Gujarat High Court
State Of Gujarat vs Juvansingh Saybabhai Bariya on 26 June, 2025
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
NEUTRAL CITATION
R/CR.A/283/2010 JUDGMENT DATED: 26/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 283 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI Sd/-
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Approved for Reporting No Yes
No
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STATE OF GUJARAT
Versus
JUVANSINGH SAYBABHAI BARIYA & ANR.
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Appearance:
MS. MEGHA CHITALIA, APP for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 2
BAILABLE WARRANT UNSERVED for the Opponent(s)/Respondent(s) No. 1
MR. MAULIK M SONI(7249) for the Opponent(s)/Respondent(s) No. 2
UNSERVED EXPIRED (R) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 26/06/2025
ORAL JUDGMENT
1. This appeal is filed under Section 378 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as "the
Code") challenging the judgment and order of acquittal
recorded by Special Judge and 2 nd Additional Sessions Judge,
Dahod dated 06.10.2009 passed in Special Case No. 6 of 2009,
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R/CR.A/283/2010 JUDGMENT DATED: 26/06/2025
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whereby respondent - accused came to be acquitted of the
offences punishable under Section 379 read with Section 114
of the Indian Penal Code (hereinafter referred to as "IPC") as
also under Section 136(1)(a)(b) of the Indian Electricity Act,
2003 (hereinafter referred to as "the Act").
1.1 Endorsement on the cause-list shows that bailable
warrant issued upon respondent No. 1 is unserved as expired.
Therefore, appeal against accused No. 1 stands abated.
1.2 Endorsement on the cause-list is based on the
report by the process server. Hence, this appeal is considered
against respondent No. 2 alone, since it abated against
respondent No. 1 herein.
2. As per the case of prosecution, in the night hours on
16.04.2007, some unknown persons committed theft of
electric wires of the ownership of Madhya Gujarat Vij Company
Ltd. from existing agricultural electric lines from Dangariya
turning point to Mendra bus-stop, amounting Rs. 98,000/- and
thereby, committed an offence under Sections 379 and 114 of
the"IPC" as also under Section 136(1)(a)(b) of "the Act".
2.1 As it has come on record, the theft came to the
notice of the office on 18.04.2007.
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2.2 It is further the case of the prosecution that, on
17.04.2007, Junior Engineer - Kamlesh Natwarbhai Sutariya
went to village Bhular on a visit and returning therefrom, it is
informed that from Dangariya turning upto the sim of village
Bhular, electric wires from Electric Pole Nos. 56 to 63, 66 to 67
and 71 to 93 are broken. Therefore, first-informant and Junior
Engineer - Kamleshbhai, along with staff, went to village
Dangariya and it was found that there was theft of electric
wire, approximately 3.705 Kms amounting to Rs. 98,000/-.
Therefore, on 18.04.2017, a complaint in writing is addressed
to the jurisdiction Police station.
2.3 The said complaint has come to be registered on
24.04.2007 against unknown persons. On registration thereof,
the present respondents - accused thereof came to be
arrested in connection with the present offence on 01.10.2007,
but from the papers of investigation, though not deposed to
before the Court by any witness, it is revealed that there are
several offences of similar nature registered against the
accused, as reflected from the panchnama Exhibit-9. However,
panch witnesses to the said panchnama, though examined by
the prosecution, have not supported the case of prosecution.
Therefore, no cognizance thereof can be taken as neither of
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the witnesses, including even the Investigating Officer, has so
stated before the Court.
2.4 Be that as it may, on conclusion of investigation,
charge-sheet came to be filed against the accused. Since the
offence was triable by the Court of Sessions, it came to be
committed to it.
2.5 After framing of charge, the prosecution examined
four witnesses and produced three documents, which includes
discovery panchnama, complaint and scene of offence
panchnama.
2.6 On conclusion of trial, further statement, under
Section 313 of "the Code", of the accused came to be recorded
and thereafter, on hearing the APP as also accused, learned
Judge passed the aforesaid judgment and order of acquittal in
favor of the respondent - accused, and that is how present
appeal is filed challenging the same before this Court.
3. Heard Ms. Megha Chitalia, learned APP for the
appellant - State as also Mr. Maulik M. Soni, learned advocate
for respondent No. 2, since appeal against respondent No. 1
stood abated as he has expired, as endorsed by the Registry in
the cause-list.
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3.1 Ms. Megha Chitalia, learned APP, submitted that
prosecution has proved its case by leading evidence in the
form of complainant as also the Investigating Officer. She has
further submitted that only because panch witnesses have not
supported the case of prosecution, panchnama Exhibit-9
cannot be said to have been not proved, as it can be proved
through the deposition of the person, who drew that
panchnama.
3.2 She has further submitted that here is a case of
public property, theft of which is said to have been committed
by the accused, and therefore, no lenient view should be taken
against them. She has further submitted that this appeal
requires to be allowed and accused are required to be
punished suitably.
4. As against that, Mr. Maulik M. Soni, learned
advocate for respondent No. 2, submitted that prosecution has
failed to prove the case against the accused beyond
reasonable doubt. Not only that, an FIR came to be filed
against unknown persons, there are no eye-witness to the
incident of committing theft, and therefore, it cannot be said
that the accused committed the offence, as alleged against
them.
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4.1 He has further submitted that though complainant
claims that he was shown muddamal, which was like that
electric wires of aluminum, there is no evidence brought on
record that any muddamal was recovered from the accused
and seized in this case. Therefore, he has submitted that there
being no evidence to connect the accused with the present
crime, the order of acquittal recorded by the learned Judge is
required to be confirmed.
5. Having heard the learned APP as also learned
advocate for the respondent No. 2 - accused, it is clear that,
prima-facie, though accused were arrested in multiple offences
of similar nature, the said factum has not been deposed to by
any of the witnesses before the Court. However, Court cannot
shut its eyes as to what is narrated in panchnama Exhibit-9
that accused were arrested in other offences of similar nature.
Be that as it may, let me examine whether any evidence is led
against accused, which requires this Court to interfere with the
judgment and order of acquittal recorded by the learned Judge.
5.1 To prove the case, 4 witnesses are examined by the
prosecution, out of which 2 witnesses are the panch-witnesses
to the panchnama Exhibit-9, which is claimed to be a discovery
of different places of offence from where theft of electric wires
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is said to have been committed. According to the case of
prosecution, the said panchnama is drawn on 29.09.2007,
starting from 4:15 p.m. to 8:00 p.m.. Surprisingly, without any
explanation, in the present case, as per the Record and
Proceedings, it is revealed that accused came to be arrested
on 01.10.2007, i.e. if he is arrested on 01.10.2007, this
panchnama Exhibit-9 could not have been drawn on
29.09.2007. Police Officer, who had drawn that panchnama,
has not even bothered to state before the Court whether
accused was arrested in connection with any other offence
earlier or not.
5.2 He has further not bothered to state whether any
muddamal is recovered from the accused and which may be a
part of this offence or not. Therefore, in the present case, it
appears that no muddamal of this case is either seized or
recovered from any of the accused. Not only that, the manner
and mode by which it is recovered or discovered and, that too,
in presence of any independent witness or not, there appears
no evidence at all.
5.3 On top of it, the FIR came to be filed against
unknown persons. Neither the Investigating Officer nor even
the complainant has bothered to state how and in what
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manner, accused are involved in this case as there are no eye-
witness to the incident.
5.4 Over and above that, as admitted by the
Investigating Officer - PW-4 - Parimal Somabhai Das, in his
cross-examination that during the course of investigation, he
had said that no names of any of the accused were revealed.
At the same time, the theft of electricity was committed by
some unknown persons. At the same time, he has further
admitted that, from the statement of any witness also, no
names of the accused are revealed. Thus, it is a mystery how
and in what manner, names of the accused are revealed and
they are arrested, that too, in connection with the present
offence.
5.5 It is further surprising that, for different places of
offence from where theft of electricity wires committed by
panchnama drawn on 25.04.2007 at the instance of the
complainant. Still however, surprisingly, the Investigating
Officer has drawn Demonstration panchnama in the form of
discovery of place of offence, which was already discovered 5
months back at the instance of the complainant. Therefore,
even if panchas have supported the case of prosecution,
and/or their panchnama is proved, it is not a reliable piece of
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evidence so as to believe that the place of offence, which was
unknown and within the personal knowledge of the accused,
could be discovered so as to have a connecting link against
him. However, it is missing in the present case.
5.6 Since there are no eye-witnesses to the incident,
during the course of investigation, from the statements of
witnesses, no names of any of the accused is revealed, how
Police reached the accused is not even bothered to be stated
before the Court. However, it appears that, since there are
several offences against them, they might have been arrested
in connection with one offence and are being roped into the
present offence as well. But there appears no evidence at all to
connect the present respondent - accused with the crime even
if the case pleaded by the complainant and the Investigating
Officer is believed to be true.
6. Learned Judge has, while recording the judgment
and order of acquittal, assigned good reasons, which I am
unable to interfere with, that too, in an acquittal appeal, where
even if two views are possible, the view, which is favorable to
the accused and which is already taken, recording acquittal of
them has to be accepted.
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In view thereof, this appeal is without any merit,
and therefore, it is hereby dismissed.
Record and Proceedings be sent back to the trial
Court forthwith.
Sd/-
(UMESH A. TRIVEDI, J.)
Raj
