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2025 DIGILAW 1049 (GUJ)

State of Gujarat v. Aniruddhsinh Mahipatsinh Wala

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. 16 of 2009 order dated 25.07.2012, 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 07-03-2006, the Officers of the the Paschim Gujarat Vij Company Limited (herein after referred to as ‘the PGVCL’) went for checking at Khakhra-1 village of Taluka Dhrol at the residential house of the accused and found that the accused had directly and illegally tapped the electricity line from the pole and was committing theft of electricity. After the due procedure as it was found that theft of electricity of Rs. 36,319.32 paisa was committed by the accused, a complaint was filed by the complainant Nitinbhai Dhamjibhai Dhameliya, Deputy Engineer, PGVCL, Dhrol Sub-Ddivision at the GEB Police Station, Rajkot Zone on 14-01-2007 under Section 135 of the Act, which came to be registered as GEB Police Station, Rajkot Zone II-CR No. 410 of 2007. 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. 16 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.5 and the statement of the accused was recorded at Exh.6, 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 06 documentary evidences in support of the case. 2.4. After the closing pursis was submitted by the learned APP at Exh.20, 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 to 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 Nitinbhai Dhamjibhai Dhameliya examined at Exh.9 is the complainant, who has narrated the facts as stated in the complaint, which is produced at Exh.11. The witness has stated that the due procedure was done at the spot and as per Annexure-11, it was found that theft of electricity of Rs.36,389.22 was committed, and hence, he has filed the complaint, which is produced at Exh.11. In the cross-examination, the witness has admitted that the checking was conducted on 07-03-2006 and the complaint was sent to the GEB Rajkot Zone Police Station on 26-04-2006, but no explanation regarding the delay in filing of the complaint was sent. The witness has admitted that he has no personal knowledge about the incident as he had not gone to the place of incident. The muddamal was not handed over to the Investigating Officer and there was no panchnama regarding the seizure of muddamal drawn in the presence of independent panch witnesses. He did not take the permission of any higher authority before filing the complaint and he did not send any permission granted to him to file the complaint along with the complaint. The muddamal was not handed over to the Investigating Officer and there was no panchnama regarding the seizure of muddamal drawn in the presence of independent panch witnesses. He did not take the permission of any higher authority before filing the complaint and he did not send any permission granted to him to file the complaint along with the complaint. Moreover, the assessment bill was sent by R.P.A.D.to the accused, but there was no evidence as to whether the bill was actually delivered to the accused or not. The officers who had checked the electricity connection did not seize the muddamal in the presence of any panch witnesses and no such panchnama was handed over to him. 8.1. PW-2 Himmatlal Balubhai Rangani examined at Exh.13 was working as the Deputy Engineer in the PGVCL Kalavad Division and he has stated that he had gone along with the line staff members to Khakhra village for checking the electricity connection at the house of the accused and had found that theft of electricity was taking place. The witness has produced the checking sheet at Exh.14 and the Rojkam at Exh.15. In the cross examination, the witness has admitted that he did not take any written permission from any higher authority for going for checking of the electricity connections and no panchnama regarding the muddamal seized was drawn in the presence of any panch witnesses. There was no written authority given to him for going for checking and he did not record the statements of any witnesses surrounding the place that was checked. No documents regarding the ownership or possession of the accused in the house that was checked have been seized by him at the time of checking and there was no authority from the Gujarat Government regarding his appointment to go for checking of the electricity connections. The witness has stated that he does not remember whether he had taken any permission of the person who was present there for entering into the house for checking the electricity connections. 8.2. PW-3 Ranjitsingh Kuldeepsingh Lubana examined at Exh.17 is the Investigating Officer, who has stated that after the complaint was received, the P.S.O. P.K.Miyatra had registered the complaint at I-CR No.410 of 2007 and he had taken over the investigation. The witness has produced the FIR at Exh.18 and a certificate of the Talati-cum-Mantri, Khakhra Gram Panchayat at Exh.19. 8.2. PW-3 Ranjitsingh Kuldeepsingh Lubana examined at Exh.17 is the Investigating Officer, who has stated that after the complaint was received, the P.S.O. P.K.Miyatra had registered the complaint at I-CR No.410 of 2007 and he had taken over the investigation. The witness has produced the FIR at Exh.18 and a certificate of the Talati-cum-Mantri, Khakhra Gram Panchayat at Exh.19. During the cross-examination, the witness has stated that no muddamal was seized by him during investigation and he did not draw any panchnama of in place of offence and did not record the statements of any independent witnesses during investigation. The complainant did not submit any authority from any Superior Authority authorizing him to file the complaint and he was not present at the time of the checking of the electricity connection by the officers of the PGVCL. No document regarding the ownership of the place where the theft had taken place was seized by him during investigation. 9. On minute appreciation of the entire evidence of the prosecution it is on record that the complainant PW-1 Nitinbhai Damjibhai Dhameliya was not a member of the raiding party and he has no personal knowledge about any of the checking that had taken place. Admittedly, no panchnama of the place of offence or no panchnama regarding the seizure of any muddamal such as wire or motor has been drawn by the authority, who had gone for checking or the Investigating Officer during investigation, and as per the say of the complainant, the checking had taken place at the residential house of the accused and there were neighbours present but no evidence of any independent witness has come on record. Moreover the muddamal has not been produced before the learned Trial Court and the complainant did not take the permission from any Superior Authority for filing the complaint. Even otherwise PW-2 Himmatlal Babubhai Rangani, who had gone for checking the electricity connections, has stated that he along with the other staff members had gone for checking the electricity connection but he has not named the officers along with whom he had gone for checking and no evidence of any such person has come on record. There is a delay in filing the complaint which has not been explained and the checking Officer did not have any authority to go for checking. There is a delay in filing the complaint which has not been explained and the checking Officer did not have any authority to go for checking. Moreover there is no evidence on record that the place that was checked belonged to the accused and that he was the owner or occupier of the property that was checked. The Investigating Officer has produced the certificate of the Talati-cum-Mantri Khakhra Gram Panchayat at Exh.90 but the certificate merely states that the accused was a resident of Khakhra village and there is no mention of the house or the place where accused was residing. 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 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. 16 of 2009 order dated 25.07.2012 is hereby confirmed. 12. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.