JUDGMENT : 1. The present appeal is filed by the appellant – State of Gujarat (original complainant) under Section 378 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) against the judgment and order of acquittal dated 04/09/2012 passed by the learned Special Judge & 4th Additional Sessions Judge, Sabarkantha at Himmatnagar (hereinafter referred to as “the trial court”) in Special (Elec.) Case No.46 of 2009, whereby, the learned Trial Judge has acquitted the original accused respondent herein for the offence punishable under Section 135(1)(A) of the Indian Electricity Act, 2003 (for short “the Act”). 2. The brief facts giving rise to the present appeal are as under : 2.1 The complainant Dy. Engineer, Shri Jitendrasinh Laxmansinh Rathod, Uttar Gujarat Vij Co. Ltd., Dist. Sabarkantha lodged a complaint against respondent before, UGVCL (GEB) Police Station, Sabarmati for the alleged offence under Section 135(1)(A) of the Indian Electricity Act, 2003. According to complainant, it is the case of prosecution that on 27/01/2006, inspection was carried out at the premises of respondent accused situated at village Dhunavada, Taluka Modasa, Dist. Sabarkantha and during inspection it was noticed that though respondent was not having any regular connection, he had obtained illegal direct connection from law transmission line of GEB with the help of electric wire and thereby committed theft of electricity of Rs.1,83,304.88 p. Therefore, an average bill of Rs.1,83,304.88 p. was prepared and issued to respondent, which was not paid by him within a period of limitation and therefore, complaint was filed against the respondent before UGVCL (GEB) Police Station, Sabarmati for alleged offence under Section 135(1)(A) of the Indian Electricity Act, 2003. 2.2 On the basis of aforesaid complaint, police recorded statement of witnesses, and as there was sufficient evidence connecting respondent with crime produced in this case, chargesheet was filed before the court of learned Judicial Magistrate, First Class, Modasa and numbered as Criminal Case No.1810 of 2009. As the offence committed by respondent was absolutely triable by the court of Special Judge, the same was committed to the court of Special Judge 4th Additional Sessions Judge, Sabarkantha at Himatnagar under Section 209 of the Criminal Procedure Code, which was numbered as Special Elec. Case No.46 of 2009. As the offence committed by respondent was absolutely triable by the court of Special Judge, the same was committed to the court of Special Judge 4th Additional Sessions Judge, Sabarkantha at Himatnagar under Section 209 of the Criminal Procedure Code, which was numbered as Special Elec. Case No.46 of 2009. Thereafter, respondent was ordered to issue with summons and after service of summons, respondent had appeared before the court, wherein, he had not pleaded guilty for the charges levelled against him and claimed to be tried. 2.3 Before trial, prosecution had examined complainant, police witnesses and panch witnesses who were supporting the case of the prosecution. At the end of the trial, the learned Judge, after appreciating necessary evidence laid down by the prosecution, acquitted the respondent by his Judgment and order of acquittal dated 04/09/2012 for the offence with which he was charged. 2.4 Being aggrieved and dissatisfied with aforesaid judgment and order of acquittal dated 04/09/2012, passed by the learned Special Judge and 4th Additional Sessions Judge, Sabarkantha at Himatnagar in Special Elec. Case No.46 of 2009, the appellant – State of Gujarat has filed the present appeal under Section 378 of the Code of Criminal Procedure, 1973. 3. Heard learned Additional Public Prosecutor Ms.Jyoti Bhatt, appearing on behalf of the appellant – State of Gujarat. Though the notice of Rule is served upon the respondent accused, the respondent accused has chosen not to remain present before the Court. 4. Learned APP Ms.Bhatt has taken this Court to the oral as well as documentary evidence adduced before the trial court and taken through the relevant provisions of law and the authorities referred and relied upon to canvass the contentions raised before this Court for the purpose of considering the present appeal against acquittal. 4. Learned APP Ms.Bhatt has taken this Court to the oral as well as documentary evidence adduced before the trial court and taken through the relevant provisions of law and the authorities referred and relied upon to canvass the contentions raised before this Court for the purpose of considering the present appeal against acquittal. She has submitted that the prosecution has proved the charge against the respondent accused through the evidence of witnesses mentioned in paragraph 5 of the impugned judgment and order and also through the documentary evidence including the complaint, Rojkaam prepared by the officer of UGVCL, the notice alongwith supplementary bill, 7/12 abstract of the subject parcel of land, where the UGVCL officers had raided and seized muddamal articles and also produced relevant material before the trial court, however, the trial court has failed to appreciate all these facts while passing the impugned judgment and order of acquittal thereby acquitting the respondent accused from the charges levelled against him. She has submitted that the trial court has committed a serious error of law and on facts while passing the impugned judgment and order of acquittal in favour of the respondent accused. She has further submitted that the officers of the UGVCL were in checking squad and during checking, they had found that the electric cable was directly joined to the transformer and connected to the electric meter used for the purpose of fetching water from the Majum river and they had also seized all the apparatus and articles from the place in presence of the respondent accused, they had also prepared panchnama and rojkaam and got the signature of present respondent and one other witness on the panchnama and Rojkaam. She has submitted that though all these documents were produced by the prosecution before the trial court in support of their case, however, the trial court has failed to appreciate those documentary evidence and discarded the same and over-looked the same while passing the impugned judgment and order of acquittal. She has submitted that though all these documents were produced by the prosecution before the trial court in support of their case, however, the trial court has failed to appreciate those documentary evidence and discarded the same and over-looked the same while passing the impugned judgment and order of acquittal. In support of her say, learned APP Ms.Bhatt has strongly referred and relied upon the written arguments produced before the trial court and also the decision of this Court rendered in case of State of Gujarat vs. Bhimaji Ranchhodji, reported in [1999] 2 GLR 1767, relevant paragraph no.13, and contended that the evidence of the officer of the Electricity Board not supported by the independent witnesses cannot be brushed aside merely on the ground that they were interested witnesses and as there is no rule that evidence of prosecution witnesses cannot be accepted without being supported or corroborated by the other independent witnesses and therefore, she has urged that the present appeal be allowed and the impugned judgment and order of acquittal passed by the trial court be quashed and set aside. 5. I have heard the learned APP Ms.Bhatt appearing for the appellant State and considered the submissions advanced by her which were adverse to the findings. I have also perused the impugned judgment and order of acquittal passed by the trial court and also gone through the record and proceedings of the trial court. It is an undisputed fact that on 27/01/2006, the officers of the Electricity Board, while on checking the agricultural field of the respondent accused situated at village Dhunavada, Taluka Modasa, Dist. Sabarkantha found that the respondent accused by using electric apparatus including electric cable, electric motor, water pipe and other ancillary material was fetching water from Majum river by abstracting unauthorized electricity using cable directly connected to the transformer pole situated near the Mazum river and therefore, they had registered the complaint against the present respondent accused for unauthorized use of electricity. It is also an undisputed fact that they had issued a supplementary bill for the unauthorized dues alongwith the statutory notice on 27/01/2006 itself without waiting for receiving the said notice by the respondent and on 28/01/2006, they had forwarded the FIR for registration of the offence against the respondent at UGVCL (Electricity) Police Station, Sabarmati at Ahmedabad, which was registered on 30/01/2006. It was lodged after about 4 days of forwarding the said FIR and for that there was no explanation given by the prosecution. It is also an undisputed fact that whether the respondent was the sole owner of the said agricultural field, whether he was in actual possession of the said agricultural filed and whether in his presence the officers had obtained all these articles since there was no independent witness in whose presence all these formalities were completed by the informant alongwith other officers of his department. It is also an undisputed fact that the electric apparatus and other articles seized were returned to the respondent accused or some other persons and the same were not in possession of the UGVCL and the same were not produced at the time of trial before the trial court. It is also an undisputed fact that the so-called Jyotigram Electricity Yojna was just laid down in the village Dhunavada before a period of one month and the electricity supply was started just before three days from the date of the checking by putting the transformers, which fact was stated by the officers of UGVCL during the course of their depositions before the trial court. 5.1 From the evidence of PW-1 – Jitendrasinh Lakshmansinh Rathod (Exh.-18), who was serving as Dy. Engineer at Modasa Sub-Division in 2006, it appears that he has deposed that when he alongwith other officers were on duty, they had received information that the agriculturists of village Dhunavada were illegally extracting electricity by using electric cables and other apparatus. On the basis of such information, they had decided to investigate and therefore, in the checking squad alongwith other officers they reached to the agricultural field of the present respondent accused at village Dhunavada and they had found that the respondent accused was using 7½ HP motor for fetching water from the Majum river by using electric cable directly connected to the electricity line passing near the Majum river at the pole of transformer and therefore, they had seized all these electric apparatus and cable, prepared panchnama, drawn the Rojkaam and recorded statement of the respondent accused and also got his signature on the statement. The PW-1 has admitted in his cross-examination that the power supply for this Jyotigram Yojna had started functioning just before one month and the transformer was placed just before 2 -3 days prior to the date of checking, meaning thereby that the electricity line for the Jyotigram Yojna was recently laid down and the electricity supply had started just before 2-3 days. It was also admitted by PW-1 in his cross-examination that the agriculturists’ Union had represented before the head office at Mehsana and also pointed out to the divisional officer about this unauthorized and illegal approach on the part of the complainant department and therefore, the complainant UGVCL had decided to withdraw the prosecution against all the concerned and had also returned electric apparatus and other articles seized at the time of checking. It was also further admitted in his cross-examination that the transformer put up on the pole was almost half kilometer away from the Majum river, however, they had collected the cable only 15 feet away from the transformer, surprisingly, how the respondent accused could have abstracted the electricity by using such a cable, if the distance was so far as mentioned by the concerned witness in his cross-examination and therefore, under such circumstances, the trial court has rightly considered the deposition of this witness while passing the impugned judgment and order of acquittal. In fact, the raid was carried out on 27/01/2006 and on the same day they had issued supplementary bill alongwith notice, whether it was served upon the respondent or not and whether the respondent was willing to pay the said amount or not has not come on record. On 28/01/2006, the very next day, they had sent the FIR for registration of the offence against the present respondent accused. 5.2 PW-2 – Thakersi Vashrambhai Dharjiya (Exh.-29), who was also serving as Deputy Engineer in Modasa Sub-Division, had also accompanied the informant. In his examination-inchief, he has stated the same facts as narrated by PW-1. However, in his cross-examination, he has stated that he had not collected any relevant material as to whether the respondent accused was actually in possession of the subject parcel of land or not, whether he was the owner of said agricultural land or not and whether he was cultivating the said land or not. However, in his cross-examination, he has stated that he had not collected any relevant material as to whether the respondent accused was actually in possession of the subject parcel of land or not, whether he was the owner of said agricultural land or not and whether he was cultivating the said land or not. Neither he had collected all these evidence nor he had investigated on that aspect, without having any personal knowledge, the supplementary bill was issued against the respondent accused. The same facts were reiterated and admitted by the PW-3, who was also an officer of UGVCL. Therefore, all the officers of UGVCL have stated same facts before the trial court and except the officers of UGVCL, no other independent witnesses have been examined by the prosecution to prove the case against the respondent accused. PW-8 Shantilal Bholanath Nayi (Exh.-37), being A.S.I., who had investigated the offence during 2006-2008, except recording statement of the witnesses, has not done anything into the matter. He has also admitted in his cross-examination that he had received communication from the Mehsana Sub-Division office for withdrawal of the prosecution against all concerned agriculturists but thereafter, there was nothing done in the matter. He has also admitted that he had not collected any material during the course of investigation. PW-9 – Bhayjitsinh Sardarsinh Zala, being Talati-cum-Mantri of village Dhunavada, who had produced the revenue record including the 7/12 extract of the said village, in the said revenue record, it was found that the subject parcel of land was owned jointly by the present respondent alongwith others and therefore, it cannot be said that the respondent was the sole owner and the subject parcel of law was in his occupation, therefore, under such circumstances, the prosecution has failed to establish the case against the respondent accused with regard to the alleged offence of theft of electric energy. 5.3 At this juncture, it would be appropriate to refer to the decision of the Division Bench of this Court rendered in case of State of Gujarat vs. Jayendrasinh Motisinh Zala, reported in [2012] 2 GCD 1110, wherein, the Division Bench, while dealing with the acquittal appeal filed by the appellant State against the respondent accused, observed and held as under : “5.1 Having due regard to the evidence discussed above, the prosecution case stands crippled not only with paucity of evidence, but can be said to have been crumbled by total dearth of evidence necessary to prove the offence. Firstly, neither Panchnama of the place/ house where inspection was carried out was recorded nor was shown any recovery of wires/devices alleged to have been used for alleged theft of electricity and no recovery panchnama was done. Secondly, in statement of the occupant of house (Exh. 17), her thumb impression was not identified. Perusal of the Exh. 17 showed that there was only a thumb impression with words written just beside it that it was thumb impression `on behalf of Ranjanben'. Thus, on the very face, it was not shown to be the thumb impression of the person namely Ranjanben, who was stated to have given the statement (Exh. 17). Thirdly, the prosecution failed to show as to who was Ranjanben who was in occupation of house and posed as representative of the respondent. Fourthly, not only that respondent was not shown to be the owner of the house, but nature of his association or connection with the house at which raid was carried out was also not shown or established. Fifthly, the postal endorsement (Exh.15) suggested that in village Mahelav no person with respondent's name `Jayendrasinh Motisinh Zala', had been staying. 5.2 It was on such set of facts and evidence, both oral and documentary, that the trial court recorded acquittal. It is true that in cases of electricity theft, direct evidence to establish offence would rarely be available, and the investigation would be required to rest quite often mainly on circumstantial evidence. Therefore, while prosecuting for offences, such as for offence under Section 135 of the Act, competent authorities under the Act and prosecution have to conduct themselves with extra care and orientation. In present case, the investigation officer has not shown even recovery of wires/devices, which might have been used for extracting electricity. Therefore, while prosecuting for offences, such as for offence under Section 135 of the Act, competent authorities under the Act and prosecution have to conduct themselves with extra care and orientation. In present case, the investigation officer has not shown even recovery of wires/devices, which might have been used for extracting electricity. Though recovery of wire was mentioned in deposition of PW-2 and PW-3, that however, remained totally uncorroborated and unsupported. 5.3 From sequence of dates and events on record of the case it is seen that the process of lodging complaint by the competent authority under the Act, and the investigation thereafter, were tardy. The incident of the alleged theft and inspection by the checking squad was on 16.05.2006 and the complaint was forwarded after four months on 19.09.2006. F.I.R. was actually registered by the police as late as on 04.06.2007, which was after a gap of eleven months. Investigating officer recorded statement of the complainant on 14.08.2007 and thereafter statements of other witnesses were recorded. 5.4 The provision of Sec.135 of the Act, while fastening criminal liability for act of theft of electricity, starts with words `whoever, dishonestly'. The word `whoever', as rightly held by this Court in Barot Vitthalbhai Damodardas vs. Natwarbhai Umedbhai Patel ( 2009(2) GLH 135 ) would mean `person who is involved in commission of offence'. Any person found to have committed theft of electricity, whether customer or not and whether owner or not of the house/premises where stolen electricity is used, stands covered within the ambit of this Section. Therefore, it follows that a person in occupation of the premises/house wherefrom theft of electricity by any means is detected is also answerable and liable to be prosecuted and punished, and commission of offence may be established also against such person. However, in the present case, the complaint was registered against respondent only on the footing of information that he was owner of the house in question. The person who was in occupation of the house and whose statement was recorded by the checking squad, could have also been charged, but that was not done. Such disoriented or inapt investigation and prosecution cannot succeed in fulfilling the objective of discouraging theft of electricity which, the legislature in its wisdom, has made a serious and cognizable offence. 6. The person who was in occupation of the house and whose statement was recorded by the checking squad, could have also been charged, but that was not done. Such disoriented or inapt investigation and prosecution cannot succeed in fulfilling the objective of discouraging theft of electricity which, the legislature in its wisdom, has made a serious and cognizable offence. 6. In view of the evidence on record, the findings recorded by the trial court are plausible, reasonable and proper. The order of acquittal recorded by the trial court is not liable to be interfered with.” 5.4 Another decision of this Court rendered in case of State of Gujarat vs. Khumansinh Ranjitsinh Jadeja, reported in [2022] LawSuit (Guj.) 7441, which is also against the order of acquittal recorded by the trial court and while dealing with the same, the Co-ordinate Bench of this Court, after considering the judgment of the Hon’ble Apex Court, in para-9 onwards has considered the legal provisions of Section 135 of the Electricity Act and also considered the fact that without there being any relevant material collected and produced, the charge of theft of electricity cannot be proved, even without drawing any panchnama, without recording any statements of independent witnesses, merely relying upon the officers of UGVCL and without there being any material, the trial court has rightly discarded the evidence led by the prosecution while passing the impugned judgment and order of acquittal. 5.5 The learned trial Judge has considered all the relevant material produced by the prosecution and after going through the evidence of the witnesses, the trial court was justified in passing the impugned judgment and order acquitting the present respondents accused. It is also now well settled that while exercising powers under Section 378 of Cr.P.C., if the trial court while passing the order has committed any illegality or any perversity or has exceeded the jurisdiction, unless and until such facts come on record, the Court is very slow while dealing with an acquittal appeal. It is also now well settled that while exercising powers under Section 378 of Cr.P.C., if the trial court while passing the order has committed any illegality or any perversity or has exceeded the jurisdiction, unless and until such facts come on record, the Court is very slow while dealing with an acquittal appeal. The Hon’ble Apex Court has in a series of judgments enunciated the principles while exercising jurisdiction under Section 378 against acquittal, the power of the Appellate Court is inasmuch as can re-appreciate the evidence, review or re-consider the evidence and if the Court finds that there is any illegality or any irregularity in the judgment then in that case only, the Court has power to entertain the appeal and interfere with the order of acquittal. The scope and principles are enunciated by the Hon’ble Apex Court in case of Chandrappa and others Vs. State of Karnataka reported in (2007) 4 SCC 415 , more particularly paragraphs 42 and 43, which was subsequently re-affirmed by the Hon’ble Apex Court Rajesh Prasad Vs. State of Bihar and another, reported in [2022] 3 SCC 471, wherein, the Hon’ble Apex Court has enunciated the general principles in case of acquittal, more particularly in paragraph 26 the general principles are set out by the Hon’ble Apex Court based upon various decisions of the Hon’ble Apex Court. Hence, I am in complete agreement with the findings recorded by the trial court. 5.6 It is also worthwhile to refer to the decision of the Hon’ble Supreme Court in the case of Babu Sahebagouda Rudragoudar Vs. State of Karnataka, reported in AIR 2024 SC 2252 = (2024) 8 SCC 149 wherein the Hon’ble Supreme Court has held and observed in paras – 37 to 40 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. 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. (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, (2023) 9 SCC 581 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. Further, in the case of H.D. Sundara & Ors. v. State of Karnataka, (2023) 9 SCC 581 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 re-appreciating 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. 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.” 7. For the foregoing reasons, the present appeal fails and is hereby dismissed. The judgment and order of acquittal dated 04/09/2012 passed by the learned Special Judge & 4th Additional Sessions Judge, Sabarkantha at Himmatnagar in Special (Elec.) Case No.46 of 2009 is hereby confirmed. Bail bond, if any, furnished by the respondent accused stands cancelled. For the foregoing reasons, the present appeal fails and is hereby dismissed. The judgment and order of acquittal dated 04/09/2012 passed by the learned Special Judge & 4th Additional Sessions Judge, Sabarkantha at Himmatnagar in Special (Elec.) Case No.46 of 2009 is hereby confirmed. Bail bond, if any, furnished by the respondent accused stands cancelled. 7.1 Record and Proceedings, if any, be sent back to the concerned Trial Court forthwith.