Shri Nripen Deka vs State Of Assam

[1] This criminal appeal is filed against the judgment and order, dated 03.10.2008, passed by the learned Additional Sessions Judge (FTC), Dibrugarh

in Session Case No. 3/2008 convicting the accused-appellant for offence under Section 135 of the Indian Electricity Act, 2003 and sentencing him to

undergo rigorous imprisonment for 2 (two) years and fine of Rs. 3,000/, and in default, to undergo simple imprisonment for another 2 (two) months.

[2] None appears for the accused-appellant on call. The State respondent is represented by Mr. NK Kalita, learned Additional Public Prosecutor.

[3] Since this is an old pending case and none appears for the accused-appellant, this Court proposes to dispose of the matter after perusal of the

record of learned trial court, the impugned judgment as well as the evidence recorded by the learned trial court.

[4] The fact of the case is that, the Sub-Divisional officer of Electrical Sub-Division-II, Dibrugarh lodged an FIR with the Lahowal Police Station

against the accused-appellant alleging that his electric connection was disconnected due to non-payment of energy bill, and thereafter, he had

unauthorisedly connected his house by electricity hooking since the time of disconnection.

[5] The Police, on receipt of the FIR, registered a case, investigated into it, and finally, submitted charge-sheet against the accused-appellant under

Section 379 of the IPC. However, the learned trial court, after exhausting all the required legal formalities, framed a formal charge against the

accused-appellant under Section 135 of the Indian Electricity Act, 2003 to which he pleaded not guilty.

[6] The prosecution examined as many as 5 (five) witnesses, including the informant as well as the Investigating Police Officer. The defence adduced

no evidence. In his statement, recorded under Section 313 of the Cr.PC, the accused-appellant denied the accusations made against him.

[7] I have scanned the evidence on record to find out whether the prosecution has been able to establish the guilt of the accused-appellant under

Section 135 of the Indian Electricity Act, 2003. Instead of going into the evidence of the witnesses one by one, this Court proposes to club the

evidence of all the witnesses together to avoid repetition as well as to discuss the exact point for determination involved in this case.

[8] The allegation is connecting the house of the accused-appellant with electricity by hooking after his electricity line was disconnected due to non-

payment of energy bill. The SDO/informant examined as PW1 could not ascertain the exact amount of energy utilised by theft by the accused-

appellant, and therefore, he assumed that about 5-6 kilo watt was consumed by him. In Section 135 of the Indian Electricity Act, 2003, the punishment

has been provided for the 1st offence and 2nd offence respectively by the same person and the punishment in both the occasions are different. For the

1 st offence the punishment prescribed is three times fine of the financial gain on account of theft of electricity by the accused to be assessed. But, in

the instant case, there is absolutely no evidence on record to suggest, even remotely, that there was any assessment of the financial gain obtained by

the accused-appellant by theft of the electricity, as alleged, and in that view of the matter, the assumption of the PW1 cannot be taken into account,

even if the accused-appellant is found to have committed theft of electricity. For the reasons that the punishment has to be imposed, as aforesaid,

taking into account the financial gain of the accused-appellant, the financial gain has to be ascertained which could not be done in the instant case and

instead of assessment, only assumption was made by the Pw1. Section 126 of the Indian Electricity Act has provided provisions for such assessment.

[9] The evidence of PWs 2, 3 and 4, who are employees of the Electricity Department, also could not flash any light as to the electricity consumed by

the accused-appellant. But, to assess the financial gain, on using the theft electricity, is a primary condition for inflicting punishment on the accused for

commission of an offence under Section 135 of the Indian Electricity Act, 2003.

[10] That being so, this is a case in which the prosecution has failed to establish the case against the accused-appellant beyond all reasonable doubts.

Therefore, the conviction recorded by the learned trial court and the consequent sentence imposed upon the accused-appellant are set aside.

[11] Send down the LCR along with a copy of this judgment.