The conviction for electricity theft was reversed due to inconsistent evidence, lack of independent corroboration, and procedural errors during inspection, highlighting the necessity for reliable evidence in criminal prosecutions.

JUDGMENT :

A.Y. KOGJE, J.

1. The present appeal is filed against judgment and order dated 04.09.2009 passed by the Special Judge (Electricity), Mehsana in Special Electricity Case No. 24 of 2008. By the impugned judgment and order, the Special Judge has convicted the appellant for offence under Section 135(1)(B) of the Indian ELECTRICITY ACT and imposed rigorous imprisonment of 9 months with fine of Rs.2,500/-.

2. Learned Advocate for the appellant at the outset submitted that an error is committed by the Special Judge to proceed with the trial on the basis that the present was the second offence with previous antecedent which came to be compounded. According to learned Advocate for the appellant, this finding is factually erroneous as on previous occasion, there was no offence of theft against the appellant.

2.1 Learned Advocate for the appellant thereafter has taken this Court through the evidence of two important witnesses, first being Patel Ramanbhai Joitabhai-PW-2, Exh.19, who is the complainant and officer of GEB and other being Patel Mithabhai Ramanlal-PW-1, Exh.14, who is employee of GEB and who carried out inspection. Learned Advocate submitted that combined reading of evidence of both these witnesses would suggest that the chronology in which the inspection was carried out and the theft was detected cannot be believed. In this regard, learned Advocate submitted that PW-1 had proceeded for inspection at 07:00 am whereas the complaint registered by PW-2 would reveal the time of inspection as 06:00 am on the same day and therefore, timing of inspection does not telly between these two witnesses.

2.2 Learned Advocate for the appellant submitted that over and above, theft detected of that of the appellant, PW-1 has deposed that he had undertaken inspection of 40 other connections after inspection in case of the appellant and prior thereto, he had undertaken inspection of 15 connections. However, this witness has deposed that he returned to his office within a period of half an hour that he left the office in the morning. Therefore, according to learned Advocate, act of inspection on the part of this witness was never undertaken and merely a report was prepared and handed over to superior officer.

2.3 Learned Advocate for the appellant submitted that investigation in entirety cannot be relied upon as during entire inspection, no independent panch witness was present nor there is any independent witness to support the case of prosecution except for the officers who are working with the complainant-GEB. Learned Advocate for the appellant therefore relied upon decision of this Court in case of State of Gujarat Vs. Khumansinh Ranjitsinh Jadeja , 2022 JX (Guj.) 1093. Learned Advocate particularly relied upon observation of this Court that in absence of any independent person to support the inspection or the panchnama of the scene of incident, the prosecution would have failed to prove the case beyond reasonable doubt.

2.4 Learned Advocate for the appellant submitted that there is delay of 7 days in lodging the complaint and that the delay per se may not be fatal to the prosecution, but the failure on the part of the prosecution to explain such delay would certainly be fatal to the case of prosecution.

2.5 Learned Advocate for the appellant lastly submitted that the inspection carried out at the place of the appellant is also doubtful as admittedly, signature obtained on the inspection report is that of a person other than the appellant, who is holder of connection from GEB.

3. As against this, learned APP for the respondent-State, in support of the impugned judgment and order, has submitted that the Special Judge has