State Of Gujarat vs Mahamadhusen Suleman Gajiya
2022 Latest Caselaw 10191 Guj

    R/CR.A/1400/2015                                CAV JUDGMENT DATED: 16/12/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 1400 of 2015


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN                                 Sd/-
==========================================================

1 Whether Reporters of Local Papers may be allowed NO to see the judgment ?

2      To be referred to the Reporter or not ?                             YES

3      Whether their Lordships wish to see the fair copy                   NO
       of the judgment ?

4      Whether this case involves a substantial question                   NO

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== STATE OF GUJARAT Versus MAHAMADHUSEN SULEMAN GAJIYA ========================================================== Appearance:

A R ROCKEY(7592) for the Opponent(s)/Respondent(s) No. 1 ADVOCATE NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1 KHUSHI P JADAV(7351) for the Opponent(s)/Respondent(s) No. 1 MR. HARDEEP L MAHIDA(7112) for the Opponent(s)/Respondent(s) No. 1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

Date : 16/12/2022

CAV JUDGMENT

1. Present Criminal Appeal is filed by the appellant - State of Gujarat being aggrieved by the judgement and order dated 14/09/2015 passed by the learned 5 th (Ad-hoc) Additional Sessions Judge, Jamnagar in Special (GEB) Case

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No.93 of 2014 whereby the learned Judge has acquitted the accused / respondent from the offence punishable under section 135 OF Indian Electricity Act 2003.

2. Brief case of the prosecution is that on 23.06.2004, Deputy Engineer Shri H.D. Vyas and Deputy Engineer Shri H.T. Jadeja along with Line Staff had visited the shop of Mahamadhusen Suleman Gajiya namely Edward Washing Company, who is a customer of Electricity Company bearing Customer No.32102/06510/3. As such, by using white colour wire from another customer No.32102/06519/7 by illegal connection, connecting load bypassing the meter, made a theft of electricity of Rs.96,287.40 paise. Therefore, complaint was filed before GEB Police Station, Rajkot vide CR No.II-916 of 2015 for the offence under section 135 of Indian Electricity Act, 2003.

3. Upon such FIR being filed, investigation started and the Investigating Officer has recorded statements of witnesses and produced documentary evidences. After completion of investigation, charge sheet was filed against the respondent for the offence in question, in the court of learned Judicial Magistrate, First Class, Jamnagar.

3.1 As the case was execlusively triable by the learned Special Judge, the learned Magistrate was pleased to commit the case to the Court of learned 5 th Additional

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Sessions Judge, Jamnagar, which was numbered as Special (GEB) Case No.93 of 2014.

4. The learned Sessions Judge before whom the case was committed, framed the Charge. The accused denied the contents of the charge. As a result, trial was conducted by the learned Special Judge. Further Statements of the accused under Section 313 of the Code of Criminal Procedure was recorded in which accused / respondent denied the charges and prayed for trial. Upon recording of the further statement of the accused, arguments were heard by the learned Special Judge and thereafter trial was resulted into acquittal of the respondent / accused from the charge levelled against him, as a result of which the present appeal is filed by the appellant - State of Gujarat.

5. Heard learned APP Ms. Asmita Patel for the appellant - State and learned advocate Mr. Hardeep L. Mahida for the respondent - original accused.

6. The learned APP has mainly contended that the learned Special Judge has erred in holding that the prosectuion has failed to prove its case beyond reasonabe doubt. The learned APP submitted that the impugned judgment of the trial Court is based on presumptions and inference and thereby, it is against the facts and the evidence on record. The learned APP further submitted that

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the learned Special Judge has failed to appreciate the evidence on record in its true and proper perspective and thereby, has erred in recording the acquittal of the respondent.

6.1 It is further submitted by the learned APP that learned Special Judge has committed a grave error in not believing the deposition of the witnesses examined by the prosecution. It is further submitted that the Special Judge has erred in acquitting the respondents - accused from the charge levelled against him and the learned Special Judge ought to have seen that there are direct and indirect evidence connecting respondent with the offence. It is further submitted that learned Special Judge without appreciating oral as well as documentary evidence on record of the case, straight way arrived at the conclusion that the prosecution has failed to prove its case beyond reasonable doubt for the alleged offence under section 135 of the Indian Electricity Act. It is further submitted that though the prosecution witnesses have supported the case of the prosecution, the learned Special Judge has not believed their evidence and acquitted the respondent - accused erroneously. She has requested to allow the present appeal.

7. On behalf of the respondents, Mr.Hardeep Mahida, learned advocate has submitted that there is hardly any substance in the submissions of learned APP. Further, the

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ownership of the place of occurrence is equally important which is not proved by the prosecution and therefore the learned advocate for the respondent has urged that the learned Special Judge has rightly awarded acquittal to the respondent accused.

7.1. Learned advocate for the respondent also submitted that there is no evidence on record connecting the accused with the commission of the offence. There are material contradictions and omissions in the evidence of the prosecution witnesses. The trial court has rightly appreciated the evidence on record and held that the prosecution has failed to prove the case against the respondent / accused beyond reasonable doubt and rightly acquitted the accused. He has requested to dismiss the present appeal.

8. Heard advocates for the respective parties and perused the impugned judgment and order of acquittal and re- appreciated the entire evidence on record.

9. Before adverting to the facts of the case, it would be worthwhile to refer to the scope in Acquittal Appeals. It is well settled by is catena of decisions that an appellate Court has full Power to review, re-appreciate and consider the Evidence upon which the Order of Acquittal is founded. However, the Appellate Court must bear in mind that in

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case of Acquittal, there is prejudice in favour of the Accused, firstly, the presumption of innocence is 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 reaffirmed and strengthened by the trial Court.

9.1 In Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka and Others, (2019) 2 SCC 752, the Apex Court has observed that,

"The presumption of innocence which is attached to every accused gets fortified and strengthened when the said accused is acquitted by the trial Court. Probably, for this reason, the law makers felt that when the appeal is to be filed in the High Court it should not be filed as a matter of course or as matter of right but leave of the High Court must be obtained before the appeal is entertained. This would not only prevent the High Court from being flooded with appeals but more importantly would ensure that innocent persons who have already faced the tribulation of a long drawn out criminal trial are not again unnecessarily dragged to the High Court".

9.2 Yet in another decision in Chaman Lal v. The State of Himachal Pradesh, rendered in Criminal Appeal No. 1229 of 2017 on 03.12.2020, 2020 SCC OnLine SC 988 the Apex Court has observed as under:

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"9.1 In the case of Babu v. State of Kerala, (2010) 9 SCC

189), this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observed and held as under:

12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P (2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC 731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S.

Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. State of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010) 2 SCC 445)

13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council observed as under: (IA p. 404) "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4)

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the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."

14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1, Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v. State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3 SCC 755)

15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under: (SCC p. 432, para 42)

"(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 emphasise 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 is available to him under the fundamental principle of criminal jurisprudence that every person

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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."

16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.

17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20) "20. ... an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."

18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include: (SCC p. 286, para 28) "(i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;

(ii) The High Court's conclusions are contrary to evidence and documents on record;

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(iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;

(iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;

(v) This Court must always give proper weight and consideration to the findings of the High Court;

(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal." A similar view has been reiterated by this Court in Dhanapal v. State (2009) 10 SCC 401.

19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."

10. In aforesaid backdrop, the re-appreciation of the evidence on record is as under:-

10.1 PW No.1 - complainant - Mr.Sanjay Lalataprasad Verma has been examined at Ex.6. He has reiterated the complaint in his examination in chief. He has admitted that checking of the place was carried on 23/06/2004 and the complaint was filed on 4/5/2005 which was registered on 23/12/2005. As per his admission, there is a delay of 1.1/2

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years in filing the complaint and there is no reason assigned by the complainant for belated lodging of the complaint. It is also admitted by the complainant that he has no personal knowledge about the incident. His statement was not recorded separately pertaining to the incident. He has not taken any sanction for filing the complaint. He has not informed the investigating agency for seizing the muddamal, no panchnama is carried out of the scene of offence before any independent panchas. He has also admitted that the inspecting officer has not collected any document regarding ownership of the premises. He has also admitted that in the checking-sheet - Column No.4, details of the ownership of the premises is to be mentioned, which is not mentioned in this case.

As such, considering the evidence of the complainant, he has no personal knowledge about the incident but he has filed the complaint on behalf of PGVCL. As per his admission, there is delay of 1.1/2 years for which no explanation has been made, which is fatal to the case of the prosecution.

10.2. PW No.2 Mr.Harshit Dilipbhai Vyas has been examined at Ex.10. He has admitted in his cross examination that during the checking, they had not carried out panchnama in presence of any panch nor they had recorded statement of any witness or have taken any

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photograph of the place. It is also stated that they have not taken permission of the higher authority. As such, the person who has been present at the time of checking, has only prepared checking-sheet, muddamal Meter and the Wires were seized and the report was sent to the Central Zone, Sub-Division, but it is apparently coming on record that during the time of checking, no independent panch witnesses were called for nor muddamal which was seized was seized through a panchnama. His statement is also recorded 1.1/2 years later from the date of incident. It is also admitted that he has not verified the details of the ownership of the premises at the time of checking.

10.3. PW No.3 Mr.Prahladrai Govindrai Valera - PSO has been examined at Ex.12. He is the person who has registered the complaint vide CR No.II-916/2005 and has handed over the investigation to Mr.P.K. Miyatra, who has carried out the investigation. It is admitted by the witness that the checking has taken place on 23/6/2004 and the complaint has been registered on 23/12/2005 and no reason was assigned for belated filing of the complaint. It is also admitted that nothing is mentioned in the complaint regarding seizure of the muddamal.

11. Considering the evidence on record, it has come out that the checking party has not taken any panchnama of the scene of offence nor any muddamal is seized by drawing

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panchnama to that effect nor in presence of any independent witness, nor statement of the independent persons who are having shops adjacent to the place of incident have been recorded by the checking party and also the complaint of the incident has been lodged after a delay of 1.1/2 years from the date of incident, for which no explanation has been tendered by the complainant. This Court is of the opinion that when a case of theft of electricity is alleged to have been occurred by the electricity Company, and when the checking is conducted, there should be panchnama of the scene of incident to clarify as to what was the position of the Wires and Meter and as to how the theft of electricity has been committed by the offender. Here, apparently panchnama is not drawn, though the muddamal Meter and the Wires are seized, no statement of the persons having shops nearby are recorded. The muddamal which was seized was sever sent to the police.

12. At this stage reference is required to be made to the decision of this Court in the case of State of Gujarat Vs. Jayendrasinh Motisinh Zala reported in 2012 (2) GCD 1110. Para 5 and 5.1 of the said decisions reads thus:

"5. The investigating officer admitted in his cross examination that there were number of residential houses located in vicinity of the house where checking was done, however, statement of none of

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such residents residing nearby was recorded. He admitted that Panchnama of the place was not carried out, nor the Muddamal wires etc. were recovered in presence of Panchas and even Panchnama was never drawn to show any such recovery...."

"5.1. Having due regard to the evidence discussed above, the prosecution case stands crippled not only with paucity of evidence, but can be said to have been crumbled by total dearth of evidence necessary to prove the offence. Firstly, neither Panchnama of the place / house where inspection was carried out was recorded nor was shown any recovery of wires / devices alleged to have been used for alleged theft of electricity and no recovery panchnama was done..."

12. This Court in the case of State of Gujarat vs. Bharatbhai Ramsangbhai Solanki (Pagi) reported in 2009 JX (Gujarat) 218 has observed and held as under:-

"We have gone through the judgement and order passed by the trial court. We have also perused the oral as well as documentary evidence led by the trial court and also considered the submissions made by the learned advocate for the appellant. The trial court has clearly recorded a finding that the panchnama was not proved and ownership of the house was also not proved. Not only that, the muddamal wires was not produced before the trial court. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt....."

13. Thus, considering the overall evidence on record and having due regard to the evidence on record, the prosecution has failed not only due to lack of evidence but

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necessary evidence to prove the case. On re-appreciation of the oral as well as documentary evidence and considering the legal position, it transpires that the prosecution has failed to proved the case beyond reasonable doubt inasmuch as the ingredients of the offence are not proved. Considering the overall oral as well as documentary evidence, the learned Special Judge has rightly acquitted the respondent accused, which in the opinion of this Court is not required to be interfered with, as the impugned judgement and order of acquittal is neither perverse nor arbitrary or illegal.

10. Considering the entire evidence on record oral as well as documentary, this Court is of the opinion that the prosecution has failed to prove the case against the accused by leading cogent and convincing evidence. The judgment delivered by the trial Judge is sound on the aspect of law and facts. The evidence brought on record by the prosecution before the trial court has been rightly appreciated by the trial court. No apparent error on the face of the record is found from the judgment. The judgment does not suffer any material defect or cannot be said to be contrary to the evidence recorded.

11. It may be noted that as per the settled legal position, when two views are possible, the judgment and order of acquittal passed by the trial Court should not be interfered with by the Appellate Court unless for the special reasons. A

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beneficial reference of the decision of the Supreme Court in the case of State of Rajasthan versus Ram Niwas reported in (2010) 15 SCC 463 be made in this regard. In the said case, it has been observed as under:-

"6. This Court has held in Kalyan v. State of U.P., (2001) 9 SCC 632 :

"8. The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the criminal jurisprudence prevalent in our country is further reinforced by his acquittal by the trial court. Normally the views of the trial court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial court is supposed to have watched the demeanour and conduct of the witness and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. In Kali Ram V. State of Himachal Pradesh, (1973) 2 SCC 808, this Court observed that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The Court further observed:

"27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiration. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of

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the innocent, of course, is always there in any system of the administration of criminal justice Such a risk can be minimised but not ruled out altogether It may in this connection be apposite to refer to the following observations of Sir Carleton Alien quoted on page 157 of "The Proof of Guilt" by Glanville Williams, second edition:

"I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos."

28. The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahebrao, (1973) 2 SCC 793, as is clear from the following observations:

"Certainly it is a primary principle that the accused must be and not merely, may be guilty before a court, can be convicted and the mental distinction between 'may be' and 'must be' is long and divides vague conjectures from sure considerations."

"9. The High Court while dealing with the appeals against the order of acquittal must keep in mind the following propositions laid down by this Court, namely, (i) the slowness of the appellate court to disturb a finding of fact; (ii) the noninterference with the order of acquittal where it is indeed only a case of taking a view different from the one taken by the High Court."

8. In Arulvelu and another versus State reported in (2009) 10 Supreme Court Cases 206, the Supreme Court after discussing the earlier judgments, observed in para No. 36 as under:

"36. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshaling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law."

11.1 As observed by the Hon'ble Supreme Court in the case

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of Rajesh Singh & Others vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court's interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.

12. Considering the aforesaid facts and circumstances of the case and law laid down by the Hon'ble Supreme Court while considering the scope of appeal under Section 378 of the Code of Criminal Procedure, no case is made out to interfere with the impugned judgment and order of acquittal.

13. In view of the above and for the reasons stated above, the judgment and order dated 14/09/2015 passed by the learned 5th (Ad-hoc) Additional Sessions Judge and Special Judge (Electricity), Jamnagar in Special (GEB) Case No.93 of 2014 recording acquittal of the respondent is hereby confirmed. The present Criminal Appeal stands dismissed. The judgement and order dated 14/09/2015 passed by the

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learned 5th (Ad-hoc) Additional Sessions Judge, Jamnagar in Special (GEB) Case No.93 of 2014 acquitting the accused / respondent from the offence punishable under section 135 OF Indian Electricity Act 2003, is hereby confirmed. Bail bond, if any, stands cancelled. R & P be sent back to the concerned trial Court, forthwith.

Sd/-

(RAJENDRA M. SAREEN,J) R.H. PARMAR