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2015 DIGILAW 302 (GUJ)

State of Gujarat v. Hemantbhai D. Patel

2015-03-18

K.J.THAKER

body2015
JUDGMENT Kaushal Jayendra Thaker, J. 1. By way of this appeal, the appellant-State has challenged the judgment and order of the learned 4th J.M.F.C, Gandhinagar (for short, 'the trial Court'), Dated : 20.02.2004, rendered in Criminal Case No. 840 of 1996, whereby, the learned trial Court acquitted the original accused- the Respondent, herein, of the charges under Section 379 of the Indian Penal Code and Section 39 of the Indian Electricity Act, 1910. The brief facts of the case of the prosecution, as set out before the trial Court, are that the original complainant along with other co-employees went for checking to village Chhala (Kanpur), where, the accused-Respondent was found to be using the electricity by tempering with the electricity tine. Hence, a complaint came to be lodged against the accused. On registration of the offence, police carried out the investigation and on finding sufficient evidence, a charge-sheet was filed against the accused. At the time of trial, since, the accused did not plead guilty, the trial was conducted. 2. Before the trial Court, the prosecution, in support of its case, examined five witnesses. 3. Apart from that the prosecution also produced several documents to strengthen its case, viz. the complaint, panchnama etc.. 4. After recording the evidence of the witnesses and perusing the material on record, the trial Court passed the impugned order. Hence, the present appeal. 5. Learned APP for the appellant-State, vehemently submitted that the trial Court committed a grave error in passing the impugned judgment and order, inasmuch as it failed to appreciate the material on record in its proper perspective. She, submitted that taking into consideration the evidence of the witnesses examined by the prosecution as well as the documentary evidences produced by it, the trial Court ought to have held the accused guilty of the charges leveled against him. She, therefore, prayed that the appeal be allowed. 6. On the other hand, Mr. Prajapati, learned Advocate for the accused-Respondent, herein, opposed the appeal and submitted that the trial Court acquitted the accused after perusing the entire material on record, and hence, no interference is called for at the hands of this Court and the appeal be dismissed. 7. Heard learned APP for the appellant-State as well as the learned Advocate for the original accused and perused the material on record with their assistance. 8. 7. Heard learned APP for the appellant-State as well as the learned Advocate for the original accused and perused the material on record with their assistance. 8. The case of the prosecution, before the trial Court, was that on the date of the checking the accused was found to be using electricity unauthorizedly. Now, as per the evidence of the complainant-PW-1 (Exhibit-10) and PW-2 (Exhibit-11) on finding the accused committing the theft of electricity, they had got done the dismantling of the electric meter installed at the house of the accused through one of the helpers. However, the prosecution has not examined the helper, who had done the dismantling of the electric meter. Further, the panch witnesses examined by the prosecution did not support its case. Further, as per the evidence of the complainant, though, the meter and electric wires were seized, since, the accused paid the fine same were returned to him, whereas, as per the evidence of PW-2 the meter was deposited with the police. Further, the I.O., in his evidence, does not state that he had seized any meter or wire nor the same was produced along with the charge-sheet as muddamal. Thus, there are material contradictions in the evidence of the witnesses. In short, though, it was the specific case of the prosecution that the accused was found to be used electrical appliances by puncturing the Phase Wire, neither any wire was produced nor any electrical appliances in support of their case. Even, there is contradiction in the evidence of the complainant-PW-1 and PW-2 with regard to the presence of the accused. In above view of the matter, this Court has to look into the matter from the touchstone of the following recent decisions of the Hon'ble Apex Court. 9. The principles which would govern and regulate the hearing of an appeal by this Court, against an order of acquittal passed by the trial Court, have been very succinctly explained by the Apex Court in catena of decisions. In a latest decision in the case of Muralidhar @ Gidda And Anr. v. State of Karnataka AIR 2014 SC 2200, the Apex Court has laid down the powers of the High Court in appeal against the order of acquittal. In para 12 of the said decision, the Apex Court has observed as under; "12. In a latest decision in the case of Muralidhar @ Gidda And Anr. v. State of Karnataka AIR 2014 SC 2200, the Apex Court has laid down the powers of the High Court in appeal against the order of acquittal. In para 12 of the said decision, the Apex Court has observed as under; "12. In dealing with appeals against acquittal, the appellate court must bear in mind the following: (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial Court, (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, (iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions disturbing the finding of fact recorded by the trial Court. It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial Court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpable wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and (iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if view taken by the court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial Court." 10. The Hon'ble Apex Court in "Shivasharanappa & Ors. v. State of Karnataka JT 2013 (7) SC 66: 2013 (8-9) SBR 22: 2013 (4) Supreme 38 has held as under; "That appellate Court is empowered to reappreciate the entire evidence, though, certain other principles are also to be adhered to and it has to be kept in mind that acquittal results into double presumption of innocence." 11. The aforesaid decisions will not permit this Court to take a different view. The aforesaid decisions will not permit this Court to take a different view. In this case it is not proved beyond doubt that the original accused-Respondents, herein, committed the offence alleged against them. Hence, the present appeal deserves to be dismissed. In the result, this appeal fails and is Dismissed. The judgment and order of the trial Court, Dated : 20.02.2004, stands Confirmed. Bail bonds of the accused, if any, on bail, stands discharged. R & P be sent back to the concerned trial Court, forthwith. Appeal Dismissed.