Gujarat High Court
State Of Gujarat vs Parmar Rameshbhai Mohanbhai on 7 January, 2025
NEUTRAL CITATION
R/CR.A/1308/2008 JUDGMENT DATED: 07/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1308 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
PARMAR RAMESHBHAI MOHANBHAI
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Appearance:
MR. BHARGAV PANDYA, 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 : 07/01/2025
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 05.01.2008 in Special Electricity Case No.42 of 2007 passed by the learned Special Judge, Mehsana (hereinafter referred to as 'the learned Trial Court'), Page 1 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:41:27 IST 2025 NEUTRAL CITATION R/CR.A/1308/2008 JUDGMENT DATED: 07/01/2025 undefined whereby, the learned Trial Court has acquitted the respondent - accused from the offence punishable under Section 135(1) of the Indian 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. That complainant Rameshbhai Khemchandbhai Patel was working as a Deputy Engineer in UGVCL and on 11.11.2006, he along with Sureshkumar Ambalal Patel, Junior Engineer, had gone for checking to Village Maherwada, Taluka Unjha, District Mehsana. They found that accused Rameshbhai Mohanbhai Parmar had not taken an electricity connection for his house but, he had directly put a wire on the electricity line and was committing theft of electricity. The complainant and his team carried out the necessary procedure and gave a bill of Rs.9099.72/- and the complaint was filed at GEB Sabarmati Police Station under Section 135(1)(A) of the Act Page 2 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:41:27 IST 2025 NEUTRAL CITATION R/CR.A/1308/2008 JUDGMENT DATED: 07/01/2025 undefined on 13.12.2006, which was registered at II-C.R.No.1151 of 2006.
2.2. The Investigating Officer recorded the statement of the connected witnesses and arrested the accused and filed the charge sheet before the Court of learned Judicial Magistrate, First Class, Unjha and as the case was triable by the learned Sessions Court, a committal order under Section 209 of the Code was passed and the case was registered as Special Electricity Case No. 42 of 2007.
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. After the accused appeared before the learned Trial Court, a charge was framed by the learned Trial Court at Exh.7 and the statement of the accused was recorded at Exh.8, wherein, the accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record.Page 3 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:41:27 IST 2025
NEUTRAL CITATION R/CR.A/1308/2008 JUDGMENT DATED: 07/01/2025 undefined 2.4. The prosecution has examined three witnesses and has produced seven documentary evidences.
Oral Evidence:
Sr.No. PW Name Exh. 1 PW-1 Rameshbhai Khemchandbhai Patel 11 2 PW-2 Sureshbhai Ambalal Patel 16 3 PW-3 G.G.Goswami 17 Documentary Evidence: Sr.No. Particulars Exh. 1 Report of Investigation 12 2 Checking sheet 13 3 Electricity Bill 14 4 Annexure - G 15 5 Depute Order 18 6 Complaint 19 7 Muddamal Receipt 20
2.5. After the closing pursis was submitted by the learned APP at Exh.21, the further statement of the accused under Section 313 of the Code was recorded, wherein, the accused denied all the evidence of the prosecution and refused to step into the witness box or examine witnesses on his behalf and Page 4 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:41:27 IST 2025 NEUTRAL CITATION R/CR.A/1308/2008 JUDGMENT DATED: 07/01/2025 undefined stated that he is not a resident of village Maherwada Gram Panchayat, Taluka Unjha, District Mehsana and does not have a house or land in the area of village Maherwada Gram Panchayat, Taluka Unjha, District Mehsana. The accused has produced a certificate of the Sarpanch and Talati-cum- Mantri of Maherwada Gram Panchayat, Taluka Unjha, District Mehsana stating that the accused does not hold any land or house in village Maherwada, Taluka Unjha, District Mehsana. 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 Act.
3. Being aggrieved and dissatisfied with the impugned judgment and order of acquittal passed by the learned Trial Court, the appellant - State has filed the present appeal mainly stating that the impugned judgment and order of acquittal is based on inference not warranted by the facts of the case and on presumption not permitted by law. That the Page 5 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:41:27 IST 2025 NEUTRAL CITATION R/CR.A/1308/2008 JUDGMENT DATED: 07/01/2025 undefined learned Trial Court has not properly appreciated the oral as well as documentary evidences of the prosecution, wherein, it is crystal clear that the prosecution has proved the case beyond reasonable doubts. The learned Trial Court has committed an error in holding that there was no recovery of muddamal and no panchnama has been drawn in respect of recovery of the muddamal in the presence of the eye witnesses and the learned Trial Court has committed a grave error in holding that no independent witnesses have been examined by the prosecution. The reasons given by the learned Trial Court while acquitting the respondent are incorrect and the impugned judgment and order of acquittal is illegal, erroneous and contrary to the evidence and deserves to be quashed and set aside.
4. Heard learned APP Mr. Bhargav Pandya for the appellant -
State. Though served, the respondent - accused has not appeared either in-person or through an advocate.
5. Learned APP Mr.Bhargav Pandya has taken this Court through the entire evidence produced by the prosecution Page 6 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:41:27 IST 2025 NEUTRAL CITATION R/CR.A/1308/2008 JUDGMENT DATED: 07/01/2025 undefined and has submitted that the evidence of the complainant proves that a checking was conducted in village Maherwada on 11.11.2006, and at that time, it was found that the accused was committing theft of electricity, and accordingly, the necessary documents including the checking sheet were prepared, and after taking the approval, a bill of Rs.9099.72/- was given to the accused. Witness SureshkumarAmbalal Patel, who was working as a Junior Engineer at the time of raid, has deposed and has fully supported the case of the prosecution but, the learned Trial Court has not considered the evidence and has passed the impugned judgment and order of acquittal, which is required to be quashed and set aside.
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 Mallappa & Ors. Vs. State of Karnataka passed in Criminal Appeal No.1162 of 2011 on 12.02.2024, wherein, the Apex Court has observed in Para Nos. 24 to 26, as under:
Page 7 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:41:27 IST 2025
NEUTRAL CITATION R/CR.A/1308/2008 JUDGMENT DATED: 07/01/2025 undefined "24. We may firstly discuss the position of law regarding the scope of intervention in a criminal appeal. For, that is the foundation of this challenge. It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused, unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concretized when the case ends in acquittal. It is so because once the Trial Court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened and a higher threshold is expected to rebut the same in appeal.
25. No doubt, an order of acquittal is open to appeal and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to re-appreciate or re-visit the evidence on record. However, the power of the High Court to re-
appreciate the evidence is a qualified power, especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the Trial Court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the Trial Court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the Trial Court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity.
26. It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The 'two- views theory' has been judicially recognized by the Courts and it comes into play when the appreciation of evidence results into two equally plausible views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. And therefore, when two views are possible, following the one in favour of innocence of the accused is the safest course of action. Furthermore, it is also settled that if the view of the Trial Court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by reappreciating the evidence. If such a course is permissible, it would make it practically impossible to settle the rights and liabilities in the eyes of Page 8 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:41:27 IST 2025 NEUTRAL CITATION R/CR.A/1308/2008 JUDGMENT DATED: 07/01/2025 undefined law. In Selvaraj v. State of Karnataka3, "13. Considering the reasons given by the trial court and on appraisal of the evidence, in our considered view, the view taken by the trial court was a possible one. Thus, the High Court should not have interfered with the judgment of acquittal. This Court in Jagan M. Seshadri v. State of T.N. [(2002) 9 SCC 639] has laid down that as the appreciation of evidence made by the trial court while recording the acquittal is a reasonable view, it is not permissible to interfere in appeal. The duty of the High Court while reversing the acquittal has been dealt with by this Court, thus:
"9. ...We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those grounds. It has not done so. Salutary principles while dealing with appeal against acquittal have been overlooked by the High Court. If the appreciation of evidence by the trial court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside. The view taken by the learned trial court was a reasonable view and even if by any stretch of imagination, it could be said that another view was possible, that was not a ground sound enough to set aside an order of acquittal."" (emphasis supplied) In Sanjeev v. State of H.P., the Hon'ble Supreme Court analyzed the relevant decisions and summarized the approach of the appellate Court while deciding an appeal from the order of acquittal. It observed thus:
"7. It is well settled that:
7.1. While dealing with an appeal against acquittal, the reasons which had weighed with the trial court in acquitting the accused must be dealt with, in case the appellate court is of the view that the acquittal rendered by the trial court deserves to be upturned (see Vijay Mohan Singh v. State of Karnataka5, Anwar Ali v. State of H.P.) Page 9 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:41:27 IST 2025 NEUTRAL CITATION R/CR.A/1308/2008 JUDGMENT DATED: 07/01/2025 undefined 7.2. With an order of acquittal by the trial court, the normal presumption of innocence in a criminal matter gets reinforced (see Atley v. State of U.P.) 7.3. If two views are possible from the evidence on record, the appellate court must be extremely slow in interfering with the appeal against acquittal (see Sambasivan v. State of Kerala)."
7. In Para - 36, the Apex Court, in the case of Mallappa (Supra), has observed as under:
"36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as:
(i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive - inclusive of all evidence, oral or documentary;
(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;
(iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;
(v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;
(vi) In a case of reversal from acquittal to conviction, the Page 10 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:41:27 IST 2025 NEUTRAL CITATION R/CR.A/1308/2008 JUDGMENT DATED: 07/01/2025 undefined appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of 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 learned 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 Page 11 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:41:27 IST 2025 NEUTRAL CITATION R/CR.A/1308/2008 JUDGMENT DATED: 07/01/2025 undefined 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 must.
9. In light of the above evidence adduced by the prosecution is required to be re-appreciated and the prosecution has examined PW-1 Rameshbhai Khemchandbhai Patel Exh.11. This witness is the complainant and the Deputy Engineer, who had conducted the raid on 11.11.2006 at village Maherwada, Taluka Unjha, District Mehsana and he has produced the checking sheet at Exh.12, office note for approval at Exh.13, duplicate bill at Exh.14 and Annexure-G at Exh.15. The complainant had stated that he had filed the complaint on 11.11.2006 when he had gone to village Maherwada for checking and he had taken the signature of Mamtaben, daughter of the accused, on the checking sheet. Page 12 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:41:27 IST 2025
NEUTRAL CITATION R/CR.A/1308/2008 JUDGMENT DATED: 07/01/2025 undefined During the cross-examination, this witness has stated that he has no evidence to show that the house where the checking was conducted belonged to the accused, and at the time of checking, the accused or any other male members was not present. He has stated that he does not know the panchayat number of the house and no panchnama was prepared while they seized the wire from the place of checking. That after the muddamal wire was seized, it was not sealed and the muddamal wire was such that can be easily available in the market. That he had brought the muddamal with him when he came for giving deposition before the learned Trial Court but, he has no evidence to show that it was the same muddamal that was seized at the time of checking. 9.1. The prosecution has examined PW-2 Sureshkumar Ambalal Patel at Exh.16 and the witness was working as a Junior Engineer in the UGVCL at the time of checking. The witness has also stated that he had gone along with R.K.Patel, Deputy Engineer, and they found that the accused was committing theft of electricity by directly using the electricity Page 13 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:41:27 IST 2025 NEUTRAL CITATION R/CR.A/1308/2008 JUDGMENT DATED: 07/01/2025 undefined by joining wire in the electric wire and the necessary procedure was done in his presence. During the cross- examination, the witness has stated that they did not verify whether the accused had any house in village Maherwada and he has not produced any order from the head office regarding the checking procedure that was to be done at village Maherwada on that day.
9.2. The prosecution has examined PW-3 Govindgiri Ganpatgiri Goswami at Exh.17 and this witness is the Investigating Officer, who has recorded that statements of the Deputy Engineer and Junior Engineer and had given them a 'yadi' to take care of the muddamal. That he had arrested the accused and had filed the charge sheet before the learned Trial Court. During the cross-examination, this witness has admitted that no panchama of the place of offence has been drawn and the statement of Mamtaben, daughter of the accused, has not been recorded. That he has not inquired as to whether the house where the raid was conducted belonged to the accused and he has not recorded the statements of any Page 14 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:41:27 IST 2025 NEUTRAL CITATION R/CR.A/1308/2008 JUDGMENT DATED: 07/01/2025 undefined persons surrounding the house where the checking was conducted.
10. On re-appreciation of the entire evidence produced by the prosecution on record, there is no iota of evidence that the house where the raid was conducted by the complainant and the Junior Engineer belonged to the accused, and in fact, the accused has, in the further statement recorded under Section 313 of the Code, denied that the house belonged to him and he has produced the certificates of the Sarpanch and the Talati-cum-Mantri of Maherwada Gram Panchayat, Taluka Unjha, District Mehsana stating that the accused had no house or land in village Maherwada. The prosecution has not examined any independent witnesses, even though, as per the case of the prosecution, the raid was conducted in residential area where there was a lot of houses surrounding to the house of the accused but, no independent witnesses have been examined by the prosecution. The complainant has seized the muddamal wire but there is evidence on record that the wire is easily available in the market and no Page 15 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:41:27 IST 2025 NEUTRAL CITATION R/CR.A/1308/2008 JUDGMENT DATED: 07/01/2025 undefined panchnama of the house where the raid was conducted or the wire that was seized has been prepared and in the absence any independent evidence, it cannot be said that the prosecution has proved the case beyond reasonable doubts. The learned Trial Court has appreciated and discussed all the evidences and has concluded that the prosecution has not proved the case beyond reasonable doubts and the golden principle of criminal law that doubt, howsoever, strong cannot take the place of proof has been discussed and as the prosecution has not proved the case beyond reasonable doubts and has passed the impugned judgment and order of acquittal dated 05.01.2008 in Special Electricity Case No.42 of 2007.
11. On minute re-appreciation of the entire evidence of the prosecution and the impugned judgment and order, it appears that the learned Trial Court has thoroughly appreciated all the evidence on record and has given due consideration to all the material pieces of evidence. The learned Trial Court has discussed all the oral as well as Page 16 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:41:27 IST 2025 NEUTRAL CITATION R/CR.A/1308/2008 JUDGMENT DATED: 07/01/2025 undefined documentary evidences and if the evidence produced by the prosecution is examined in light of the law laid down by the Constitution Bench in the case of Mallappa (supra), it appears that the learned Trial Court has arrived at findings which are legal and proper and there are no errors of law or facts. Moreover, the view taken by the learned Trial Court in acquitting the accused is fairly possible and there is no illegality and perversity in the impugned judgment and order of acquittal.
12. In view of the settled position of law in the decisions of Mallappa (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 is of the considered opinion that the learned Trial Court was completely justified in acquitting the accused of the charges leveled against him. The findings recorded by the learned Trial Court are absolutely just and proper and no illegality or Page 17 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:41:27 IST 2025 NEUTRAL CITATION R/CR.A/1308/2008 JUDGMENT DATED: 07/01/2025 undefined 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.
13. The impugned judgment and order of acquittal dated 05.01.2008 in Special Electricity Case No.42 of 2007 passed by the learned Special Judge, Mehsana, is hereby confirmed.
14. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.
(S. V. PINTO,J) *F.S.KAZI Page 18 of 18 Uploaded by F.S. KAZI(HC01075) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:41:27 IST 2025