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Gujarat High Court · body

2016 DIGILAW 1881 (GUJ)

Aanandiben Amratbhai Patel v. State of Gujarat

2016-09-01

G.B.SHAH

body2016
JUDGMENT : G.B. SHAH, J. 1. Present appeal assails the judgment and order dated 19/05/2006, passed by the learned Special Judge, Mahesana in Special Electricity Case No. 11 of 2005, whereby, the appellant-original accused came to be convicted for the offence punishable under Section 135(1) of the Electricity Act, 2003 and sentenced to undergo simple imprisonment (SI) for one year and a fine of Rs. 1 lakh and in default of payment of fine, to undergo further SI for six months. 2. Brief facts of the prosecution case are that on 08/04/2005 while checking conducted by the official of the Gujarat Electricity Board (GEB) at the residence of the appellant - accused, situated at village: Tatosan, she was found to have been committing theft of electricity by taking direct connection from the electricity LT pole by looping 2.5 mm yellow PVC wire in her house and hence, she was issued a bill of Rs. 30,462/59ps. for the same as per 1150 watt load. Thus, the accused committed the offence alleged against her for which, a complaint came to be lodged. 2.1 Pursuant to the complaint, investigation was carried out. After investigation, charge-sheet was filed and as the case was triable by the Court of Sessions, it was committed to the Sessions Court and assigned to the Special Court. The trial Court framed the charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. In order to bring home the charge against the accused, the prosecution has examined following witnesses and produced several documentary evidence, as under. 2.2 In order to bring home the charge against the accused, the prosecution has examined following witnesses and also produced several documentary evidence, as under:- ORAL EVIDENCE S. No. Name of Witness Exhibit 1. Ramanbhai Joitabhai Patel, complainant 15 2. Mukeshkumar Khemchandbhai Hirvaniya 19 3. Raghunathsinh Damodarsinh Chauhan 20 4. Revabhai Ajmalbhai Rabari 21 5. Mukeshkumar Baldevdas Pandya 22 6. Jamnaben Govindbhai Gohil 23 DOCUMENTARY EVIDENCE S. No. Document Exhibit 1. Original complaint 16 2. Checking Sheet 17 3. Copy of bill issued to the accused 18 4. Ramanbhai Joitabhai Patel, complainant 15 2. Mukeshkumar Khemchandbhai Hirvaniya 19 3. Raghunathsinh Damodarsinh Chauhan 20 4. Revabhai Ajmalbhai Rabari 21 5. Mukeshkumar Baldevdas Pandya 22 6. Jamnaben Govindbhai Gohil 23 DOCUMENTARY EVIDENCE S. No. Document Exhibit 1. Original complaint 16 2. Checking Sheet 17 3. Copy of bill issued to the accused 18 4. Depute Order 24 2.3 At the end of the trial, Further Statement of the accused under Section 313 of Code of Criminal Procedure, 1973 (for brevity, ‘the Code’) was recorded in which she denied the evidence forthcoming on the record and stated that a false case has been filed against her. Thus, after recording above-referred Further Statement and hearing the arguments on behalf of prosecution and the defence, the learned Special Judge came to the aforesaid conclusion by the impugned judgment and order, giving rise to prefer the present appeal by the accused. 3. Heard Mr. D.R Bhatt, the learned advocate for the appellant-original accused and Mr. K.L. Pandya, the learned Additional Public Prosecutor, for the respondent-State. 3.1 The learned advocate for the appellant-accused contended that the judgment and order of the trial Court is against the provisions of law; the trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself, it is established that the prosecution has failed to prove the whole ingredients of the offence for which the accused is convicted and sentenced and thereby, the learned trial Judge has erred in coming to such a conclusion. He took this Court through the oral as well as the entire documentary evidence on record and submitted that the learned trial Judge has materially erred in law as well as in facts in not properly appreciating the depositions of the witnesses which are contradictory to each other. He further submitted that there is no evidence on record to show the ownership of the house in question in which, the alleged theft of electricity was being committed by the accused and the said fact has been admitted by the Investigating Officer (IO), Jamnaben Govindbhai Gohil at Exh.23 in her cross-examination. He further submitted that there is no evidence on record to show the ownership of the house in question in which, the alleged theft of electricity was being committed by the accused and the said fact has been admitted by the Investigating Officer (IO), Jamnaben Govindbhai Gohil at Exh.23 in her cross-examination. The learned advocate for the accused further submitted that the IO has admitted in her deposition several facts like: in absence of the appellant herein, statement of Vipulbhai was recorded; the panchnama of place of offence was not prepared by her; the statement of neighbour has not been recorded nor has any certificate from the panchayat been obtained as regards the ownership of the house in question; no inquiry as to the previous electric connection was made by her and accordingly, the learned trial Judge has committed a grave error in convicting the accused. 3.2 The learned advocate for the accused further submitted that no independent witness has been examined by the prosecution. Moreover, he submitted that complainant PW-1 Ramanbhai Joitabhai Patel has admitted in his evidence at Exh.15 that he had given the complaint on the strength of a written report and had not visited the place of occurrence. 3.3 The learned advocate for the accused further submitted that it has come in evidence on record that the wires/cables seized were not sealed. Moreover, PW-2 Mukeshkumar Khemchandbhai Hirvaniya has, in his deposition at Exh.19, stated that one Sagarbhai was present and upon asking, he had stated the name of Anandiben i.e. the present appellant and he cannot say as whether the appellant was present or not and he has admitted in his cross-examination that there was a photograph of deceased Shankarbhai Maganbhai. It is submitted that except this, no evidence was there on the basis of which, conviction could have been imposed upon the accused. Moreover, as to the photograph of the person, placed at the house, there is discrepancy and contradiction. Making above submissions, the learned advocate for the accused requested to allow the present appeal as no ingredients of the said offence have been proved and the prosecution has failed to prove its case against the accused beyond reasonable doubt, setting aside the impugned judgment and order. 4. Per contra, Mr. Making above submissions, the learned advocate for the accused requested to allow the present appeal as no ingredients of the said offence have been proved and the prosecution has failed to prove its case against the accused beyond reasonable doubt, setting aside the impugned judgment and order. 4. Per contra, Mr. Pandya, the learned Additional Public Prosecutor for the respondent- State, supported the impugned judgment and order and submitted that the same having been passed in accordance with law, does not call for any interference. It is submitted that the prosecution has successfully proved the case against the accused beyond reasonable doubt and the learned trial Judge, after taking into consideration all the aspects of the matter, has come to such a conclusion, which is just and proper and accordingly, it is requested that this Court should not interfere in appeal. He took the Court through the relevant oral as well as documentary evidence on record and the discussion made by the learned trial Judge in the impugned judgment and order and submitted that the prosecution has successfully proved its case against the appellant and the learned trial Judge has committed no error in convicting the accused after duly evaluating and appreciating the evidence on record and considering the gravity of the offence, he requested that this Court may not interfere in the appeal and eventually, requested to dismiss the present appeal confirming the impugned judgment and order. 5. I have considered the above-referred rival submissions made by the learned advocates for the parties and also gone through the evidence on record and re-appreciated and re-evaluated the same on the touchstone of the latest decisions of the Hon'ble Apex Court. 5.1 The prosecution has, in all, examined six witnesses out of which, so far as the official of the electricity board are concerned, they are Ramanbhai Joitabhai Patel, the complainant, whose deposition is recorded vide Exh.15, Mukeshkumar Khemchandbhai Hirvaniya, whose deposition is recorded vide Exh.19, Raghunathsinh Damodarsinh Chauhan, whose deposition is recorded vide Exh.20 and Revabhai Ajmalbhai Rabari, whose deposition is recorded vide Exh.21. Referring the deposition of complainant- Ramanbhai Joitabhai Patel at Exh.15, it is clear that he had lodged the complaint on the strength of written report and it is the fact that during the course of checking, he was not at the place of incident. Referring the deposition of complainant- Ramanbhai Joitabhai Patel at Exh.15, it is clear that he had lodged the complaint on the strength of written report and it is the fact that during the course of checking, he was not at the place of incident. So far as deposition of Mukeshkumar Khemchandbhai Hirvaniya, Exh.19 is concerned, he had admitted in the cross-examination that two brothers were staying in the residence and also admitted that the electricity wires/cables, which were seized, were not sealed. He has stated that at the time of checking, one Sagarbhai was present and upon asking, he has stated the name of Anandiben i.e. the present appellant but has not stated anything whether appellant-Anandiben was present or not. He has further admitted in the cross-examination that there was a photograph of deceased Shankarbhai Maganbhai in the house. Referring to the deposition of Raghunathsinh Damodarsinh Chauhan at Exh.20, he has stated that there was a photograph in the house wherein, Amratlal was written. Moreover, the identity of Amratlal or Shankarbhai has also not been proved. 5.2 On further going through the evidence on record, it appears that the wire which was attached, was not kept in a sealed condition. It is also a fact that no independent witness has been examined by the prosecution. Moreover, referring to the checking sheet at Exh.17, it appears that at serial no. 1, against the column of name of consumer, name of Anandiben Amratbhai Patel has been shown and above the same, in bracket, it is mentioned that, ‘earlier, on the same name, an electric connection was there in the said house’. It has also come on record that earlier connection in the name of Anandiben as well as in the name of Shankarbhai had been permanently disconnected by the electricity company and if that is the position, then, it is but natural that while getting the connection, application must have been given to the electricity company and necessary formalities must have been completed by them and the said record, must have easily been available with the electricity company which could have been brought on record but no efforts appear to have been made by the prosecution. Moreover, in the checking sheet at Exh.17, even earlier consumer number has also not been mentioned nor has any document to that effect has been forthcoming on record. Moreover, in the checking sheet at Exh.17, even earlier consumer number has also not been mentioned nor has any document to that effect has been forthcoming on record. Moreover, no evidence has been collected and produced on behalf of prosecution to prove the ownership of the house in question from the office of the panchayat and the said fact has also been admitted in cross-examination by the IO in her deposition at Exh.23. 5.3 Considering the aforesaid lacuna in the case on hand, in the considered opinion of this Court, the prosecution has failed to prove its case against the present appellant-accused beyond reasonable doubt and the conclusion arrived by the learned trial Judge appears to be without considering the aforesaid material aspects and considering all the aspects of the matter in entirety, I am of the view that the learned trial Judge has committed a grave error in convicting the appellant-accused for the offence in question as the prosecution has failed to prove the same beyond reasonable doubt. Moreover, the learned Additional Public Prosecutor is not in a position to take otherwise view of the matter by showing any substantive and cogent evidence. Accordingly, the present appeal deserves to be allowed and the impugned judgment and order is required to be set aside. 6. In view of the aforesaid discussion, present appeal succeeds and the impugned judgment and order dated 19/05/2006, passed by the learned Special Judge, Mahesana in Special Electricity Case No. 11 of 2005, is hereby set aside and the appellant-accused is acquitted of the charge for which she is convicted and sentenced by giving benefit of doubt. The amount of fine, deposited by the appellant-accused, may be refunded to her following due procedure for the same. The appellant-accused is reported to be on bail and accordingly, she needs not to surrender to custody except she requires so in any other case and her bail bond shall stand cancelled. Registry to return the R&P to the trial Court forthwith.