Gujarat High Court
State Of Gujarat vs Fakirbhai Motibhai Sipai on 25 July, 2025
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R/CR.A/1310/2012 JUDGMENT DATED: 25/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1310 of 2012
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
FAKIRBHAI MOTIBHAI SIPAI
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Appearance:
MS.C.M.SHAH, APP for the Appellant(s) No. 1
MR AM BHATASARA(5846) for the Opponent(s)/Respondent(s) No. 1
MR.ROHAN MAJMUDAR, ADVOCATE for MR NK MAJMUDAR(430) for the
Opponent(s)/Respondent(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 : 25/07/2025
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 impugned
judgment and the order passed by the learned Special Judge, Patan
(hereinafter referred to as 'the Trial Court') in Special (Electricity)
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Case No.7 of 2008 order dated 28.05.2012, whereby, the learned
Trial Court has acquitted the respondent from the offence
punishable under Sections 135(1)(A) of the Electricity Act, 2003
(hereinafter referred to as 'the 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 21-11-2006, at around 15:30 hours, the officers of
the Uttar Gujarat Vij Company Limited,(hereinafter referred to as
"UGVCL") and other staff members had gone for checking at
village Ranaud at the residence of the accused and the accused
was not a consumer of electricity, but had directly joined 1/18
wire, which was in black color to the low tension line and had
illegally joined the electricity connection and had taken the other
end of the wire to the main switch in his house and was using 1600
watts of electricity. After the necessary procedure was conducted
by the officers, it was found that the accused had committed theft
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of electricity of Rs.14,816/- and the complainant Ghanshyambhai
Kamjibhai Baranda filed the complaint under Section 135(1) of the
Act at the Sabarmati Police Station, which came to be registered as
Sabarmati Police Station II-CR No. 1099 of 2006 on 30.11.2006.
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. 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 (Electricity) Case No. 07 of 2008.
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 and
a charge was framed by the learned Trial Court at Exh.26 and the
statement of the accused was recorded at Exh.27, wherein, the
accused denied all the contents of the charge and the entire
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evidence of the prosecution was taken on record. The prosecution
has examined 04 witnesses and has produced 09 documentary
evidences in support of the case.
2.4. After the closing pursis was submitted by the learned
APP at Exh.43, the further statement of the accused under Section
313 of the Code was recorded wherein the accused denied the
evidence and refused to step into the witness box and lead
evidence. 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 Act.
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
Court is contrary to law, evidence on record and principles of
justice. The learned Trial Court has erred in acquitting the accused
though there are ample and cogent evidence to connect the
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accused with the crime and the offence registered against him. 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 erroneously came to the conclusion that the
prosecution has failed to prove the case beyond reasonable doubt.
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 quashed and set aside.
4. Heard learned APP Ms.C.M.Shah for the appellant -
State and learned advocate Mr.Rohan Majmudar for learned
advocate Mr.N.K.Majmudar for the respondent No.2. 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.C.M.Shah 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
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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 impose maximum
sentence on the accused.
6. Learned advocate Mr.Rohan Majmudar for the
respondent - original accused has submitted that the learned Trial
Court has appreciated all the evidence in true perspective and has
not committed any error in acquitting the accused. Therefore, no
interference of this Court is required in the impugned judgment
and the order of acquittal passed by the learned Trial Court and
has urged this Court to reject the appeal.
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. PW-1 Kantibhai Chhaganbhai Patel examined at Exh.28 has
stated that he had gone on 21.11.2006 along with Deputy Engineer
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Baranda and staff members for checking at village Ranaud and
they found the accused committing theft of electricity. The witness
has mainly supported the case of the prosecution, but during the
cross-examination, he has admitted that the accused had assaulted
him with a stick and he had fallen down and he was thereafter
seated in the jeep and no procedure was undertaken after that.
When they went to the place of incident, they saw the wire and
they had taken down the wire and he was assaulted with a stick,
and besides this, no other procedure was undertaken by them.
8.1. PW-2 Ghanshyambhai Kamjibhai Baranda examined at
Exh.29 is the complainant, who was working a Deputy Engineer in
UGVCL, Sami Sub Division and on 21-11-2006, he had gone along
with line staff K.C.Patel, V.D. Parmar and M.N. Varan in a rented
jeep, and when they had gone to village Ranaudat the house of the
accused, they found that he was committing theft of electricity.
The witness has produced the checking sheet at Exh.31, the
Rojkam at Exh.32, Annexure-C at Exh.33, notice sent to the accused
at Exh.34, the bill of theft of electricity at Exh.36 and the complaint
at Exh.38. During the cross-examination, the witness has stated
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that when they went for checking, the earlier connection of the
accused was disconnected and arrears bill was outstanding, and he
does not know whether the electricity connection was taken on
31.10.2005. In the document produced at Exh.31, which is the
checking sheet the signature of the accused has not been taken and
the document produced at Exh.32, which is the Rojkam, does not
state the time when it had begun and the time when it was
concluded. No statements of independent witnesses have been
recorded and theft of electricity and illegal usage of electricity are
two separate things.
8.2. PW-3, Sajjansinh Manusinh Chawda examined at
Exh.40 is the P.S.O., who has registered the complaint at Sabarmati
Police Station II-C.R.No.1099 of 2006 and the witness has stated
that the complaint was sent to the police station, and with that, the
muddamal wire was also sent, for which, a muddamal receipt was
issued. The muddamal was given to the complainant to take care
of and to be produced, if necessary. During the cross-examination,
the witness has stated that the complainant had submitted the
complaint but no panchnama regarding the muddamal was
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submtitted by the complainant. No statements of independent
witnesses were recorded and the muddamal was not sealed and
no steps were taken to ensure that the muddamal was not changed
or manipulated with.
8.3. PW-4 Govindgiri Ganapatpuri Goswami examined at
Exh.42 is the Investigating Officer, who has narrated the procedure
undertaken by him during investigation. During the cross-
examination, the witness has admitted that no signature of the
consumer or any representative of the consumer has been taken in
Exh.31 and only the signatures of the employees of the electricity
board are taken in Exh.31 and Exh.32. There are no independent
witnesses, whose statements were recorded during investigation
and there is no panchnama of the wire that was seized. Moreover,
during investigation, no document regarding the ownership of the
house was taken and the statement of the Talati has also not been
recorded. Admittedly, the offense was committed in a residential
area and there were neighbors, but no such neighbors have been
examined or their statements have not been recorded during
investigation.
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9. On appreciation of the entire evidence of the
prosecution, it appears that the complaint has been filed without
the proper procedure adopted as per section 151 of the Act and
the complainant, during the deposition, has not stated that he had
seized any muddamal wire and has not produced any such
muddamal wire, by which, the theft of electricity was taking place
in the police station. PW-1 Kantibhai Chhaganbhai Patel, who, as
per the case of the prosecution, was present at the time of
checking, has stated that there was a black color wire, which was
taken by them, but no such wire has been produced before the
learned Trial Court. Moreover, PW-1 Kantibhai Chhaganbhai
Patel, who was present at the time when the checking had taken
place, has clearly stated that no procedure was done at the place of
incidence and it appears that all the documents produced at
Exh.31 to Exh.38 were not prepared at the spot, but were prepared
later on as they do not bear the signature of the complainant or
any representative of the complainant. PW-3 Sajjansinh Manusinh
Chavda examined at Exh.40 has stated that the muddamal wire
was handed over back to the complainant, but no steps were taken
to ensure that the muddamal wire was sealed and there is no iota
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of evidence that any wire was used by the accused to commit the
theft of electricity as the same wire not produced before the
learned Trial Court. Moreover, there is no iota of evidence that the
place where the checking was conducted was in the ownership
and possession of the accused and that the accused was, in fact,
committing theft of electricity at that place. The entire evidence
has been appreciated in a proper manner by the learned Trial
Court and has, in a well-reasoned judgment, discussed the entire
evidence in detail.
10. In view of the above, the 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 Trial Court has appreciated
all the evidence and this Court is of the considered opinion that
the Trial Court was completely justified in acquitting the accused
of the charges leveled against them. The findings recorded by the
Trial Court are absolutely just and proper and no illegality or
infirmity has been committed by the trial Court and this Court is
in complete agreement with the findings, ultimate conclusion and
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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 passed by the
learned Special Judge, Patan in Special (Electricity) Case No.7 of
2008 order dated 28.05.2012 is hereby confirmed.
12. Bail bond stands cancelled. Record and proceedings be
sent back to the concerned Trial Court forthwith.
(S. V. PINTO,J)
F.S.KAZI.....
