Gujarat High Court
State Of Gujarat vs Parmar Rameshbhai Mohanbhai on 7 January, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1308 of 2008
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
PARMAR RAMESHBHAI MOHANBHAI
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Appearance:
MR. BHARGAV PANDYA, 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 : 07/01/2025
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 05.01.2008 in Special Electricity Case
No.42 of 2007 passed by the learned Special Judge, Mehsana
(hereinafter referred to as 'the learned Trial Court'),
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whereby, the learned Trial Court has acquitted the
respondent - accused from the offence punishable under
Section 135(1) of the Indian 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. That complainant Rameshbhai Khemchandbhai Patel was
working as a Deputy Engineer in UGVCL and on 11.11.2006,
he along with Sureshkumar Ambalal Patel, Junior Engineer,
had gone for checking to Village Maherwada, Taluka Unjha,
District Mehsana. They found that accused Rameshbhai
Mohanbhai Parmar had not taken an electricity connection
for his house but, he had directly put a wire on the electricity
line and was committing theft of electricity. The complainant
and his team carried out the necessary procedure and gave a
bill of Rs.9099.72/- and the complaint was filed at GEB
Sabarmati Police Station under Section 135(1)(A) of the Act
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on 13.12.2006, which was registered at II-C.R.No.1151 of
2006.
2.2. The Investigating Officer recorded the statement of the
connected witnesses and arrested the accused and filed the
charge sheet before the Court of learned Judicial Magistrate,
First Class, Unjha and as the case was triable by the learned
Sessions Court, a committal order under Section 209 of the
Code was passed and the case was registered as Special
Electricity Case No. 42 of 2007.
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. After the accused appeared before the learned
Trial Court, a charge was framed by the learned Trial Court
at Exh.7 and the statement of the accused was recorded at
Exh.8, wherein, the accused denied all the contents of the
charge and the entire evidence of the prosecution was taken
on record.
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2.4. The prosecution has examined three witnesses and has
produced seven documentary evidences.
Oral Evidence:
Sr.No. PW Name Exh.
Documentary Evidence:
Sr.No. Particulars Exh.
2.5. After the closing pursis was submitted by the learned APP at
Exh.21, the further statement of the accused under Section
313 of the Code was recorded, wherein, the accused denied
all the evidence of the prosecution and refused to step into
the witness box or examine witnesses on his behalf and
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stated that he is not a resident of village Maherwada Gram
Panchayat, Taluka Unjha, District Mehsana and does not
have a house or land in the area of village Maherwada Gram
Panchayat, Taluka Unjha, District Mehsana. The accused has
produced a certificate of the Sarpanch and Talati-cum-
Mantri of Maherwada Gram Panchayat, Taluka Unjha,
District Mehsana stating that the accused does not hold any
land or house in village Maherwada, Taluka Unjha, District
Mehsana. 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) of the Act.
3. Being aggrieved and dissatisfied with the impugned
judgment and order of acquittal passed by the learned Trial
Court, the appellant - State has filed the present appeal
mainly stating that the impugned judgment and order of
acquittal is based on inference not warranted by the facts of
the case and on presumption not permitted by law. That the
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learned Trial Court has not properly appreciated the oral as
well as documentary evidences of the prosecution, wherein,
it is crystal clear that the prosecution has proved the case
beyond reasonable doubts. The learned Trial Court has
committed an error in holding that there was no recovery of
muddamal and no panchnama has been drawn in respect of
recovery of the muddamal in the presence of the eye
witnesses and the learned Trial Court has committed a grave
error in holding that no independent witnesses have been
examined by the prosecution. The reasons given by the
learned Trial Court while acquitting the respondent are
incorrect and the impugned judgment and order of acquittal
is illegal, erroneous and contrary to the evidence and
deserves to be quashed and set aside.
4. Heard learned APP Mr. Bhargav Pandya for the appellant -
State. Though served, the respondent - accused has not
appeared either in-person or through an advocate.
5. Learned APP Mr.Bhargav Pandya has taken this Court
through the entire evidence produced by the prosecution
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and has submitted that the evidence of the complainant
proves that a checking was conducted in village Maherwada
on 11.11.2006, and at that time, it was found that the accused
was committing theft of electricity, and accordingly, the
necessary documents including the checking sheet were
prepared, and after taking the approval, a bill of Rs.9099.72/-
was given to the accused. Witness SureshkumarAmbalal
Patel, who was working as a Junior Engineer at the time of
raid, has deposed and has fully supported the case of the
prosecution but, the learned Trial Court has not considered
the evidence and has passed the impugned judgment and
order of acquittal, which is required to be quashed and set
aside.
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 Mallappa & Ors. Vs. State of
Karnataka passed in Criminal Appeal No.1162 of 2011 on
12.02.2024, wherein, the Apex Court has observed in Para
Nos. 24 to 26, as under:
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"24. We may firstly discuss the position of law regarding the
scope of intervention in a criminal appeal. For, that is the
foundation of this challenge. It is the cardinal principle of
criminal jurisprudence that there is a presumption of
innocence in favour of the accused, unless proven guilty. The
presumption continues at all stages of the trial and finally
culminates into a fact when the case ends in acquittal. The
presumption of innocence gets concretized when the case
ends in acquittal. It is so because once the Trial Court, on
appreciation of the evidence on record, finds that the accused
was not guilty, the presumption gets strengthened and a
higher threshold is expected to rebut the same in appeal.
25. No doubt, an order of acquittal is open to appeal and there is
no quarrel about that. It is also beyond doubt that in the
exercise of appellate powers, there is no inhibition on the
High Court to re-appreciate or re-visit the evidence on
record. However, the power of the High Court to re-
appreciate the evidence is a qualified power, especially when
the order under challenge is of acquittal. The first and
foremost question to be asked is whether the Trial Court
thoroughly appreciated the evidence on record and gave due
consideration to all material pieces of evidence. The second
point for consideration is whether the finding of the Trial
Court is illegal or affected by an error of law or fact. If not,
the third consideration is whether the view taken by the Trial
Court is a fairly possible view. A decision of acquittal is not
meant to be reversed on a mere difference of opinion. What
is required is an illegality or perversity.
26. It may be noted that the possibility of two views in a
criminal case is not an extraordinary phenomenon. The 'two-
views theory' has been judicially recognized by the Courts
and it comes into play when the appreciation of evidence
results into two equally plausible views. However, the
controversy is to be resolved in favour of the accused. For,
the very existence of an equally plausible view in favour of
innocence of the accused is in itself a reasonable doubt in the
case of the prosecution. Moreover, it reinforces the
presumption of innocence. And therefore, when two views
are possible, following the one in favour of innocence of the
accused is the safest course of action. Furthermore, it is also
settled that if the view of the Trial Court, in a case of
acquittal, is a plausible view, it is not open for the High
Court to convict the accused by reappreciating the evidence.
If such a course is permissible, it would make it practically
impossible to settle the rights and liabilities in the eyes of
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law. In Selvaraj v. State of Karnataka3,
"13. Considering the reasons given by the trial court and
on appraisal of the evidence, in our considered view,
the view taken by the trial court was a possible one.
Thus, the High Court should not have interfered
with the judgment of acquittal. This Court in Jagan
M. Seshadri v. State of T.N. [(2002) 9 SCC 639] has
laid down that as the appreciation of evidence made
by the trial court while recording the acquittal is a
reasonable view, it is not permissible to interfere in
appeal. The duty of the High Court while reversing
the acquittal has been dealt with by this Court, thus:
"9. ...We are constrained to observe that the High
Court was dealing with an appeal against
acquittal. It was required to deal with
various grounds on which acquittal had been
based and to dispel those grounds. It has not
done so. Salutary principles while dealing
with appeal against acquittal have been
overlooked by the High Court. If the
appreciation of evidence by the trial court
did not suffer from any flaw, as indeed none
has been pointed out in the impugned
judgment, the order of acquittal could not
have been set aside. The view taken by the
learned trial court was a reasonable view and
even if by any stretch of imagination, it could
be said that another view was possible, that
was not a ground sound enough to set aside
an order of acquittal."" (emphasis supplied)
In Sanjeev v. State of H.P., the Hon'ble Supreme Court
analyzed the relevant decisions and summarized the
approach of the appellate Court while deciding an appeal
from the order of acquittal. It observed thus:
"7. It is well settled that:
7.1. While dealing with an appeal against acquittal, the
reasons which had weighed with the trial court in
acquitting the accused must be dealt with, in case the
appellate court is of the view that the acquittal
rendered by the trial court deserves to be upturned
(see Vijay Mohan Singh v. State of Karnataka5,
Anwar Ali v. State of H.P.)
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7.2. With an order of acquittal by the trial court, the
normal presumption of innocence in a criminal
matter gets reinforced (see Atley v. State of U.P.)
7.3. If two views are possible from the evidence on
record, the appellate court must be extremely slow in
interfering with the appeal against acquittal (see
Sambasivan v. State of Kerala)."
7. In Para - 36, the Apex Court, in the case of Mallappa (Supra),
has observed as under:
"36. Our criminal jurisprudence is essentially based on the
promise that no innocent shall be condemned as guilty. All
the safeguards and the jurisprudential values of criminal
law, are intended to prevent any failure of justice. The
principles which come into play while deciding an appeal
from acquittal could be summarized as:
(i) Appreciation of evidence is the core element of a
criminal trial and such appreciation must be
comprehensive - inclusive of all evidence, oral or
documentary;
(ii) Partial or selective appreciation of evidence may
result in a miscarriage of justice and is in itself a
ground of challenge;
(iii) If the Court, after appreciation of evidence, finds
that two views are possible, the one in favour of the
accused shall ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible
view, mere possibility of a contrary view shall not
justify the reversal of acquittal;
(v) If the appellate Court is inclined to reverse the
acquittal in appeal on a re-appreciation of evidence,
it must specifically address all the reasons given by
the Trial Court for acquittal and must cover all the
facts;
(vi) In a case of reversal from acquittal to conviction, the
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appellate Court must demonstrate an illegality,
perversity or error of law or fact in the decision of
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
learned 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 trial
Court has taken the view in favour of the accused, the
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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
must.
9. In light of the above evidence adduced by the prosecution is
required to be re-appreciated and the prosecution has
examined PW-1 Rameshbhai Khemchandbhai Patel Exh.11.
This witness is the complainant and the Deputy Engineer,
who had conducted the raid on 11.11.2006 at village
Maherwada, Taluka Unjha, District Mehsana and he has
produced the checking sheet at Exh.12, office note for
approval at Exh.13, duplicate bill at Exh.14 and Annexure-G
at Exh.15. The complainant had stated that he had filed the
complaint on 11.11.2006 when he had gone to village
Maherwada for checking and he had taken the signature of
Mamtaben, daughter of the accused, on the checking sheet.
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During the cross-examination, this witness has stated that he
has no evidence to show that the house where the checking
was conducted belonged to the accused, and at the time of
checking, the accused or any other male members was not
present. He has stated that he does not know the panchayat
number of the house and no panchnama was prepared while
they seized the wire from the place of checking. That after
the muddamal wire was seized, it was not sealed and the
muddamal wire was such that can be easily available in the
market. That he had brought the muddamal with him when
he came for giving deposition before the learned Trial Court
but, he has no evidence to show that it was the same
muddamal that was seized at the time of checking.
9.1. The prosecution has examined PW-2 Sureshkumar Ambalal
Patel at Exh.16 and the witness was working as a Junior
Engineer in the UGVCL at the time of checking. The witness
has also stated that he had gone along with R.K.Patel,
Deputy Engineer, and they found that the accused was
committing theft of electricity by directly using the electricity
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by joining wire in the electric wire and the necessary
procedure was done in his presence. During the cross-
examination, the witness has stated that they did not verify
whether the accused had any house in village Maherwada
and he has not produced any order from the head office
regarding the checking procedure that was to be done at
village Maherwada on that day.
9.2. The prosecution has examined PW-3 Govindgiri Ganpatgiri
Goswami at Exh.17 and this witness is the Investigating
Officer, who has recorded that statements of the Deputy
Engineer and Junior Engineer and had given them a 'yadi' to
take care of the muddamal. That he had arrested the accused
and had filed the charge sheet before the learned Trial Court.
During the cross-examination, this witness has admitted that
no panchama of the place of offence has been drawn and the
statement of Mamtaben, daughter of the accused, has not
been recorded. That he has not inquired as to whether the
house where the raid was conducted belonged to the
accused and he has not recorded the statements of any
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persons surrounding the house where the checking was
conducted.
10. On re-appreciation of the entire evidence produced by the
prosecution on record, there is no iota of evidence that the
house where the raid was conducted by the complainant and
the Junior Engineer belonged to the accused, and in fact, the
accused has, in the further statement recorded under Section
313 of the Code, denied that the house belonged to him and
he has produced the certificates of the Sarpanch and the
Talati-cum-Mantri of Maherwada Gram Panchayat, Taluka
Unjha, District Mehsana stating that the accused had no
house or land in village Maherwada. The prosecution has
not examined any independent witnesses, even though, as
per the case of the prosecution, the raid was conducted in
residential area where there was a lot of houses surrounding
to the house of the accused but, no independent witnesses
have been examined by the prosecution. The complainant
has seized the muddamal wire but there is evidence on
record that the wire is easily available in the market and no
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panchnama of the house where the raid was conducted or
the wire that was seized has been prepared and in the
absence any independent evidence, it cannot be said that the
prosecution has proved the case beyond reasonable doubts.
The learned Trial Court has appreciated and discussed all
the evidences and has concluded that the prosecution has
not proved the case beyond reasonable doubts and the
golden principle of criminal law that doubt, howsoever,
strong cannot take the place of proof has been discussed and
as the prosecution has not proved the case beyond
reasonable doubts and has passed the impugned judgment
and order of acquittal dated 05.01.2008 in Special Electricity
Case No.42 of 2007.
11. On minute re-appreciation of the entire evidence of the
prosecution and the impugned judgment and order, it
appears that the learned Trial Court has thoroughly
appreciated all the evidence on record and has given due
consideration to all the material pieces of evidence. The
learned Trial Court has discussed all the oral as well as
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documentary evidences and if the evidence produced by the
prosecution is examined in light of the law laid down by the
Constitution Bench in the case of Mallappa (supra), it
appears that the learned Trial Court has arrived at findings
which are legal and proper and there are no errors of law or
facts. Moreover, the view taken by the learned Trial Court in
acquitting the accused is fairly possible and there is no
illegality and perversity in the impugned judgment and
order of acquittal.
12. In view of the settled position of law in the decisions of
Mallappa (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 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
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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.
13. The impugned judgment and order of acquittal dated
05.01.2008 in Special Electricity Case No.42 of 2007 passed by
the learned Special Judge, Mehsana, is hereby confirmed.
14. Bail bond stands cancelled. Record and proceedings be sent
back to the concerned Trial Court forthwith.
(S. V. PINTO,J)
*F.S.KAZI
