The prosecution failed to establish guilt beyond reasonable doubt due to procedural lapses and lack of substantive evidence.

JUDGMENT :

GITA GOPI, J.

1. The appellant has given challenge to the impugned judgment under Section 374 of the Code of Criminal Procedure, 1973, (for short ‘Cr.P.C .’), who is an accused convicted on 05.05.2012 by the Second Additional Sessions Judge, Surat in Special Electricity Case No.120/2010 for the offence punishable under Section 135 (1) of the Electricity Act, 2003, and was sentenced to six months simple imprisonment and was ordered to pay a fine of Rs.1,65,000/- with default stipulation to undergo three months simple imprisonment in non-payment.

2. The facts of the case, as could be noted that the complainant – Hasmukhbhai Bhikhabhai Modi along with Mr. Umeshkumar Gulsanbhai Patel, Deputy Engineer of Ankleshwar Division and Mr. Arvindbhai Narsinhbhai Galchar, Junior Engineer, Ankleshwar Division in Gujarat Electricity Board visited the agriculture premises at village Dinod, Taluka Mangrol on 20.10.2004 and found the appellant illegally using electricity by using three core wire passing through opening the M.M.B. Box and by-passing the meter had made a joint with incoming as well as outgoing cable with the wire applying a tape, and thereby was found to be in theft of electricity.

2.1 The complainant stated that the checking sheet was prepared by the officer of the Electricity Company and the Deputy Engineer, Kosamba (Rural) Sub-division had issued supplementary bill for the amount of Rs.81,879/-. The complaint came to be registered as C.R. No.II-102/2004.

3. Learned advocate Mr. Rutvij S.Oza for the appellant submitted that the impugned judgment and order of the learned Trial Court is not consistent with the evidence on record and suffers from infirmity, conjunctures and surmises. The complainant himself was not sure about the place of offence, who admitted of preparing the check list, however, failed to prepare any panchnama for the recovery of alleged muddamal, which had stated to be illegal use by the appellant.

3.1 Advocate Mr. Oza submitted that the prosecution witness though, admits of taking the cable wire and other material from the place of incident, had not sent it to the police station to be made as Muddamal for trial, and in absence of the alleged articles, learned advocate Mr. Oza submitted that the offence cannot be said to be proved.

3.2 Mr. Oza, learned advocate submitted that the checking list, calculation sheet and the supplementary bill though, have been produced, would not substantiate the fact of alleged offence in absence of panchnama since, no independent person would have verified the act of the prosecution witnesses.

3.3 Advocate Mr. Oza submitted that the prosecution case is that the appellant had committed theft by, by-passing the installed meter situated in the room at the agriculture premises, but the testimony of the prosecution witnesses would not clarify the fact whether, actually the meter was installed. Mr. Oza submitted that the noticeable fact also comes on record that the appellant himself had addressed a letter dated 06.08.2003 to the office of the Electricity Board informing of the meter being burned and for installing a new meter, and the letter had been produced on record as Mark-A, however, no cognizance was taken by the Electricity Board and suddenly without any reason a raid had been conducted, which Mr. Oza submitted would appear as a motivated inspection.

3.4 Learned advocate Mr. Oza further submitted that being an agricultural land it would be in open place, and the connections would be of various agricultural land owners, with electricity pole and therefore, it