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2025 DIGILAW 1048 (GUJ)

State of Gujarat v. Viram Jadav @ Samat Vaghora

2025-09-12

S.V.PINTO

body2025
JUDGMENT : S.V. Pinto, J. 1. This appeal has been filed by the appellant – State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) against the impugned judgment and the order passed by the learned Special Judge, Jamnagar (hereinafter referred to as ‘the Trial Court’) in Special (G.E.B.) Case No. 54 of 2009 order dated 19.07.2012, whereby, the learned Trial Court has acquitted the respondent from the offence punishable under Sections 135 of the Electricity Act, 2003 (hereinafter referred to as ‘the Act’). 1.1. The respondent is hereinafter referred to as ‘the accused’ as he stood in the original case, for the sake of convenience, clarity and brevity. 2. The relevant facts leading to filing of the present appeal are as under: 2.1. On 19-01-2006, the Officers of the Paschim Gujarat Vij Company Limited (hereinaftere referred to as ‘the PGVCL’) went for checking to the residential house of the accused situated in Machchu Beraja village and found that the accused was not a consumer of electricity, but he had tapped the power line and joined a yellow colour cable wire to the low tension line with a load of 520 watt and was illegally consuming electricity. After the due procedure, it was found that theft of electricity of Rs.34,279.66 paisa was committed by the accused and the complainant Vithalbhai Gordhanbhai Markana, Deputy Engineer, PGVCL, filed the complaint at the GEB Police Station, Rajkot Zone on 17-11-2006 under Section 135 of the Act, which came to be registered at GEB Police Station, Rajkot Zone, I-CR No.1077 of 2006. 2.2. After registration of the FIR, the investigation was carried out by the concerned Investigating Officer and after having sufficient material against the accused, the chargesheet came to be filed before the concerned jurisdictional Magistrate. As the case was exclusively triable by the Court of Sessions, after completion of the process under Section 209 of the Cr.P.C., the case was committed to the Sessions Court and the same was registered as Special (G.E.B.) Case No. 54 of 2009. 2.3. The accused was duly served with the summons and the accused appeared before the learned Trial Court and it was verified whether the copies of all the police papers were provided to the accused as per the provisions of Section 207 of the Code. 2.3. The accused was duly served with the summons and the accused appeared before the learned Trial Court and it was verified whether the copies of all the police papers were provided to the accused as per the provisions of Section 207 of the Code. A charge was framed by the learned Trial Court at Exh.4 and the statement of the accused was recorded at Exh.5, wherein, the accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record. The prosecution examined 03 witnesses and produced 11 documentary evidences in support of the case. 2.4. After the closing pursis was submitted by the learned APP at Exh.22, the further statement of the accused under Section 313 of the Code was recorded wherein the accused denied the entire evidence and refused to step into the witness box and lead evidence. After hearing the arguments of the learned APP and learned advocate for the accused and after perusing the documents on record, the learned Trial Court, by the impugned judgment and order was pleased acquit the accused for the offence punishable under Sections 135 of the Act. 3. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Trial Court, the appellant – State has filed the present appeal mainly stating that the impugned judgment and order passed by the learned Trial Court is contrary to law, evidence on record and principles of justice. The learned Trial Court has erroneously came to the conclusion that the prosecution has failed to prove the case beyond reasonable doubt. The learned Trial Court has erred in acquitting the accused though there are ample and cogent evidence to connect the accused with the crime and the offence registered against him. The learned Trial Court has not properly appreciated the oral as well as documentary evidence on record it its true spirit. The impugned judgment and order of acquittal passed by the learned Trial Court is illegal, invalid, improper, perverse and bad in-law and the same deserves to be quashed and set aside. 4. Heard learned APP Ms.C.M.Shah for the appellant – State. Though served, the respondent no.1 did not appear either in person or engage a lawyer to make submissions on his behalf. 4. Heard learned APP Ms.C.M.Shah for the appellant – State. Though served, the respondent no.1 did not appear either in person or engage a lawyer to make submissions on his behalf. Perused the impugned judgment and order of acquittal and have re-appreciated the entire evidence of the prosecution on record of the case. 5. Learned APP Ms.C.M.Shah for the appellant – State has taken this Court through the entire evidence produced by the prosecution and has vehemently argued that the learned Trial Court has not appreciated the evidence properly and the prosecution has produced cogent evidence to prove the case and has successfully proved the case against the accused but the learned Trial Court has not considered the same and has acquitted the accused. The judgment and order of acquittal passed by learned Trial Court is contrary to law, evidence on record and principles of justice. Learned APP has urged this Court to quash and set aside the impugned judgment and order of acquittal and to find the accused guilty for the said offence and impose maximum sentence on the accused. 6. At the outset, before discussing the facts of the present case, it would be appropriate to refer to the observa- tions of the Apex Court in the case of Chandrappa & Ors. Vs. State of Karnataka reported in 2007 (4) SCC 415 , the Apex Court has observed as under: Recently, in Kallu Vs. State of M.P. (2006) 10 SCC 313 : AIR 2006 SC 831 , this Court stated; "While deciding an appeal against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court". (emphasis supplied) …….. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court". (emphasis supplied) …….. From the above decisions, in our considered view, the following general principles regarding powers of 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 ac- quittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize 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 available to him under the fundamental principle of criminal jurisprudence that every person shall be pre- sumed 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. 7. It is a settled principle of law that in an appeal against acquittal, the Appellate Court is circumscribed by limitation that no interference has to be made in the order of acquittal unless after appreciation of the evidence produced before the Trial Court, it appears that there are some manifest illegality of perversity which could not have been possibly arrived at by the Court. It is also a settled principle that there is no embargo on the Appellate Court to review the evidence but, generally the order of acquittal shall not be interfered with as the presumption of innocence of the accused is further strengthened by the order of acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case of the prosecution i.e. (i) guilt of the accused and (ii) his innocence, the view, which is in favour of the accused, should be adopted, and if the trial Court has taken the view in favour of the accused, the Appellate Court should not disturb the findings of the acquittal. The Appellate Court can interfere with the judgment and order of acquittal only when there are compelling and substantial reasons and the order is clearly unreasonable and where the Appellate Court comes to conclusion that based on the evidence, the conviction is a must. 8. In light of the above settled principles of law in acquittal appeals, the evidence is re-appreciated and PW-1 Himmatlal Balubhai Rangani examined at Exh.8 was working as the Deputy Engineer in the Lalpur REC Sub Division and he has stated that on 19-01-2006, he along with the staff members had gone to check the electricity connection at the Machchu Beraja village of Lalpur Taluka and found that the accused was committing a theft of electricity. The witness has produced the Rojkam at Exh.9 and the checking sheet at Exh.10. The witness has stated that the muddamal was deposited by them in the Lalpur (Rural) Sub Division Office. In the cross-examination, the witness has admitted that he did not take any permission from the higher authority to go for checking and no panchnama about the muddamal was drawn in the presence of independent panch witnesses. There was no written order authorizing him to go for checking and he has not recorded the statements of any witnesses surrounding the place where the checking had taken place. No documents regarding the ownership or possession of the house of the accused was seized by them and he did not have any document showing that he was appointed by the Gujarat Government to check the electricity connections. No documents regarding the ownership or possession of the house of the accused was seized by them and he did not have any document showing that he was appointed by the Gujarat Government to check the electricity connections. He does not remember whether he had taken the permission of the owner or the person in possession of the house before entering the house of the accused. 8.1. PW-2 Vitthalbhai Gordhanbhai Markada examined at Exh.11 is the complainant, who has supported the facts of the complaint, which is produced at Exh.18. The witness has stated that after the Officers had gone for checking, the muddamal was deposited at the Lalpur Rural Sub Division and the gate pass is produced at Exh.12, the Calculation Sheet at Exh.13, Annexure- 11 at Exh.14, notice sent to the accused at Exh.15, bill of theft at Exh.16 and the R.P.A.D., by which, the notice was sent to the accused at Exh.17 and the complaint at Exh.18. In the cross examination, the witness has admitted that he did not go for checking and the checking was done by the Officers on 19-01- 2006 and the complaint was filed on 17-11-2006. There is no explanation for the delay in filing the complaint and no permission to file the complaint was taken from any Superior Authority. The Investigating Officer was not informed to seize the muddamal and a squad for checking the electricity connection has been formed by the Gujarat Government and the person, who had gone for checking, was not a member of this checking squad. There was no evidence regarding the ownership of the place, where the checking had taken place and the panchnama and the muddamal was not seized in the presence of any panch witnesses. 8.2. PW-3 Prahladrai Govindram Valera examined at Exh.19 was the P.S.O. at GEB Police Station on 17-11-2006 and he has registered the complaint and he has stated that the offence was investigated by P.I.Miyatra, A.S.I., who has expired. During the cross-examination, the witness has admitted that he has no personal knowledge about the incident and he had only registered the complaint. Along with the complaint, the complainant did not produce any documentary evidence to show that he was authorised for undertaking the raid and no muddamal was given by the complainant. No muddamal was seized by the Investigating Officer and no panchnama about any seizure of muddamal was drawn. Along with the complaint, the complainant did not produce any documentary evidence to show that he was authorised for undertaking the raid and no muddamal was given by the complainant. No muddamal was seized by the Investigating Officer and no panchnama about any seizure of muddamal was drawn. During investigation, no statements of any independent witnesses were recorded. The witness has produced the FIR at Exh.21. 9. On perusal of the entire evidence of the prosecution and record, it has emerged that the complainant, Vitthalbhai Gordhanbhai Marakada, Deputy Engineer, Lalpul Sub-Division was not a member of the raiding party and he has no personal knowledge about the incident. The only witness, PW-1 Himmatlal Balubhai Rangani, has stated that he along with other Officers had gone for checking, but it is pertinent to note that he has not named the other officers, who had gone with him for checking and no such officers have been examined by the prosecution on record. As per the say of the complainant, the accused had tapped the power line and had joined a yellow colour cable wire and was consuming 520 watts of electricity, but no such cable wire has been produced before the learned Trial Court. Moreover, PW-1 Himmatlal Balubhai Rangani and PW-2, Vitthalbhai Gordhanbhai Marakada have both stated that the wire was seized from the spot and the wire was deposited in the Lalpur Sub-Division, but it was not handed over to the Investigating Officer during investigation. Moreover, it has also emerged that there was no permission for PW-1 Himmatlal Balubhai Rangani to go for checking and there was no permission for the complainant from any Superior Authority to file the complaint. There is no evidence of any independent witness in the record of the case and there are no photographs or videography of the raid that was conducted by PW-1 Himmatlal Balubhai Rangani. 10. In view of the above, the learned Trial Court has appreciated the entire evidence in proper perspective and there does not appear to be any infirmity and illegality in the impugned judgment and order of acquittal. The learned Trial Court has appreciated all the evidence and this Court is of the considered opinion that the learned Trial Court was completely justified in acquitting the accused of the charges leveled against them. The learned Trial Court has appreciated all the evidence and this Court is of the considered opinion that the learned Trial Court was completely justified in acquitting the accused of the charges leveled against them. The findings recorded by the Trial Court are absolutely just and proper and no illegality or infirmity has been committed by the learned Trial Court and this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned Trial Court. This Court finds no reason to interfere with the impugned judgment and order and the present appeal is devoid of merits and resultantly, the same is dismissed. 11. The judgment and the order passed by the learned Special Judge, Jamnagar in Special (G.E.B.) Case No. 54 of 2009 order dated 19.07.2012 is hereby confirmed. 12. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.