Gujarat High Court
State Of Gujarat vs Sureshbhai Harasubhai Der on 4 September, 2025
NEUTRAL CITATION
R/CR.A/147/2013 JUDGMENT DATED: 04/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 147 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
SURESHBHAI HARASUBHAI DER
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Appearance:
MS.C.M.SHAH, APP for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 1
MR MILANKUMAR P DER(11086) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 04/09/2025
ORAL JUDGMENT
1. This appeal has been filed by the appellant - State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') against the impugned judgment and the order passed by the learned Special Judge, Amreli (hereinafter referred to as 'the Trial Court') in Special (Electricity) Case No. 36 of 2009 order dated 29.10.2012, whereby, the learned Trial Court has acquitted the respondent Page 1 of 13 Uploaded by F.S. KAZI(HC01075) on Tue Sep 09 2025 Downloaded on : Tue Sep 09 22:30:48 IST 2025 NEUTRAL CITATION R/CR.A/147/2013 JUDGMENT DATED: 04/09/2025 undefined from the offence punishable under Sections 135 of the Electricity Act, 2003 (hereinafter referred to as 'the Act'). 1.1 The respondent is hereinafter referred to as 'the accused' as he stood in the original case, for the sake of convenience, clarity and brevity.
2. The relevant facts leading to filing of the present appeal are as under:
2.1. On 23.08.2004, Jayanthilal Hansrajbhai Rangapriya, Deputy Engineer, PGVCL, Amreli Circle, Junior Engineer Alpesh Nanjibhai Kamol, Meter Tester A. H. Vyas and Helper S. R. Raval had gone for checking the electricity connections at Karkoliya village and had visited the house of Sureshbhai Harsurbhai Der at Karkoliya village. They found that the accused was not a consumer of electricity but he was running a flour mill to grind grains and a shop to repair punctures and had illegally joined a yellow colour wire directly to the pole and the low tension line and was using electricity. A 65 year old person was found at the place and he had stated that the shop and the flour mill belonged to the accused and the necessary procedure was Page 2 of 13 Uploaded by F.S. KAZI(HC01075) on Tue Sep 09 2025 Downloaded on : Tue Sep 09 22:30:48 IST 2025 NEUTRAL CITATION R/CR.A/147/2013 JUDGMENT DATED: 04/09/2025 undefined done and it was found that the accused had committed theft of electricity of Rs.4,44,248.75 paisa as he had joined a 12.5 HP load motor and the complainant Rakeshkumar Fakirbhai Chaudhary, Deputy Engineer, had filed the complaint at the GEB Police Station under Section 135 of the Electricity Act, which came to be registered at GEB Police Station II-CR No. 897 of 2004.
2.2. After registration of the FIR, the investigation was carried out by the concerned Investigating Officer and after having sufficient material against the accused, the chargesheet came to be filed before the concerned jurisdictional Magistrate.
As the case was exclusively triable by the Court of Sessions, after completion of the process under Section 209 of the Cr.P.C., the case was committed to the Sessions Court and the same was registered as Special (Electricity) Case No. 36 of 2009. 2.3. The accused was duly served with the summons and the accused appeared before the learned Trial Court and it was verified whether the copies of all the police papers were provided to the accused as per the provisions of Section 207 of Page 3 of 13 Uploaded by F.S. KAZI(HC01075) on Tue Sep 09 2025 Downloaded on : Tue Sep 09 22:30:48 IST 2025 NEUTRAL CITATION R/CR.A/147/2013 JUDGMENT DATED: 04/09/2025 undefined the Code. A charge was framed by the learned Trial Court at Exh.4 and the statement of the accused was recorded at Exh.5, wherein, the accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record. The prosecution has examined 05 witnesses and has produced 08 documentary evidences in support of the case. 2.4. After the closing pursis was submitted by the learned APP at Exh.24, the further statement of the accused under Section 313 of the Code was recorded wherein the accused denied the evidence and refused to step into the witness box and lead evidence. After hearing the arguments of the learned APP and learned advocate for the accused and after perusing the documents on record, the learned Trial Court, by the impugned judgment and order, has acquitted the accused for the offence punishable under Section 135 of the Act.
3. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Trial Court, the appellant - State has filed the present appeal mainly stating that the impugned judgment and order passed by the learned Trial Page 4 of 13 Uploaded by F.S. KAZI(HC01075) on Tue Sep 09 2025 Downloaded on : Tue Sep 09 22:30:48 IST 2025 NEUTRAL CITATION R/CR.A/147/2013 JUDGMENT DATED: 04/09/2025 undefined Court is contrary to law, evidence on record and principles of justice. The learned Trial Court has erroneously came to the conclusion that the prosecution has failed to prove the case beyond reasonable doubt. The learned Trial Court has erred in acquitting the accused though there are ample and cogent evidence to connect the accused with the crime and the offence registered against him. The learned Trial Court has not properly appreciated the oral as well as documentary evidence on record it its true spirit. The impugned judgment and order of acquittal passed by the learned Trial Court is illegal, invalid, improper, perverse and bad in-law and the same deserves to be quashed and set aside.
4. Heard learned APP Ms.C.M.Shah for the appellant - State and learned advocate Mr.Milankumar P. Der for the respondent. Perused the impugned judgment and order of acquittal and have re-appreciated the entire evidence of the prosecution on record of the case.
5. Learned APP Ms.C.M.Shah for the appellant - State has taken this Court through the entire evidence produced by Page 5 of 13 Uploaded by F.S. KAZI(HC01075) on Tue Sep 09 2025 Downloaded on : Tue Sep 09 22:30:48 IST 2025 NEUTRAL CITATION R/CR.A/147/2013 JUDGMENT DATED: 04/09/2025 undefined the prosecution and has vehemently argued that the learned Trial Court has not appreciated the evidence properly and the prosecution has produced cogent evidence to prove the the case and has successfully proved the case against the accused but the learned Trial Court has not considered the same and has acquitted the accused. The judgment and order of acquittal passed by learned Trial Court is contrary to law, evidence on record and principles of justice. Learned APP has urged this Court to quash and set aside the impugned judgment and order of acquittal and to find the accused guilty for the said offence and impose maximum sentence on the accused.
6. It is a settled principle of law that in an appeal against acquittal, the Appellate Court is circumscribed by limitation that no interference has to be made in the order of acquittal unless after appreciation of the evidence produced before the Trial Court, it appears that there are some manifest illegality of perversity which could not have been possibly arrived at by the Court. It is also a settled principle that there is no embargo on the Appellate Court to review the evidence but, generally the order of acquittal shall not be interfered with as Page 6 of 13 Uploaded by F.S. KAZI(HC01075) on Tue Sep 09 2025 Downloaded on : Tue Sep 09 22:30:48 IST 2025 NEUTRAL CITATION R/CR.A/147/2013 JUDGMENT DATED: 04/09/2025 undefined the presumption of innocence of the accused is further strengthened by the order of acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case of the prosecution i.e. (i) guilt of the accused and (ii) his innocence, the view, which is in favour of the accused, should be adopted, and if the trial Court has taken the view in favour of the accused, the Appellate Court should not disturb the findings of the acquittal. The Appellate Court can interfere with the judgment and order of acquittal only when there are compelling and substantial reasons and the order is clearly unreasonable and where the Appellate Court comes to conclusion that based on the evidence, the conviction is a must.
7. PW-1 Jayantilal Hansrajbhai Rangapariya examined at Exh.6 is the Deputy Engineer, who had visited and checked the electricity connection along with Junior Engineer Kalpesh Nanjibhai Kamol, Meter Tester A. H. Vyas and Helper S. R. Raval. The witness has supported the case of the prosecution and has stated that at the time of the checking, they had seized the 15 meters long yellow colour 6mm wire and 8 meter long Page 7 of 13 Uploaded by F.S. KAZI(HC01075) on Tue Sep 09 2025 Downloaded on : Tue Sep 09 22:30:48 IST 2025 NEUTRAL CITATION R/CR.A/147/2013 JUDGMENT DATED: 04/09/2025 undefined 7/20 copper wire but they did not seize the starter. The mudamal was deposited in the Lathi Sub Division office and the witness has produced the Rojkam at Exh.7 and the checking sheet at Exh.8. During the cross-examination the witness has admitted that they did not switch on the flour mill and check whether the machine was in a working condition and the witness has stated that as there was a single phase power, the motor could not start, but the same is not mentioned in the Rojkam at the time of checking. They did not take the name or address of the 65 year old person, who was found at the place and only on inquiry from him, it was found that the shop belonged to the accused. There was no name of any person on the shop or the tyre puncture shop and no documents were seized that the place belonged to the accused and they did not seize any license or revenue record of the same. The accused was not present at the place and they did not take any evidence from the Talati-cum- Mantri that the place belonged to the accused. 7.1. PW-2 Kalpeshkumar Nanjibhai Kamol examined at Exh.9 was working as a Junior Engineer along with PW-1 Jayantilal Hansrajbhai Rangparia and he has supported the case Page 8 of 13 Uploaded by F.S. KAZI(HC01075) on Tue Sep 09 2025 Downloaded on : Tue Sep 09 22:30:48 IST 2025 NEUTRAL CITATION R/CR.A/147/2013 JUDGMENT DATED: 04/09/2025 undefined of the prosecution. During the cross-examination, the witness has stated that in his statement before the police, he did not state that Meter Tester A.H.Vyas and Helper S.R.Raval were also with them at the time of the checking and at the time of the checking, they did not verify whether the flour mill was working or not. As the motor was a 10 HP motor, they considered it to be a 12.5 HP motor if it was working and they did not take any document from the 65 year old person, who was found at the spot. They did not find any document that the place where they had checked belonged to the accused and they did not find the accused at the place at that time. They did not have any document to show that they were authorized to go for checking. 7.2. PW-3 Rakeshkumar Fakirbhai Chaudhury examined at Exh.14 is the complainant, who has supported the case of the prosecution and has filed the complaint and has produced the complaint at Exh.15. The witness has also produced the Rojkam at Exh.16, the checking sheet at Exh.17 and the bill given to the accused at Exh.18. During the cross-examination, the witness has stated that he had given the complaint on the basis of the checking sheet but he has no personal knowledge about the Page 9 of 13 Uploaded by F.S. KAZI(HC01075) on Tue Sep 09 2025 Downloaded on : Tue Sep 09 22:30:48 IST 2025 NEUTRAL CITATION R/CR.A/147/2013 JUDGMENT DATED: 04/09/2025 undefined checking and in the documents that were submitted to him there was no evidence about the ownership or the possession of the shop. Even in the Rojkam there was no evidence that the property belonged to the accused. He did not go personally to the Bhavnagar Police Station to file the complaint and there was no document produced on record to show that he was authorized to file the complaint.
7.3. PW-4 Umarbhai Manubhai Numadia examined at Exh.20 is the PSO, who has registered the complaint and has produced a copy of the FIR at Exh.22. During the cross- examination, the witness has stated that the checking was conducted on 23.08.2004 and the complaint was registered on 31.08.2004 but there was no explanation regarding the delay in filing of the complaint and the complainant did not come personally to the Police Station to file the complaint. Along with the complaint, there was no permission given by any superior authority to the complainant to file the complaint and the complainant did not submit any documentary evidence to show that the place where the checking was done belonged to the accused.
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NEUTRAL CITATION R/CR.A/147/2013 JUDGMENT DATED: 04/09/2025 undefined 7.4. PW-5 Navalkishor Bhikhalal Joshi examined at Exh.23 is the Investigating Officer, who has narrated the procedure undertaken by him during investigation. During the cross- examination, the witness has admitted that he did not record the statement of Helper S.R.Raval and there was no explanation as to why the statements of Helper S.R.Raval was not recorded.
8. On minute appreciation of the entire evidence of the prosecution, there is no evidence on record that the place where the electricity connection was checked belonged to the accused. As PW-1 Jayantilal Hansrajbhai Rangparia and PW-2 Kalpeshkumar Nanjibhai Kamol have both admitted that they did not find the accused present at the place when they had gone for checking, they did not seize any documentary evidence regarding the ownership or possession of the place that belonged to the accused. There is no muddamal wire produced on record to prove that any wire was used to commit the theft of electricity and the witness has stated that the wire was deposited in the Lathi Sub Division Office, but the same was not produced before the Investigating Officer and was not produced before the learned Trial Court. As per the say of PW-1 Page 11 of 13 Uploaded by F.S. KAZI(HC01075) on Tue Sep 09 2025 Downloaded on : Tue Sep 09 22:30:48 IST 2025 NEUTRAL CITATION R/CR.A/147/2013 JUDGMENT DATED: 04/09/2025 undefined Jayantilal Hansrajbhai Rangparia, he had gone along with Meter Tester A.H.Vyas and Helper S.R.Raval but the Investigating Officer did not record their statements during investigation and their evidence has not come on record. Admittedly, the complainant Rakeshkumar Fakirbhai Chaudhury did not go for checking and he had no personal knowledge about the theft of electricity being committed by the accused and there is no evidence on record that the accused was, in fact, committing theft of electricity and the place where the theft of electricity was taking place belonged to the accused as the accused was not found at the place on the day of checking. Moreover, the identity of 65 year old person, who disclosed that the shop and the flour mill belonged to the accused, has not come on record and he has not been examined as a witness before the learned Trial Court.
9. In view of the above, the trial Court has appreciated the entire evidence in proper perspective and there does not appear to be any infirmity and illegality in the impugned judgment and order of acquittal. The Trial Court has appreciated all the evidence and this Court is of the considered Page 12 of 13 Uploaded by F.S. KAZI(HC01075) on Tue Sep 09 2025 Downloaded on : Tue Sep 09 22:30:48 IST 2025 NEUTRAL CITATION R/CR.A/147/2013 JUDGMENT DATED: 04/09/2025 undefined opinion that the Trial Court was completely justified in acquitting the accused of the charges leveled against them. The findings recorded by the Trial Court are absolutely just and proper and no illegality or infirmity has been committed by the trial Court and this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the Trial Court. This Court finds no reason to interfere with the impugned judgment and order and the present appeal is devoid of merits and resultantly, the same is dismissed.
10. The judgment and the order passed by the learned Special Judge, Amreli in Special (Electricity) Case No. 36 of 2009 order dated 29.10.2012 is hereby confirmed.
11. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J) F.S.KAZI.....
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