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2025 DIGILAW 312 (GUJ)

State of Gujarat v. Jashwantbhai Thakorbhai Patel

2025-03-25

S.V.PINTO

body2025
JUDGMENT : 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 judgment and the order dated 22.09.2009 in Special (Electricity) Case No.12 of 2009 passed by the learned Additional Sessions Judge and Special Judge, Bharuch (hereinafter referred to as ‘the Trial Court’), whereby, the Trial Court has acquitted the respondent from the offence punishable under Sections 135(1) of the Electricity Act, 2003 (hereinafter referred to as ‘the Act’). 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 21.02.2006, the officers of Dakshin Gujarat Vij Company Limited had gone for checking in Sahod village and on checking at the house of the accused Jaswantbhai Thakorbhai Patel in D.P. street, they found that the accused had put two wires of the length of 8 meters in the line overhead and was committing a theft of electricity. The necessary procedure was done and as per the assessment, it was found that the accused had committed theft of electricity of Rs.25,531.38/- and the complainant Vipinbhai Motibhai Patel, Deputy Engineer, D.G.V.C.L filed the complaint under section 135(1)(a) of the Indian Electricity Act 2003, which was registered at G.E.B. Police Station II-C.R.No.1013 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 sent to the Sessions Court and the same was registered as Special (Electricity) Case No.12 of 2009. 2.3. The accused were 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 were 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 has examined seven witnesses and has produced documentary evidences in support of the case. 2.4. After the closing pursis was submitted by the learned APP, the further statement of the accused under Section 313 of the Code was recorded. 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, has acquitted the accused for the offence punishable under Sections 135(1) of the Electricity Act, 2003. 3. Being aggrieved and dissatisfied with the impugned judgment and order passed by the Trial Court, the appellant – State has filed the present appeal mainly stating that the impugned judgment and order passed by the Trial Court is contrary to law, evidence on record and principles of justice. That the judgment and order of acquittal passed by the learned Trial Court is based on inferences, not warranted by facts of the case and also on presumptions not permitted by law. The Trial Court has not properly appreciated the oral as well as documentary evidence on record it its true spirit. The prosecution has failed to prove the case beyond reasonable doubt. The 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 them. The Trial Court has also committed an error in arriving at the conclusion that though the complainant and the prosecution witnesses have fully supported the case of the prosecution and there are no material contradictions, the Trial Court has acquitted the accused. The impugned judgment and order of acquittal passed by the 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 Mr.Utkarsh Sharma for the appellant – State. The impugned judgment and order of acquittal passed by the 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 Mr.Utkarsh Sharma for the appellant – State. Though served the respondent, he has not appeared either in person or through an advocate. 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 Mr.Utkarsh Sharma for the appellant – State has taken this Court through the entire evidence produced by the prosecution and has vehemently argued that the Trial Court has not appreciated the evidence properly and the prosecution has produced cogent evidence to prove the the case and has successfully proved the case against the accused but the Trial Court has not considered the same and has acquitted the accused. The judgment and order of acquittal passed by learned Judge is contrary to law, evidence on record and principles of justice. The judgment and order of acquittal passed by Judge is based on inferences, not warranted by facts of the case and also on presumption, not permitted by law. 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. Learned APP has urged this Court to allow the present appeal 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 observations 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. 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) …….. 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 acquittal. Such phrase-ologies 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 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. Firstly, the presumption of innocence 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. 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, the evidence produced by the prosecution on record is appreciated and the prosecution has examined PW-1 Vipinbhai Motibhai Patel at Exh.8 and the witness is the complainant, who has stated that during the routine checking at Sahod village on 21.02.2006 along with Junior Engineer J.D.Patel and helper Manishbhai Patel, they found the accused committing theft of electricity by fixing two black colour wires in the main line. The electricity connection was on in his house and the checking sheet was prepared at the spot and the rojkam was done and the wires were seized from the spot. The witness has produced the checking sheet at Exh.10 and a bill of Rs.25,531.38/- was given to the accused, which is produced at Exh.11. The amount of bill was not paid and hence the complaint was filed which is produced at Exh.13. During the cross examination by the learned advocate for the accused, the witness has stated that the street where the accused was residing is a congested area and when they went for checking, they did not verify the house numbers. That they did not see any women or children in the house and a number of persons had gathered at that place. That they did not keep any person present and they have seized a number of black wires on many occasions. That in the complaint, it is not mentioned that the accused was present and he had refused to sign in the checking sheet. 8.1 The prosecution has examined PW-2 Chandrakantbhai, Jagjivanbhai Rana at Exh.14 and the witness is the panch witness, who has stated that the muddamal wire was seized by the Investigating Officer from the possession of Deputy Engineer Shri V.M.Patel and the panchnama, which is produced at Exh. 15 was drawn. During the cross-examination by the learned advocate for the accused, the witness has stated that the wires did not have any slip stating that the wires were from the house of the accused and on the date of the panchnama, the wires of two persons were seized. That he did not go to the place of checking and when the wire was seized by the Investigating Officer, the accused was not present and he was working in the Electricity Board for the past 20 years. 8.2. The prosecution has examined PW-3, Jitendrabhai Dalpatbhai at Exh.16 and the witness was working as the Junior Engineer in D.G.V.C.L and on the date of the raid, he had accompanied the complainant. The witness has supported the case of the prosecution and during the cross-examination by the learned advocate for the accused, he has stated that he does not remember how many connections were checked on that date and all the persons whom they had checked had directly taken an electric connection from the wires. The witness has supported the case of the prosecution and during the cross-examination by the learned advocate for the accused, he has stated that he does not remember how many connections were checked on that date and all the persons whom they had checked had directly taken an electric connection from the wires. That the area was a congested area and a number of persons had gathered. That there was no evidence that the place belonged to the accused or it was in his ownership and the muddamal wires are easily available in the market. That while they seized the wire from the spot, they did not draw any panchnama and the muddamal wires are not entered into any register in their office. That the muddamal wire was placed into a cupboard in their office, where all the wires of electricity checking are placed. 8.3. The prosecution has examined PW 4 Manishbhai Chhotubhai at Exh.17 and the witness was working as a helper in the D.G.V.C.L. and was along with the members of the raiding party on 21.02.2006. The witness has supported the case of the prosecution and during the cross-examination by the learned advocate for the accused, the witness has stated that he did not see any house number at the place where the electricity checking was done. That the muddamal wire is easily available in the market and the wire was taken by his superior officer to the office. That a number of persons had gathered at the time of the checking and no panchnama of the wire was drawn at the place of checking. 8.4. The prosecution has examined PW-5, Jashwantbhai Dayabhai Patel at Exh.18 and the witness has stated that on 03.04.2008, he was called by the police in D.P. street near the house of the accused and the panchnama was drawn at that place, which is produced at Exh.19. During the cross-examination, the witness has stated that he is a contractor of fixing G.E.B. meters and all the G.E.B. persons are known to him. That he is known to the accused and when he went to the place of incident, there was no evidence that the house belonged to the accused. That the police had written the panchnama and both the panch witnesses had signed on the panchnama. 8.5. That he is known to the accused and when he went to the place of incident, there was no evidence that the house belonged to the accused. That the police had written the panchnama and both the panch witnesses had signed on the panchnama. 8.5. PW-6 Adakyabhai Maganbhai Gamit examined at Exh.20 is the P.S.O., G.E.B. police station, who has registered the complaint at G.E.B. Police Station II-CR No.1013 of 2006. During the cross-examination by the learned advocate for the accused, the witness has stated that the complainant had given a written complaint and in the complaint produced at Exh.13, the signature and date was not affixed in person by the complainant. 8.6. PW-7 Manubhai Madhavbhai Vasava, Head Constable, Buckle No. 198, examined at Exh.24 is the Investigating Officer who has stated that during investigation of the offence registered at G.E.B. police station II-CR No.1013 of 2006, he had drawn the panchnama, which is produced at Exh.19 and had recorded the statements of the witnesses at Sub Division, Hansot. The muddamal was seized and the panchnama is produced at Exh.15. During the cross-examination by the learned advocate for the accused, the witness has stated that when he went to the house, there was no evidence that the house belonged to the accused and the place where the panchnama is drawn is a congested area. 9. On minute appreciation of the entire evidence of the prosecution, prima-facie, it appears that the members of the raiding party, as per the case of the prosecution, had gone for a raid on 21.02.2006 and the wire, as per the panchnama produced at Exh.15, was seized by the Investigating Officer from the complainant Vipinbhai Motibhai Patel on 24.03.2008 between 11.45 to 12.15 hours. The panchnama of the place of offence, which is produced at Exh.19, has been drawn on 03.04.2008 between 14.00 to 14.30 hours and no muddamal was seized from the place of incident. The muddamal wires were seized from the complainant and there are no independent witnesses to the incident, even though, as per the case of the prosecution, the place where the raid had taken place was a congested area and having a number of persons residing around. Moreover, the Investigating Officer and the complainant did not find any evidence of the ownership of the house and whether the house, in fact, belonged to the accused. Moreover, the Investigating Officer and the complainant did not find any evidence of the ownership of the house and whether the house, in fact, belonged to the accused. The wire that has been seized by the Investigating Officer from the complainant is easily available in the market and there is no iota of evidence to connect the accused with the offence. 10. In view of the above, the 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 Trial Court has appreciated all the evidence and this Court is of the considered opinion that the 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 trial Court and this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the 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 impugned judgment and the order dated 22.09.2009 in Special (Electricity) Case No.12 of 2009 passed by the learned Additional Sessions Judge and Special Judge, Bharuch is hereby confirmed. 12. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.