Gujarat High Court
State Of Gujarat vs Abubakar Ibrahim Saiyad on 15 April, 2025
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R/CR.A/168/2016 JUDGMENT DATED: 15/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO.168 of 2016
(AGAINST ACQUITTAL)
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
ABUBAKAR IBRAHIM SAIYAD
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Appearance:
MS DHWANI TRIPATHI, APP for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent No. 1
MR.WASIM M PATHAN(6802) for the Opponent(s)/Respondent No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 15/04/2025
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 27.10.2015 in Special (G.E.B.) Case No.260 of 2014
passed by the learned Special Judge and 3rd Additional Sessions
Judge, Jamnagar (hereinafter referred to as 'the Trial Court'),
whereby, the learned Trial Court has acquitted the respondent
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from the offence punishable under Sections 135 of the Electricity
Act, 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. The relevant facts leading to filing of the present
appeal are as under:
2.1. The accused Abubakar Ibrahim Saiyed was a consumer
of PGVCL and was given Electricity Consumer No.32207/02402/4.
On 03.03.2012, the officers of PGVCL including Deputy Engineer
J.B.Saxena went for checking at the residence of the accused
situated in Nehru Colony behind Jamnagar police line and found
that even though, the accused was a legal customer of PGVCL, he
had tapped into the main service line and with a yellow colour
wire and a 15 ampere switch and had directly tapped the main line
phase and joined it to the wiring of the house in such a way that
the meter was by-passed and the consumption of electricity would
not be recorded in the meter. The accused had used 3.450 watts of
electricity amounting to Rs.82,701.72/ and had committed a theft
of electricity, and hence, the complaint was filed by J.B.Saxena,
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Deputy Engineer, PGVCL before the GUVNL Police Station,
Rajkot on 01.11.2012 under Section 135 of the Electricity Act, which
was registered at GUVNL Rajkot Police Station at II-C.R.No.1237
of 2012.
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.8569 of 2013. 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
(G.E.B.) Case No.260 of 2014 .
2.3. The accused were duly served with the summons and
the accused appeared before the learned 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 and a charge was framed by the learned learned Trial Court
at Exh.7 and the statement of the accused was recorded at Exh.8,
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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 04 witnesses and has produced 08
documentary evidences in support of the case.
2.4. After the closing pursis was submitted by the learned
APP at Exh.25, 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 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 learned
Trial Court is contrary to law, evidence on record and principles of
natural justice. The learned learned learned Trial Court has
erroneously came to conclusion that the prosecution has failed to
establish its case beyond reasonable doubt. The learned learned
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Trial Court has not properly appreciated the oral as well as
documentary evidence on record it its true spirit. The learned
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 learned Trial Court has wrongly concluded that the
complaint has been filed at a belated stage and the prosecution has
failed to give plausible explanation with regard to the late filing of
the complaint. The learned learned 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 learned learned Trial Court is illegal,
invalid, improper, perverse and bad in law and the same deserves
to be quashed and set aside.
4. Heard learned APP Ms.Dhwani Tripathi for the
appellant - State. Though served the respondent, he has not
appeared either in person or through an advocate. Perused the
impugned judgment and order of acquittal and has re-appreciated
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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. 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 and 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:
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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 learned Trial
Court is based on evidence and the view taken is reasonable and
plausible. It will not reverse the decision of the learned 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
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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
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 learned Trial Court has
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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. In light of the above settled principles of law and in
acquittal appeals, the evidence produced by the prosecution on
record is appreciated and the prosecution has examined PW-1
Johnny Babulal Saxena at Exh.10 and the witness has stated that on
06.02.2012, he along with Junior Engineer Kanji Valji Dangar, Line
Staff B.D.Atri and Helper P.C.Vaidya had gone to the Nehrunagar
area for checking electricity connections and had gone to the house
of the accused and found the 1.8 mm wire of incoming service into
the meter was tapped and a 15 ampere switch was joined to the
wiring of the consumption of electricity of the house. That even
though the electricity connection was on, there was no reading in
the meter, and as a theft of electricity was being committed, the
service wire and switch were seized and sealed and the electricity
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connection of the consumer was disconnected. Checking sheet
No.2383 was prepared and the checking sheet was given to the
accused on the spot and the muddamal was deposited in the
office. The necessary calculations were done and the bill of theft of
electricity was prepared and was sent to the accused, but the bill
was not paid by the accused. After the sanction to file the
complaint was received, the witness had himself gone to the police
station and filed the complaint, which is produced at Exh.13. The
witness has also produced the rojkam at Exh.11, the FIR at Exh.12,
the approval letter of the Executive Engineer, City -1 Division,
Jamnagar at Exh.14, the bill of theft of Electricity at Exh.15,
Calculation Sheet at Exh.16 and the Consumption Details of the
Consumer at Exh.17. During the cross-examination by the learned
advocate for the accused, the witness had stated that they did not
take the police party with them for checking of electricity and he
did not check the house number or survey number and has not
mentioned the same in the checking sheet. That no documentary
evidence that the house, which was checked, belong to the accused
was seized. That he did not inform the police chowki about the
theft of electricity and did not inform the G.E.B Police Station,
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Rajkot regarding the theft of electricity. The wire and meter were
not seized in the presence of any independent witnesses and no
independent panch witnesses were called for the rojkam. No
photographs of the theft of electricity were taken and no
panchnama regarding the theft of electricity was drawn. The
complaint was filed on 01.11.2012 and in the complaint at Exh.13,
the date of checking is mentioned as 03.03.2012, but he did not go
for checking on 03.03.2012. That he did not mention the date of
checking as 06.02.2012 in the complaint and even in the checking
sheet produced at Exh.12, the date mentioned is 03.03.2012.
8.1. The prosecution has examined PW-2 Kanjibhai
Valjibhai Dangar at Exh.18 and the witness was a member of the
checking team along with the complainant at the time of the
incident. The witness has stated that on 06.02.2012, he had gone
along with the Deputy Engineer, Line Staff and Helper for
checking electricity connections and found the accused committing
theft to electricity at his residence. The witness has supported the
complainant and during the cross-examination, he has stated that
no checking had taken place on 03.03.2012 and they did not take
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the police party along with them at the time of checking. The
house number or the survey number, where the theft of electricity,
was taking place was not mentioned in the checking sheet and no
document to show that the place in which the checking had taken
place belonged to the accused was seized. The area was between
Bedi Police Chowki and Hanuman Police Chowki, but they did not
inform any police chowki about the theft of electricity and they did
not inform the G.E.B. Police Station Rajkot about the theft of
electricity. No signatures of any pancha witnesses were taken
when the wire and the switch were seized and no rojkam was
prepared in the presence of any independent panch witnesses.
The witness has categorically stated that they did not go for
checking on 03.03.2012.
8.2. The prosecution has examined PW-3 Iqbalbhai
Allahrakhabhai Shaikh at Exh.21 and the witness is the panch
witness of the panchnama of the place of offence, which is
produced at Exh.22. The witness has not supported the case of the
prosecution and has denied that he had gone to the house of the
accused and the panchama of the place of offence was drawn in
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his presence. The witness has been declared hostile and has been
cross-examined by the learned APP, but nothing to support the
case of the prosecution has common record.
8.3. PW-4 Rajendrasinh Bhagwatsinh Jadeja examined at
Exh.24 is the Investigating Officer, who has narrated the entire
procedure undertaken by him during investigation. During the
cross-examination by the learned advocate for the accused, the
witness has stated that he did not see any document regarding the
ownership of the place where the checking was undertaken. The
muddamal that was seized was not sealed and he has not
deposited the muddamal along with the chargesheet before the
learned trial Court. That when he had gone to visit the place of
incident, he did not find the muddamal and he did not verify the
muddamal wire along with the pole and the place where the theft
of electricity was taking place. That he did not record the
statements of any neighbours regarding the ownership of the place
where the theft was taking place.
9. On minute appreciation of the entire evidence of the
prosecution as per the complaint produced at Exh.13, the checking
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was done by the complainant and other team members on
03.03.2012, but in the entire evidence of the complainant and PW-2
Kanjibhai Valjibhai Dangar, the member of the checking team, the
checking was done on 06.02.2012. The complaint was filed on
01.11.2012 and there is no explanation regarding the long delay of
more than eight months in filing the complaint. The panchnama of
the place of offence was drawn by the Investigating Officer on
25.12.2012 and at the time of drawing the panchnama the meter
was not found. There is no evidence that the place where the
checking took place belonged to the accused and if the bill of theft
of electricity produced that Exh.15 is perused, the date on the bill
is 07.02.2012. There is no iota of evidence that the place that was
checked by the complainant and the other team members on
03.30.2012 was in the ownership of the accused and he had
committed theft of electricity.
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
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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
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
27.10.2015 in Special (G.E.B.) Case No.260 of 2014 passed by the
learned Special Judge and 3rd Additional Sessions Judge, Jamnagar
is hereby confirmed.
12. Bail bond stands cancelled. Record and proceedings be
sent back to the concerned learned Trial Court forthwith.
Sd/-
(S.V.PINTO,J)
F.S.KAZI
