MSEB Office Ganeshkhind Road,
Pune. On 01/12/2017 at about 3 pm the Flying Escort MSEB Officers Omprakash and
Subhash came to his office. They told the informant that they wanted to check electric
connection of Village Soos. Accordingly, linemen Bhimsen and Shelke went to Soos
Village alongwith above said officers in MSEB Car alongwith its driver Munde.
Above said MSEB employees started to check the electric
connection of accused persons. They introduced themselves to accused persons and
started to check electricity connection of accused persons. They found there, no electric
connection of meter 'authorized by the MSEB. They found nine rooms in the house of
accused persons. All rooms were found connection of electricity of 970 Wats. They also
found electric connection taken from electric pole adjacent the house and accordingly
without the meter of the MSEB accused persons were found utilizing the e l ec tr i c en e rg y
t o th e ir n in e ro o ms fro m th e s a id MS EB Po l e unauthorizedly. Omprkash the
MSEB Officer with the help of his other colleague prepared the joint assessment report.
They found that accused person no.1 has committed theft of electric energy worth
value of Rs.16,425/- by tampering the electric MSEB pole thereby taking electric supply
to their house.

3] So also Omprakash MSEB Officer and his team inspected the

electric connection of accused no.2. They found accused no.2 is consumer of MSEB and
possessing meter No.550692. They found tampering of the electric meter. They found
accused no.2 directly took the electricity from the electric pole. Accordingly, they also
prepared joint assessment report and found that accused no.2 has committed theft of
electric energy worth of Rs.1800/-.Then he prepared his inspection report on the spot. Then
on behalf of the MSEB, the informant lodged the report against the accused in Hinjewadi
Police Station.

3] On the basis of the report of the informant, crime bearing CR

No.3026/2017 registered against accused persons. PSI Mrs. Bidve,
investigated the crime. She collected the spo t inspection report and
assessment sheets. She visited the spot of incident seize the electric wires
 3

in question. Then she recorded the statement of witnesses and arrested

the accused. After completion of the investigation, she filed the
'-'ehargesheet against accused persons in the Court.
4] The then my learned predecessor has framed the charge
against accused persons as per Exhibit 16. The contents of the charge readover and
explained to accused persons in vernacular. Accused persons pleaded not guilty and
claimed to be tried. The defence of accused persons is that of total denial.

5] On the basis of the case of the prosecution and evidence

adduced, the following points arose for my determination. I have given my findings
to the reasons recorded thereon are as under:
POINTS FINDINGS.
1] Whether the prosecution prove that accused
no.1 and 2 dishonestly consumed electric energy
by using artificial means tampering the meter
and electric pole which is not authorized by licensee
and committed the theft of electric energy worth
of Rs.16425/- and Rs.1800 respectively ? No.

2] What order? As per final order.

REASONS
6] The prosecution has examined the informant at Exhibit 25,
panch witness Mahesh (PW2) at Exh.22, MSEB Officer Omprakash (PW3) at Exh.32
and I.O. PSI. Bidve (PW4) at Exhibit 39. Besides the oral ev id en ce o f th ese
w itn esses th e p ro secu tio n h as rel ie d o n th e documentary evidence viz a viz
assessment sheets Exhibit 26 and 27, report Exhibit 28, inspection reports 33 and
34, letter of Omprakash (PW3) Exhibit 35, seizure panchanama of hook and wire
Exhibit 40.
As to point no.01:-
7] The informant has deposed that on 01/11/2003 the incident has
occurred and on that day he was working in MSEB as Deputy Engineer at
Ganesh Khind Road, MSEB Office. On the day of the incident flying escort officers
and their other colleagues had, come to his office including officer Omprakash
(PW3). Omprakash (PW3) told the informant that they are going to check the
consumers and they want some employees in his office and accordingly
Omprakash (PW3) took two employees in his office and returned back in the
evening. He has further clearly deposed that when Omprakash (PW3)
returned back in the evening he told him that accused persons committed theft
of electric energy. He has deposed that Omprakash (PW3) gave him joint report
and also gave two assessment sheets (Exh.26 and 27). Thereafter, he lodged the
report (Exh.28) against accused persons.

8] Omprakash (PW3) h as d epo sed th at th e in cid en t h as occurred

on 01/11/2003 and on that day he was working as Assistant Director to flying
escort in the MSEB Head Office, Rasta Peth, Pune. He has further deposed that on
the information given by his senior officer Mr. Ade that the complaint of theft of
electric energy has been received to them against accused persons residing at
village Soos. Accordingly, he himself his colleagues Mr. Ade, Mr. Jadhav and Mr.
Shelke went to house of accused no.1 and thereafter to the house of accused
no.2. In the inspection he found that accused no.1 has 9 rooms wherein saw
the electric wires and electric point on each of the room and the electricity was
taken from MSEB electric pole by lying a hook thereon and accordingly he
prepared the report (Exh.33). He has further deposed that then he went to the
house of accused no.2 and found MSEB electric meter, but the meter was
disconnected because of default in payment of
 electric bills, however, accused no.2 had taken electric connection by lying hook on
the MSEB electric pole to his house and accordingl y he prepared report
'

(Exh.34). He has further deposed that he also seized the wires and hooks from
the spot. He lastly deposed that he gave a letter (Exh.35) to the informant for
further action.

9] Bare reading of the oral evidence of the informant, a prudent man can
easily be understood that neither the informant visited the spot of the incident nor
personally carried out the inspection of the spot of the incident and accordingly
personally found that accused persons have committed the theft of electric
energy by lying the hooks attached with electric wires on the MSEB electric poles.
Whatsoever his oral evidence is based on the reports submitted by Omprakash (PW2)
and on the basis of report of Omprakash (PW2) the informant lodged the report
(Exh.28). The informant deposing against accused persons only on the basis of
report submitted by Omprakash (PW2). Hence, his evidence is otherwise and in no
way and in no direction is helpful to the prosecution. Thus , the oral evidence of
single witness Omprakash (PW2) only remains.

10] In case of the holding the accused guilty on basis of single eye
witness, no doubt the accused can be held guilty but the testimony of that solitary
witness should be trustworthy leaving aside the innocence of the accused. Our
Honourable Apex Court in Bhimappa Hasamani & ors Ws State of Karnataka
2004 (4) Crimes 77 (SC) held that "this Court has repeatedly observed in many
cases that on the basis of the testimony of a single eye witness a conviction may be
recorded, but it has also be cautioned that while doing so, the Court must be satisfied
that the testimony of the solitary eye witness is of such sterling quality that the Court
finds it safe to base a conviction solely on the testimony of that witness. The evidence
must be free of any blemish or suspicion, must impress the Court as wholly truthful,

must appear to be natural and so convincing that the Court has no hesit in recording a
conviction solely on the basis of the testimony of a single ., witness". On the basis of
the principle laid down by our Honourable Apex Court, the oral evidence of Omprakash
(PW2) has to be evaluated.

11] It is specific case of the prosecution that accused no.1 found committed
the theft of the electric energy by lying hook on the electric pole of the MSEB
situated adjacent to his house, so also accused no.2 found committed theft of electric
energy by lying 7 Judgt RCC 67/2003. Exh.44 Dt.29/08/2012.
hook on the
electric pole of the MSEB situated adjacent to his house. The prosecution has produced
on record assessment sheets Exhibit 26 and 27 and inspection reports Exhibit 33
a
and 34. The inspection reports shows that alongwith Omprakash (PW2), two
other MSEB officers were alleged to have been inspected the spot and prepared their
joint inspection reports (Exh.33 and 34). However, in support of oral evidence of
Omprakash (PW2) no one from other two MSEB Officers entered into witness box and
corroborated the testimony of Omprakash (PW2). Secondly, despite the assessment
reports (Exh.26 and 27) alleged to have been prepared by the informant showing the
exact amount of theft of electric energy worth Rs.16425/- and Rs.1800/- by accused
no.1 and 2 respectively, but the informant has not deposed how he has evaluated
these amounts and come to the conclusion that accused persons have committed
theft of electric energy to the extent of said amounts.

12] It is pertinent to note here that in order to corroborate the oral evidence
of Omprakash (PW2), no independent eye witness out of the MSEB Department
examined by the prosecution so as to bring on record that accused no.1 and 2 were
found lying hooks on the MSEB Electric Poles and had taken the electric su pply
into their respective houses. As per oral evidence of Omprakash (PW2), as the
complait

13] gainst accused persons received to them, they decided to inspect

the il-lcident spot. In such facts and circumstances of the case of the
prosecution, in absence of independent corroboration to the oral testimony of
Omprakash (PW2), the oral evidence of Omprakash (PW2) cannot be
considered as gospel truth and hold accused persons guilty of tampering of
MSEB electric poles and stolen the electric energy of the MSEB.

14] 13] As per Omprakash (PW2) alongwith reports

(Exh.33 and 34)
15] he has given the seized hooks and wire to the informant. I.O. PSI
Bidve (PW5) has deposed that for the purpose of investigation, she has received
report (Exh.28) and the spot panchanama. I.O. PSI Bidve (PW5) has further
deposed that spot panchanama was prepared by one PHC Kadam. In order to
prove the spot panchanama the prosecution has examined the panch witness
Mahesh (PW1). He has not supported to the case of the prosecution. Therefore,
the learned APP cross examined him at length but no fruitful in favour of the
case of the prosecution has come on record. However, during the course of cross
examination of I.O. PSI Bidve (PW5) the counsel for accused persons referred
the spot panchanama and accordingly brought on record which is at Exh.40. As
per Omprakash (PW2) he has given seized hooks and wires to the informant. The
informant has lodged the report (Exh.28) on 01/11/2003, however the spot
panchanama (Exh.40) drawn on 02/11/2003 clearly shows that alongwith drawing
the spot panchanama, two wires alleged to have been seized from the spot of the
incidents. Thus, I find material discrepancies between the oral eviden ce of
Omprakash (PW2) and seizure of the wires by way of spot panchanama (Exh.40).
More over the hooks with the help of which accused persons alleged to have been
taken electricity connection to their respective houses have not produced on
record.

16] In view of the entire discussions supra, it is very difficult to

come to the conclusion that by using artificial hooks on the MSEB Electric
Poles unauthorizedly, accused persons have committed the theft of electric
energy as contemplated in section 39 read with section 44 of the Indian
Electricity Act. Thus, I come to the righteous conclusion that the prosecution
has failed to prove the guilt of the accused beyond reasonable doubt and for
which the accused is entitled for the benefit of doubt. Therefore, I answer point
no.1 in the negative.

17] As to point no.2:- The record shows that two wire have been seized
by the police. They are seized in the year 2003 and since then they are lying in
the police station. Therefore, in my opinion, they are required to be destroyed
after appeal period is over. Thus, in answer to point no.2, I pass the order.

Order
1] Accused no.1 and 2 are acquitted as per section 248(1) of the
Code of Criminal Procedure for the offence punishable under sec.39
read with section 44 of the Indian Electricity Act.

2] The bail bonds of the accused are cancelled. They is set at

liberty.

3] The muddemal ie wires be destroyed after appeal period is

over.

Pune.
Dt.27/12/2017 (Y. P W Murulkar)
Judicial Magistrate FC Court No.07 Pune.