Gujarat High Court
State Of Gujarat vs Rathod Jagdishbhai Kahubhai on 4 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 178 of 2013
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
RATHOD JAGDISHBHAI KAHUBHAI
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Appearance:
JIRGA JHAVERI, APP for the Appellant(s) No. 1
MS CHETNABEN JOSHI(2313) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 04/04/2025
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 27.09.2012 in Special Case (Electricity) No.9 of 2009
passed by the learned Special Judge and Additional Sessions
Judge, Anand (hereinafter referred to as 'the learned Trial Court'),
whereby, the learned Trial Court has acquitted the respondent
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from the offence punishable under Sections 135(1)(A) of the
Electricity Act, 2003 (hereinafter referred to as 'the Electricity Act').
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 relevant facts leading to filing of the present
appeal are as under:
2.1. On 21.03.2006, Deputy Engineers R.N.Parmar and
R.B.Ganava, along with other staff members of MGVCL had gone
for checking of electricity connections at village Rinza and had
checked the room in the possession of the accused situated near
the bus stand and found one welding machine, one bulb, one fan
and a thresher were being used. The accused was not a consumer
of MGVCL and they found the accused committing theft of
electricity. A yellow colour wire and a blue copper wire about 96
mtr. long and a wire 10.70 mtr. long were seized from the place of
offence and the calculation sheet was prepared as per the rules of
the MGVCL and a bill of theft of electricity of Rs.3,01,128.30/- was
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given to the accused. The accused did not pay up the amount, and
hence, the complaint was filed by Rameshbhai Valjibhai Ganava,
Deputy Engineer, MGVCL, Tarapur Sub Division before the G.E.B.
Police Station, Gotri, Vadodara, which came to be registered as
G.E.B Police Station, Vadodara I-C.R.No.191 of 2006 under section
135(1)(A) of the Electricity Act.
2.2. 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 which
culminated into Criminal Case No.1466 of 2009. 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, Anand and the same was registered as
Special Case (Electricity) No.9 of 2009.
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
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to the accused as per the provisions of Section 207 of the Code. A
charge was framed by the learned Trial Court at Exh.6 and the
statement of the accused was recorded at Exh.7, 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 07 witnesses and has produced 08 documentary
evidences in support of the case.
2.4. 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.
3. Being aggrieved and dissatisfied with the impugned
judgment and order passed by the learned Trial Court, the
appellant - State has filed the present appeal mainly stating that
the impugned judgment and order passed by the learned Trial
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Court is contrary to law, evidence on record. The learned Trial
Court has not properly appreciated the oral as well as
documentary evidence on record it its true spirit. The learned
Trial Court has not properly scrutinized and appreciated the
material and evidence on record which suggest that the
respondent has committed theft of the electricity illegally. The
learned Trial Court has failed to appreciate that the paramount
consideration of the Court is to ensure that miscarriage of justice
which may arise from acquittal of the guilt is not less than
conviction of an innocent and the order of acquittal has resulted in
a miscarriage of justice. The learned Trial Court has also
committed an error in arriving at the conclusion even though the
complainant and the prosecution witnesses have fully supported
the case of the prosecution. The learned Trial Court has erred in
acquitting the accused though there are ample and cogent
evidences to connect the accused with the crime and the offence
registered against him. The impugned judgment and order of
acquittal passed by the learned Trial Court is illegal, invalid,
improper, perverse and bad in law and the same deserves to be
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quashed and set aside.
4. Heard learned APP Ms.Dhwani Tripathi for the
appellant - State. Though served, the respondent has 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.
5. 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 learned
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
learned Trial Court has not considered the same and has acquitted
the accused. The judgment and order of acquittal passed by
learned Trial Court is contrary to law, evidence on record and
principles of justice. The judgment and order of acquittal passed
by the learned Trial Court is based on inferences, not warranted by
facts of the case and also on presumptions, not permitted by law.
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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.
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 Chandrappa & Ors. Vs. State of
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
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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.
(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.
7. 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
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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 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.
8. The prosecution has examined PW-1 Amarsang
Shivabhai Gohil at Exh.14 and the witness is the panch witness of
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the place of offence which is produced at Exh.15. The witness has
stated that on 09.05.2009, he had gone to the pan shop where the
police asked him to affix hissignature on a paper and he had
affixed his signature without reading the same. The police had
explained to him that the officers of the electricity board had given
a complaint and it was the panchnama and he does not know the
size of the room, which was near the pan shop and the panchnama
is produced at Exh.15. During the cross-examination by the
learned advocate for the accused, the witness has stated that as a
Sarpanch of the village, he has affixed his signatures many times
on many panchnamas. That at the time that he had affixed his
signature, the police had asked for his name and address and had
not asked for any other details.
8.1. The prosecution has examined PW-2 Rameshbhai
Valjibhai Ganava at Exh.18 and the witness is the complainant,
who has fully supported the contents of the complaint, which is
produced at Exh.19. During the cross-examination by the learned
advocate for the accused, the witness has stated that the place
where they had to go for checking is kept secret and the line staff
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members were also with them at the time of the checking. That
they had checked a number of places in the Tarapur Sub Division
on the date of the incident and they had gone to Kheda, Rinza,
Nabhoi, Pachhegam etc. for checking. That he does not remember
whose houses were checked on the date of the incident and every
electricity pole has a number mentioned on it. The complaint was
not filed on the date of the checking and the place was a single
room and the transformer was to the West of the room. The
transformer pole was about 8.00 mtr. High, and at the time of the
checking, the room was closed. The yellow wire was going
towards the field of the Dasubhai Popatbhai and he does not know
the survey number of the field of Dasubhai Popatbhai. The
number of the room, which is in the Gram Panchayat records, is
not mentioned in the complaint and the complaint does not
mention the pole number, from which, the theft of electricity was
taking place. That when they had gone for checking at the
transformer, the electricity supply was shut down and the
muddammal wires are easily available in the market. They did
not prepare any panchnama for the muddamal that was taken
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from the place of offence.
8.2. The prosecution has examined PW-3 Bhishma
Anantrai Vyas at Exh.28 and the witness was working as a Deputy
Engineer in the MGVCL, Petlad Division on 21.03.2006 and he had
gone along with Deputy Engineers R.N.Parmar, R.D.Solanki and
R.P.Ganava of Tarapur Sub Division to village Rinza and had
checked the place of Jagdishbhai Kahubhai Rathod. The witness
has stated that the place was a room and two wires were joined
through a pipe and yellow colour twin coated wires were joined to
the L.T. line pole and theft of electricity was being done. The
person was not a consumer of electricity and they had opened up
the room and found a 5HP welding machine, a 40 watt fan and
lamp and they had prepared the rojkam at the place of offence.
They had recorded the statement of Jagdishbhai Rathod, which is
produced at Exh.20. During the cross-examination by the learned
for the accused, the witness has stated that on the date of checking,
they had checked the number of electricity connections and they
have to prepare a list of the items used during checking. That they
also have to prepare a panchnama of the checking done at the
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place of offence and the wire, which was as the muddamal was
coming from the field of the Dasubhai Popatbhai. That they did
not take any evidence about the ownership of the room and in the
document produced at Exh.22, they have not mentioned the
instruments that were used at the time of the checking. That when
they had gone for checking, the room was closed.
8.3. The prosecution examined PW-4 Ramanbhai
Dahyabhai Solanki at Exh.29 and the witness was a member of the
checking party and was working as a Deputy Engineer in MGVCL.
The witness has supported the case of prosecution. During the
cross-examination by the learned advocate for the accused, the
witness has stated that when they had checked the room, there
was no document regarding the evidence of the ownership of the
room. The muddamal wires are easily available in the market and
when they had checked the room, it was closed. They did not
mention the name of the company of the welding machine in the
documents.
8.4. PW-5 Manilal Keshavlal Vankar examined at Exh.32
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was working as the P.S.I., Sayajiganj Police Station and on
03.04.2006, he was also working at G.E.B. Police Station, Gotri,
Vadodara on deputation and is the Investigating Officer, who has
stated that he has investigated the offence, and thereafter, had
handed over the further investigation to Police Inspector
J.V.Brahmbhatt, who has expired. During the cross-examination by
the learned advocate for the accused, the witness has stated that he
has not visited the place of incident and has not recorded the
statements of any independent witnesses. Witness Ramanbhai
Solanki has not stated that the welding machine was a 5HP
machine. During investigation, it was found that a yellow colour
wire was passing below the canal, but the same is not mentioned
in the panchnama produced at Exh.15. The statements of witnesses
do not mention the number of the electricity pole where the wire
was found and the muddammal wire is easily available in the
market. That the welding machine has not been seized during
investigation and the Gram Panchayat. number of the room is not
mentioned at any place and there is no evidence about the
ownership of the room.
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8.5. PW-6 Kalpeshbhai Tulsiram Patil examined at Exh.35
was working as P.S.O. in G.E.B. Police Station on 03.04.2006 when
the complainant had given a written complaint which was
registered at G.E.B.Police Station I-C.R.No.191 of 2006.
8.6. PW-7 Arjunbhai Hirabhai Chauhan examined at
Exh.38 is A.S.I, G.E.B. Police Station, who has filed the chargesheet
against the accused.
9. On minute appreciation of the entire evidence
prosecution, as per the case of the prosecution. the complainant
and other teammates had gone for checking to one room, but there
is no evidence regarding the ownership of the room and the
complainant and other witnesses have not mentioned the Gram
Panchayat number of the room or the number of the pole, from
which, the electricity was being stolen. As per the case of the
prosecution, the room was near the bus stand and there would be
a number of independent witnesses around, but no independent
witnesses have been examined. The complainant has stated that a
welding machine, a bulb and a fan were being used, but none of
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the gadgets have been seized as muddamal by the Investigating
Officer during investigation. Moreover, the checking was
conducted on 21.03.2006 and on that date, as per the evidence of
the complainant and other witnesses, they had checked the
connections in a number of villages in Kheda, Rinza, Nabhoi,
Pachhegam etc., but there is no evidence on record that the
complainant and others were authorized to check the electricity
connections and that they had gone for checking of the same.
Moreover, even though, the offence was committed on 21.03.2006,
the complaint has been filed on 03.04.2006 and there is no
explanation for the delay in filing of the complaint.
10. In view of the above, 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 them. The
findings recorded by the learned Trial Court are absolutely just
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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 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.
11. The impugned judgment and the order dated
27.09.2012 in Special Case (Electricity) No.9 of 2009 passed by the
learned Special Judge and Additional Sessions Judge, Anand is
hereby confirmed.
12. Bail bond stands cancelled. Record and proceedings be
sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J)
F.S. KAZI
