Gujarat High Court
State Of Gujarat vs Rathod Jagdishbhai Kahubhai on 4 April, 2025
NEUTRAL CITATION
R/CR.A/178/2013 JUDGMENT DATED: 04/04/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 178 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
=============================================
Approved for Reporting Yes No
=============================================
STATE OF GUJARAT
Versus
RATHOD JAGDISHBHAI KAHUBHAI
=============================================
Appearance:
JIRGA JHAVERI, APP for the Appellant(s) No. 1
MS CHETNABEN JOSHI(2313) for the Opponent(s)/Respondent(s) No. 1
=============================================
CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 04/04/2025
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 27.09.2012 in Special Case (Electricity) No.9 of 2009 passed by the learned Special Judge and Additional Sessions Judge, Anand (hereinafter referred to as 'the learned Trial Court'), whereby, the learned Trial Court has acquitted the respondent Page 1 of 17 Uploaded by F.S. KAZI(HC01075) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:46:24 IST 2025 NEUTRAL CITATION R/CR.A/178/2013 JUDGMENT DATED: 04/04/2025 undefined from the offence punishable under Sections 135(1)(A) of the Electricity Act, 2003 (hereinafter referred to as 'the Electricity 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 21.03.2006, Deputy Engineers R.N.Parmar and R.B.Ganava, along with other staff members of MGVCL had gone for checking of electricity connections at village Rinza and had checked the room in the possession of the accused situated near the bus stand and found one welding machine, one bulb, one fan and a thresher were being used. The accused was not a consumer of MGVCL and they found the accused committing theft of electricity. A yellow colour wire and a blue copper wire about 96 mtr. long and a wire 10.70 mtr. long were seized from the place of offence and the calculation sheet was prepared as per the rules of the MGVCL and a bill of theft of electricity of Rs.3,01,128.30/- was Page 2 of 17 Uploaded by F.S. KAZI(HC01075) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:46:24 IST 2025 NEUTRAL CITATION R/CR.A/178/2013 JUDGMENT DATED: 04/04/2025 undefined given to the accused. The accused did not pay up the amount, and hence, the complaint was filed by Rameshbhai Valjibhai Ganava, Deputy Engineer, MGVCL, Tarapur Sub Division before the G.E.B. Police Station, Gotri, Vadodara, which came to be registered as G.E.B Police Station, Vadodara I-C.R.No.191 of 2006 under section 135(1)(A) of the Electricity Act.
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 which culminated into Criminal Case No.1466 of 2009. 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, Anand and the same was registered as Special Case (Electricity) No.9 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 Page 3 of 17 Uploaded by F.S. KAZI(HC01075) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:46:24 IST 2025 NEUTRAL CITATION R/CR.A/178/2013 JUDGMENT DATED: 04/04/2025 undefined to the accused as per the provisions of Section 207 of the Code. A charge was framed by the learned Trial Court at Exh.6 and the statement of the accused was recorded at Exh.7, 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 07 witnesses and has produced 08 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)(A) of the Electricity Act, 2003.
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 Page 4 of 17 Uploaded by F.S. KAZI(HC01075) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:46:24 IST 2025 NEUTRAL CITATION R/CR.A/178/2013 JUDGMENT DATED: 04/04/2025 undefined Court is contrary to law, evidence on record. The learned Trial Court has not properly appreciated the oral as well as documentary evidence on record it its true spirit. The learned Trial Court has not properly scrutinized and appreciated the material and evidence on record which suggest that the respondent has committed theft of the electricity illegally. The learned Trial Court has failed to appreciate that the paramount consideration of the Court is to ensure that miscarriage of justice which may arise from acquittal of the guilt is not less than conviction of an innocent and the order of acquittal has resulted in a miscarriage of justice. The learned Trial Court has also committed an error in arriving at the conclusion even though the complainant and the prosecution witnesses have fully supported the case of the prosecution. The learned Trial Court has erred in acquitting the accused though there are ample and cogent evidences to connect the accused with the crime and the offence registered against him. 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 Page 5 of 17 Uploaded by F.S. KAZI(HC01075) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:46:24 IST 2025 NEUTRAL CITATION R/CR.A/178/2013 JUDGMENT DATED: 04/04/2025 undefined quashed and set aside.
4. Heard learned APP Ms.Dhwani Tripathi for the appellant - State. Though served, the respondent 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 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 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. 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. Page 6 of 17 Uploaded by F.S. KAZI(HC01075) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:46:24 IST 2025
NEUTRAL CITATION R/CR.A/178/2013 JUDGMENT DATED: 04/04/2025 undefined 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. 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 Page 7 of 17 Uploaded by F.S. KAZI(HC01075) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:46:24 IST 2025 NEUTRAL CITATION R/CR.A/178/2013 JUDGMENT DATED: 04/04/2025 undefined 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.
(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.
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 Page 8 of 17 Uploaded by F.S. KAZI(HC01075) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:46:24 IST 2025 NEUTRAL CITATION R/CR.A/178/2013 JUDGMENT DATED: 04/04/2025 undefined 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. The prosecution has examined PW-1 Amarsang Shivabhai Gohil at Exh.14 and the witness is the panch witness of Page 9 of 17 Uploaded by F.S. KAZI(HC01075) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:46:24 IST 2025 NEUTRAL CITATION R/CR.A/178/2013 JUDGMENT DATED: 04/04/2025 undefined the place of offence which is produced at Exh.15. The witness has stated that on 09.05.2009, he had gone to the pan shop where the police asked him to affix hissignature on a paper and he had affixed his signature without reading the same. The police had explained to him that the officers of the electricity board had given a complaint and it was the panchnama and he does not know the size of the room, which was near the pan shop and the panchnama is produced at Exh.15. During the cross-examination by the learned advocate for the accused, the witness has stated that as a Sarpanch of the village, he has affixed his signatures many times on many panchnamas. That at the time that he had affixed his signature, the police had asked for his name and address and had not asked for any other details.
8.1. The prosecution has examined PW-2 Rameshbhai Valjibhai Ganava at Exh.18 and the witness is the complainant, who has fully supported the contents of the complaint, which is produced at Exh.19. During the cross-examination by the learned advocate for the accused, the witness has stated that the place where they had to go for checking is kept secret and the line staff Page 10 of 17 Uploaded by F.S. KAZI(HC01075) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:46:24 IST 2025 NEUTRAL CITATION R/CR.A/178/2013 JUDGMENT DATED: 04/04/2025 undefined members were also with them at the time of the checking. That they had checked a number of places in the Tarapur Sub Division on the date of the incident and they had gone to Kheda, Rinza, Nabhoi, Pachhegam etc. for checking. That he does not remember whose houses were checked on the date of the incident and every electricity pole has a number mentioned on it. The complaint was not filed on the date of the checking and the place was a single room and the transformer was to the West of the room. The transformer pole was about 8.00 mtr. High, and at the time of the checking, the room was closed. The yellow wire was going towards the field of the Dasubhai Popatbhai and he does not know the survey number of the field of Dasubhai Popatbhai. The number of the room, which is in the Gram Panchayat records, is not mentioned in the complaint and the complaint does not mention the pole number, from which, the theft of electricity was taking place. That when they had gone for checking at the transformer, the electricity supply was shut down and the muddammal wires are easily available in the market. They did not prepare any panchnama for the muddamal that was taken Page 11 of 17 Uploaded by F.S. KAZI(HC01075) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:46:24 IST 2025 NEUTRAL CITATION R/CR.A/178/2013 JUDGMENT DATED: 04/04/2025 undefined from the place of offence.
8.2. The prosecution has examined PW-3 Bhishma Anantrai Vyas at Exh.28 and the witness was working as a Deputy Engineer in the MGVCL, Petlad Division on 21.03.2006 and he had gone along with Deputy Engineers R.N.Parmar, R.D.Solanki and R.P.Ganava of Tarapur Sub Division to village Rinza and had checked the place of Jagdishbhai Kahubhai Rathod. The witness has stated that the place was a room and two wires were joined through a pipe and yellow colour twin coated wires were joined to the L.T. line pole and theft of electricity was being done. The person was not a consumer of electricity and they had opened up the room and found a 5HP welding machine, a 40 watt fan and lamp and they had prepared the rojkam at the place of offence. They had recorded the statement of Jagdishbhai Rathod, which is produced at Exh.20. During the cross-examination by the learned for the accused, the witness has stated that on the date of checking, they had checked the number of electricity connections and they have to prepare a list of the items used during checking. That they also have to prepare a panchnama of the checking done at the Page 12 of 17 Uploaded by F.S. KAZI(HC01075) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:46:24 IST 2025 NEUTRAL CITATION R/CR.A/178/2013 JUDGMENT DATED: 04/04/2025 undefined place of offence and the wire, which was as the muddamal was coming from the field of the Dasubhai Popatbhai. That they did not take any evidence about the ownership of the room and in the document produced at Exh.22, they have not mentioned the instruments that were used at the time of the checking. That when they had gone for checking, the room was closed. 8.3. The prosecution examined PW-4 Ramanbhai Dahyabhai Solanki at Exh.29 and the witness was a member of the checking party and was working as a Deputy Engineer in MGVCL. The witness has supported the case of prosecution. During the cross-examination by the learned advocate for the accused, the witness has stated that when they had checked the room, there was no document regarding the evidence of the ownership of the room. The muddamal wires are easily available in the market and when they had checked the room, it was closed. They did not mention the name of the company of the welding machine in the documents.
8.4. PW-5 Manilal Keshavlal Vankar examined at Exh.32 Page 13 of 17 Uploaded by F.S. KAZI(HC01075) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:46:24 IST 2025 NEUTRAL CITATION R/CR.A/178/2013 JUDGMENT DATED: 04/04/2025 undefined was working as the P.S.I., Sayajiganj Police Station and on 03.04.2006, he was also working at G.E.B. Police Station, Gotri, Vadodara on deputation and is the Investigating Officer, who has stated that he has investigated the offence, and thereafter, had handed over the further investigation to Police Inspector J.V.Brahmbhatt, who has expired. During the cross-examination by the learned advocate for the accused, the witness has stated that he has not visited the place of incident and has not recorded the statements of any independent witnesses. Witness Ramanbhai Solanki has not stated that the welding machine was a 5HP machine. During investigation, it was found that a yellow colour wire was passing below the canal, but the same is not mentioned in the panchnama produced at Exh.15. The statements of witnesses do not mention the number of the electricity pole where the wire was found and the muddammal wire is easily available in the market. That the welding machine has not been seized during investigation and the Gram Panchayat. number of the room is not mentioned at any place and there is no evidence about the ownership of the room.
Page 14 of 17 Uploaded by F.S. KAZI(HC01075) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:46:24 IST 2025
NEUTRAL CITATION R/CR.A/178/2013 JUDGMENT DATED: 04/04/2025 undefined 8.5. PW-6 Kalpeshbhai Tulsiram Patil examined at Exh.35 was working as P.S.O. in G.E.B. Police Station on 03.04.2006 when the complainant had given a written complaint which was registered at G.E.B.Police Station I-C.R.No.191 of 2006. 8.6. PW-7 Arjunbhai Hirabhai Chauhan examined at Exh.38 is A.S.I, G.E.B. Police Station, who has filed the chargesheet against the accused.
9. On minute appreciation of the entire evidence prosecution, as per the case of the prosecution. the complainant and other teammates had gone for checking to one room, but there is no evidence regarding the ownership of the room and the complainant and other witnesses have not mentioned the Gram Panchayat number of the room or the number of the pole, from which, the electricity was being stolen. As per the case of the prosecution, the room was near the bus stand and there would be a number of independent witnesses around, but no independent witnesses have been examined. The complainant has stated that a welding machine, a bulb and a fan were being used, but none of Page 15 of 17 Uploaded by F.S. KAZI(HC01075) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:46:24 IST 2025 NEUTRAL CITATION R/CR.A/178/2013 JUDGMENT DATED: 04/04/2025 undefined the gadgets have been seized as muddamal by the Investigating Officer during investigation. Moreover, the checking was conducted on 21.03.2006 and on that date, as per the evidence of the complainant and other witnesses, they had checked the connections in a number of villages in Kheda, Rinza, Nabhoi, Pachhegam etc., but there is no evidence on record that the complainant and others were authorized to check the electricity connections and that they had gone for checking of the same. Moreover, even though, the offence was committed on 21.03.2006, the complaint has been filed on 03.04.2006 and there is no explanation for the delay in filing of the complaint.
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 learned Trial Court are absolutely just Page 16 of 17 Uploaded by F.S. KAZI(HC01075) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:46:24 IST 2025 NEUTRAL CITATION R/CR.A/178/2013 JUDGMENT DATED: 04/04/2025 undefined 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 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 27.09.2012 in Special Case (Electricity) No.9 of 2009 passed by the learned Special Judge and Additional Sessions Judge, Anand is hereby confirmed.
12. 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 17 of 17 Uploaded by F.S. KAZI(HC01075) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:46:24 IST 2025