Gujarat High Court Case Information System
Print
CR.A/2107/2004 9/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2107 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
======================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
======================================
STATE
OF GUJARAT - Appellant(s)
Versus
DHAKHADA
CHAPBHAI RAVATBHAI KATHI - Opponent(s)
======================================
Appearance
:
MR CM SHAH,
ADDL.PUBLIC
PROSECUTOR for Appellant(s) : 1,
MR PREMAL S RACHH for Opponent(s)
: 1,
======================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 05/05/2010
ORAL
JUDGMENT
1. Heard
learned advocates for the parties.
2. The
State of Gujarat, appellant, hereinabove, has preferred this appeal
under Section 378 of the Code of Criminal Procedure, 1973,
challenging the order of acquittal dated 20.9.2004 passed by the
Judicial Magistrate First Class, Rajula in Criminal Case No.15 of
2003 acquitting the accused respondent hereinabove of the charge of
committing the offence punishable under Section 39 of the Indian
Electricity Act, 1910 (hereinafter referred to as the Electricity
Act for the sake of brevity).
3.
The facts, in short, leading to filing of this appeal deserve to be
set out as under:-
3.1 On
23.9.2002, a written complaint came to be lodged with the Police
Sub-Inspector, Nageshri Police Station, Jafrabad by Deputy Engineer,
Gujarat Electricity Board (hereinafter referred to as the G.E.B.
for the sake of brevity), Jafrabad, inter alia alleging that during
the checking on 14.9.2002 at village Koli-Kantharia for nabbing
electricity theft, it was found that one Dhakhada Chapbhai Ravatbhai
Tathi, aged 45 years, had taken illegal connection unauthorizedly
from their low tension line into his house. Thus, committing theft of
electricity which according to the prevalent rules of G.E.B were
accounting for Rs.6568.51 ps. and committed offence punishable under
Section 39 of the Electricity Act. The Court registered the case as
Criminal Case No. 15 of 2003. The Magistrate framed the charge on the
said basis on 20.1.2004 at Exh.8 and recorded the plea of not guilty
at Exh. 9 and the trial commenced. The prosecution has examined 6
witnesses and produced documentary evidence for bringing home the
guilt on the part of the accused. The Court, after appreciating the
same, came to the conclusion that prosecution has failed to establish
its case beyond any reasonable doubt and hence, acquitted the accused
of the charge of committing the offence punishable under Section 39
of the Electricity Act vide its order dated 20.9.2004 which is
impugned in this proceedings under Section 378 of the Code of
Criminal Procedure, 1973.
4. Ms.
C.M. Shah, learned Additional Public Prosecutor, submitted that the
Court ought to have appreciated the fact that the testimony of the
complainant, other accompanying witnesses at the time of raid and the
testimony of the Talati-cum-Mantri should have been accepted by the
Court for convicting the accused respondent hereinabove. However, the
learned Additional Public Prosecutor could not point out anywhere
from the memo of the appeal or in her submission that there was any
incorrect recording of facts or that the trial court recorded the
facts contrary to the evidence on record.
5. Shri
Premal C. Rachh, learned advocate appearing for the opponent
contended that this being acquittal appeal, the Court ordinarily
would be slow in interfering with the order of acquittal. He further
submitted that though the Panchnama is exhibited, the panch
witnesses have not supported the case of the prosecution. So far as
the signature of the panch is concerned, the recording of the
consent of the learned advocate for the defence cannot be construed
to be admitting the content of the panchnama. He further submitted
that the prosecution has not cared to explain the discrepancies and
lacuna in their case in any manner. He submitted that, therefore, the
order of acquittal need not be interfered with under Section 378 of
the Code of Criminal Procedure, 1973.
6. This
Court has heard the learned advocates for the parties and perused the
record and proceedings.
7. The
following indisputable facts emerge from the record and proceedings,
which deserve to be set out as under for appreciating the order
impugned, namely :-
7.1 The
original complainant is examined at Exh.10, who has stated before the
Court during his testimony that the statement was prepared on the
spot but the said statement was not signed by the accused despite
being requested to sign the same. The Rojnama and the statement have
come on record by way of Exhs.11 and 12. He has admitted in his
testimony that wire of 15 meters in length alleged to have been
employed for taking electricity connection, had been taken as
Muddamal from the place. He had also admitted that on that day during
the checking, they had visited three villages and checked many houses
and premises. In his cross-examination it is categorically come out
that on the day of the incident, they had started at around 8: 30
a.m. from Jafrabad and reached Kagwadar for checking, from Kagwadar
they reached Bhatwadar for checking and from Bhatwadar they reached
Koli-Kantharia village, wherein allegation of theft by the accused is
made.
7.2. He
has admitted that during the course of checking, he had not obtained
any documentary evidence with regard to ownership of the house in
question.
7.3. He
has also admitted that he does not know the number of the house.
7.4 He
has admitted in his cross-examination that in the customer statement
the house number is not mentioned (the statement is not signed by the
accused). He has admitted that at the time of checking Lineman and
helper had accompanied him. He has also admitted that neither Lineman
nor Motor-reader had ever filed complaint or report against the
accused that the accused was indulging in power theft or any energy
theft. He has admitted in his cross-examination that he does not know
the pole number from which the accused has taken the unauthorized
electricity connection. He has admitted in his cross-examination that
he has not taken any neighbour’s statement with regard to the
premises wherein the unauthorized connection was taken belonging to
accused. He has admitted that diary wherein they make note before
they go for checking is not
produced nor any copy thereof is produced. He has
said that no electricity gadgets or other apparatus were recovered
from the place of the accused. He admitted that it is not mentioned
in the Rojkam that the premises of the accused is in which direction.
He has admitted that on the day of the incident. He had made many
cases of power theft and checked many connections. He admitted that
the customer’s statement is in a printed form and only blank space
and columns are to be filled-in. He denied the suggestion that they
were prepared in the office. He has admitted that there was a
newspaper item that the residents of villages Kagwadar, Bhatwadar,
Balawani Vav were not given electricity supply by the G.E.B. However,
he denied the suggestion that as there was representation against the
G.E.B. by this people, the cases were got up against them. Arvind
Dhirubhai Vasava, Junior Engineer has deposed at Exh.16 being P.W.
No.2. In his cross-examination also the admission with regard to
distance between pole and the place of the accused is not certainly
mentioned nor there is mentioning with regard to direction. It has
also come out in his cross-examination that there is no evidence with
regard to the ownership of the house of the accused, which is taken
or produced. No pole number is mentioned from which the connection
was taken. He said in his statement that he has not mentioned that
when the checking was done, the electricity supply was going on.
7.5 He
further admitted in his cross-examination on the date of the incident
that he has visited and checked many power connections though he has
denied that the complaint was filed mala fide.
7.6 He
has admitted that he does not know that since how long the accused is
stealing the supply. He has admitted that there is a printed form for
recording the statement of the customer and only columns are to be
filled-in. He denied suggestion that he had not gone for checking
etc. The P.W.2 who happens to be Junior Engineer has stated in his
cross-examination that he never knew the accused prior to the
checking or during the checking.
7.7 He
admitted that he cannot say as to how far the house of the accused is
situated from the pole wherefrom the electricity is said to have been
obtained by illegal connection. He admitted that he does not know the
exact direction of the house of the accused. He admitted that there
were many residential premises adjacent to the premises of the
accused. He admitted that he has not seen the number of the house and
he has not collected any evidence with regard to the ownership of the
house. He admitted that he has not noticed the number of the G.E.B.
pole wherefrom the illegal connection was made and supply was
obtained.
7.8 He
admitted that he has not mentioned in the statement before the police
that the electricity supply was on. P.W No.3 Fugabhai Ghelabhai
Chudasama is the helper who had admitted in his cross-examination
that he had not mentioned in his police statement that he had
disconnected the supply and taken the wire in question. He has also
admitted that he did not notice the house number. He also admitted in
his cross-examination that he has not bothered to collect the
documentary evidence with regard to the house in question and its
ownership. He had admitted that he did not know the accused prior to
the checking or during the checking. He admitted that there are many
residential premises adjacent to the premises of the accused. He had
admitted that he cannot say from which pole number electricity was
taken.
7.9 P.W.
No.4 Rambhai Bhikhabhai Makwana who is said to have been a panch has
been declared hostile.
8. It
is pertinent to note that the order of conviction cannot be passed
unless and until the guilt on the part of he accused is established
beyond doubt. The testimony of the witnesses and accused thereof as
it is discussed hereinabove were not able to inspire any confidence
at all. As the trial Court, has recorded acquittal, which, in my
view, finds no disturbance under Section 378 of the Code of Criminal
Procedure, 1973, the appeal, therefore, requires to be dismissed.
9. For
the aforesaid discussion, this Court is of the view that the order of
acquittal cannot be said to be so perverse as to call for any
interference. Hence, appeal fails and is hereby dismissed.
(S.
R. Brahmbhatt, J. )
sudhir
Top