Gujarat High Court Case Information System
Print
CR.MA/6695/2009 1/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 6695 of 2009
In
CRIMINAL
APPEAL No. 1024 of 2009
======================================
STATE
OF GUJARAT
Versus
VALJIBHAI
JETHABHAI PATNESHA
======================================
Appearance :
MR KL PANDYA,
APP for Applicant
MR HM PRACHHAK for
Respondent
======================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 02/03/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
1 The
present application for Leave to Appeal is directed against the
judgment and order of acquittal passed by the learned Special Judge
(Electricity), Fast Track Court, Porbandar, dated 07.03.2009, in
Electricity Special Case No. 02 of 2008.
2 We
have gone through the judgment and order passed by the learned
Special Judge. We have also considered the Record and Proceedings
of the Trial Court. It appears that the prosecution has not been
able to prove the case of the ownership and/or possession of the
accused. The Officer, who was examined in support of the case of
the prosecution, has on the contrary admitted that he has not
investigated on the said aspect regarding the ownership of the
property and/or actual possession of the person concerned. It further
appears that the other electronic or any items, which were used
for commission of the offence, were also not seized or produced
before the Trial Court. The learned Special Judge has therefore
found that the prosecution has not been able to prove the case of
theft of electricity and as found by the learned Special Judge that,
even as per the complainant, it was a case of unauthorized use of
electricity. Therefore, the learned Special Judge has rightly found
that the prosecution has not been able to prove the case against the
accused beyond reasonable doubt and, hence, the order of acquittal
has been passed.
3 The
contention of the learned APP that the wire was connected with the
pole and the electricity was consumed, would itself not be
sufficient, but it was required for the prosecution to establish
that the accused was the occupier and/or the owner of the property
and further the wire and other items used for the commission of
the offence were also required to be brought on record by
reliable material by the prosecution, which has not come on record.
Therefore, the said contention, even if it is examined, would not
prove the case of the prosecution for commission of the offence of
theft of electricity against the accused beyond reasonable doubt.
4 Even
otherwise also, when two views are possible on the factual aspect, it
would not be a case for admission of the Appeal or conversion of
the order of acquittal.
5 Hence,
in view of the aforesaid, the present application is dismissed.
(JAYANT
PATEL, J.)
(RAJESH
H. SHUKLA, J.)
pnnair
Top