Gujarat High Court
State Of Gujarat vs Juvansingh Saybabhai Bariya on 26 June, 2025
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
NEUTRAL CITATION
R/CR.A/283/2010 JUDGMENT DATED: 26/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 283 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI Sd/-
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Approved for Reporting No Yes
No
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STATE OF GUJARAT
Versus
JUVANSINGH SAYBABHAI BARIYA & ANR.
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Appearance:
MS. MEGHA CHITALIA, APP for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 2
BAILABLE WARRANT UNSERVED for the Opponent(s)/Respondent(s) No. 1
MR. MAULIK M SONI(7249) for the Opponent(s)/Respondent(s) No. 2
UNSERVED EXPIRED (R) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 26/06/2025
ORAL JUDGMENT
1. This appeal is filed under Section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") challenging the judgment and order of acquittal recorded by Special Judge and 2 nd Additional Sessions Judge, Dahod dated 06.10.2009 passed in Special Case No. 6 of 2009, Page 1 of 10 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 22:07:37 IST 2025 NEUTRAL CITATION R/CR.A/283/2010 JUDGMENT DATED: 26/06/2025 undefined whereby respondent - accused came to be acquitted of the offences punishable under Section 379 read with Section 114 of the Indian Penal Code (hereinafter referred to as "IPC") as also under Section 136(1)(a)(b) of the Indian Electricity Act, 2003 (hereinafter referred to as "the Act"). 1.1 Endorsement on the cause-list shows that bailable warrant issued upon respondent No. 1 is unserved as expired. Therefore, appeal against accused No. 1 stands abated. 1.2 Endorsement on the cause-list is based on the report by the process server. Hence, this appeal is considered against respondent No. 2 alone, since it abated against respondent No. 1 herein.
2. As per the case of prosecution, in the night hours on 16.04.2007, some unknown persons committed theft of electric wires of the ownership of Madhya Gujarat Vij Company Ltd. from existing agricultural electric lines from Dangariya turning point to Mendra bus-stop, amounting Rs. 98,000/- and thereby, committed an offence under Sections 379 and 114 of the"IPC" as also under Section 136(1)(a)(b) of "the Act". 2.1 As it has come on record, the theft came to the notice of the office on 18.04.2007.
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NEUTRAL CITATION R/CR.A/283/2010 JUDGMENT DATED: 26/06/2025 undefined 2.2 It is further the case of the prosecution that, on 17.04.2007, Junior Engineer - Kamlesh Natwarbhai Sutariya went to village Bhular on a visit and returning therefrom, it is informed that from Dangariya turning upto the sim of village Bhular, electric wires from Electric Pole Nos. 56 to 63, 66 to 67 and 71 to 93 are broken. Therefore, first-informant and Junior Engineer - Kamleshbhai, along with staff, went to village Dangariya and it was found that there was theft of electric wire, approximately 3.705 Kms amounting to Rs. 98,000/-. Therefore, on 18.04.2017, a complaint in writing is addressed to the jurisdiction Police station.
2.3 The said complaint has come to be registered on 24.04.2007 against unknown persons. On registration thereof, the present respondents - accused thereof came to be arrested in connection with the present offence on 01.10.2007, but from the papers of investigation, though not deposed to before the Court by any witness, it is revealed that there are several offences of similar nature registered against the accused, as reflected from the panchnama Exhibit-9. However, panch witnesses to the said panchnama, though examined by the prosecution, have not supported the case of prosecution. Therefore, no cognizance thereof can be taken as neither of Page 3 of 10 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 22:07:37 IST 2025 NEUTRAL CITATION R/CR.A/283/2010 JUDGMENT DATED: 26/06/2025 undefined the witnesses, including even the Investigating Officer, has so stated before the Court.
2.4 Be that as it may, on conclusion of investigation, charge-sheet came to be filed against the accused. Since the offence was triable by the Court of Sessions, it came to be committed to it.
2.5 After framing of charge, the prosecution examined four witnesses and produced three documents, which includes discovery panchnama, complaint and scene of offence panchnama.
2.6 On conclusion of trial, further statement, under Section 313 of "the Code", of the accused came to be recorded and thereafter, on hearing the APP as also accused, learned Judge passed the aforesaid judgment and order of acquittal in favor of the respondent - accused, and that is how present appeal is filed challenging the same before this Court.
3. Heard Ms. Megha Chitalia, learned APP for the appellant - State as also Mr. Maulik M. Soni, learned advocate for respondent No. 2, since appeal against respondent No. 1 stood abated as he has expired, as endorsed by the Registry in the cause-list.
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NEUTRAL CITATION R/CR.A/283/2010 JUDGMENT DATED: 26/06/2025 undefined 3.1 Ms. Megha Chitalia, learned APP, submitted that prosecution has proved its case by leading evidence in the form of complainant as also the Investigating Officer. She has further submitted that only because panch witnesses have not supported the case of prosecution, panchnama Exhibit-9 cannot be said to have been not proved, as it can be proved through the deposition of the person, who drew that panchnama.
3.2 She has further submitted that here is a case of public property, theft of which is said to have been committed by the accused, and therefore, no lenient view should be taken against them. She has further submitted that this appeal requires to be allowed and accused are required to be punished suitably.
4. As against that, Mr. Maulik M. Soni, learned advocate for respondent No. 2, submitted that prosecution has failed to prove the case against the accused beyond reasonable doubt. Not only that, an FIR came to be filed against unknown persons, there are no eye-witness to the incident of committing theft, and therefore, it cannot be said that the accused committed the offence, as alleged against them.
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NEUTRAL CITATION R/CR.A/283/2010 JUDGMENT DATED: 26/06/2025 undefined 4.1 He has further submitted that though complainant claims that he was shown muddamal, which was like that electric wires of aluminum, there is no evidence brought on record that any muddamal was recovered from the accused and seized in this case. Therefore, he has submitted that there being no evidence to connect the accused with the present crime, the order of acquittal recorded by the learned Judge is required to be confirmed.
5. Having heard the learned APP as also learned advocate for the respondent No. 2 - accused, it is clear that, prima-facie, though accused were arrested in multiple offences of similar nature, the said factum has not been deposed to by any of the witnesses before the Court. However, Court cannot shut its eyes as to what is narrated in panchnama Exhibit-9 that accused were arrested in other offences of similar nature. Be that as it may, let me examine whether any evidence is led against accused, which requires this Court to interfere with the judgment and order of acquittal recorded by the learned Judge. 5.1 To prove the case, 4 witnesses are examined by the prosecution, out of which 2 witnesses are the panch-witnesses to the panchnama Exhibit-9, which is claimed to be a discovery of different places of offence from where theft of electric wires Page 6 of 10 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 22:07:37 IST 2025 NEUTRAL CITATION R/CR.A/283/2010 JUDGMENT DATED: 26/06/2025 undefined is said to have been committed. According to the case of prosecution, the said panchnama is drawn on 29.09.2007, starting from 4:15 p.m. to 8:00 p.m.. Surprisingly, without any explanation, in the present case, as per the Record and Proceedings, it is revealed that accused came to be arrested on 01.10.2007, i.e. if he is arrested on 01.10.2007, this panchnama Exhibit-9 could not have been drawn on 29.09.2007. Police Officer, who had drawn that panchnama, has not even bothered to state before the Court whether accused was arrested in connection with any other offence earlier or not.
5.2 He has further not bothered to state whether any muddamal is recovered from the accused and which may be a part of this offence or not. Therefore, in the present case, it appears that no muddamal of this case is either seized or recovered from any of the accused. Not only that, the manner and mode by which it is recovered or discovered and, that too, in presence of any independent witness or not, there appears no evidence at all.
5.3 On top of it, the FIR came to be filed against unknown persons. Neither the Investigating Officer nor even the complainant has bothered to state how and in what Page 7 of 10 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 22:07:37 IST 2025 NEUTRAL CITATION R/CR.A/283/2010 JUDGMENT DATED: 26/06/2025 undefined manner, accused are involved in this case as there are no eye- witness to the incident.
5.4 Over and above that, as admitted by the Investigating Officer - PW-4 - Parimal Somabhai Das, in his cross-examination that during the course of investigation, he had said that no names of any of the accused were revealed. At the same time, the theft of electricity was committed by some unknown persons. At the same time, he has further admitted that, from the statement of any witness also, no names of the accused are revealed. Thus, it is a mystery how and in what manner, names of the accused are revealed and they are arrested, that too, in connection with the present offence.
5.5 It is further surprising that, for different places of offence from where theft of electricity wires committed by panchnama drawn on 25.04.2007 at the instance of the complainant. Still however, surprisingly, the Investigating Officer has drawn Demonstration panchnama in the form of discovery of place of offence, which was already discovered 5 months back at the instance of the complainant. Therefore, even if panchas have supported the case of prosecution, and/or their panchnama is proved, it is not a reliable piece of Page 8 of 10 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 22:07:37 IST 2025 NEUTRAL CITATION R/CR.A/283/2010 JUDGMENT DATED: 26/06/2025 undefined evidence so as to believe that the place of offence, which was unknown and within the personal knowledge of the accused, could be discovered so as to have a connecting link against him. However, it is missing in the present case. 5.6 Since there are no eye-witnesses to the incident, during the course of investigation, from the statements of witnesses, no names of any of the accused is revealed, how Police reached the accused is not even bothered to be stated before the Court. However, it appears that, since there are several offences against them, they might have been arrested in connection with one offence and are being roped into the present offence as well. But there appears no evidence at all to connect the present respondent - accused with the crime even if the case pleaded by the complainant and the Investigating Officer is believed to be true.
6. Learned Judge has, while recording the judgment and order of acquittal, assigned good reasons, which I am unable to interfere with, that too, in an acquittal appeal, where even if two views are possible, the view, which is favorable to the accused and which is already taken, recording acquittal of them has to be accepted.
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NEUTRAL CITATION R/CR.A/283/2010 JUDGMENT DATED: 26/06/2025 undefined In view thereof, this appeal is without any merit, and therefore, it is hereby dismissed.
Record and Proceedings be sent back to the trial Court forthwith.
Sd/-
(UMESH A. TRIVEDI, J.) Raj Page 10 of 10 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Jun 30 2025 Downloaded on : Mon Jun 30 22:07:37 IST 2025