Gujarat High Court
State Of Gujarat vs Usmankhanji Sahidkhanji Dayma on 22 April, 2025
NEUTRAL CITATION
R/CR.A/1588/2012 JUDGMENT DATED: 22/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1588 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting No
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STATE OF GUJARAT
Versus
USMANKHANJI SAHIDKHANJI DAYMA
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Appearance:
MS. JIRGA JHAVERI, APP for the Appellant(s) No. 1
MR KARTIK I SONI(2519) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 22/04/2025
ORAL JUDGMENT
1. The appeal is filed by the appellant State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgement and order of acquittal passed by the learned Additional Sessions Judge and Special Judge, Narmada at Rajpipla (hereinafter referred to as "the learned Trial Court") in Special Electricity Case No. 2/2012 on 30.06.2012, whereby, the learned Trial Court has acquitted Page 1 of 15 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:28 IST 2025 NEUTRAL CITATION R/CR.A/1588/2012 JUDGMENT DATED: 22/04/2025 undefined the respondent for the offence punishable under Section 135(1) of The Indian Electricity Act, 2003. 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 brief facts that emerge from the record of the case are as under:
2.1 The accused was residing at village Vasan, Taluka Tilakwada, District Narmada and was not a consumer of the Dakshin Gujarat Vij Company Limited. On 10.10.2007, the complainant - Jaiprakash Dahyabhai Patel, Deputy Engineer, Tilakwada Sub-Division, Dakshin Gujarat Vij Company Limited and other staff members had gone for electricity checking and when they checked the house of the accused, even though the accused was not a consumer of electricity of Dakshin Gujarat Vij Company Limited, he had directly placed a wire on the electricity line and was consuming electricity by committing theft of electricity. After doing the necessary procedure at the place and preparing the Annexure A2 and Assessment Sheet, it was found that Page 2 of 15 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:28 IST 2025 NEUTRAL CITATION R/CR.A/1588/2012 JUDGMENT DATED: 22/04/2025 undefined the accused had committed theft of electricity to the tune of Rs. 15,371/-. A bill for the amount of theft of electricity was given to the accused but the amount was not paid and hence, the complainant - Jaiprakash Dahyabhai Patel, Deputy Engineer, Tilakwada Sub-Division filed a complaint at the Dakshin Gujarat Vij Company Limited Police Station, Varachha Road, Surat on 19.04.2008 which was registered at GUVNL Police Station, Surat II - C.R No. 753 of 2008 under Section 135(1A) of the Indian Electricity Act, 2003. 2.2 The Investigating Officer recorded the statements of the connected witnesses and seized the necessary documents and after completion of investigation, a charge-
sheet came to be filed before the learned Chief Judicial Magistrate, Rajpipla and as the said offences against the accused were exclusively triable by the Court of Sessions, the case was committed to the Special Court, Narmada at Rajpipla as per the provisions of Section 209 of Code of Criminal Procedure and the case was registered as Special Electricity Case No. 2/2012.
2.3 The accused was duly served with the summons and Page 3 of 15 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:28 IST 2025 NEUTRAL CITATION R/CR.A/1588/2012 JUDGMENT DATED: 22/04/2025 undefined 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 at Exh. 5 was framed against the accused and the statement of the accused was recorded at Exh. 6, wherein, the accused denied the contents of the charge and the entire evidence of the prosecution was taken on record.
2.4 The prosecution examined 6 witnesses and produced 6 documentary evidence and after the learned APP filed the closing pursis, the further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded, wherein, the accused denied all the evidence of the prosecution on record. After the arguments of the learned APP and the learned advocate for the accused were heard, the learned Trial Court by the impugned judgement and order was pleased to acquit the accused from the charges levelled against them.
3. Being aggrieved and dissatisfied with the judgement and order of acquittal, the appellant State has filed the Page 4 of 15 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:28 IST 2025 NEUTRAL CITATION R/CR.A/1588/2012 JUDGMENT DATED: 22/04/2025 undefined present appeal mainly stating that the learned Trial Court has not considered the oral and documentary evidences in proper perspective and has erred in holding that the prosecution has failed to prove the case beyond reasonable doubts. The learned Trial Court has not considered the evidences produced on record and even though there is nothing on record to prove the charge against the accused, the learned Trial Court has disbelieved the case of the prosecution. The prosecution has successfully established the case against the respondent and the judgement and order of acquittal is unwarranted, illegal and without any basis in the eyes of law and the reasons stated while acquitting the respondent are improper, perverse and bad in law and hence, the impugned judgement and order must be quashed and set aside.
4. Heard learned APP Ms. Jirga Jhaveri for the appellant State and learned advocate Mr. Kartik Soni for the respondent. Perused the impugned judgement and order of acquittal and have reappreciated the entire evidence of the prosecution on record of the case.
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5. Learned APP Ms. Jirga Jhaveri has taken this Court through the entire evidence of the prosecution on record of the case and has submitted that the complainant has fully supported the facts of his complaint. The impugned judgement and order is perverse and learned APP has urged this Court to quash and set aside the same and find the respondent guilty for the offences.
6. Learned advocate Mr. Kartik Soni for the respondent has submitted that the learned Trial Court has appreciated all the evidences and has passed the impugned judgement and order of acquittal which is just and proper and no interference is required in the same. Learned advocate for the respondents has urged this Court to reject the appeal of the appellants.
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 regarding the scope of interference in acquittal appeals in the case of Chandrappa Page 6 of 15 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:28 IST 2025 NEUTRAL CITATION R/CR.A/1588/2012 JUDGMENT DATED: 22/04/2025 undefined & Ors. Vs. State of Karnataka reported in 2007 (4) SCC 415, wherein, the Apex Court has observed as under:
Recently, in Kallu Vs. State of M.P. (2006) 10 SCC 313, 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".
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 Page 7 of 15 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:28 IST 2025 NEUTRAL CITATION R/CR.A/1588/2012 JUDGMENT DATED: 22/04/2025 undefined 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.
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8. The law with regard to acquittal appeals is well crystallized and in acquittal appeals, there is presumption of innocence in favour of the accused and it has finally culminated when a case ends in an acquittal. The learned Trial Court has appreciated all the evidence and when the learned Trial Court has come to a conclusion that the prosecution has not proved the case beyond reasonable doubts, the presumption of innocence in favour of the accused gets strengthened. There is no inhibition to re appreciate the evidence by the Appellate Court but if after re appreciation, the view taken by the learned Trial Court was a possible view, there is no reason for the Appellate Court to interfere in the same.
9. In light of the above settled principle of law, the evidence of the prosecution is dissected and the prosecution has examined PW1 - Jaiprakash Dahyabhai Patel at Exh. 14 and the witness is the complainant who has stated that on 10.10.2007, he along with other staff members had gone for night checking at Vasan Village and when they went to the house of the accused, Electricity Pole Page 9 of 15 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:28 IST 2025 NEUTRAL CITATION R/CR.A/1588/2012 JUDGMENT DATED: 22/04/2025 undefined No. TLKGRD/72/01/10 was near the house of the accused and the accused had placed a six metre long red-black-blue wire and had joined the main line and had directly taken the electricity and was using a two HP i.e. 1500 watt single- phase House Flour Mill and one 60 Watt bulb. There was no meter in the house and Junior Engineer - J.K. Tadvi and Helper - Praveenbhai M. Tadvi were present and they found that a load of 1560 watt was directly being used. The checking sheet was filled up which is produced at Exh. 15 wherein the load is shown. The bill produced at Exh. 16 was given to the accused and a notice to pay up the amount which is produced at Exh. 17 was also given. The accused did not pay up the amount and hence, the complaint produced at Exh. 18 was filed before the GUVNVL Police Station. During the cross-examination by the learned advocate for the accused, the witness has stated that they had gone to Vasan village for night checking on the date of incident between 07.00 pm to 7.30 pm. The electricity pole was in the street and the wire that Page 10 of 15 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:28 IST 2025 NEUTRAL CITATION R/CR.A/1588/2012 JUDGMENT DATED: 22/04/2025 undefined was seized is easily available in the market and is used by people for use in the house.
9.1 The prosecution has examined PW2 - Gajendra Kashiram Tadvi at Exh. 21 and the witness was working as a Junior Engineer along with the complainant on the date of the incident. The witness has stated that he, the complainant and Helper - Pravinbhai Tadvi had gone to the house of the accused and they had found him committing theft of electricity and a bill of Rs. 17,371/- was given to him. The complaint was filed by Jaiprakash Dahyabhai Patel Deputy Engineer. During the cross-examination by the learned advocate for the accused, the witness has stated that they had reached Vasan village at about 08.15 pm and they did not record the statements of any persons regarding the ownership of the house. The wire was about six metres long.
9.2 The prosecution has examined PW3 - Pravinbhai Manubhai at Exh. 22 and the witness was working as a Helper in the DGVCL at Tilakwada Substation. The witness has supported the case and during the cross-examination Page 11 of 15 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:28 IST 2025 NEUTRAL CITATION R/CR.A/1588/2012 JUDGMENT DATED: 22/04/2025 undefined by the learned advocate for the accused, the witness has stated that they had left the GEB office at around 07.30 pm and the complainant did not make any inquiry about the house of the accused and did not record the statements of any persons. That he does not know whom does the house belong to and in whose possession was the premises. His statement was recorded by the Surat Police at the Tilakwada Office and they had halted for about half an hour at Vasan village. The wire that was seized is easily available in the market and he does not know how many electricity poles are there in Vasan village.
9.3 The prosecution has examined PW4 - Zafarullah Sahibkhan Daima at Exh. 23 and PW5 - Dilawar Badarakha at Exh. 25. Both the witnesses are the panch witnesses of the panchnama of the place of offence which is produced at Exh. 24. Both the witnesses have not supported the case of the prosecution and have been declared hostile and have been cross-examined at length by the learned APP but the witnesses have merely stated that Page 12 of 15 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:28 IST 2025 NEUTRAL CITATION R/CR.A/1588/2012 JUDGMENT DATED: 22/04/2025 undefined they had merely affixed their signatures on the panchnama which is produced at Exh. 24.
9.4 The prosecution has examined PW6 - Arjunsingh Khumansinh Jadeja at Exh. 32 and the witness is the Investigating Officer who has narrated in detail the procedure undertaken by him during investigation. During the cross-examination by the learned advocate for the accused, the witness has stated that he has not written the number of the pole in the panchnama and in the complaint, it is stated that the accused was a consumer of GEB. That there was no evidence collected during investigation that the house belonged to the accused.
10. On reappreciation of the entire evidence of the prosecution, the prosecution has examined the complainant Jaiprakashbhai, Dahyabhai Patel, Junior Engineer - Gajendra Kashiram Tadvi and Helper Praveenbhai Manubhai Tadvi but all the witnesses have stated that there was no evidence that the house where they had gone for checking belonged to the accused. There is no document on record produced to show that the house Page 13 of 15 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:28 IST 2025 NEUTRAL CITATION R/CR.A/1588/2012 JUDGMENT DATED: 22/04/2025 undefined belonged to the accused and both the panch witnesses of the panchnama produced at Exh. 24 have turned hostile. Apparently, it seems that the place that was checked was located in a residential area and there would be a number of independent witnesses around but none of the independent witnesses have been examined before the learned Trial Court. There is no iota of evidence on record that the Deputy Engineer Jaiprakashbhai Dahyabhai Patel and his team members had gone to raid the place and had gone for checking at Vasan village, Tilakwada. The Investigating Officer has admitted that there was no evidence on record that the place where the offence has taken place was in the ownership and possession of the accused.
11. In view of the settled position of law in the decisions of Chandrappa (supra), 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 Page 14 of 15 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:28 IST 2025 NEUTRAL CITATION R/CR.A/1588/2012 JUDGMENT DATED: 22/04/2025 undefined 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 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.
12. The impugned judgement and order of acquittal passed by the learned Additional Sessions Judge and Special Judge, Narmada at Rajpipla in Special Electricity Case No. 2/2012 on 30.06.2012, is hereby confirmed.
13. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.
(S. V. PINTO,J) VASIM S. SAIYED Page 15 of 15 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 22:08:28 IST 2025