Gujarat High Court
State Of Gujarat vs Usmankhanji Sahidkhanji Dayma on 22 April, 2025
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R/CR.A/1588/2012 JUDGMENT DATED: 22/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1588 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting No
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STATE OF GUJARAT
Versus
USMANKHANJI SAHIDKHANJI DAYMA
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Appearance:
MS. JIRGA JHAVERI, APP for the Appellant(s) No. 1
MR KARTIK I SONI(2519) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 22/04/2025
ORAL JUDGMENT
1. The appeal is 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 Additional Sessions Judge and Special Judge,
Narmada at Rajpipla (hereinafter referred to as "the learned
Trial Court") in Special Electricity Case No. 2/2012 on
30.06.2012, whereby, the learned Trial Court has acquitted
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the respondent for the offence punishable under Section
135(1) of The Indian Electricity Act, 2003.
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 brief facts that emerge from the record of the case
are as under:
2.1 The accused was residing at village Vasan, Taluka
Tilakwada, District Narmada and was not a consumer of the
Dakshin Gujarat Vij Company Limited. On 10.10.2007, the
complainant - Jaiprakash Dahyabhai Patel, Deputy
Engineer, Tilakwada Sub-Division, Dakshin Gujarat Vij
Company Limited and other staff members had gone for
electricity checking and when they checked the house of the
accused, even though the accused was not a consumer of
electricity of Dakshin Gujarat Vij Company Limited, he had
directly placed a wire on the electricity line and was
consuming electricity by committing theft of electricity. After
doing the necessary procedure at the place and preparing
the Annexure A2 and Assessment Sheet, it was found that
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the accused had committed theft of electricity to the tune of
Rs. 15,371/-. A bill for the amount of theft of electricity was
given to the accused but the amount was not paid and
hence, the complainant - Jaiprakash Dahyabhai Patel,
Deputy Engineer, Tilakwada Sub-Division filed a complaint
at the Dakshin Gujarat Vij Company Limited Police Station,
Varachha Road, Surat on 19.04.2008 which was registered
at GUVNL Police Station, Surat II - C.R No. 753 of 2008
under Section 135(1A) of the Indian Electricity Act, 2003.
2.2 The Investigating Officer recorded the statements of
the connected witnesses and seized the necessary
documents and after completion of investigation, a charge-
sheet came to be filed before the learned Chief Judicial
Magistrate, Rajpipla and as the said offences against the
accused were exclusively triable by the Court of Sessions,
the case was committed to the Special Court, Narmada at
Rajpipla as per the provisions of Section 209 of Code of
Criminal Procedure and the case was registered as Special
Electricity Case No. 2/2012.
2.3 The accused was duly served with the summons and
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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. 5 was framed against the
accused and the statement of the accused was recorded at
Exh. 6, wherein, the accused denied the contents of the
charge and the entire evidence of the prosecution was taken
on record.
2.4 The prosecution examined 6 witnesses and produced 6
documentary evidence and after the learned APP filed the
closing pursis, the further statement of the accused under
Section 313 of the Code of Criminal Procedure, 1973 was
recorded, wherein, the accused denied all the evidence of
the prosecution on record. After the arguments of the
learned APP and the learned advocate for the accused were
heard, the learned Trial Court by the impugned judgement
and order was pleased to acquit the accused from the
charges levelled against them.
3. Being aggrieved and dissatisfied with the judgement
and order of acquittal, the appellant State has filed the
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present appeal mainly stating that the learned Trial Court
has not considered the oral and documentary evidences in
proper perspective and has erred in holding that the
prosecution has failed to prove the case beyond reasonable
doubts. The learned Trial Court has not considered the
evidences produced on record and even though there is
nothing on record to prove the charge against the accused,
the learned Trial Court has disbelieved the case of the
prosecution. 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 and hence, the impugned judgement and order must be
quashed and set aside.
4. Heard learned APP Ms. Jirga Jhaveri for the appellant
State and learned advocate Mr. Kartik Soni for the
respondent. Perused the impugned judgement and order of
acquittal and have reappreciated the entire evidence of the
prosecution on record of the case.
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5. Learned APP Ms. Jirga Jhaveri has taken this Court
through the entire evidence of the prosecution on record of
the case and has submitted that the complainant has fully
supported the facts of his complaint. The impugned
judgement and order is perverse and learned APP has urged
this Court to quash and set aside the same and find the
respondent guilty for the offences.
6. Learned advocate Mr. Kartik Soni for the respondent
has submitted that the learned Trial Court has appreciated
all the evidences and has passed the impugned judgement
and order of acquittal which is just and proper and no
interference is required in the same. Learned advocate for
the respondents has urged this Court to reject the appeal of
the appellants.
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 regarding the scope of
interference in acquittal appeals in the case of Chandrappa
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& Ors. Vs. State of Karnataka reported in 2007 (4) SCC
415, wherein, the Apex Court has observed as under:
Recently, in Kallu Vs. State of M.P. (2006) 10 SCC 313, 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".
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
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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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8. 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 appreciation, 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.
9. In light of the above settled principle of law, the
evidence of the prosecution is dissected and the
prosecution has examined PW1 - Jaiprakash Dahyabhai
Patel at Exh. 14 and the witness is the complainant who
has stated that on 10.10.2007, he along with other staff
members had gone for night checking at Vasan Village and
when they went to the house of the accused, Electricity Pole
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No. TLKGRD/72/01/10 was near the house of the accused
and the accused had placed a six metre long red-black-blue
wire and had joined the main line and had directly taken
the electricity and was using a two HP i.e. 1500 watt single-
phase House Flour Mill and one 60 Watt bulb. There was
no meter in the house and Junior Engineer - J.K. Tadvi and
Helper - Praveenbhai M. Tadvi were present and they found
that a load of 1560 watt was directly being used. The
checking sheet was filled up which is produced at Exh. 15
wherein the load is shown. The bill produced at Exh. 16
was given to the accused and a notice to pay up the
amount which is produced at Exh. 17 was also given. The
accused did not pay up the amount and hence, the
complaint produced at Exh. 18 was filed before the
GUVNVL Police Station. During the cross-examination by
the learned advocate for the accused, the witness has
stated that they had gone to Vasan village for night
checking on the date of incident between 07.00 pm to 7.30
pm. The electricity pole was in the street and the wire that
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was seized is easily available in the market and is used by
people for use in the house.
9.1 The prosecution has examined PW2 - Gajendra
Kashiram Tadvi at Exh. 21 and the witness was working as
a Junior Engineer along with the complainant on the date
of the incident. The witness has stated that he, the
complainant and Helper - Pravinbhai Tadvi had gone to the
house of the accused and they had found him committing
theft of electricity and a bill of Rs. 17,371/- was given to
him. The complaint was filed by Jaiprakash Dahyabhai
Patel Deputy Engineer. During the cross-examination by
the learned advocate for the accused, the witness has
stated that they had reached Vasan village at about 08.15
pm and they did not record the statements of any persons
regarding the ownership of the house. The wire was about
six metres long.
9.2 The prosecution has examined PW3 - Pravinbhai
Manubhai at Exh. 22 and the witness was working as a
Helper in the DGVCL at Tilakwada Substation. The witness
has supported the case and during the cross-examination
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by the learned advocate for the accused, the witness has
stated that they had left the GEB office at around 07.30 pm
and the complainant did not make any inquiry about the
house of the accused and did not record the statements of
any persons. That he does not know whom does the house
belong to and in whose possession was the premises. His
statement was recorded by the Surat Police at the
Tilakwada Office and they had halted for about half an hour
at Vasan village. The wire that was seized is easily available
in the market and he does not know how many electricity
poles are there in Vasan village.
9.3 The prosecution has examined PW4 - Zafarullah
Sahibkhan Daima at Exh. 23 and PW5 - Dilawar
Badarakha at Exh. 25. Both the witnesses are the panch
witnesses of the panchnama of the place of offence which is
produced at Exh. 24. Both the witnesses have not
supported the case of the prosecution and have been
declared hostile and have been cross-examined at length by
the learned APP but the witnesses have merely stated that
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they had merely affixed their signatures on the panchnama
which is produced at Exh. 24.
9.4 The prosecution has examined PW6 - Arjunsingh
Khumansinh Jadeja at Exh. 32 and the witness is the
Investigating Officer who has narrated in detail the
procedure undertaken by him during investigation. During
the cross-examination by the learned advocate for the
accused, the witness has stated that he has not written the
number of the pole in the panchnama and in the complaint,
it is stated that the accused was a consumer of GEB. That
there was no evidence collected during investigation that
the house belonged to the accused.
10. On reappreciation of the entire evidence of the
prosecution, the prosecution has examined the
complainant Jaiprakashbhai, Dahyabhai Patel, Junior
Engineer - Gajendra Kashiram Tadvi and Helper
Praveenbhai Manubhai Tadvi but all the witnesses have
stated that there was no evidence that the house where
they had gone for checking belonged to the accused. There
is no document on record produced to show that the house
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belonged to the accused and both the panch witnesses of
the panchnama produced at Exh. 24 have turned hostile.
Apparently, it seems that the place that was checked was
located in a residential area and there would be a number
of independent witnesses around but none of the
independent witnesses have been examined before the
learned Trial Court. There is no iota of evidence on record
that the Deputy Engineer Jaiprakashbhai Dahyabhai Patel
and his team members had gone to raid the place and had
gone for checking at Vasan village, Tilakwada. The
Investigating Officer has admitted that there was no
evidence on record that the place where the offence has
taken place was in the ownership and possession of the
accused.
11. 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
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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 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.
12. The impugned judgement and order of acquittal
passed by the learned Additional Sessions Judge and
Special Judge, Narmada at Rajpipla in Special Electricity
Case No. 2/2012 on 30.06.2012, is hereby confirmed.
13. Bail bond stands cancelled. Record and proceedings
be sent back to the concerned Trial Court forthwith.
(S. V. PINTO,J)
VASIM S. SAIYED
