[Cites 10, Cited by 0]

Gujarat High Court

State Of Gujarat vs Rathod Nikusinh Champaksinh on 25 March, 2026

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                                                                                 Reserved On   : 18/03/2026
                                                                                 Pronounced On : 25/03/2026

                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                              R/CRIMINAL APPEAL NO. 1621 of 2010

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                                                      STATE OF GUJARAT
                                                            Versus
                                                 RATHOD NIKUSINH CHAMPAKSINH
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                       Appearance:
                       MR YUVRAJ BRAHMBHATT, APP for the Appellant(s) No. 1
                       MR DR BHATT(165) for the Opponent(s)/Respondent(s) No. 1
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                          CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER


                                                            CAV JUDGMENT

1. Feeling aggrieved by and dissatisfied with the

judgment and order of acquittal, dated 17.06.2010, passed by

the learned Special Judge (Electricity) in Special Electricity

Case No.14 of 2009, for the offences punishable under Section

135(1)(B) of the Indian Electricity Act, the appellant - State

of Gujarat has preferred this appeal under Section 378 of the

Code of Criminal Procedure, 1973 (for short, "the Code").

2. The prosecution case as unfolded during the trial

before the trial Court is that, on 04.10.2008, the complainant,

in the capacity of Junior Engineer, UGVCL, raided the

premises of the accused in the night and found that the

accused was committing theft of electricity; on inspection, it

was found that the service wire was illegally connected by

linking the phase wire with a red-coloured wire, thereby

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directly drawing electricity on the load side; therefore, the

penalty bill was prepared for Rs.5,130=95 Ps., which was

paid by the consumer; since the very consumer had

committed theft previously on 07.03.2006 at the same

installation, the complaint was filed against the respondent as

he was found committing theft for the second time.

3. After investigation, sufficient prima facie evidence

was found against the accused person/s and therefore, charge-

sheet was filed in the competent criminal Court. Since the

offence alleged against the accused person/s was exclusively

triable by the Special Court, the learned Magistrate

committed the case to the Special Court where it was

registered as Special (Electricity) Case No.14 of 2009. The

charge was framed against the accused person/s. The accused pleaded not guilty and came to be tried.

4. In order to bring home the charge, the prosecution

has examined the following witnesses and also produced the

following documentary evidence before the trial Court, which

are described in the impugned judgment, which are as under:

                                                      :    ORAL       EVIDENCE              :


                                 Sr.No.                    Name of witnesses                             Exh.









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                                            Virendrabhai



                                            (Hostile)











                                            Punabhai





                                             :   DOCUMENTARY                   EVIDENCE       :



                                  Sr.No.              Particulars of the Documents                Exh.





                                            the accused









                                            bill to the accused



                                            calculation of bill dated 4.10.08








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                                            dated 7.3.06



                                            accused





                                            7.3.10





                                         The      defence    has    examined          witness        Dahyabhai

                       Mulabhai          Chamar       vide    Exh.30         and      has      produced          the

necessary xerox copies of the Assessment-sheet Register vide

Exh.31, the Pedigree vide Exh.32 and the Receipt of House

Tax vide Exh.33.

5. After hearing both the parties and after analysis of evidence adduced by the prosecution, the learned trial

Judge acquitted the accused for the offences for which they

were charged, by holding that the prosecution has failed to

prove the case beyond reasonable doubt.

6. Learned APP for the appellant - State has pointed

out the facts of the case and having taken this Court

through both, oral and documentary evidence, recorded before

the learned trial Court, would submit that the learned trial

Court has failed to appreciate the evidence in true sense and

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perspective; and that the trial Court has committed error in

acquitting the accused. It is submitted that the learned trial

Court ought not to have given much emphasis to the

contradictions and/or omissions appearing in the evidence and

ought to have given weightage to the dots that connect the

accused with the offence in question. It is submitted that the

learned trial Court has erroneously come to the conclusion

that the prosecution has failed to prove its case. It is also

submitted that the learned Judge ought to have seen that

the evidence produced on record is reliable and believable

and it was proved beyond reasonable doubt that the accused

had committed an offence in question. It is, therefore,

submitted that this Court may allow this appeal by

appreciating the evidence led before the learned trial Court.

7. As against that, learned advocate for the

respondent/s would support the impugned judgment passed by

the learned trial Court and has submitted that the learned

trial Court has not committed any error in acquitting the

accused. The trial Court has taken possible view as the

prosecution has failed to prove its case beyond reasonable

doubt. Therefore, it is prayed to dismiss the present appeal

by confirming the impugned judgment and order passed by

the learned trial Court.

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8. In the aforesaid background, considering the oral

as well as documentary evidence on record, independently and

dispassionately and considering the impugned judgment and

order of the trial Court, the following aspects weighed with

the Court :

8.1 The prosecution has examined the complainant viz.,

Dhyanesh Virendrabhai Raval as P.W.1, vide Exh.7, who has

deposed that on receiving instructions, he proceeded for

inspection; during such checking, it was found that the phase

wire of the main service line was cut and electricity theft

was committed; and accordingly, the inspection report was

prepared.

In the cross-examination, it has been brought on

record that the order to carry out checking was allegedly issued by the Division Office, however, no such order has

been produced before the Court along with the complaint; he

has denied the suggestion that no such order was ever

received from the Division Office; that the witness has

admitted that no authorization letter was issued by the

Division Office or higher authority for filing the present

complaint; that he was deputed by this Deputy Engineer to

file the complaint, but no such order or authorization has

been produced before the Police or the Court.

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8.2 The prosecution has examined Hitendrasinh

Dudharsinh Rahevar, P.S.O., as P.W.5, vide Exh.14. He has

stated that on 13.01.2009, while he was on duty as PSO at

Sabarmati GEB Police Station, the complainant personally

submitted a written complaint before him and on receiving

the same, he registered the offence and made necessary entry

in the Station Diary, which is produced vide Exh.15. He

further stated that, as per the instructions of the Police

Inspector, he handed over the investigation to the Head

Constable viz., Babuabhai Narsangbhai Chaudhary, who is the

Investigating Officer.

He admitted in his cross-examination that no

endorsement was made on the complaint regarding its receipt.

He also stated that apart from receiving and registering the

complaint, no other work was carried by him.

8.3 The prosecution has examined Ramanbhai Joitabhai

Patel as P.W.6, vide Exh.17. He has stated that on

04.10.2008, he, along with the staff members, had gone for

checking of electricity theft and found that the theft of

electricity was committed at the house of consumer -

Champaksinh Vakhatsinh; and that upon inquiry, it was

revealed that the occupier of the premises Nikusinh was

committed the said theft of electricity. The checking sheet

was prepared showing the details of the theft and the

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signature of the occupier - Nikusinh Champaksinh Rathod

was obtained. The illegal electricity connection was

disconnected and the meter and service wire as well as the

red-coloured wire used for committing the theft were seized

and sent to the office.

In the cross-examination, he has admitted that in

his police statement, it is not mentioned that the occupier of

the premises was Nikusinh. He has further admitted that it

is also not stated in his police station that the meter, service

wire and red-coloured wire were seized and brought to the

office.

8.4.1 It would be fruitful to refer to the relevant

provision of the Act. Thus, Section 151 of the Indian

Electricity Act reads as under:

"151. Cognizance of offences:

No court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by Appropriate Government or Appropriate Commission or any of their officer authorized by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be, for this

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purpose.

                                                          [Provided    that      the     court     may      also
                                               take       cognizance    of      an   offence      punishable

under this Act upon a report of a police officer filed under section 173 of the Code of Criminal Procedure, 1973:

Provided further that a special court constituted under section 153 shall be competent to take cognizance of an offence without the accused being committed to it for trial.]"

8.4.2 In view of the aforesaid provisions, the complaint

is required to be filed in writing and must be filed by a

competent officer. In the present case, the complainant is a junior officer and he has admitted in his cross-examination

that no such deputation order or authorization order is placed

on record by him deputing him to file the complaint. Thus,

the complainant, who is a Junior Engineer, has no authority

to file the complaint.

8.5 Moreover, with respect to the authority of the

complainant to file a complaint, it seems that the same was

only for searching the property, but the fact is that there is

no authority that has been produced by the complainant

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giving authority to the present complainant to file a

complainant as stated in Section 151 of the Act. Moreover,

the complainant is a Junior Engineer and the trial Court has

rightly held that the complainant, being a Junior Engineer,

did not have any authority under Section 151 of the Act to

file a complaint.

8.6 Further, from the aforesaid evidence, it transpires

that during the inspection of the property, the record reflects

the consumer's name as Rathod Champaksinh Vakhatsinh. It

also comes on record that the said consumer has expired.

That the present accused was the occupier of the said

property; and that he was present at the time of inspection

and had also signed the inspection report. However, there is

no documentary evidence on record to establish the number of heirs or legal representatives of the deceased

Champaksinh.

8.7 Further, if the evidence of the Investigating Officer

viz., Babubhai Narsangbhai Chaudhary, (Exh.26) is taken into

consideration, it transpires that the said Champaksinh had

expired, but neither Pedigree has been produced by the

complainant nor is there any document produced by the

prosecution to show that the accused was in exclusive

possession of the property as owner.

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8.8 The defence witness - Dahyabhai Mulabhai

Chamar, who has been examined vide Exh.30, has produced

the Pedigree vide Exh.32, which shows that other than the

accused, there are other 10 legal heirs of the deceased -

Champakbhai and there is also evidence on record that the

widow of Champakbhai i.e. Valuben is residing in the said

premises.

9. Further, learned APP is not in a position to show

any evidence to take a contrary view in the matter or that

the approach of the Court below is vitiated by some manifest

illegality or that the decision is perverse or that the Court

below has ignored the material evidence on record. In above

view of the matter, I am of the considered opinion that the Court below was completely justified in passing impugned

judgment and order.

10. Considering the impugned judgment, the trial

Court has recorded that there was no direct evidence

connecting the accused with the incident and there are

contradictions in the depositions of the prosecution witnesses.

In absence of the direct evidence, it cannot be proved that

the accused are involved in the offence. Further, the motive

of the accused behind the incident is not established. The

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trial Court has rightly considered all the evidence on record

and passed the impugned judgment. The trial Court has

rightly evaluated the facts and the evidence on record.

11. It is also a settled legal position that in acquittal

appeal, the appellate court is not required to re-write the

judgment or to give fresh reasoning, when the reasons

assigned by the Court below are found to be just and proper.

Such principle is down by the Apex Court in the case of

State of Karnataka Vs. Hemareddy, reported in AIR 1981 SC

1417 wherein it is held as under:

"... This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice."

12. Thus, in case the appellate court agrees with the

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reasons and the opinion given by the lower court, then the

discussion of evidence at length is not necessary.

13. In the case of Ram Kumar v. State of Haryana,

reported in AIR 1995 SC 280, Supreme Court has held as

under:

"The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same

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cannot entirely and effectively be dislodged

or demolished, the High Court should not

disturb the order of acquittal."

14. As observed by the Hon'ble Supreme Court in the

case of Rajesh Singh & Others vs. State of Uttar Pradesh

reported in (2011) 11 SCC 444 and in the case of

Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning by the trial

Court is found to be perverse, the acquittal cannot be upset.

It is further observed that High Court's interference in such

appeal in somewhat circumscribed and if the view taken by

the trial Court is possible on the evidence, the High Court

should stay its hands and not interfere in the matter in the

belief that if it had been the trial Court, it might have taken a different view.

15. In the case of Chandrappa v. State of Karnataka,

reported in (2007) 4 SCC 415, the Hon'ble Apex Court has

observed as under:

"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate

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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 Criminal Procedure Code, 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 emphasise 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

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double presumption in favour of the accused.

Firstly, the presumption of innocence is 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."

16. The Hon'ble Apex Court, in a recent decision, in

the case of Constable 907 Surendra Singh and Another V/s

State of Uttarakhand reported in (2025) 5 SCC 433, has held in paragraph 24 as under:

"24. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial Judge would be warranted by the High Court only if the judgment of

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acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record."

17. Considering the aforesaid facts and circumstances

of the case and law laid down by the Hon'ble Supreme Court

while considering the scope of appeal under Section 378 of

the Code of Criminal Procedure, 1973, no case is made out

to interfere with the impugned judgment and order of

acquittal.

18. In view of above facts and circumstances of the case, on my careful re-appreciation of the entire evidence, I

found that there is no infirmity or irregularity in the

findings of fact recorded by learned trial Court and under

the circumstances, the learned trial Court has rightly

acquitted the respondent/s - accused for the elaborate reasons

stated in the impugned judgment and I also endorse the