{"id":244342,"date":"2010-05-05T00:00:00","date_gmt":"2010-05-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-vs-heard-on-5-may-2010"},"modified":"2018-10-01T02:01:31","modified_gmt":"2018-09-30T20:31:31","slug":"state-vs-heard-on-5-may-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-vs-heard-on-5-may-2010","title":{"rendered":"State vs Heard on 5 May, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
State vs Heard on 5 May, 2010<\/div>\n
Author: S.R.Brahmbhatt,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.A\/2107\/2004\t 9\/ 9\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nAPPEAL No. 2107 of 2004\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE S.R.BRAHMBHATT\n \n \n======================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n======================================\n \n\nSTATE\nOF GUJARAT - Appellant(s)\n \n\nVersus\n \n\nDHAKHADA\nCHAPBHAI RAVATBHAI KATHI - Opponent(s)\n \n\n====================================== \nAppearance\n: \nMR CM SHAH,\nADDL.PUBLIC\nPROSECUTOR for Appellant(s) : 1, \nMR PREMAL S RACHH for Opponent(s)\n: 1, \n======================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE S.R.BRAHMBHATT\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 05\/05\/2010 \n\n \n\n \n \nORAL\nJUDGMENT<\/pre>\n
1.\tHeard
\nlearned advocates for the parties.\n<\/p>\n
2.\tThe
\nState of Gujarat, appellant, hereinabove, has preferred this appeal
\nunder Section 378 of the Code of Criminal Procedure, 1973,
\nchallenging the order of acquittal dated 20.9.2004 passed by the
\nJudicial Magistrate First Class, Rajula in Criminal Case No.15 of
\n2003 acquitting the accused respondent hereinabove of the charge of
\ncommitting the offence punishable under Section 39 of the Indian
\nElectricity Act, 1910 (hereinafter referred to as   the Electricity
\nAct  for the sake of brevity).\n<\/p>\n
3.
\nThe facts, in short, leading to filing of this appeal deserve to be
\nset out as under:-\n<\/p>\n
3.1\tOn
\n23.9.2002, a written complaint came to be lodged with the  Police
\nSub-Inspector, Nageshri Police Station, Jafrabad by Deputy Engineer,
\nGujarat Electricity Board (hereinafter referred to as   the G.E.B.
\nfor the sake of brevity), Jafrabad, inter alia alleging that during
\nthe checking on 14.9.2002 at village  Koli-Kantharia for nabbing
\nelectricity theft, it was found that one Dhakhada Chapbhai Ravatbhai
\nTathi, aged 45 years, had taken illegal connection unauthorizedly
\nfrom their low tension line into his house. Thus, committing theft of
\nelectricity which according to the prevalent rules of G.E.B were
\naccounting for Rs.6568.51 ps. and committed offence punishable under
\nSection 39 of the Electricity Act. The Court registered the case as
\nCriminal Case No. 15 of 2003. The Magistrate framed the charge on the
\nsaid basis on 20.1.2004 at Exh.8 and recorded the plea of not guilty
\nat Exh. 9 and the trial commenced. The prosecution has examined 6
\nwitnesses and produced documentary evidence for bringing home the
\nguilt on the part of the accused. The Court, after appreciating the
\nsame, came to the conclusion that prosecution has failed to establish
\nits case beyond any reasonable doubt and hence, acquitted the accused
\nof the charge of committing the offence punishable under Section 39
\nof the Electricity Act vide its order dated 20.9.2004 which is
\nimpugned in this proceedings under Section 378 of the Code of
\nCriminal Procedure, 1973.\n<\/p>\n
4.\tMs.\n<\/p>\n
C.M. Shah, learned Additional Public Prosecutor, submitted that the
\nCourt ought to have appreciated the fact that the testimony of the
\ncomplainant, other accompanying witnesses at the time of raid and the
\ntestimony of the Talati-cum-Mantri should have been accepted by the
\nCourt for convicting the accused respondent hereinabove. However, the
\nlearned Additional Public Prosecutor could not point out anywhere
\nfrom the memo of the appeal or in her submission that there was any
\nincorrect recording of facts or that the trial court recorded the
\nfacts contrary to the evidence on record.\n<\/p>\n
5.\tShri
\nPremal C. Rachh, learned advocate appearing for the opponent
\ncontended that this being acquittal appeal, the Court ordinarily
\nwould be slow in interfering with the order of acquittal. He further
\nsubmitted that though  the Panchnama is exhibited, the panch
\nwitnesses have not supported the case of the prosecution. So far as
\nthe signature of the panch is concerned,  the recording of the
\nconsent of the learned advocate for the defence cannot be construed
\nto be admitting the content of the panchnama. He further submitted
\nthat the prosecution has not cared to explain the discrepancies and
\nlacuna in their case in any manner. He submitted that, therefore, the
\norder of acquittal need not be interfered with under Section 378 of
\nthe Code of Criminal Procedure, 1973.\n<\/p>\n
6.\tThis
\nCourt has heard the learned advocates for the parties and perused the
\nrecord and proceedings.\n<\/p>\n
7.\tThe
\nfollowing indisputable facts emerge from the record and proceedings,
\nwhich deserve to be set out as under for appreciating the order
\nimpugned, namely :-\n<\/p>\n
7.1\tThe
\noriginal complainant is examined at Exh.10, who has stated before the
\nCourt during his testimony that the statement was prepared on the
\nspot but the said statement was not signed by the accused despite
\nbeing requested to sign the same. The Rojnama and the statement have
\ncome on record by way of Exhs.11 and 12. He has admitted in his
\ntestimony that wire of 15 meters in length alleged to have been
\nemployed for taking electricity connection, had been taken as
\nMuddamal from the place. He had also admitted that on that day during
\nthe checking, they had visited three villages and checked many houses
\nand premises. In his cross-examination it is categorically come out
\nthat on the day of the incident, they had started at around 8: 30
\na.m. from Jafrabad and reached Kagwadar for checking, from Kagwadar
\nthey reached Bhatwadar for checking and from Bhatwadar they reached
\nKoli-Kantharia village, wherein allegation of theft by the accused is
\nmade.\n<\/p>\n
7.2.\tHe
\nhas admitted that during the course of checking, he had not obtained
\nany documentary evidence with regard to ownership of the house in
\nquestion.\n<\/p>\n
7.3.\tHe
\nhas also admitted that he does not know the number of the house.\n<\/p>\n
7.4\tHe
\nhas admitted in his cross-examination that in the customer statement
\nthe house number is not mentioned (the statement is not signed by the
\naccused). He has admitted that at the time of checking Lineman and
\nhelper had accompanied him. He has also admitted that neither Lineman
\nnor Motor-reader  had ever filed complaint or report against the
\naccused that the accused was indulging in power theft or any energy
\ntheft. He has admitted in his cross-examination that he does not know
\nthe pole number from which the accused has taken the unauthorized
\nelectricity connection. He has admitted in his cross-examination that
\nhe has not taken any neighbour’s statement with regard to the
\npremises wherein the unauthorized connection was taken belonging to
\naccused. He has admitted that diary wherein they make note before
\nthey go for checking is not
\n                  produced nor any copy thereof is produced. He has
\nsaid that no electricity gadgets or other apparatus were recovered
\nfrom the place of the accused. He admitted that it is not mentioned
\nin the Rojkam that the premises of the accused is in which direction.
\nHe has admitted that on the day of the incident. He had made many
\ncases of power theft and checked many connections. He admitted that
\nthe customer’s statement is in a printed form and only blank space
\nand columns are to be filled-in. He denied the suggestion that they
\nwere prepared in the office. He has admitted that there was a
\nnewspaper item that the residents of villages  Kagwadar, Bhatwadar,
\nBalawani Vav were not given electricity supply by the G.E.B. However,
\nhe denied the suggestion that as there was representation against the
\nG.E.B. by this people, the cases were got up against them. Arvind
\nDhirubhai Vasava, Junior Engineer has deposed at Exh.16 being P.W.
\nNo.2. In his cross-examination also the admission with regard to
\ndistance between pole and the place of the accused is not certainly
\nmentioned nor there is mentioning with regard to direction. It has
\nalso come out in his cross-examination that there is no evidence with
\nregard to the ownership of the house of the accused, which is taken
\nor produced. No pole number is mentioned from which the connection
\nwas taken.  He said in his statement that he has not mentioned that
\nwhen the checking was done, the electricity supply was going on.\n<\/p>\n
7.5\tHe
\nfurther admitted in his cross-examination on the date of the incident
\nthat he has visited and checked many power connections though he has
\ndenied that the complaint was filed  mala fide.\n<\/p>\n
7.6\tHe
\nhas admitted that he does not know that since how long the accused is
\nstealing the supply. He has admitted that there is a printed form for
\nrecording the statement of the customer and only columns are to be
\nfilled-in.  He denied suggestion that he had not gone for checking
\netc. The P.W.2 who happens to be Junior Engineer has stated in his
\ncross-examination that he never knew the accused prior to the
\nchecking or during the checking.\n<\/p>\n
7.7\tHe
\nadmitted that he cannot say as to how far the house of the accused is
\nsituated from the pole wherefrom the electricity is said to have been
\nobtained by illegal connection. He admitted that he does not know the
\nexact direction of the house of the accused. He admitted that there
\nwere many residential premises adjacent  to the premises of the
\naccused. He admitted that he has not seen the number of the house and
\nhe has not collected any evidence with regard to the ownership of the
\nhouse. He admitted that he has not noticed the number of the G.E.B.
\npole wherefrom the illegal connection was made and supply was
\nobtained.\n<\/p>\n
7.8\tHe
\nadmitted that he has not mentioned in the statement before the police
\nthat the electricity supply was on. P.W No.3 Fugabhai Ghelabhai
\nChudasama is the helper who had admitted in his cross-examination
\nthat he had not mentioned in his police statement that he had
\ndisconnected the supply and taken the wire in question. He has also
\nadmitted that he did not notice the house number. He also admitted in
\nhis cross-examination that he has not bothered to collect the
\ndocumentary evidence with regard to the house in question and its
\nownership. He had admitted that he did not know the accused prior to
\nthe checking or during the checking. He admitted that there are many
\nresidential premises adjacent to the premises of the accused. He had
\nadmitted that he cannot say from which pole number electricity was
\ntaken.\n<\/p>\n
7.9\tP.W.\n<\/p>\n
No.4 Rambhai Bhikhabhai Makwana who is said to have been a panch has
\nbeen declared hostile.\n<\/p>\n
8.\tIt
\nis pertinent to note that the order of conviction cannot be passed
\nunless and until the guilt on the part of he accused is established
\nbeyond doubt. The testimony of the witnesses and accused thereof as
\nit is discussed hereinabove were not able to inspire any confidence
\nat all. As the trial Court, has recorded acquittal, which, in my
\nview, finds no disturbance under Section 378 of the Code of Criminal
\nProcedure, 1973, the appeal, therefore, requires to be dismissed.\n<\/p>\n
9.\tFor
\nthe aforesaid discussion, this Court is of the view that the order of
\nacquittal cannot be said to be so perverse as to call for any
\ninterference. Hence, appeal fails and is hereby dismissed.\n<\/p>\n
(S.\n<\/p>\n
R. Brahmbhatt, J. )<\/p>\n
sudhir<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court State vs Heard on 5 May, 2010 Author: S.R.Brahmbhatt,&Nbsp; 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-244342","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nState vs Heard on 5 May, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-vs-heard-on-5-may-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State vs Heard on 5 May, 2010 - 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