Gujarat High Court
Vishnuji Shankarji Thakor vs State Of Gujarat on 26 September, 2025
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 698 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
==========================================================
Approved for Reporting Yes No
√ ―
==========================================================
VISHNUJI SHANKARJI THAKOR
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR VIKRAM J THAKOR(2221) for the Appellant(s) No. 1
MR ROBIN PRASAD(9344) for the Appellant(s) No. 1
MS MONALI BHATT, APP for the Opponent(s)/Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 26/09/2025
ORAL JUDGMENT
1. The appellant was convicted on 25.3.2009 by the learned Additional Sessions Judge, 3rd Fast Track Court, Mehsana in Sessions Case no.148 of 2008 with Sessions Case no.171 of 2008. 1.1 The conviction was under Section 379 of the Indian Penal Code, 1860 (IPC) with sentence of two years rigorous imprisonment and fine of Page 1 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined Rs.2,000/-, in default of payment of fine, further six months rigorous imprisonment. 1.2 Further, the conviction was also under Section 447 IPC with sentence of three months rigorous imprisonment and fine of Rs.100/- with the default stipulation that in failure to pay the fine, fifteen days further rigorous imprisonment had to be served.
1.3 The learned Judge had given benefit of set off.
However, the sentence was to be served consecutively.
1.4 The appellant was acquitted for the offence punishable under Section 413 read with Section 114 of IPC and Sections 3 and 7 of the Prevention of Damage to Public Property Act, 1984.
1.5 Along with the appellant, four other accused were tried. The accused - Zala Malbha Jalamsinh faced Sessions Case no.171 of 2008 under Page 2 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined supplementary charge-sheet. Sessions Case no.148 of 2008 was against four accused including the present appellant, while Sessions Case no.171 of 2008 was only against accused - Zala Malbha Jalamsinh. Both the Sessions Cases were tried together. Except the present appellant, rest of the accused came to be acquitted under all charges.
2. The complaint was filed by the Security Inspector of Project Department of ONGC. When he was duty on 20.3.2008, he received a telephone message from Police Sub-Inspector of Santhal Police Station informing him that Arvindji Udaji, Lalaji Udaji, Govaji Dalsangji, Jasaji Dalsangji and Mansinh Jalamsinh Zala were committing offence of theft by taking away iron pipes of ONGC from Well no.36, Balol. As per the complaint, having received the message, the complainant along with the police personnel went to the alleged place and they saw few persons Page 3 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined cutting pipes and angles. However, seeing the complainant and the policemen, those persons ran away in a Matador, but the present appellant was apprehended by the police at the alleged place.
3. The investigation was conducted, which ended in filing of charge-sheet in the Court of learned JMFC, Mehsana. The matter was committed under Section 209 Code of Criminal Procedure, 1973 to the Sessions Court.
4. Learned advocate Mr. Robin Prasad submitted that the learned Trial Court failed to appreciate the facts of the matter, where it has come clearly on record that if at all the presence of the appellant was found at the place of offence, he was in the capacity of a labourer. Advocate Mr. Robin Prasad submitted that secret information which was received by the appellant did not include the name of the present appellant, which itself suggests that he was not at the place alleged with the intention to commit any theft. Page 4 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025
NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined Advocate Mr. Robin Prasad submitted that real culprit had ran away from the place, who the complainant as well as the witness and the police could not apprehend them, while the appellant had no reason to run away from the place since he had not come with any intention of theft. Advocate Mr. Robin Prasad submitted that in a defence, witness has been examined to prove that he was actually working with the witness.
4.1 Advocate Mr. Robin Prasad submitted that no ingredients of Section 378 IPC would be attracted since in the case of no intention to dishonestly take away any movable property out of the possession of the complainant or the ONGC has been proved. The recovery of iron cutter (Karvat) alleged to be in the hands of the present appellant would be unbelievable since no recovery Panchnama as contemplated under Section 27 of the Indian Evidence Act has been prepared, Page 5 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined rather the iron cutter (Karvat) was shown to be recovered from the complainant. The witness - Jaysukhbhai Devjibhai Vaghela has stated in his deposition that no arrest Panchnama has been drawn, nor any other Panchnama was prepared. Advocate Mr. Robin Prasad submitted that the Panchas as PW5 to PW12, none of them have supported the prosecution case. The whole of the case has been relied upon only on the testimony of PW1 to PW4 who were the security guards of ONGC and PW13 and PW14 who were the police witnesses. Advocate Mr. Robin Prasad submitted that all these witnesses should be considered as interested witnesses, as they had the interest in the result of the trial. Advocate Mr. Robin Prasad submitted that surprisingly, none of the security officers or the guards examined as PW1 to PW4 had any knowledge about the theft in ONGC, where the witnesses were working as security personnel. The secret information was given by the police and it was the police who Page 6 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined had arrested the present appellant while the other actual accused who had come there and who were responsible for the commission of theft had gone scot-free. Advocate Mr. Robin Prasad submitted that the learned Trial Court Judge was required to appreciate the fact that the secret information to the police did not include the name of the present appellant, which itself proves the fact he though may have been apprehended on the spot at the place of ONGC, he would not be present there with any intention to commit theft. The witnesses examined had stated that when inquired from the appellant at that relevant time when he was apprehended, he identified himself as a labourer. Advocate Mr. Robin Prasad submitted that this fact was required to be verified by the police rather the police took pride in showing the arrest of the present appellant at the place of incident, which the security persons failed to guard. Page 7 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025
NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined 4.2 Referring to the depositions of the witnesses, Advocate Mr. Robin Prasad submitted that the appellant had produced oral as well as documentary evidence to establish that he was at the field for the supply to irrigate the land and that the appellant was called to become Panch witness and he has been arrested in connection with the offence. The documentary evidence in the form of extracts of village form no.7/12 was produced. The learned Judge discarded such evidence on the ground that the document does not bear mention of the means of irrigation. Advocate Mr. Robin Prasad submitted that the learned Judge failed to observe that village form no.7/12 clearly indicated tubewell as a source of irrigation and the learned Judge was required to appreciate the evidence of the Defence Witness.
4.3 Advocate Mr. Robin Prasad submitted that the complainant himself has not supported his own Page 8 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined complaint and he was declared hostile, inspite of that, reliance has been placed on the deposition of the police and other witnesses who themselves had not arrested the appellant on the place of incident. Advocate Mr. Robin Prasad submitted that defence of the appellant would get corroborated from the evidence of DW1 that he was called for being a Panch and that would get corroboration from the evidence of PW13 who had claimed that he had arrested the appellant. The contrary evidence of the witnesses regarding the arrest of the appellant was also required to be considered by the learned Trial Court Judge to conclude that the present appellant was not involved in the theft.
4.4 Referring to the deposition of PW1 - complainant who was a Security Inspector, ONGC, Advocate Mr. Robin Prasad submitted that the witness had received 'Batmi' from the police while he had not received any such secret information of the Page 9 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined appellant being present there and the persons who were named by the police have been acquitted. The cutter which is alleged to be of the appellant was actually found in the hands of the complainant. Advocate Mr. Robin Prasad submitted that PW2 has admitted that he does not remember whether the accused had tried to run away with the pipes found at the place. PW3, the Contractual Security Guard had admitted that the appellant was not caught by him but by the police and had admitted that he along with PW1 and PW2 had not chased the running offenders. Referring to PW4, the Contractual Security Guard, Advocate Mr. Robin Prasad submitted that the testimony of the witness admits that the police had caught the appellant at a distance from the Well and not at the well itself. 4.5 Referring to the depositions of the police personnel - PW13 and PW14, it has been contended by learned advocate Mr. Prasad that PW13 - Page 10 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025
NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined Unarmed Police Constable has stated about the secret information received and PW13 had deposed that Thakor Arvindji Udaji, Thakor Lalaji Udaji, Thakore Govaji Dalsangji, Vishnuji Dalsangji and Malbha Darbar were cutting pipes. As per the deposition of PW13, when he approached the offenders, one person ran towards the farm and that was the appellant while the other persons ran away in the Matador. Advocate Mr. Robin Prasad thus, stated that the very conduct of the appellant on the place would prove that he had no connection whatsoever with rest of the accused. Advocate Mr. Robin Prasad submitted that PW13 has admitted that offence had taken place in dark and has also admitted that the pipes, which were cut were found near the Well and not from the accused and has also admitted that he had no secret information (Batmi) regarding the appellant being present there. Page 11 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025
NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined 4.6 Referring to the testimony of PW14 - the Investigating Officer, Advocate Mr. Robin Prasad submitted that the Investigating Officer stated that he ran behind the person who had escaped in the Matador and the deposition of the Investigating Officer with regard to Batmi refers to other co-accused, but not the present appellant. PW14 as an Investigating Officer had admitted that after he returned from chasing the Matador till the distance of 15-16 kms., a person who was caught and ran towards the farm, was the appellant and had admitted that he had not received any Batmi with regard to the present appellant.
5. Per contra, by referring to the charge, Ms. Monali Bhatt, learned APP submitted that the charge against all the accused clarifies that all of them had come with a common intention of theft and the materials, which were cut were the iron pipes and angles near the tubewell in the Page 12 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined compound and the instrument used for cutting the iron pipes and the angles which was known as iron cutter (Karvat) was found there, the vehicle in which the other co-accused ran away has been referred, the cost assessed of the theft is of Rs.15,000/- and the incident has been stated by the complainant though was declared as hostile, but the facts could be brought on record by the cross-examination of the Public Prosecutor, wherein the complainant has affirmed about the incident and the evidence could be brought by the Public Prosecutor in view of cross-examination of the complainant. Learned APP submitted that the evidence of the complainant, thus, would be considered as remained uncontroverted though was declared hostile. Referring to the evidence of PW2 and PW3, learned APP submitted that the evidence of both the witnesses are supporting and are corroborating in nature. The fact of the appellant being arrested at the place itself Page 13 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined proves that he was involved in the theft. PW2 had stated in his evidence that he had ran to catch the present appellant who was cutting the pipes found at Well no.36 and PW3 and PW4 have supported the fact of the presence of the appellant.
5.1 Learned APP submitted that the evidence of the police witness proves the theft and the damage which has been caused to the ONGC, which is a public property. PW13 had arrested the appellant and the Investigating Officer was present there at the place, where the alleged offence has taken place.
5.2 Referring to further statement under Section 313 of the Code of Criminal Procedure, 1973 of the accused and the Defence Witness and the testimony of the Defence Witness, Ms. Bhatt, learned APP submitted that the appellant had tried to bring a false alibi, which is contrary to the evidence on record that the arrest of the Page 14 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined appellant was made at the place of the occurrence. Supporting the judgment of the learned Trial Court, learned APP submitted that the learned Judge had appreciated the evidence on record and had found the appellant engaged in the offence of theft and thus, urged to uphold the judgment.
6. After hearing both the advocates, perused the record. The charge which was framed below Exh.9 in Sessions Case no.148 of 2008 is to the effect that on 20.3.2008 at about 1 O'Clock night in the outskirts of Village Balol, within the territorial jurisdiction of Santhal Police Station, in the compound of ONGC Well no.36, all the four accused and accused - Zala Malbha Jalamsingh had committed illegal trespass and in abetment, had cut the iron pipes and angles of the tubewell situated in the compound and committed the offence of theft. The material was carried in Matador no.GJ-3 X-2102, which was Page 15 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined valued as Rs.15,000/- and the stolen angles were given to the persons who would normally receive those from them and thereby, had committed an offence under Sections 447, 379, 413 read with Section 114 of IPC.
7. Further the charge stated that on the same date, time and place, all the accused habitual in committing the offence of theft, had caused damage to the public property of ONGC and therefore, were found guilty under Sections 3 and 7 of the Prevention of Damage to Public Property Act, 1984.
8. The present appellant had taken the defence in his statement under Section 313 Cr.P.C. that he was resident of Khara, Taluka District Mehsana and that they had two and a half vigha agricultural land near the bore of Patel Natubhai Ishvarbhai. The agricultural land was running in the name of his father - Shankarji Amathaji. On 20.3.2008, he was in the field of Page 16 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined Patel Natubhai on the bore since the water was to be released for irrigation and during that time, between 9.00 to 10.00 at night, the police had come there in the field and had asked informing that they wanted to take signature on the Panchnama and the police had asked them to join and therefore, the appellant, informing the owner of the bore Natubhai to remain present to shut down the water flow, the appellant on the instructions of the police had joined. He stated that he has no other knowledge and he has not committed any offence, nor any iron cutter (Karvat) was in his hand and a false case has been lodged against him.
9. The complainant-Thakore Dahyaji Mafaji was a Security Inspector at ONGC Project, Mehsana. His working was to supervise and to oversee GPS, VGS, CGF of ONGC. On 19.3.2008 at about 10:00 night, when he was on his patrolling duty along with the Security Officer - B.D. Bhatt and Page 17 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined Dineshbhai and Babubhai who were working as private security guards. He was in Santhal-Balol area in patrolling and at that time, they received 'Batmi' from the police that on Well no.36 of Balol, ONGC, the thieves were trying to cut the pipes. As per the complainant, no sooner did they receive the information, they went on Well no.36 with the police of Santhal. When they reached the place of incident, they saw cut pipes and articles lying down on the ground. As per the deposition of the complainant, the thieves had parked one vehicle in the dark and on seeing them, they all ran away in the vehicle. He received the information regarding the registration of the number later on, which was GJ-3 X-2102. As per the deposition of the witness, while the thieves were running away, one person - Vishnuji Shankarji who too was escaping the place, he as well as the police persons caught him. The complainant stated that the materials which were cut for theft were Page 18 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined lying at the place. He had given the complaint Exh.17 to Santhal Police Station.
10. The deposition of the witness as a complainant is consistent to what has been narrated by him in the complaint. Inspite of that, the learned APP during the trial, chose to declare him hostile. What was the purpose could not be known. The learned Trial Court Judge has also not inquired from the learned APP the cause for declaring the complainant as hostile witness. Under what ground, the permission was granted to cross-examine the complainant has not been recorded.
11. The normal procedure for declaring a person as hostile would be, to ask from the learned APP the grounds for a prayer to declare the witness hostile. The proceeding does not show any ground raised before the learned Trial Court Judge, nor the learned Trial Court Judge has inquired from the learned APP and mechanically, the permission Page 19 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined was granted to cross-examine the witness.
12. This attempt of the learned APP may not be conducive for the complainant since he was working as Security Inspector in a responsible post of ONGC. Being a public servant, though he had maintained the consistency in his deposition with the complaint, he was declared hostile. Such act of the learned APP during the trial may subject the witness as a public servant to face the departmental inquiries. The learned APP was required to conduct himself in a responsible manner, more specifically, when he was examining the complainant who was a public servant.
13. Be that as it may, in the cross-examination by the learned APP, the complainant has affirmed that he received an information telephonically from the police on his mobile from PSI, Santhal Police Station that in the surrounding area of ONGC Well no.36, Thakore Arvindji Udaji, Lalji Udaji, Govaji Dalsangji, Jasaji Dalsangji of Page 20 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined Khara Village and Zala Manlbha Jalamsingh and others of Kotasana Dhanpur Village were cutting the pipes and were taking away from the area of ONGC. The witness had affirmed all the suggestions made by learned APP in the cross- examination. The complainant has stated in the cross-examination affirming that the iron pipes and angles, which were facing the Well of the ownership of the ONGC were found to be cut and in the hands of the arrested person an iron cutter was seen, which was a iron cutter (Karvat) of Hacksaw blade and had also found one another different type of iron cutter (Karvat). The complainant as was cross-examined by the learned APP after being declared, he stated that when they had arrested that person, on inquiring from that person, the arrested man stated that he had come there for labour work as instructed by Thakorji Arjitji Udaji who were staying near his house in the outskirts of the village and by Zala Malbha of Kotasana and by brother of Page 21 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined Arvindji Lalji and his uncle Jasaji and Govaji. This evidence of the complainant would prove the fact that appellant was there as a labourer. He had come for labour work and he probably was engaged by other co-accused for the work. The accused may not have knowledge that the intention of the co-accused was to commit theft and take away goods as stolen property. If this evidence of the complainant is taken into consideration, which can be read with the definition under Section 378 IPC which defines theft, then as per the definition, theft would be said to have been committed if the person has the intention to take dishonestly any movable property out of the possession of any person without that person's consent and who actually moves that property in order to such taking is said to commit theft. If this evidence of the complainant is to be believed, then the appellant had not come there with any intention of taking away the movable property as alleged, Page 22 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined which was the pipe and the angles at Well no.36 of ONGC. The Matador which was brought was of the ownership of Pravinbhai of Village Chanasma. However, the prosecution has not examined the owner of the Matador. The value of the angle as well as the tubin pipe which was alleged to be cut was stated to be of Rs.15,000/-. In the cross-examination by the accused, the complainant affirmed that he was ONGC employee and there were many Wells of ONGC in the area of Santhal, Balol, Jotana, and within night hours between 10.00 to 12.00 on the Well, there would be movement of bringing and taking away the employees by the guards and the Wells of the ONGC, and the duty to oversee the Wells of the ONGC was with private Chokidars.
14. In the cross-examination, the complainant stated that they received Batmi at 12:00 midnight, the Batmi was given by PSI, Santhal (PW14) on the mobile and he had received five names from the Page 23 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined police. The witness as complainant stated that he had not received the name of the present appellant. When they had reached the place along with the police, there were people present there. The Matador was at a little distance. He denied the suggestion that they had not made any attempts to run after the accused. He denied the suggestion that the present appellant was working on the private bore from where the police had brought him, while the witness affirmed that the present appellant was brought by the police and when the police had inquired in his presence, the appellant had given his name as Vishnuji to the police. In further cross-examination by the accused nos.2 and 3, the witness stated that he had not noted down the names of the persons on the paper who were informed to him by the PSI. They had not taken any person from the public at the place of incident. He affirmed that hearing their voice, the accused had run away from the place and had Page 24 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined also affirmed that when the accused had run away, they could see only their back.
15. From the evidence of the complainant, it transpires that the secret information was given by the police. Complainant and other security staff had gone along with the police. Though they were working as a Security Inspector, it appears that they had no information with regard to theft, which was being commissioned at their own place, which was the Well under their custody and supervision of ONGC. All the accused had escaped from the place in the Matador. Strangely, the present appellant who was alleged to be with the other co-accused had not tried to escape in the Matador along with the co-accused. The conduct of the appellant itself would make him different from the other co-accused, as he had not made any attempt to run away in the Matador. The complainant witness had not seen the police apprehending the appellant from that Page 25 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined place, where he had been with the police. According to the evidence, it appears that the police had brought the appellant and in their presence itself, he had heard the accused - the present appellant as an accused stating that he had come for labour work. In the further statement under Section 313 Cr.P.C., the appellant had stated that he was working in the field of Patel Natubhai on the bore and was waiting there for the supply of water in the field. The Defence Witness no.1 - Patel Natwarlal Ishwarbhai has affirmed the statement of the appellant as an accused and the witness has stated that the accused was on his field since he would come during night hours for the supply of water. On 20.3.2008 at 10.15 hrs., they had started the supply of water, at that time, the accused was working on the bore and between 10.30 to 11.00, police had come there asking them to remain as the Panchas to sign the Panchnama and the Defence Witness stated that Page 26 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined Vishnuji was taken by the police to sign for the signature as Panch.
16. PW2 - Barudatt Rajaram Bhatt was also there as a Security Officer on Well no.36. They had gone along with the complainant and other security persons with the police. As per the deposition of PW2, the police had gone earlier than them and when they had reached there, a person was attempting to run away from the place, which he saw in the brightness of the light. Other persons had already run away prior to him and PW2 stated that the man who was making an attempt to run away, they as well as the police persons had apprehended him. On inquiring his name, he stated that he was Vishnuji Thakore. The witness has no knowledge whether the accused had taken away the goods and materials, which were cut. According to him, the goods were lying there. The witness identified the appellant and he further stated that at the time of the Page 27 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined incident, the private guards were Dineshbhai and Babubhai.
17. The deposition of PW2, thus, would show that he could identify only the appellant. The other co- accused had already escaped from the place prior to their apprehending the present appellant. The materials which were alleged to be stolen were actually lying there. There was no theft as alleged by the complainant according to PW2. In the cross-examination, it has come on record that they were at a distance of 100 mtrs. in their vehicle from the Well. He affirmed that the police had arrested the accused - Vishnuji. The witness also stated that there was a tubewell in the Village, which was at a distance of 1 km. from Well no.36. He had no occasion to talk with the accused - Vishnuji. The evidence of PW2, therefore, would clarify the fact that the field was adjoining Well no.36. Page 28 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025
NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined
18. PW3 - Babulal Ambalal Solanki was the Security Guard under contract. His service was of last four years with ONGC, Mehsana. On 19.3.2008, they were on patrolling. During that period, the officer of ONGC received a phone call from Police Sub-Inspector of Santhal Police Station and thereafter, they all had come at the outskirts of Village Balol on Well no.36. There, they saw the cut pipes and angles lying down. On seeing them, all the thieves had run away while one was arrested whose name was Thakore Vishnuji Shankarji. The witness identified the accused. The parked matador was with registration no. GJ- 3 X-2102. He stated that hacksaw blade was lying at the place of the incident. He affirmed in the cross-examination that when they had reached in the jeep, people were running away, they had not followed the vehicle. The police had already reached the place prior to them and had arrested Vishnuji. He had no occasion to talk with the accused - Vishnuji. According to the witness, Page 29 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined the police had arrested the appellant from near the Well. The evidence of this witness would bring the fact on record that hacksaw blade was lying on the place of incident. The witness is not stating that such a blade was in the hand of the appellant - accused. No attempt was made to chase or catch the other co-accused who had come in a Matador. The owner of the Matador has not been examined.
19. The evidence of PW4 - Dineshbhai Khatubhai Prajapati clearly state the fact that there was nothing in the hands of the present appellant whose name when inquired by the police was Vishnuji Thakore. PW4 had identified the accused in the Court. He had also seen 3-4 accused running away in the Matador. The witness affirmed that Vishnuji was arrested by the police and the inquiry was by the police only. He also affirmed that Vishnuji was arrested at a distance from the Well by the police. So the Page 30 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined evidence of PW4 supports the fact that nothing was found in the hands of the accused.
20. The evidence of PW5 to PW12 would be of no assistance to the prosecution. They are the hostile Panchas who have not supported the prosecution case.
21. However, it would be relevant to refer to the evidence of PW13 and PW14 who are the police witnesses.
22. Kiritkumar Chaturji Brahmbhatt was examined as PW13 who was working as Unarmed Police Constable at Santhal Police Station. He was in patrolling on 19.3.2008 at about 10 O'Clock with the Police Sub-Inspector - Vaghela - PW14 and other Police Constables. As per the witness, the Police Sub- Inspector - Vaghela had received an information that Arvindji Udaji, Lalji Udaji, Thakore Govaji Dalsingji and Vishnu Dalsangji of Village Khara and Malbha Darbar and others from Kotasana Page 31 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined Dhanpura Village were moving around the Well and were cutting the angles and iron pipes and this information was relayed to ONGC security and they had come to Jotana and appraised them of the fact and had started from Jotana in the private vehicle. In the dark in night, they could see people cutting and taking away iron angles from near the Well. Seeing them approaching, all of them had run away. The witness stated that the Matador was lying at a distance of 3 fields from the Well, all the accused were running away and then had sat in the Matador, one person was running towards the field and he chased him and arrested him. On inquiring his name, he stated that he was Thakore Vishnuji Shankar. When he was inquired, he stated that he had come for the labour work with Thakore Ardiji Udaji and at that time, it was 1 O'clock night. The registration number of the Matador the witness stated was GJ-3 X-2102. The fact now transpires from the deposition of Page 32 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined the witness that PW13 was not alone. Along with him was Police Sub-Inspector - Vaghela, Police Constable - Kumudsinh and Jayantiji and others from the police. However, he was the only person who could run after the accused. What was the act of the other police has not been described by the present witness PW13. It is a case of the accused - appellant that he was working in the field during the night hours for water supply. The evidence for the supply of water in the field for irrigation corroborates with the fact of bore of Natubhai. The evidence of witness clarifies that there were agriculture fields near Well no.36. It is not the case of PW13 that the present appellant was running away along with the other co-accused. Had the appellant come with the co-accused, he would have certainly sat in the Matador to escape from the clutches of the police. It had not so happened. The fact does not become clear that how only this witness had gone after the accused and that Page 33 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined other police persons were not available at the relevant time to arrest the accused. As per the deposition, he could name four of the police persons including him. The accused were five in number. The police were four and if PW1 to PW4 could be added, they were in total eight who all could have rushed behind the co-accused to apprehend them, but it had not so happened. The presence of iron cutter (Karvat) was brought in the hands of the present accused by the learned APP after declaring the complainant as hostile. The complainant in the chief examination has not stated that iron cutter (Karvat) was in the hand of the appellant, while his evidence states that when they had reached the place, they had seen pipes and angles lying down on the ground at the place of incident. He has also stated that the thieves were trying to run away from the place. PW2 has not stated about the goods and materials taken away from the place. According to PW2, the goods were lying there. So there was no actual Page 34 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined theft as per the deposition of PW2. PW3 also stated that the pipes and angles were lying down there, when they had come near Well no.36. The hacksaw blade was also lying at the place of incident. Thus, PW3 also does not state that it was in the hands of the accused, while PW4 very much clearly states in the deposition that there was nothing in the hands of the appellant - Vishnuji Thakore. The evidence of PW13 would become doubtful and it does not inspire confidence when he could not depose about the Police Sub-Inspector - PW14 who had joined there at ONGC Well no.36. PW13 states that it was he who had arrested the accused. While the accused stated that he was in the field of Natubhai on the bore and he had also examined Natubhai as a Defence Witness. PW14 - Investigating Officer himself was the witness to the incident and thus, his evidence prima facie should be considered as interested witness as he was investigating the case, to which, he was a Page 35 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined witness of occurrence. PW14 was required to hand over the investigation to some other independent officer or rather could have informed the superior officer to hand over the investigation to some other officers for the fairness of the trial. The secret information was received by PW14. He has given the names of the accused, which does not include the present appellant. The information which was received was of the named person being a habitual theft, while the appellant was not named therein. So no such secret information was received with regard to the appellant of his involvement in such offence of theft on the Wells of ONGC. When they had reached the Well, few of them had run away in Matador no. GJ-3 X-2102 and one was running towards the field and the police persons along with him chased after him and he with the security guards had followed the vehicle and when after investigating at the outskirts of Village Khara, they saw one person arrested Page 36 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined whose name he inquired was Thakore Vishnuji Shankarji, resident of Khara. PW14 stated that the security in-charge - Shri D.M. Thakore had given a complaint before him. So the role of PW14 would be as a person who had received a complaint, as a person who has eye-witnessed the incident, and as a person who has recorded the statement of the witnesses, as well as as an Investigating Officer filing charge-sheet. Right from the beginning from taking up the complaint till filing of the charge-sheet, PW14 appears to have taken an active role and appears to have taken interest in getting the conviction of the present appellant, but the facts of the case clarifies that there was no name of the appellant in the secret information, nor the appellant had tried to flee away in the Matador, wherein other co-accused had escaped the place. It has also not been proved that the alleged iron cutter (Karvat) was in the hands of the present appellant - accused. The accused had Page 37 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined clarified himself by his statement as well as by examining the Defence Witness no.1 that he was working in the field at night hours for starting the supply of water on the bore, which clarification becomes very plausible in view of the fact that the arrest was made from the field and not from the place of incident. The information which Investigating Officer received were that the alleged persons whose name he had received in the secret information were continuously and habitually taking away the pipes and angles from ONGC. The dog squad was also taken on the place, inspite of that, the dog could not sniff the co-accused who though had come on the place of offence. The witness stated that they had followed the Matador for about 15-16 kms. The Investigating Officer stated that in the hands of the arrested person, they had seen the iron cutter (Karvat) for cutting the iron and the hacksaw blade and on the place, they had seen different type of iron Page 38 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined cutter (Karvat). While the other witnesses who are the security persons PW1 to PW4 are not supporting this evidence of the Investigating Officer. The Investigating Officer identified the accused and also stated that he could even recognize the other accused. The Investigating Officer admitted that the mobile number has not been recorded in the complaint. He denied the suggestion that the statement of the owner of Matador - Pravinbhai was not recorded, but voluntarily stated that Pravinbhai was yet to be arrested as he was absconding and while inquiring from the RTO, they found the ownership of Matador of Ismailbhai who also could not be found. The Matador was not seized by the Investigating Officer and has also affirmed that no Panchnama has been drawn to show that the accused had produced any instrument. He had also affirmed that there was no such evidence in the case papers that he had informed about the same to the DSP. This itself makes the present Page 39 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined witness Investigating Officer - PW14 as interested witness who had not even made any attempt to inform his superior officer. He has also affirmed that at about four accused were shown in the charge-sheet as absconders. He states that in all, there were nine accused. He also affirmed that Jamadar - Kiritkumar i.e. PW13 was as a pillion rider on the motorcycle during the patrolling and when they reached Jotana, the informer has given the information to him. The witness - Investigating Officer also stated that he had not inquired from the informer regarding the direction of Well no.36 and he clarified that he had not inquired since security guard would be moving around the Well. They reached the place after about one and a half hour of receiving the information. He denied the suggestion that the present appellant-Vishnuji was not arrested in his presence. This evidence also becomes contrary, to what has been stated by PW14 since rest of Page 40 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined the accused had run away in the Matador, PW14 - Investigating Officer had gone for about 15-16 kms. behind the Matador, while PW13 had rushed towards the field to catch the accused. The Matador was lying in the field. The evidence of PW13 and PW14 - police officers are not trustworthy. They cannot be relied upon. While PW1 to PW4 have not supported the prosecution case that the iron cutter (Karvat) was seen in the hands of the accused. It is also not the case that they had seen the accused cutting tubewells and the angles. The material was still lying there. There was no actual theft within the meaning and definition of Section 378 IPC.
23. Section 378 IPC defines 'theft' as the dishonest removal of movable property 'out of the possession of any person' without the consent of that person. Here none of the witnesses have claimed of any removal of the movable property. Theft has the ingredients of (i) dishonest Page 41 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined intention to take property; (ii) the property must be movable; (iii) it should be taken out of the possession of another person; (iv) it should be taken without the consent of that person; and
(v) there must be some moving of the property in order to accomplish the taking of it. To bring home an offence under Section 378 IPC, the prosecution is to prove (a) that there was a movable property; (b) that the said movable property was in the possession of person other than the accused; (c) that the accused took it out or moved it out of the possession of the said person; (d) that the accused did it dishonestly i.e. with intention to cause wrongful gain to himself or wrongful loss to another; (e) that the accused took the movable property or moved it without the consent of the possessor of the movable property.
24. The evidence of all the witnesses, if read conjointly, it can be said that there was no Page 42 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined movement of any movable property from Well no.36. The witnesses as security guards of ONGC have stated that all the materials were lying down there. There is no evidence of any of the witnesses who had seen the present appellant cutting the pipes or the angles. PW1 to PW4 do not state of seeing the iron cutter (Karvat) in the hands of the accused while the accused was apprehended, nothing was found in his possession. PW14 has stated that they had not drawn any Panchnama to show any recovery from the accused. The ingredients as contemplated under Section 378 IPC have not been proved.
25. For the case of criminal trespass to be punishable under Section 447 IPC, the prosecution was required to prove the criminal trespass as defined under Section 441 IPC, where the prosecution was required to prove trespass, where the person enters into or upon property in the possession of another with intent to commit Page 43 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined an offence or to intimidate, insult or annoy any person in possession of such property, or, having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence. The Section requires the entry into or upon the property in possession of another and if such entry is lawful, then unlawfully remaining upon such property, and such entry or unlawful remaining must be with an intent to commit an offence or to intimidate, insult or annoy any person in possession of the property. Here the place which is a Well no.36 is in the Village, the Well could be considered as property of ONGC, but it has not been proved that the land on which the Well was situated also belonged to the ownership of ONGC. It appears to be in open area since the evidence of the witnesses proves that the accused had ran away in the field, which was adjoining the Well. Unauthorized entry Page 44 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025 NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined upon the property of ONGC has not been proved. The accused having entered the property, it has not been proved that the appellant was seen committing any offence of theft. As analysed hereinbefore, there was no actual theft by way of taking away any property from the place of occurrence. Thus, ingredients under Section 441 IPC which were necessary to punish the appellant under Section 447 IPC has not been proved. The analysis of evidence of all the witnesses would lead to the conclusion that the learned Trial Court Judge has erred in convicting the appellant. The evidence does not prove theft, nor proves criminal trespass.
26. In view of the reasons given hereinbefore, the judgment and order of conviction and sentence dated 25.3.2009 passed by the learned Additional Sessions Judge, 3rd Fast Track Court, Mehsana in Sessions Case no.148 of 2008 with Sessions Case no.171 of 2008 is hereby quashed and set aside. Page 45 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025
NEUTRAL CITATION R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025 undefined In the result, the appeal is allowed. The appellant is acquitted of all charges. Bail bond discharged. Registry is directed to send the record and proceedings back to the concerned Court forthwith.
(GITA GOPI,J) Maulik Page 46 of 46 Uploaded by MAULIK R. PANDYA(HC00205) on Tue Sep 30 2025 Downloaded on : Tue Sep 30 22:33:37 IST 2025