Gujarat High Court
State Of Gujarat vs Shamjibhai Naranbhai Hingrajiya on 4 April, 2025
NEUTRAL CITATION
R/CR.A/223/2013 JUDGMENT DATED: 04/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 223 of 2013
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
SHAMJIBHAI NARANBHAI HINGRAJIYA
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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 : 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 against the
judgement and order of acquittal passed by the learned Sessions Judge,
Khambhaliya (hereinafter referred to as "the learned Trial Court") in
Special (GEB) Case No. 23 of 2012 on 02-11-2012, whereby, the learned
Trial Court has acquitted the respondent for the offence punishable under
Section 135 of the Indian Electricity Act, 2003.
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1.1] The respondent is hereinafter referred to as "the accused" in
the rank and file as he stood in the original case for the sake of
convenience, clarity and brevity.
2. The brief facts that emerge from the record of the case are
as under:
2.1] On 07-05-2009, the complainant Kalpeshbhai
Bhagwanjibhai Kanani, Deputy Engineer, PGVCL had gone for checking
at the farm of the accused and found that the accused was not a consumer
of electricity and had taken an illegal connection by joining a cable wire
directly to the electric line and had taken the wire to a distance of about
250 meters in his farm and was running a 12.5 HP electric motor. The
necessary procedure was done and a bill of theft of electricity of
Rs.31,590.80/- was given to the accused but the accused did not pay the
amount of bill and hence a complaint was filed under Section 135 of the
Indian Electricity Act, 2003 against the accused, which was registered at
GEB Police Station, Rajkot Zone being II-C.R.No. 1765 of 2009.
2.2] The Investigating Officer recorded the statements of the
connected witnesses and collected the necessary documents and after
completion of investigation the police filed the charge-sheet against the
accused before the Court of Judicial Magistrate First Class,
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Khambhaliya, and as the said offences against the accused were
exclusively triable by the Court of Sessions, the case was committed to
the learned Sessions Judge, Khambhaliya as per the provisions of Section
209 of the Code of Criminal Procedure and the case was registered
Special (GEB) Case No. 246 of 2000.
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. A charge at Exh. 4 was
framed against the accused and the statement of the accused was
recorded at Exh. 5, wherein, the accused denied all the contents of the
charge and the entire evidence of the prosecution was taken on record.
2.4] The prosecution produced three oral evidences and ten
documentary evidences to bring home the charge against the accused and
after the learned Additional Public Prosecutor filed the closing pursis at
Exh.24, the further statement of the accused under Section 313 of the
Code of Criminal Procedure, 1973 were recorded, wherein, the accused
denied all the evidence of the prosecution on record. The accused refused
to step into the witness box or examine witnesses on their behalf and
stated that a false case has been filed against them. After the arguments
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of the learned Additional Public Prosecutor and the learned advocate for
the accused were heard, the learned trial Court by the impugned
judgment and order was pleased to acquit the accused from the charge
leveled against him.
3. Being aggrieved and dissatisfied with the said judgement
and order of acquittal, the appellant - State has filed the present appeal
mainly stating that the impugned judgement and order of acquittal passed
by the learned Trial Court is contrary to law and evidence on record and
the learned Trial Court has not appreciated the fact that all the witnesses
have supported the case of the prosecution and during cross-examination,
nothing adverse has been elicited in favour of the respondent. The case
has been proved beyond reasonable doubts and the prosecution has
successfully established the case against the respondent and the
judgement and order of acquittal is unwarranted, illegal and without any
basis in the eyes of law and the reasons stated while acquitting the
respondent are improper, perverse and bad in law. Hence the impugned
judgment and order passed by the learned Trial Court deserves to be
quashed and set aside.
4. Heard learned APP Ms. Dhwani Tripathi for the appellant
State. Though rule was served, the resondent has neither appeared in
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peron or through an advocate. Perused the impugned judgement and
order of acquittal and have reappreciated the entire evidence of the
prosecution on record of the case.
5. Learned APP Ms. Dhwani Tripathi has taken this Court through the
entire evidence of the prosecution on record of the case and has submitted
that the judgment and order of acquittal is contrary to law and evidence
on record and the learned trial Court has not appreciated the direct and
indirect evidence in the case. The prosecution has fully proved the case
beyond reasonable doubts but the learned trial Court has relied on minor
contradictions and has given undue weightage with regard to the place of
incident. The order passed by the learned trial Court is illegal, improper
and perverse and is required to be quashed and set aside and the appeal of
the appellant must be allowed.
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
acquittal appeals in the case of Chandrappa & Ors. Vs. State of
Karnataka reported in 2007 (4) SCC 415, wherein, the Apex Court has
observed as under:
Recently, in Kallu v. 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
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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.
(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..
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7. The law with regard to acquittal appeals is well crystallized and in
acquittal appeals, there is presumption of innocence in favour of the
accused and it has finally culminated when a case ends in an acquittal.
The learned Trial Court has appreciated all the evidence and when the
learned Trial Court has come to a conclusion that the prosecution has not
proved the case beyond reasonable doubts, the presumption of innocence
in favour of the accused gets strengthened. There is no inhibition to re
appreciate the evidence by the Appellate Court but if after re appre-
ciation, the view taken by the learned Trial Court was a possible view,
there is no reason for the Appellate Court to interfere in the same.
8. In light of the above settled principles of law, the evidence
on record of the case is appreciated and the prosecution has examined
Prosecution Witness No. 1 Kalpeshbhai Bhagwanjibhai Kanani at
Exhibit 11 and the witness is the complainant, who has filed the
complaint which is produced at Exhibit 17. The witness has stated that
on 07-05-2009, he was working as a Junior Engineer in the Jamjodhpur
(West) Sub Division when he and Assistant linesman Narendrabhai
Kanjibhai and other team members had gone to Jamjodhpur - 2 (West)
Sub Division area to Vansjalia village for checking the electricity
connection. They found the accused had taken a direct connection from
the line and was running a 12.5 HP motor illegally and was consuming
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electricity. They had prepared the checking rojkam and other documents
after the assessment a bill of Rs. Rs.31,590.80/- for theft of electricity
was given, which was not paid by the accused and hence the complaint
was filed in the GEB Police Station, Rajkot, which is produced at Exhibit
During the cross examination by the learned advocate for the
accused, the witness has stated that they had started the checking
procedure on 07-05-2009 and till the checking procedure was over, they
did not find the accused or his relatives at thet place of checking. No
panchnama was drawn and no muddamal was handed over to the
Investigating Officer. He did not receive any written instructions to go
for checking on 07-05-2009 and he had not taken the signature of any
panch witnesses in the checking sheet.
8.1 The prosecution has examined Prosecution Witness No. 2
Vallabhbhai, Popatbhai Vachhani at Exhibit 18 and the witness is the
panch-witness of the panchnama, which is produced at Exhibit 19. The
witness has stated that he was halted by the police and was asked to affix
his signature on some papers and he does not have any other knowledge
except identifying his signature. When he had affixed his signature, there
was no other person present beside him. The witness has not supported
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the case of the prosecution and has been cross-examined at length by the
learned APP but nothing to support the case of the prosecution has come
on record.
8.2 The prosecution has examined Prosecution Witness No. 3
Abbasbhai Hassanbhai Gadkai at Exhibit 20 and the witness is the
Investigating Officer, who has narrated the entire procedure that was
undertaken by him during investigation.
During the cross-examination by the learned advocate for the
accused, the witness has stated that he did not seize any muddamal
during investigation and he has not recorded the further statement of the
complainant. That he did not produce any muddamal along with the
charge sheet before the learned trial Court.
9. On minute perusal of the entire evidence of the prosecution, it has
come on record that as per the case of prosecution the checking of
electricity connection was conducted on 07-05-2009 and the written
complaint was sent by the complainant on 07-07-2009 to the GEP Police
Station. The written complaint which is produced at Exhibit 17 was sent
but the statement of the complainant was not recorded and it is the case of
the prosecution that the accused was using a 12.5 HP motor with a wire
about 250 meters long but no muddamal was seized by the Investigating
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Officer and produced before the learned Trial Court. The complainant is
the only witness, who was a member of the team examined before the
learned Trial Court and during the cross-examination, it has emerged that
there was no order given to the complainant for checking of electricity
connections on 07-05-2009. There is no iota of evidence on record that
the place that was checked belonged to the accused and there is no
evidence to connect the accused with the case. The panchnama produced
at Exhibit 19 states that there was no meter or switch-board at the time
when the panchnama was drawn on 26-08-2011 between 9.30 a.m. and
10:00 a.m. and there is no evidence on record that the accused had
committed any theft of electricity on the date of checking by the
complainant and other team members.
10. In view of the settled position of law in the decisions of
Chandrappa (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 extending benefit of doubt and 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 infirmity has
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been committed by the learned trial Court and this Court is in complete
agreement with the findings, ultimate conclusion and the resultant order
of extending benefit of doubt and 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.
11. The impugned judgement and order of acquittal passed by the
learned Sessions Judge, Khambhaliya in Special (GEB) Case No. 23 of
2012 on 02-11-2012 is hereby confirmed.
12. Bail bond stands cancelled. Record and proceedings be sent back to
the concerned Trial Court forthwith.
(S. V. PINTO,J)
VVM
