Gujarat High Court
State Of Gujarat vs Shitalsingh Mudsingh Zala on 3 April, 2025
NEUTRAL CITATION
R/CR.A/1384/2012 JUDGMENT DATED: 03/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1384 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
SHITALSINGH MUDSINGH ZALA
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Appearance:
MS DHWANI TRIPATHI, APP for the Appellant(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 03/04/2025
ORAL 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 31.05.2012 in Special (Electricity) Case No.26 of 2009 passed by the learned Special Judge and Additional Sessions Judge, Gandhinagar (hereinafter referred to as 'the Trial Court'), whereby, the Trial Court has acquitted the respondent from the offence punishable under Sections 135(1)(A) of the Electricity Act, Page 1 of 15 Uploaded by F.S. KAZI(HC01075) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:05:12 IST 2025 NEUTRAL CITATION R/CR.A/1384/2012 JUDGMENT DATED: 03/04/2025 undefined 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. Though served, the respondent has not appeared either in person or has not engaged any lawyer to make submission on his behalf.
3. The relevant facts leading to filing of the present appeal are as under:
3.1. The complainant Mohitkumar Sudhirchand Gandhi was working as the Deputy Engineer, UGVCL, Sub-Division Rakhiyal Taluka and District Gandhinagar on 09.02.2007 had gone along with Junior Engineer, Mahesh Rameshchandra Bhupatkar and other members with the staff for checking electricity connections. They checked the electricity connections in the outskirts of village Vadod, Taluka Dehgam, District Gandhinagar and on checking the connection of the field of the accused, they found that the accused had placed an illegal connection on the L.T.Line T.C. and using electricity by applying a 7.5 H.P. motor.
The accused was caught committing theft of electricity to the tune Page 2 of 15 Uploaded by F.S. KAZI(HC01075) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:05:12 IST 2025 NEUTRAL CITATION R/CR.A/1384/2012 JUDGMENT DATED: 03/04/2025 undefined of Rs.45,826.22/-, a bill of theft of electricity of Rs.45,826.22/- was given to the accused, but the accused did not pay up the amount, and hence, the complainant, Mohitkumar Sudhirchandra Gandhi Deputy Engineer, UGVCL, Sub-Division Rakhiyal, Taluka and District Gandhinagar, filed a complaint under section 135(a)(A) of the Indian electricity Act, 2003, which was registered at G.E.B. Police Station, Sabarmati, Ahmedabad II-CR No.812 of 2007 on 10.08.2007.
3.2. 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 (Electricity) Case No.26 of 2009. 3.3. 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 Page 3 of 15 Uploaded by F.S. KAZI(HC01075) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:05:12 IST 2025 NEUTRAL CITATION R/CR.A/1384/2012 JUDGMENT DATED: 03/04/2025 undefined 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.9 and the statement of the accused was recorded at Exh.10, 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 the witnesses and has produced the documentary evidences in support of the case.
3.4. 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)(A) of the Electricity Act, 2003.
4. 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. The prosecution has Page 4 of 15 Uploaded by F.S. KAZI(HC01075) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:05:12 IST 2025 NEUTRAL CITATION R/CR.A/1384/2012 JUDGMENT DATED: 03/04/2025 undefined failed to prove the case beyond reasonable doubt. The Trial Court has not properly appreciated the oral as well as documentary evidence on record it its true spirit. 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 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 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.
5. Heard learned APP Ms.Dhwani Tripathi for the appellant - State. Though served to the respondents, they have 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.
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6. Learned APP Ms.Dhwani Tripathi 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.
7. 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 Page 6 of 15 Uploaded by F.S. KAZI(HC01075) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:05:12 IST 2025 NEUTRAL CITATION R/CR.A/1384/2012 JUDGMENT DATED: 03/04/2025 undefined 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) ........ 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 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.Page 7 of 15 Uploaded by F.S. KAZI(HC01075) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:05:12 IST 2025
NEUTRAL CITATION R/CR.A/1384/2012 JUDGMENT DATED: 03/04/2025 undefined (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.
(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.
8. 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 Page 8 of 15 Uploaded by F.S. KAZI(HC01075) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:05:12 IST 2025 NEUTRAL CITATION R/CR.A/1384/2012 JUDGMENT DATED: 03/04/2025 undefined 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.
9. In light of the above, the evidence produced by the prosecution on record is appreciated and the prosecution has examined PW1 Mohitkumar Sudhirchandra Gandhi at Exh.11 and the witness is the complainant, who has stated that on 09.02.2007, he along with his staff members were conducting checking of electricity connections in village Vadod and on checking the bore- well of the accused, they found that the accused had taken an illegal connection by placing a wire on the electricity connection and was using 7.5 HP motor. That the checking sheet and other documents were prepared and a bill of theft of Rs.45,826.22/- was given to the accused, which was not paid, and hence, the Page 9 of 15 Uploaded by F.S. KAZI(HC01075) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:05:12 IST 2025 NEUTRAL CITATION R/CR.A/1384/2012 JUDGMENT DATED: 03/04/2025 undefined complaint, which is produced at Exh.12 was filed by the complainant. During the cross-examination by the learned advocate for the accused, the witness has stated that he does not know whether the place where the theft of electricity was being done belonged to the accused and in his statement before the police, he has not stated the length of the wire and the colour of the wire that was used for the theft. That no motor was seized in this offence.
9.1. The prosecution has examined PW-2 Maheshbhai Rameshchandra Bhupatkar at Exh.19 and the witness was working as the Junior Engineer on the date when the checking was done by the complainant and other staff. The witness has supported the case of the prosecution and has identified the documents produced by the complainant.
9.2. The prosecution has examined PW-3 in Natvarsinh Vakhatsinh Zala at Exh.20 and the witness has stated that he had gone along with the complainant and PW-2 Maheshbhai Rameshchandra Bhupatkar for checking and they had found that the accused was consuming electricity even though he was not a Page 10 of 15 Uploaded by F.S. KAZI(HC01075) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:05:12 IST 2025 NEUTRAL CITATION R/CR.A/1384/2012 JUDGMENT DATED: 03/04/2025 undefined consumer of UGVCL. The accused had placed a private electric cable and was directly running 7.5 HP motor in his field and the checking sheet and other documents were prepared at the spot. During the cross-examination, the witness has stated that the place where they had gone was a place which was in the ownership of some persons.
9.3. The prosecution has examined PW-4 Shamalbhai Sartanbhai Desai at Exh.21 and PW-5 Karansinh Madhusinh Zala at Exh.23 and both the witnesses are the panch witnesses of the place of offence, which is produced at Exh.22. The witnesses have not supported the case of the prosecution and have been declared hostile and in the lengthy cross-examination by the learned APP, nothing to support the case of the prosecution has come on record. During the cross-examination by the learned advocate for the accused, the witnesses have stated that they do not know whether the place where the theft of electricity was being done belonged to the accused and in the statement before the police, they have not stated the colour of the wire that was being used. That no motor was seized in their presence.
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NEUTRAL CITATION R/CR.A/1384/2012 JUDGMENT DATED: 03/04/2025 undefined 9.4. The prosecution has examined PW-6 Jagdishbhai Mohanbhai Valand at Exh.24 and the witness is the Investigating Officer, who has narrated the procedure undertaken by him during investigation. During the cross-examination by the learned advocate for the accused, the witness has stated that the place of incident is a field and there is a river nearby where a number of labourers were working in the field. That he has not recorded the statements of any labourers working around and no muddamal was seized by him during investigation. That during investigation, there was no evidence found that the place where the theft was taking place belong to the accused.
9.5. The prosecution has examined PW-7 Dahyabhai Hemabhai Solanki at Exh.27 and the witness is the P.S.O., G.E.B. Police Station, Sabarmati, who has registered the complaint on 28.12.2007.
10. On minute appreciation of the entire evidence of the prosecution, it is the case of the prosecution that on 09.02.2007, the complainant and his team had undertaken a checking exercise regarding the electricity connections in the outskirts of village Page 12 of 15 Uploaded by F.S. KAZI(HC01075) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:05:12 IST 2025 NEUTRAL CITATION R/CR.A/1384/2012 JUDGMENT DATED: 03/04/2025 undefined Vadod and they found the accused using electricity illegally, even though he was not a consumer and had committed theft of electricity of Rs.45,826.22/- by using a 7.5 HP motor. The offence has been committed on 09.02.2007 and the complaint has been filed by the complainant on 10.08.2007 i.e. after a delay of about six months, but there is no explanation regarding the delay in filing the complaint. The document produced at Exh.22 is the panchnama of place of offence, but it appears that the panchnama is for the offence registered at G.E.B. Police Station Sabarmati, Ahmedabad II-C.R.No.810 of 2007, II-C.R.No.811 of 2007 and II- C.R.No.812 2007 registered under section 135(1)(A) of the Act. In the entire evidence, there is nothing on record to suggest that the 7.5. HP motor that was being used by the accused to commit the theft of electricity has been seized by the Investigating Officer and there is no cable or wire seized, by which, the theft was taking place. The panchnama states that at the time of drawing of the panchnama, no theft of electricity was taking place and the panch witnesses were not aware about the survey numbers of the fields, in which, the theft of electricity had taken place. There is no evidence on record that the place that was checked was in the Page 13 of 15 Uploaded by F.S. KAZI(HC01075) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:05:12 IST 2025 NEUTRAL CITATION R/CR.A/1384/2012 JUDGMENT DATED: 03/04/2025 undefined ownership and possession of the accused and besides, the complainant examined at Exh.11, Junior Engineer examined at Exh.19 and the helper examined at Exh.20, no independent witnesses are examined by the prosecution to prove the case against the accused.
11. 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.
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12. The impugned judgment and the order dated 31.05.2012 in Special (Electricity) Case No.26 of 2009 passed by the learned Special Judge and Additional Sessions Judge, Gandhinagar is hereby confirmed.
13. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J) F.S.KAZI Page 15 of 15 Uploaded by F.S. KAZI(HC01075) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:05:12 IST 2025