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2024 DIGILAW 1849 (GUJ)

State Of Gujarat v. Firozbhai Pirbhai Belim

2024-10-04

HEMANT M.PRACHCHHAK

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JUDGMENT : Hemant M. Prachchhak, J. 1. The State of Gujarat has preferred present Appeal under Section 378(1)(3) of the Criminal Procedure Code (Cr. P.C. for short) against the judgment and order of acquittal dated 16.2.2012 passed by the learned Special Judge (GEB) and Additional Sessions Judge, Bhavnagar (hereinafter be referred to as “the trial Court”) in Special (GEB) Case No. 136 of 2005 whereby the original accused was acquitted from the charges levelled against him under Section 135(1)(A) of the Indian Electricity Act, 2003. 2. It is the case of the appellant-State that on 14.05.2004, Jr. Engineer of the P.G.V.C.L, Shri J.J. Gohil along with Shri.Y.R. Jadeja had carried out inspection at the premises of the respondent-accused. During inspection, it was observed that the respondent-accused had illegally committed theft of electricity for an amount of Rs.46,692.45 therefore, supplementary bill of Rs.46,692.45 was prepared and issued to respondent-accused, which was not paid by him within stipulated time. 2.1 Accordingly, complaint being C.R.No. II- 500/2004 was lodged before G.E.B. Police Station, Bhavnagar for the alleged theft of electricity under Section 135 (1) (A) of the Indian Electricity Act, 2003. 2.2 On the basis of such complaint, the investigation was carried out and on conclusion of the investigation, on the basis of the material collected against the respondent-accused, since the Investigating Officer found a prima facie case against the respondent- accused, chargesheet came to be filed before the Court of the Learned Magistrate, Bhavnagar for the offence under Section 135 (1)(A) of the Indian Electricity Act, which came registered as Criminal Case No.5569/2004. 2.3 As the case was exclusively triable by the Court of Special Judge, the Learned Magistrate committed the case to the Special Court, Bhavnagar under Section 209 of Cr.P.C., which came to be registered as Special (GEB) Case No.136/2005. 2.4 In support of its case the prosecution has relied upon following oral as well as documentary evidence. ORAL EVIDENCE Sr. No. Name Exh. 1 Pravinbhai Gatorbhai Kanjariya 14 2 Jitendra Jayantilal Gohel 18 3 Nareshbhai Rasiklal Patel 29 4 Yashpalsinh Raghuvirsinh Jadeja 30 5 Parakramsinh Anopsinh Gohil 36 DOCUMENTARY EVIDENCE Sr. No. Name Exh. 2.4 In support of its case the prosecution has relied upon following oral as well as documentary evidence. ORAL EVIDENCE Sr. No. Name Exh. 1 Pravinbhai Gatorbhai Kanjariya 14 2 Jitendra Jayantilal Gohel 18 3 Nareshbhai Rasiklal Patel 29 4 Yashpalsinh Raghuvirsinh Jadeja 30 5 Parakramsinh Anopsinh Gohil 36 DOCUMENTARY EVIDENCE Sr. No. Name Exh. 1 Complaint of the complainant 15 2 Panchnama of scene of offence 20 2.5 After evaluating the evidence placed on record and after hearing both the sides, the trial Court has passed the impugned order dated 16.2.2012 in Special (GEB) Case No. 136 of 2005 acquitting the accused from the charges levelled against him under Section 135(1)(A) of the Indian Electricity Act. 3. Heard Ms. Jyoti Bhatt, learned APP appearing for the respondent State of Gujarat. Though served, the respondent accused has chosen not to remain present before the Court and therefore, the Appeal is taken up for hearing in absence of the respondent-accused. 4. Ms. Jyoti Bhatt, learned APP appearing on behalf of the appellant has contended that though there is cogent and material evidence produced by the prosecution before the trial Court, the trial Court has completely overlooked and ignored the same and passed the impugned order of acquittal which is erroneous, illegal and unjust. 4.1 It is further contended by learned APP that the witnesses have categorically deposed before the trial Court that during the course of their duty, they have received an instruction from the division office with regard to search and on the basis of such information, they have arranged the search operation and upon the investigation carried out at the place, they found that one Firozbhai accused by using the electric apparatus extracting the electricity directly from the electricity pole situated near his house and got the electric connection in his house illegally and further he has extended that the electricity line to one Vaishali Plastic Godown situated near the residence of Firozbhai, by using electric wire. Learned APP further submitted that the officers who have raided the premises have collected the materials from the place and drawn Punchnama and the said panchnama is at exhibit 20 from which it reveals that when they raided the premises they found that the respondent accused is involved in the offence of unauthorized use of the electricity. Learned APP further submitted that the officers who have raided the premises have collected the materials from the place and drawn Punchnama and the said panchnama is at exhibit 20 from which it reveals that when they raided the premises they found that the respondent accused is involved in the offence of unauthorized use of the electricity. 4.2 Learned APP for the appellant has submitted that however, the trial Court has completely ignored and overlooked the said facts and deposition of the witnesses while passing the impugned order of acquittal. It is further submitted that depositions of the P.W. 1, 2 and 3, officer of the G.E.B., B division at Bhavnagar, and other relevant facts are supported by the oral as well as documentary evidence, however trial Court failed to appreciate this fact in it's true and proper spirit while passing the impugned order of acquittal. 4.3 Learned APP has emphasized upon the document at Exhibit 20 in nature of panchnama carried out at the place in presence of the independent witnesses and submitted that the trial Court has not appreciate the said document in its true and proper spirit and therefore, the impugned judgment and order of acquittal is bad in law and erroneous. 4.4 Over and above the aforesaid submission, Ms. Bhatt, learned APP urges before the Court that present appeal may be allowed and the impugned judgment and order of acquittal may be quashed and set aside. 5. I have perused the relevant and cogent material available on record. I have also gone through the relevant case papers as well as record and proceedings and the judgment and order passed by the trial Court along with appended documents. 6. Before going through the submission raised by the learned APP it is necessary to consider the aspect narrated herein under. 7. The case of prosecution is based upon the fact that the raiding team has received an information and instruction from the Kharget Sub-division office and on the basis of such information they have arranged the search. However, any document in writing with regard to said instruction / information was not come on record before the trial Court. 7. The case of prosecution is based upon the fact that the raiding team has received an information and instruction from the Kharget Sub-division office and on the basis of such information they have arranged the search. However, any document in writing with regard to said instruction / information was not come on record before the trial Court. Even, it is also required to be noted herein that it is the case of the prosecution that when they visited the place of Firozbhai, the Firozbhai was not present and Raziyaben wife of the Firozbhai was present, at the time of inspection. However, the Raziyaben wife of the accused who was present at the time of search was not made an accused in the proceedings. It is also further case of the prosecution that from the house of Firozbhai the line was extended to one Vaishali Plastic Godown however, Mr. Abhaybhai Ramnikbhai Mehta who is the owner of the said Vaishali Plastic Godown was also not joined as accused in the proceedings by the prosecution, reason best known to the prosecution. Even, from the record of the trial Court one another fact is also required to be noted herein that the said electric apparatus was not seized by the Investigation Agency during the course of investigation nor it was sent to the Forensic Science Laboratory for scientific examination nor it was referred and relied by the Investigating Officer that how they have collected the same. Even, they have recorded the statement of the witnesses and prepared the panchnama at the place itself however, the prosecution neither referred any independent witness nor collected any signature on the said panchnama. All these facts goes into the root of the matter, for which the prosecution has no answer. 8. Now in light of the above referred circumstances, it is appropriate to take into account the deposition of the P.W.1 namely Pravinbhai Gatorbhai Karjaniya, serving as Junior Engineer, at Bhavnagar. He has stated that on 14.5.2004 he along with Mr J.J Gohil, Mr. Y.R Jadeja and Assistant Lineman Mr. N.R. Patel, arranged the search at the house of Firozbhai. P.W.1 has not referred in his deposition that from the house of Firozbhai, the electrical line was further extended to that Vaishali Plastic Godown. He has stated that on 14.5.2004 he along with Mr J.J Gohil, Mr. Y.R Jadeja and Assistant Lineman Mr. N.R. Patel, arranged the search at the house of Firozbhai. P.W.1 has not referred in his deposition that from the house of Firozbhai, the electrical line was further extended to that Vaishali Plastic Godown. In fact, in his cross-examination, he has has admitted that they have received a telephonic complaint but on whose instruction, from which office or which source they have received an information that the respondent accused was extracting the electricity by using an electric apparatus and using unauthorized energy and committing offence under Section 135(1) (A), was not disclosed. In his chiefexamination he has not referred this fact. Even in FIR also they have not disclosed that fact. 9. Even he has further admitted that how long the accused has got the electricity energy by using electric apparatus is also not mentioned in the FIR. 10. It is also further admitted that at the time of lodging of the F.I.R., he has received the rojkam along with the sitemap and the electric wire used for extracting the electricity and also the supplementary bill. Though, he has received, it was not produced at the time of lodging FIR and it was not part of FIR. 11. It is also admitted by P.W.1 that in rojkam they have not mentioned that the electricity consumed by the respondent accused was to the tune of Rs.46,692/-. It is also required to be noted herein that the depositions of the P.W.2 and P.W.3 are completely contrary to the deposition of P.W.1 and therefore, there is serious contradiction in the depositions of all the witnesses. 12. Even other witnesses, who are officers of the electricity board have also not stated true and correct facts and there is contrary evidence come on record between them. So under that circumstances, the deposition of the P.W.-1 is completely contrary to P.W. 2 and 3. 13. It is the case of the prosecution that the said Vaishali Plastic Godown is extracting the electricity through the house of Firozbhai. In fact, in deposition of the P.W.4, in his cross examination he has categorically stated that "it is true that the wire was passing from the electric pole to Vaishali Plastic Godown". 13. It is the case of the prosecution that the said Vaishali Plastic Godown is extracting the electricity through the house of Firozbhai. In fact, in deposition of the P.W.4, in his cross examination he has categorically stated that "it is true that the wire was passing from the electric pole to Vaishali Plastic Godown". Meaning thereby, it is not through the house of the Firozbhai or it is extended from the house of the Firozbhai, which is completely contrary to the case of the prosecution and which is serious discrepancy in the evidence of the witnesses. 14. In fact, it is the case of the prosecution that they have raided the premises in the early morning hours about 8:30 to 9: 00 a.m. and when they reached to the place of offence they found that the tube light, heater and fan were on condition and in the same breath again they said that when they reached to the place of offence, they found that the heater and fan were not on and only light was on and therefore, there are material contradiction in the evidence of the witnesses. Under such circumstance and considering the evidence of the witnesses, the trial Court has not committed any error while passing the impugned order of acquittal. 15. Now, it is settled by the Hon'ble Apex Court in series of judgments that while exercising the jurisdiction under Section 378 of the Cr.P.C., the Court can re-appreciate, review and examine the evidence recorded by the trial Court and after examining the record of the trial Court, if the Appellate Court found that there is any illegality or any perversity in the judgment only under such circumference the court can entertain the acquittal appeal while exercising the jurisdiction under Section 378 of the Cr.P.C.. 16. Considering all these aspects and considering the ratio laid down by the Hon’ble Apex Court in case of Chandrappa and others Vs. 16. Considering all these aspects and considering the ratio laid down by the Hon’ble Apex Court in case of Chandrappa and others Vs. State of Karnataka reported in (2007) 4 SCC 415 , and in a series of judgments in case of acquittal that, if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court and from the bare perusal of the judgment and order passed by the trial court and the material on record, I am of the opinion that the trial court has not committed any error while passing the order of acquittal. 17. It is also relevant to take into account the principle laid down by the Hon'ble Apex Court in case of Rajesh Prasad vs. State of Bihar and another reported in 2022(3) SCC 471 which reads as under:- "After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 18. In the decision in case of Babu Sahebagouda Rudragoudar and others vs. State of Karnataka reported in AIR 2024 SC 2252 the Hon'ble Apex Court has held as under:- "37. This Court in the case of Rajesh Prasad v. State of Bihar and Another (2022) 3 SCC 471 encapsulated the legal position covering the field after considering various earlier judgments and held as below: - “29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa case [Chandrappa v. State of Karnataka, (2007) 4 SCC 415 ] “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 38. Further, in the case of H.D. Sundara & Ors. v. State of Karnataka this Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows: - “8.1. The acquittal of the accused further strengthens the presumption of innocence; 8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence; 8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record; 8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.” 39. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.” 39. Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles:- "(a) That the judgment of acquittal suffers from patent perversity; (b) That the same is based on a misreading/omission to consider material evidence on record; (c) That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record. 40. The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court." 19. The Hon'ble Apex Court has enunciated that while exercising the Appeal under Section 378 of the Cr.P.C. against the order of acquittal, though there is two view were possible however, the view which was taken by the trial Court may not be disturbed normally unless and until there is any perversity or any irregularity or any illegality is found from the judgment and order of the trial Court. In present case, the learned APP for the appellant is unable to establish any error or illegality or perversity in the impugned order of the trial Court. 20. For the foregoing reasons and in view of the observations in the above referred decisions of the Hon'ble Apex Court, I am of the opinion that the trial Court has not committed any error in passing the impugned order of acquittal. 21. Under such circumstances, in the absence of any perversity being pointed out in the impugned judgment and order of the trial Court, there is no warrant for intervention by this court. The appeal being devoid of merits is accordingly hereby dismissed. 22. Record and Proceedings, if any, be sent back to the concerned Trial Court forthwith.