The main legal point established is the sufficiency of evidence and the direct involvement of the accused in committing the offence under the Electricity Act.

Rongon Mukhopadhyay, J.

Heard the parties.

1. This application is directed against the judgment dated 3.10.2007, passed by the learned Additional Sessions Judge, F.T.C. No. 1, Palamau at Daltonganj in Cr. Appeal No. 110 of 2004, whereby and where under the judgment and order of conviction and sentence dated 17.7.2004, passed by the learned Judicial Magistrate,1st class, Daltonganj in Rehla P.S. Case No.36 of 1999 convicting the petitioner for the offence under section 39 of the Electricity Act and sentencing him to undergo R.I. for two years has been affirmed.

2. The prosecution story in short is that the shop of the petitioner was raided by the informant party on 18.8.1999 at about 12 O’clock and it was detected that the petitioner was illegally extracting the electrical energy by inserting wire in the main line. Based on the aforesaid allegations, Rehla P.S. Case No. 36 of 1999 was instituted, in which after investigation, chargesheet was submitted under section 379 of the Indian Penal Code and section 39 of the Electricity Act. After cognizance was taken, charge was framed under section 39 of the Indian Electricity Act. In course of trial, five witnesses were examined by the prosecution.

P.W-1-Shankar Prasad Keshri has stated that he had heard about the petitioner illegally consuming electricity.

P.W-2-Laldeo Tiwary did not support the prosecution case and was declared hostile by the prosecution.

P.W-3-Kameshwar Prasad Singh is the informant, who has stated that on the date of occurrence, he was posted as an Assistant Electrical Engineer (Rural). He has stated that he had conducted a raid on 18.8.1999 along with other officials of the department regarding theft of electricity and the petitioner was found illegally consuming electricity in his shop by inserting a PVC wire in the main line. He has deposed that 2 and ½ meters of wire were seized, for which a seizure list was also prepared and which has been marked as Ext-1. This witness has proved the written report, which has been marked as Ext-2.

P.W-4-Braj Kishore Prasad Sinha was posted on the date of occurrence as an Executive Electrical Engineer (MRT), Electrical Division, Daltonganj. This witness was also a member of the raiding party. He has supported the illegal theft of electricity by the petitioner and seizure of wire.

P.W-5-Bishundhari was posted as an Electrical Executive Engineer (Supply) Division, Daltonganj on the date of occurrence. This witness has also supported the prosecution case with respect to theft.

3. It has been submitted by the learned counsel for the petitioner that the independent witnesses have not supported the case of the prosecution. It has further been submitted that P.Ws-3, 4 and 5 were all members of the department and therefore interested witnesses. Learned counsel submits that on account of non-examination of the Investigating Officer, the defence was prejudiced.

4. Learned A.P.P. has opposed the prayer made by the learned counsel for the petitioner.

5. It appears that out of five witnesses examined by the prosecution, the theft of electricity by the petitioner has been proved by the evidence of P.Ws.3, 4 and 5. Although, two independent witnesses were examined by the prosecution and P.W-2 had been declared hostile by the prosecution but P.W-1 has stated about the theft of electricity made by the petitioner from other sources. However, in absence of direct evidence so far as independent witnesses are concerned, the same will not prevent the prosecution from securing the conviction of the petitioner in view of the fact that the members of the raiding party have consistently stated about consumption of electricity by illegal means by the petitioner by inserting wire in the main line. Save and except, a vague assertion made by the defence that P.Ws-3, 4 and 5 are interested witnesses, there is no substantial proof with respect to such plea and the defence has also failed to elicit any contradiction in the evidences of P.Ws.3, 4 and 5 to disbe