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Gujarat High Court · body

2025 DIGILAW 948 (GUJ)

State of Gujarat v. Salim Mamad Khureshi

2025-09-01

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 and 3rd Additional Sessions Judge, Jamnagar (hereinafter referred to as ‘the Trial Court’) in Special (G.E.B.) Case No. 364 of 2014 dated 30.09.2015, 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. The accused was in possession of Imran Pan Centre situated on Val Sura road in Jamnagar and the accused was not a consumer of electricity. On 08.05.2010, Deputy Engineer Hasmukhbhai Popatlbhai Dudhagara of Paschim Gujarat Vij Company Ltd. (hereinafter referred to as ‘the PGVCL’) checked ‘Imran Pan Centre’ and found that the accused had joined a yellow colour wire directly to the electric line of PGVCL and was using 1.350 watts of electricity and had committed theft of electricity of Rs. 40,831.59 paisa. After the due procedure, the complaint was filed by Johny Babulal Saxena, Deputy Engineer Sub-Division, Bedeshwar Valsura, Jamnagar at the GUVNL Police Station, Rajkot Zone on 11.10.2012, which came to be registered at GUVNL Police Station, Rajkot Zone, II-CR No.1238 of 2012. 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. 364 of 2014. 2.3. 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. 364 of 2014. 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 and 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 05 witnesses and produced 12 documentary evidences in support of the case. 2.4. After the closing pursis was submitted by the learned APP at Exh.29, the further statement of the accused under Section 313 of the Code was recorded wherein the accused denied the 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, has acquitted 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. 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 and learned advocate Mr.M.S.Padaliya for respondent - accused. 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 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. Learned advocate Mr.M.S.Padaliya the respondent – original accused has submitted that the learned Trial Court has appreciated all the evidence in true perspective and has not committed any error in acquitting the accused. Therefore, no interference of this Court is required in the impugned judgment and the order of acquittal passed by the learned Trial Court and has urged this Court to reject the appeal. 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. 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. The prosecution has examined PW-1 Johny Babulal Saxena at Exh.9 and the witness is the complainant, who has filed the complaint, which is produced at Exh.11. The complainant has stated that there was a checking drive at the Patel Colony Sub-Division on 08.05.2010 and Deputy Engineer Hasmukhbhai Popatlbhai Dudhagara had checked ‘Imran Pan Centre’ on Bedeshwar-Valsura road and found theft of electricity being committed by the accused. After taking the necessary permission from the Competent Authority for filing the complaint, which is produced at Exh.10, the complaint was filed and the witness has produced the calculation sheet at Exh.12, the notice along with the copy of the bill at Exh.13 and the letter of the Executive Engineer PGVCL, City 1 Division, Jamnagar at Exh.14. During the cross examination, the witness has admitted that he had not gone for the checking and the complaint was filed after a huge delay, but there is no explanation for the delay in filing the complaint. The approval letter at Exh.10 does not name the accused and there is no mention in the checking sheet that photographs were taken. The muddamal wire was easily available in the market and there was no evidence that the shop where the checking had taken place was in the ownership or possession of the accused. 8.1. The approval letter at Exh.10 does not name the accused and there is no mention in the checking sheet that photographs were taken. The muddamal wire was easily available in the market and there was no evidence that the shop where the checking had taken place was in the ownership or possession of the accused. 8.1. PW-2 Dineshbhai Veljibhai Rathod examined at Exh.16 is the panch witness of the panchnama produced at Exh.17. The witness has not supported the case of the prosecution and has been declared hostile and there is no evidence of any independent witness on record that the officers of the PGVCL had conducted a checking at the place of the accused on record in the evidence of the witness. 8.2. PW-3 Hasmukhbhai Popatbhai Dudhagra examined at Exh.19 is the Deputy Engineer, who had gone for checking and he has supported the case of the prosecution. The witness has produced the Rojkam at Exh.20 and the checking sheet at Exh.21. During the cross-examination, the witness has admitted that there was no order from his superior officer to go for checking and they did not do any videography or photography at the place where they had checked. In the statement before the police, he had not mentioned that he had found the accused at the place sitting in the chair and he has not mentioned that the accused was present when the rojkam was written. During the checking, he did not seize any documentary evidence to show that the accused was the owner or in possession of the place where the checking had taken place. 8.3. PW4-Abbasbhai Hasumbhai Gadhkai is the Investigating Officer who has narrated in detail the procedure undertaken by him during investigation. The witness has produced the election card of the accused at Exh.24, the ration card at Exh.25 and the tax bill at Exh.26. During the cross- examination, the witness has admitted that the permission granted by the superior authority is not granted for the name of the accused and no such document that the permission to file the complaint against the accused has been seized. No explanation regarding the delay in filing of the complaint was mentioned in the complaint and there was no document to show that the officers were entitled to go for checking is produced on record. No explanation regarding the delay in filing of the complaint was mentioned in the complaint and there was no document to show that the officers were entitled to go for checking is produced on record. There was no panchnama regarding the documents seized from the accused and there was no evidence that at the time of the checking, the accused was present at the spot. The place where the checking had taken place was a residential area, but the statements of any neighbours were not recorded and there was no evidence that any videography or photography was done at the place while checking. 8.4. PW-5 Kiritsinh Ranbirsinh Chudasma is the PSO, who has registered the complaint. 9. On minute appreciation of the entire evidence of the prosecution, as per the case of the prosecution, the checking was done on 08.05.2010 and the complaint at Exh.11 has been filed on 01.11.2012. There is a delay of more than 17 months in filing the complaint, but this delay has not been explained by the complainant and there is nothing on record to show as to why this huge delay had occurred in filing the complaint. In the evidence on record, there is no maddamal produced by the prosecution and it is the say of the complainant that a yellow wire was being used by the accused, but no such wire has been produced on record. The Investigating Officer has not seized any maddamal and no photographs or videography was done at the time of the checking. Moreover, PW-1 Johny Babulal Saxena and PW-3 Hasmukhbhai Popatbhai Dudhagra have both admitted that no documentary evidences to show that the place was in the ownership and possession of the accused was seized and there is no evidence on record to show that the accused was present at the spot at the time of the raid. If the panchnama produced at Exh.17 is perused, the checking had taken place on 08.05.2010, but the panchnama was drawn on 05.12.2012 and as per the say of PW-3 Hasmukhbhai Popatbhai Dudhagra, Helper H.G. Sadia of Jamnagar City Division had gone along with him for checking, but the said helper has not been examined before the learned Trial Court. If the panchnama produced at Exh.17 is perused, the checking had taken place on 08.05.2010, but the panchnama was drawn on 05.12.2012 and as per the say of PW-3 Hasmukhbhai Popatbhai Dudhagra, Helper H.G. Sadia of Jamnagar City Division had gone along with him for checking, but the said helper has not been examined before the learned Trial Court. Moreover, even though the checking was done in a residential area and there were neighbours surrounding the place, the Investigating Officer PW-4, Abbasbhai Hasanbhai Dudhagra has admitted that he has not recorded the statements of any neighbours, hence no independent evidence has come on record that the officers had in fact gone for checking and had found the theft of electricity being committed by the accused. 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 judgment and the order passed by the learned Special Judge and 3rd Additional Sessions Judge, Jamnagar in Special (G.E.B.) Case No. 364 of 2014 order dated 30.09.2015 is hereby confirmed. 12. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.