Gujarat High Court
State Of Gujarat vs Hiteshkumar @ Hitendra Parsottambhai … on 16 December, 2024
NEUTRAL CITATION
R/CR.A/1225/2008 JUDGMENT DATED: 16/12/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1225 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting Yes No
x x
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STATE OF GUJARAT
Versus
HITESHKUMAR @ HITENDRA PARSOTTAMBHAI PATEL & ANR.
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Appearance:
MR YUVRAJ BRAHMBHATT APP for the Appellant
MR SUNIL S JOSHI(2925) for the Respondents
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 16/12/2024
ORAL JUDGMENT
1. This appeal under Section 378(4) of the Criminal Procedure
Code is directed against the impugned judgment and order dated
11.01.2008 passed by the learned Special Judge (Ele.),
Panchmahal at Godhra (hereinafter be referred to as “the trial
Court”) in Special Case (Ele.) No.5 of 2007 whereby the trial
Court has acquitted the accused for the offences punishable
under Section 135(1)(a) of the Electricity Act, 2003 (hereinafter
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be referred to as “the Act”).
2. Brief facts of the present case, in nutshell, are as under:-
2.1 It is the case of the prosecution that on 16.09.2002, while
complainant has visited the place of the accused at Village:
Chandpura, Taluka: Lunavada for the purpose of checking of
electric line, accused No.1 and 2 were found consuming electric
supply directly from the transmission. It is the case of the
prosecution that necessary panchnama was drawn on checking
sheet and bill of Rs.1,47,380.84 paisa and Rs.1,92,742.30 paise
were prepared and issued to the accused which were not paid by
the accused.
2.2 On the basis of the said aforesaid, the FIR being C.R.No.II-
149 of 2002 came to be filed before Lunavada Police Station for
the offence punishable under Section 135(1)(a) of the Act
against the accused, drew the panchnama. The Investigating
Officer has recorded statements of the witnesses and collected
necessary evidence against the accused.
2.3 After completion of investigation, as the sufficient evidence
was found, the police has filed the charge-sheet against all the
accused before the Court of learned Judicial Magistrate, First
Class. As the offence was triable by the Court of Sessions, the
concerned Court has committed the case under Section 209 of
the Criminal Procedure Code to the Court of Sessions wherein it
has been registered as aforesaid Sessions Case.
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2.4 The charge against the accused came to be framed by the
trial Court on 30.09.2008 for the aforesaid offences against the
accused and explained it to them, the accused denied having
committed any offence. The accused pleaded not guilty to the
charge and pleaded for trial and hence, the case was tried by
the trial Court.
2.5 To prove the case, the prosecution has examined
witnesses and also produced the documentary evidence before
the trial Court.
2.6 After closure of the evidence, further statement of the
accused under Section 313 of the Criminal Procedure Code, 1973
has been recorded. After hearing both sides and considering the
evidence on records, the trial Court by impugned judgment and
order has acquitted the accused from all the charges levelled
against them.
3. Being aggrieved by and dissatisfied with the aforesaid
judgment and order of acquittal the appellant – State of Gujarat
has preferred this Appeal.
4. Heard Mr.Yuvraj Brahmbhatt, learned Additional Public
Prosecutor for the appellant – State of Gujarat and Mr.Sunil Joshi,
learned counsel for the respondents – accused at length.
5. It has been submitted by Mr. Brahmbhatt, learned
Additional Public Prosecutor for the appellant – State of Gujarat
while referring to the entire oral as well as documentary
evidence, has assailed the impugned judgment and order and
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has submitted that the trial Court has not taken into
consideration the evidence connecting the accused with the
alleged offence in its proper perspective. He has submitted that
the trial Court ought to have believed that the prosecution has
been able to prove the charges levelled against the accused. He
has submitted that the findings of the trial Court are perverse
and are based on conjectures and surmises. He has submitted
that the prosecution has proved its case beyond reasonable
doubt against the accused by leading evidence of the witnesses.
While referring to the evidence of P.W.2 Mangalbhai Motibhai
Pagi examined at Exhibit 22, who was serving as helper at
Lunavada and P.W.3 Shaileshbhai Vasudevbhai Pandya
examined at Exhibit 23, who was serving as junior engineer at
Godhra Circle Office Mr.Brahmbhatt, learned Additional Public
Prosecutor has submitted that both the witnesses were on duty
with the checking squad they found that accused by using
electric cable were abstracting the electricity from the line and
the said cable was seized and sent to the Divisional Office at
Lunawada and on the basis above, P.W.3 prepared sheet and
sent to P.W.1 and P.W.1 received the sheet and issued
supplementary bill to the accused with regard to unauthorized
electricity connection and the same was not paid by the accused
and, therefore, the FIR came to be lodged. According to his
submission, the trial Court ought to have convicted the accused
and ought to have imposed necessary sentence. He has prayed
to allow the present appeal and to quash and set aside the
impugned judgment and order of acquittal.
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6. Per contra, Mr.Joshi, learned counsel appearing for the
accused has supported the impugned judgment and order and
has submitted that the trial Court has not committed any error of
law and fact in acquitting the accused from the charges levelled
against them. He has submitted that the prosecution has
miserably failed to prove the charges levelled against the
accused as the names of the accused were wrongly shown in the
FIR and their real names were also not mentioned in the FIR and
the concerned Investigating Officer has not collected any
evidence. He has submitted that so far as the present accused
are concerned, they were the occupiers of the premises where
the electric connection was connected by using the electric cable
and the devise directly connected to the line, however, the
concerned officer has failed to collect the evidence with regard
to the fact that whether the said premises was in the name of
the accused or not. He has submitted that though the electric
cable and apparatus were seized from the place, but the same
has not been placed before the trial Court and the investigating
officer. He has submitted that the panchnama for seizure of the
electric cable and apparatus which were used for extracting the
electricity, was not drawn, but in fact the panchnama was drawn
and it was not supported by the evidence of the panch
witnesses. Mr.Joshi, learned counsel has submitted that in the
panchnama at Exhibit 27, it is mentioned that the fan, bulb and
tube light etc were lying in the premises and except these items,
no any other appliances were shown and therefore the
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prosecution has failed to prove its case beyond reasonable
doubt. He has submitted that on the contrary, accused while
recording their evidence, they have produced relevant
documents before the trial Court i.e. copy of the Special Civil Suit
No. 67 of 2004 filed by the GEB against them and on perusal the
same, it appears that the names which were shown in the FIR
and in the charge-sheet were incorrect as the documentary
evidence produced in the civil suit filed by the GEB against the
accused the names shown in the suit are completely different
and the area is also different rather than the area shown in the
complaint. Mr.Joshi, learned counsel has submitted that the trial
Court was justified in passing the impugned judgment and order
of acquittal and no interference is required to be called for. He
has submitted that there is no any illegality and infirmity in the
impugned judgment and order of acquittal and the same being
meritless deserves to be dismissed. He has urged to dismiss the
appeal and confirm the impugned judgment and order of
acquittal.
7. This Court has perused the judgment and order of acquittal
rendered by the Trial Court and carefully considered the rival
contentions, evidence and material placed on record.
8. The facts emerge from the record that the complainant was
not party to the checking squad and in his presence nothing has
been reported and, therefore, he was not aware with the subject
matter. However, he has lodged the FIR for the alleged offence of
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theft of electricity on the basis of the oral information given by
the staff members that while they were on duty and they were
with checking squad on 16.09.2002, they found that at the place
of residence of the accused, the accused have extracted the
electricity by using the cable and other apparatus from the
electricity line and they have also seized the yellow colour
electricity cable admeasuring 50 meters and that is how the
complainant has given written complaint to the concerned Police
Station. In fact, the yellow colour cable was neither sent to the
laboratory nor it was seized by the concerned Investigating
Officer. In fact, at all the three places the colour of electricity
cable was completely change. Initially, in the FIR, the colour of
cable was mentioned as yellow, in the deposition of the
complainant, the colour of cable was mentioned as black and in
the evidence of other witness, the colour of cable was mentioned
as red. The prosecution has not confirmed about the colour of
the cable and how it was used. On perusal of the evidence of the
complainant, it appears that he has neither any personal
knowledge with regard to the offence in question nor he has any
knowledge with regard to the fact that at the place of offence
whether he has prepared the panchnama or seized anything
from the place or not. It also appears that there was nothing
mentioned about the said aspect in the FIR. It appears that
P.W.2, who was serving as helper, had gone with P.W.3 at the
place of offence where he has removed the cable from the line.
On perusal of the evidence of P.W.2, it appears that he has
stated that he went to the Village: Chandpur along with one
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Sharma and other staff members of electricity company from
Godhara and they were in checking, however, P.W.1 was not
informed about the said checking squad visiting the Village:
Chandpur nor he was assigned any duty to his subordinate to
accompany the checking squad for the purpose of checking of
electricity connection. On what basis the P.W.3 and P.W.2 went
to the place along with the checking squad, the prosecution has
not produced any relevant documents before the trial Court that
on the basis of the initial instruction passed by P.W.1, they have
accompanied to the checking squad and that is basic fact for
which the prosecution has remained silent and has not produced
any evidence on the said aspect. So far as the name of the
accused shown in the FIR is concerned, the names of the
accused are not correctly mentioned in the FIR and, therefore,
the accused have produced relevant document showing that
their names shown in the FIR and in the charge-sheet are not
same and the same are different one. The accused have
produced the relevant paper of the panchayat and other papers
showing that they were having residential premises at different
village and not at the addressed mentioned in the FIR. It also
appears that the Gujarat Electricity Company has filed civil suit
against the accused being Special Civil Suit No. 67 of 2004.
Under such circumstances, the trial Court was justified in passing
the impugned judgment and order of acquittal and on perusal of
the record, it reveals that neither of the articles were seized by
the checking squad produced before the Investigating Officer for
the purpose of investigation nor produced before the trial Court.
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Considering the facts of the case and perusing the impugned
judgment and order, it appears that the trial Court has not
committed any error of facts and law in passing the impugned
judgment and order of acquittal and, therefore, the appeal being
meritless deserves to be dismissed.
9. It is well settled by catena of decisions that the an
Appellate Court has full power to review, re-appreciate and
reconsider the evidence upon which the order of acquittal is
founded. However, Appellate Court must bear in mind that in
case of acquittal there is 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 their acquittal, the presumption of their
innocence is further reinforced, reaffirmed and strengthened by
the trial Court.
10. Further, 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.
Further, while exercising the powers in appeal against the order
of acquittal, the Court of appeal would not ordinarily interfere
with the order of acquittal unless the approach of the lower Court
is vitiated by some manifest illegality and the conclusion arrived
at would not be arrived at by any reasonable person and,
therefore, the decision is to be characterized as perverse. Merely
because two views are possible, the Court of appeal would not
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take the view which would upset the judgment delivered by the
Court below. However, the Appellate Court has a power to review
the evidence if it is of the view that the conclusion arrived at by
the Court below is perverse and the Court has committed a
manifest error of law and ignored the material evidence on
record. A duty is cast upon the Appellate Court, in such
circumstances, to re-appreciate the evidence to arrive to a just
decision on the basis of material placed on record to find out
whether the accused are connected with the commission of the
crime with which he is charged.
11. The scope and principles are enunciated by the Hon’ble
Apex Court in case of Chandrappa and others Vs. State of
Karnataka reported in (2007) 4 SCC 415, more particularly
paragraph Nos. 42 and 43, which was subsequently re-
affirmed by the Hon’ble Apex Court Rajesh Prasad Vs. State
of Bihar and another, reported in [2022] 3 SCC 471, wherein,
the Hon’ble Apex Court has enunciated the general principles in
case of acquittal, more particularly in paragraph No. 26 the
general principles are set out by the Hon’ble Apex Court based
upon various decisions of the Hon’ble Apex Court. Then in case
of Babu Sahebagouda Rudragoudar Vs. State of
Karnataka, reported in AIR 2024 SC 2252 = (2024) 8 SCC
149, the Hon’ble Apex Court has dealt with the similar issue,
more particularly, in paragraph Nos. 37 to 40. Hence, I am in
complete agreement with the findings recorded by the trial
Court.
12. It is also worthwhile to refer to the recent decision of the
Hon’ble Supreme Court in the case of Ramesh vs. State of
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Karnataka, reported in [2024] 9 SCC 169, wherein the
Hon’ble Supreme Court has held and observed in paras-20 and
21 as under:-
“20. At this stage, it would be relevant to refer to the
general principles culled out by this Court in Chandrappa
and others vs. State of Karnataka , regarding the power of
the appellate Court while dealing with an appeal against a
judgment of acquittal. The principles read thus:
“42. …. (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
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 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
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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.
21. In Rajendra Prasad v. State of Bihar, a three-Judge
Bench of this Court pointed out that it would be essential
for the High Court, in an appeal against acquittal, to clearly
indicate firm and weighty grounds from the record for
discarding the reasons of the Trial Court in order to be able
to reach a contrary conclusion of guilt of the accused. It
was further observed that, in an appeal against acquittal, it
would not be legally sufficient for the High Court to take a
contrary view about the credibility of witnesses and it is
absolutely imperative that the High Court convincingly
finds it well-nigh impossible for the Trial Court to reject
their testimony. This was identified as the quintessence of
the jurisprudential aspect of criminal justice. Viewed in this
light, the brusque approach of the High Court in dealing
with the appeal, resulting in the conviction of Appellant
Nos. 1 and 2, reversing the cogent and well-considered
judgment of acquittal by the Trial Court giving them the
benefit of doubt, cannot be sustained.”
13. Considering the entire evidence on record, it clearly
appears that there is no credible evidence to connect the present
accused with the alleged crime and the evidence on record is not
so convincing to prove beyond reasonable doubt that the
accused has committed the alleged crime. Therefore, the
accused cannot be convicted on the evidence on record.
14. On perusal of the impugned judgment and order, it clearly
transpires that the trial Court has not committed any error of fact
and law in appreciating the evidence on record and in acquitting
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the accused from the charges levelled against them. Even on
reappreciation of the evidence, it clearly transpires that the
prosecution has miserably failed to prove the charge levelled
against the accused beyond reasonable doubt. Therefore, the
impugned judgment and order of the trial Court is sustainable
and the present appeal is liable to be dismissed.
15. In view of the above, the present appeal is devoid of
merits and it deserves to be dismissed. Resultantly, it is
dismissed. The impugned judgment and order of acquittal
passed by the trial Court is hereby confirmed. Bail bond stands
cancelled. Record and proceedings be sent back to the
concerned Trial Court forthwith.
(HEMANT M. PRACHCHHAK,J)
V.R. PANCHAL
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