Criminal Appeal No.1823-SB of 2002 v. State of Haryana

23.10.2002 whereby the learned Trial Court convicted the appellant for the offence under Sections 332, 333, 353 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of ` 500/- for the offence under Section 332 of the Indian Penal Code, rigorous imprisonment for three years and to pay a fine of ` 1,000/- under Section 333 of the Indian Penal Code and also to undergo rigorous imprisonment for eight months under Section 353 of the Indian Penal Code. The substantive sentences were ordered to run concurrently.

2. The prosecution story, in brief, is that on 7.5.1999 at about 8.30 a.m., the accused-Ramesh connected the service cable on the main line to commit theft of the electricity. Azad Singh, electrician, who was on duty at Criminal Appeal No.1823-SB of 2002 2 water-works, stopped him from doing so to prevent damage to the electric motor at the water works whereupon the accused gave him beatings with a stick. When Beldar Mukhtiar Singh intervened, the accused also pushed him.

3. Krishan Dev, SDO, PW1 got the injured-Azad Singh medico- legally examined at General Hospital, Bahadurgarh and on his application, Ex.PA, formal FIR under Sections 332, 353, 186 IPC was registered on

7.5.1999 by ASI Rohtas Singh, ASI, P.T.C., Madhuband. Later on, after the receipt of X-ray report, offence under Section 333 IPC was also added in this case. During investigations, it was established that the accused had committed an offence under Sections 332, 333, 353, 186 IPC. Accordingly, on completion of necessary investigation, he was sent up to face trial.

4. The accused-appellant was charge-sheeted under Sections 333, 353 of the Indian Penal Code, to which he pleaded not guilty and claimed trial.

5. In order to substantiate its allegations against the accused- appellant, the procesution examined as many as eight witnesses, namely, Krishan Dev as PW-1, Rohtash Singh as PW-2, Dr. S. Jyoti Parkash as PW3, Azad Singh as PW-4, Mukhtiar Singh as PW5, Naresh Kumar, Patwari as PW-6, Dr. Kulbir Singh as PW-7 and Lajja Ram as PW-8.

6. Krishan Dev, Sub Divisional Officer, PW-1 stated in his statement made before the Court that Azad Singh, Electrician had informed him about the injuries sustained by him at the hands of the accused- appellant and that he had got him medico legally examined from General Hospital, Bahadurgarh. This witness further stated that he thereafter moved an application, Exhibit PA, to the police which bore his signatures. Rohtash Criminal Appeal No.1823-SB of 2002 3 Singh, Assistant Sub Inspector, PW-2 deposed that on the basis of the application, Exhibit PA, he had registered a formal F.I.R. Exhibit P-1; visited the spot; prepared the site plan; recorded statements of the witnesses and arrested the accused. It was further stated by him during the course of interrogation, that the accused suffered disclosure statement, Exhibit PD, and in pursuance thereof, he got recovered the stick used in the crime from his house, which was taken into possession, vide recovery memo, Exhibit PE, whereas the sketch of the stick was got prepared as Exhibit PF. PW-3 Dr. S. Jyoti Parkash deposed before the Court that he had medico- legally examined Azad Singh. He proved on record the medical examination record, Exhibit PG. PW-4 Azad Singh is the injured witness who deposed that the accused used to commit theft of electricity by putting wires on the line leading to the water works, Dulhera and as a result of which, a fault had developed which caused loss to the electric motor. He further stated that on the day of occurrence, the accused-appellant was trying to commit theft of electricity by putting wires on the electric line leading to water works and when stopped from doing so, he gave a Danda blow on his right hand and this incident was witnessed by Mukhtiar Singh Beldar PW-5. Mukhtiar Singh Beldar in his statement deposed before the Court that accused picked up a quarrel with Azad Singh over the theft of electricity and he caused injuries to Azad Singh with a Danda and the Danda stick was recovered by the police from the possession of the accused-appellant in his presence in pursuance of disclosure statement, Exhibit PD suffered by the accused. PW-6 Naresh Kumar is a formal witness who had prepared scaled site plan Exhibit PH of the place of occurrence. PW-7 Dr. Kulbir Singh stated that he had found fracture on the right hand of the injured. He proved on record Criminal Appeal No.1823-SB of 2002 4 the x-ray film as well as the X-ray report, Exhibits P-2 and P-1 respectively. PW-8 Lajja Ram deposed in Court that he had issued a certificate Exhibit PC verifying that Azad Singh and Mukhtiar Singh were Government servants and were on duty on the day of occurrence.

7. When examined under Section 313 of the Code of Criminal Procedure the accused-appellant stated that he was innocent and had been falsely implicated in the case.

8. Upon appreciation of evidence, the learned trial Court convicted and sentenced the appellant as indicated in para 1 of the judgment.

9. Learned counsel for the appellant has submitted that the occurrence took place on 7.5.1999 at 8.30 am whereas the FIR was lodged at 6.40 pm, after inordinate and unexplained delay of 10 hours. He has argued that in this manner, the prosecution has consumed sufficient time to concoct a story in order to fit the character of the appellant in the same. The delay in this case is fatal to the case of the prosecution.

10. Learned counsel has further argued that as per the statement of injured-Azad Singh, PW4, he remained in the hospital for about 30 minutes and thereafter, he was discharged on the same day. The learned counsel has argued that this fact itself goes to establish that no grievous injury was suffered by the complainant.

11. Learned counsel has further argued that the prosecution has not been able to prove that grievous hurt has been caused to the complainant, who being a public servant, was discharging his duties as such.

12. Learned counsel has argued that as per the case of the prosecution, the appellant was making preparation for committing theft of Criminal Appeal No.1823-SB of 2002 5 electricity. It is not the case of the prosecution that the act of theft of electricity had been completed. Therefore, the learned counsel has argued that mere preparation is not enough to hold the appellant guilty of committing the offence of theft and hence, the whole case of the prosecution is doubtful.

13. The learned counsel has further argued that there is no independent public witness in the instant case. Mukhtiar Singh, PW5, is a colleague of the complainant and, therefore, he is an interested witness and cannot be believed.

14. Learned counsel has lastly argued that the case against the appellant is palpably false as the complainant does not own any agricultural land either in his own village or in village Dulhera, where the incident has allegedly taken place.

15. Learned counsel for the State has submitted that the case of the prosecution is proved on the basis of evidence. The complainant being an employee of the Electricity Department, was performing his official duty in stopping the appellant from pilfering electricity. He has prayed for maintaining the impugned judgment and order of the learned trial Court.

16. I have heard learned counsel for the parties and perused the record.

17. The case of the prosecution is that the appellant was making preparation for committing theft of electricity. When the complainant tried to stop him from doing so, the appellant caused injuries to the complainant. As per the medical report, injury No.1 was declared to be grievous. However, the complainant-Azad Singh, PW4, in his deposition has stated that he remained in the hospital for about half an hour and thereafter, he was Criminal Appeal No.1823-SB of 2002 6 discharged. No record of any follow-up medical treatment is proved on record.

18. Another fact, which is relevant in the instant case, is that the complainant is posted at the Water Works of village Dulhera, whereas the appellant comes from village Gumana. The prosecution has not brought anything on record that the appellant owns or has taken any land on lease in village Dulhera. Moreover, the allegation is only of making preparation of theft of electricity by putting wires on the line leading to Water Works, Dulhera and not about having committed the same.

19. The delay in lodging the FIR coupled with the fact that no independent witness has been joined in the instant case, makes the prosecution story doubtful. The appellant is a resident of village Gumana. It is proved on record that the appellant does not own any agricultural land, therefore, there was no reason for him to commit theft of electricity in the fields.

20. Once it is proved on record that the appellant does not own any land and also that the incident has taken place outside the village, i.e., in the fields, the appellant cannot be connected with the offence of commission of theft of electricity. The prosecution, in the instant case, has not brought on record the true genesis of the occurrence for the reasons best known to it.

21. Accordingly, the present appeal is allowed. The appellant is stated to be on bail. His bail bond shall stand discharged.

22. Since the main case is decided, misc. application(s) pending, if any, shall stand disposed of, accordingly. September 06, 2010 SRM/atulsethi ( JITENDRA CHAUHAN ) JUDGE Note: Whether to be referred to reporter ? Yes/No