Gujarat High Court
State Of Gujarat vs Shitalsingh Mudsingh Zala on 3 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1384 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
SHITALSINGH MUDSINGH ZALA
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Appearance:
MS DHWANI TRIPATHI, 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 : 03/04/2025
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 31.05.2012 in Special (Electricity) Case No.26 of 2009
passed by the learned Special Judge and Additional Sessions
Judge, Gandhinagar (hereinafter referred to as 'the Trial Court'),
whereby, the Trial Court has acquitted the respondent from the
offence punishable under Sections 135(1)(A) of the Electricity Act,
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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. Though served, the respondent has not appeared
either in person or has not engaged any lawyer to make
submission on his behalf.
3. The relevant facts leading to filing of the present
appeal are as under:
3.1. The complainant Mohitkumar Sudhirchand Gandhi
was working as the Deputy Engineer, UGVCL, Sub-Division
Rakhiyal Taluka and District Gandhinagar on 09.02.2007 had gone
along with Junior Engineer, Mahesh Rameshchandra Bhupatkar
and other members with the staff for checking electricity
connections. They checked the electricity connections in the
outskirts of village Vadod, Taluka Dehgam, District Gandhinagar
and on checking the connection of the field of the accused, they
found that the accused had placed an illegal connection on the
L.T.Line T.C. and using electricity by applying a 7.5 H.P. motor.
The accused was caught committing theft of electricity to the tune
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of Rs.45,826.22/-, a bill of theft of electricity of Rs.45,826.22/- was
given to the accused, but the accused did not pay up the amount,
and hence, the complainant, Mohitkumar Sudhirchandra Gandhi
Deputy Engineer, UGVCL, Sub-Division Rakhiyal, Taluka and
District Gandhinagar, filed a complaint under section 135(a)(A) of
the Indian electricity Act, 2003, which was registered at G.E.B.
Police Station, Sabarmati, Ahmedabad II-CR No.812 of 2007 on
10.08.2007.
3.2. 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. 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 and the same was registered as
Special (Electricity) Case No.26 of 2009.
3.3. The accused were 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
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to the accused as per the provisions of Section 207 of the Code and
a charge was framed by the learned Trial Court at Exh.9 and the
statement of the accused was recorded at Exh.10, 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 the witnesses and has produced the documentary
evidences in support of the case.
3.4. 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.
4. Being aggrieved and dissatisfied with the impugned
judgment and order passed by the Trial Court, the appellant -
State has filed the present appeal mainly stating that the impugned
judgment and order passed by the Trial Court is contrary to law,
evidence on record and principles of justice. The prosecution has
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failed to prove the case beyond reasonable doubt. The Trial Court
has not properly appreciated the oral as well as documentary
evidence on record it its true spirit. The Trial Court has also
committed an error in arriving at the conclusion that though the
complainant and the prosecution witnesses have fully supported
the case of the prosecution and there are no material
contradictions, the Trial Court has acquitted the accused. The Trial
Court has erred in acquitting the accused though there are ample
and cogent evidence to connect the accused with the crime and the
offence registered against them. The impugned judgment and
order of acquittal passed by the Trial Court is illegal, invalid,
improper, perverse and bad in law and the same deserves to be
quashed and set aside.
5. Heard learned APP Ms.Dhwani Tripathi for the
appellant - State. Though served to the respondents, they have 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.
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6. 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 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 Trial
Court has not considered the same and has acquitted the accused.
The judgment and order of acquittal passed by learned Judge is
contrary to law, evidence on record and principles of justice. The
judgment and order of acquittal passed by Judge is based on
inferences, not warranted by facts of the case and also on
presumption, not permitted by law. 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.
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 in the case of Chandrappa & Ors. Vs. State of
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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
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.
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(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.
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 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
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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.
9. In light of the above, the evidence produced by the
prosecution on record is appreciated and the prosecution has
examined PW1 Mohitkumar Sudhirchandra Gandhi at Exh.11 and
the witness is the complainant, who has stated that on 09.02.2007,
he along with his staff members were conducting checking of
electricity connections in village Vadod and on checking the bore-
well of the accused, they found that the accused had taken an
illegal connection by placing a wire on the electricity connection
and was using 7.5 HP motor. That the checking sheet and other
documents were prepared and a bill of theft of Rs.45,826.22/- was
given to the accused, which was not paid, and hence, the
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complaint, which is produced at Exh.12 was filed by the
complainant. During the cross-examination by the learned
advocate for the accused, the witness has stated that he does not
know whether the place where the theft of electricity was being
done belonged to the accused and in his statement before the
police, he has not stated the length of the wire and the colour of
the wire that was used for the theft. That no motor was seized in
this offence.
9.1. The prosecution has examined PW-2 Maheshbhai
Rameshchandra Bhupatkar at Exh.19 and the witness was working
as the Junior Engineer on the date when the checking was done by
the complainant and other staff. The witness has supported the
case of the prosecution and has identified the documents
produced by the complainant.
9.2. The prosecution has examined PW-3 in Natvarsinh
Vakhatsinh Zala at Exh.20 and the witness has stated that he had
gone along with the complainant and PW-2 Maheshbhai
Rameshchandra Bhupatkar for checking and they had found that
the accused was consuming electricity even though he was not a
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consumer of UGVCL. The accused had placed a private electric
cable and was directly running 7.5 HP motor in his field and the
checking sheet and other documents were prepared at the spot.
During the cross-examination, the witness has stated that the place
where they had gone was a place which was in the ownership of
some persons.
9.3. The prosecution has examined PW-4 Shamalbhai
Sartanbhai Desai at Exh.21 and PW-5 Karansinh Madhusinh Zala
at Exh.23 and both the witnesses are the panch witnesses of the
place of offence, which is produced at Exh.22. The witnesses have
not supported the case of the prosecution and have been declared
hostile and in the lengthy cross-examination by the learned APP,
nothing to support the case of the prosecution has come on record.
During the cross-examination by the learned advocate for the
accused, the witnesses have stated that they do not know whether
the place where the theft of electricity was being done belonged to
the accused and in the statement before the police, they have not
stated the colour of the wire that was being used. That no motor
was seized in their presence.
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9.4. The prosecution has examined PW-6 Jagdishbhai
Mohanbhai Valand at Exh.24 and the witness is the Investigating
Officer, who has narrated the procedure undertaken by him
during investigation. During the cross-examination by the learned
advocate for the accused, the witness has stated that the place of
incident is a field and there is a river nearby where a number of
labourers were working in the field. That he has not recorded the
statements of any labourers working around and no muddamal
was seized by him during investigation. That during investigation,
there was no evidence found that the place where the theft was
taking place belong to the accused.
9.5. The prosecution has examined PW-7 Dahyabhai
Hemabhai Solanki at Exh.27 and the witness is the P.S.O., G.E.B.
Police Station, Sabarmati, who has registered the complaint on
28.12.2007.
10. On minute appreciation of the entire evidence of the
prosecution, it is the case of the prosecution that on 09.02.2007, the
complainant and his team had undertaken a checking exercise
regarding the electricity connections in the outskirts of village
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Vadod and they found the accused using electricity illegally, even
though he was not a consumer and had committed theft of
electricity of Rs.45,826.22/- by using a 7.5 HP motor. The offence
has been committed on 09.02.2007 and the complaint has been
filed by the complainant on 10.08.2007 i.e. after a delay of about six
months, but there is no explanation regarding the delay in filing
the complaint. The document produced at Exh.22 is the
panchnama of place of offence, but it appears that the panchnama
is for the offence registered at G.E.B. Police Station Sabarmati,
Ahmedabad II-C.R.No.810 of 2007, II-C.R.No.811 of 2007 and II-
C.R.No.812 2007 registered under section 135(1)(A) of the Act. In
the entire evidence, there is nothing on record to suggest that the
7.5. HP motor that was being used by the accused to commit the
theft of electricity has been seized by the Investigating Officer and
there is no cable or wire seized, by which, the theft was taking
place. The panchnama states that at the time of drawing of the
panchnama, no theft of electricity was taking place and the panch
witnesses were not aware about the survey numbers of the fields,
in which, the theft of electricity had taken place. There is no
evidence on record that the place that was checked was in the
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ownership and possession of the accused and besides, the
complainant examined at Exh.11, Junior Engineer examined at
Exh.19 and the helper examined at Exh.20, no independent
witnesses are examined by the prosecution to prove the case
against the accused.
11. In view of the above, the 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 Trial Court has appreciated
all the evidence and this Court is of the considered opinion that
the Trial Court was completely justified in acquitting the accused
of the charges leveled against them. The findings recorded by the
Trial Court are absolutely just and proper and no illegality or
infirmity has been committed by the 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.
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12. The impugned judgment and the order dated
31.05.2012 in Special (Electricity) Case No.26 of 2009 passed by the
learned Special Judge and Additional Sessions Judge,
Gandhinagar is hereby confirmed.
13. Bail bond stands cancelled. Record and proceedings be
sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J)
F.S.KAZI
