The central legal point established in the judgment is the requirement for the prosecution to prove the accused's direct involvement in electricity theft under Section 135 of the Electricity Act, 2003.

Suresh Kait, J.

1. Vide instant petition, the appellant has assailed the judgment/order dated 03.12.2008 whereby respondent/accused has been acquitted from all the charges against him.

2. The facts of the case in brief are that on 28.03.2005, for detecting of theft electricity energy being committed at premises Farm House No.3, Village Ghitorni, adjacent to village Sazol, New Delhi, the authorised inspector and other team members including PW3 & 6 reached at the premises. They found, therein factory being run of waste plastic was being recycled into solid plastic with the help of the machines run by electric energy. No meter was found at the site, on search of source of electric current. They found that the user of the premises had hooked four wires from the pole which was supplying the electric energy to the machines and as such there was direct theft of energy. The load report Ex.PW1/A was prepared after calculation of the load, inspection report Ex.PW1/B was also prepared alongwith meter report Ex.PW1/C. On inquiry being made, about owner/user of the said factory, from the labourers who were working there, some of them disclosed the name as Raghu whereas some of them disclosed the same as Ruggan; hence, both the names were mentioned as user of the premises in question.

3. PW3 & PW6 corroborated the testimony of PW1 in total. The testimony of these two witnesses who are material witnesses neither linked the respondent/accused with the commission of the offence nor any of them identified him either as Ruggan or Raghu. The identity of the respondent is sought to be established by the prosecution on the basis of the statement of the investigating officer, who was examined as PW4, who deposed that on 12.09.2008, respondent/accused was arrested by him and has also identified him in the Court vide memo Ex.PW4/C whose personal search memo was also proved Ex.PW4/D.

4. Learned Trial Judge recorded in the impugned order that the IO of the case was also not been able to establish that the respondent, whose name was Raghu Nath has only come into picture after his arrest, is the same Raghu Nath, as was told to be Raghu and Ruggan by workers of the factory. To prove that it was Raghu Nath, who was also known as Raghu and Ruggan, three witnesses i.e. PW7, 8 & 9 were examined, but all these witnesses were declared hostile – who even denied that their statement was recorded by the police; however, the same were confronted. These three witnesses could have only proved that the respondent Raghu Nath was arrested under Section 41 (1) Cr. P.C. and produced before the Court after filing supplementary challan is Raghu @ Raghunath, but the prosecution even failed to prove the same.

5. Respondent/accused was identified by these witnesses only as Raghu Nath and was denied to be Ruggan or Raghu.

6. Learned Trial Judge has also observed that as per the evidence on record, no link has established between respondent and evidence of theft which was in fact committed by owners/user who was made accused on hear say evidence of PW1. The workers found in the factory, who told the name of Ruggan and Raghu to complainant (PW1) ,are neither examined nor their names or details were mentioned in the complaint Ex.PW1/E.

7. It is further recorded that the investigating officer also failed to examine said workers/labourers during investigation, so as to prove that it was Ruggan @ Raghu who was the user of the premises, wherein a factory was running which was being run by the energy directly tapped from the pole main electric line of the complainant.

8. PW7, father of the respondent/accused also examined and in his cross-examination, he deposed that Ruggan @ Raghu @ Raghu Nath cannot be read in isolation as his son and denied to have made any statement to this effect – which was confronted as Ex.PW7/A1.

9. Thus, the prosecution miserably failed to prove that it was the respondent who comes within the ambit of ‘whoever’ as enumerated under Section 135 of the Electrici