Prosecution's failure to meet evidential standards and improper adherence to legal procedures led to the appellant's acquittal.

JUDGMENT :

GITA GOPI, J.

1. Criminal Appeal under Section 374 of the Code of Criminal Procedure, 1973 challenges the judgment and order of conviction and sentence dated 2.2.2008 passed by the Special Judge, Fast Track Court no.1, Surendranagar in Electricity Special Case no.154 of 2007, which was under Section 135 of the Electricity Act, 2003 (hereinafter referred to as “the Act” for the sake of brevity), whereby the appellant as an accused came to be convicted and sentenced to one year rigorous imprisonment with fine of Rs.1,93,431/- and with default stipulation to undergo six months simple imprisonment. The fine amount was ordered to be paid to PGVCL.

2. Learned advocate Mr. Satyen B. Rawal for the appellant has submitted that the observation of the learned Trial Court Judge is contrary to the evidence on record. The learned Judge has not followed the rules of burden of proof ignoring the very vital aspect going to the root of the matter, which reflects the lacunae in the prosecution case.

3. Advocate Mr. Rawal has submitted that the learned Trial Court Judge has not made any equitable analysis of the evidence on record and has merely reiterated the deposition of the complainant and further submitted that the Rojkam in checking sheet at Exhs.10 and 11 does not indicate as to who was present at the time of the alleged raid while the accused had clarified by way of his statement under Section 313 of the Code of Criminal Procedure, 1973 as well as the documents on record to suggest that on the date of the raid, the accused was not present at the place of the incident and that he was attending the marriage ceremony of his cousin brother and sister of Village Baldana and though the fact had come on record, the learned Trial Court Judge has failed to appreciate the same and failed by coming to erroneous conclusion of observing that the prosecution has proved the case while the accused could not bring any evidence to challenge the prosecution case. Advocate Mr. Rawal submitted that the provision of Section 135 of the Act has not been followed. Further, the evidence with regard to ownership of the house of Mr. Jaga Bharvad has not been brought on record, nor the relation of the accused as a tenant with Mr. Jaga Bharvad has not been verified, nor any documentary evidence has been produced to prove the possession and occupation of the present accused. Learned advocate Mr. Rawal further stated that the raiding officer was required to give the complaint within twenty four hours of the disconnection of the electricity supply and the alleged Muddamal seized were required to be submitted before the police, which do not get reflected from the evidence of the complainant as well as from the evidence of the investigating officer. Advocate Mr. Rawal submitted that no evidence is produced on record to connect the accused for the alleged act of theft of electricity or for illegal tapping of the electricity from any of the electrical pole of the PGVCL.

4. Advocate Mr. Rawal further stated that the checking sheet does not name the person who was in the representative capacity of the accused, where the checking sheet as well as the Rojnama do not disclose or rather clarify that the accused was non-consumers and thus, stated that the checking sheet does not bears the signatures of any representative of the accused and further the checking list or Rojnama do not show any sketch to demonstrate the illegal method used for tapping of the electricity. Advocate Mr. Rawal submitted that non-examination of the owner of premises in question may be fatal in wake of the fact that the appellant was not present at the place during the time of the raid. Mr. Rawal further stated that the