STATE OF GUJARAT vs GIRDHARBHAI BHIKHABHAI MARVIYA
- Court
- Gujarat High Court
R/CR.A/148/2013 (GJHC240437342013) JUDGMENT DATED: 07/09/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 148 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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Approved for Reporting Yes No
୰
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STATE OF GUJARAT
Versus
GIRDHARBHAI BHIKHABHAI MARVIYA
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Appearance:
MS JIRGA JHAVERI ADDL. PUBLIC PROSECUTOR for the Appellant(s) No.
1
MR UM SHASTRI(830) for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 07/09/2026
JUDGMENT
1. The present appeal is filed by the appellant – State of
Gujarat under Section 378(1)(3) of the Criminal Procedure
Code, 1973 (hereinafter referred to as ‘the Code’ for short)
against the judgment and order dated 22.10.2012 passed by
the learned Special Judge, Jamnagar (hereinafter be referred
to as “the Trial Court), in Special (GEB) Case No.42 of 2010
whereby the Trial Court had acquitted the respondent -
accused from the charges under Sections 135 of the Indian
Electricity Act, 2003.
2. The facts giving rise to present appeal are that on
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03.06.2008, Shri S.Y. Pathan, Junior Engineer, Kalavad Sub-
Division, Shri J.K. Santoki, Junior Engineer, Kalavad West,
along with other staff members, conducted an electricity
checking at the paan shop named “Murlidhar”, situated at
village Nikava, Taluka Kalavad. During the checking, it was
found that the accused had illegally taken a direct connection
from the low-voltage electricity line of the Gujarat Electricity
Board from the electric pole and was committing theft of
electricity. Accordingly, the checking officer prepared an
inspection report at the spot and seized the wire. Thereafter,
the relevant documents were submitted to the G.E.B. office.
2.1 On the basis thereof, the concerned employee of the
G.E.B. prepared a supplementary bill towards the theft of
electricity, got the same duly authorized through the
competent officer and served it upon the accused. As the said
amount was not paid, Shri Virjibhai Govindbhai Dholariya,
Deputy Engineer of the G.E.B., lodged a complaint addressed
to the Police Inspector, G.E.B. Police Station, Rajkot. The
same was registered as II C.R. No. 3212/2008. The P.S.O.,
K.H. Parmar, made the necessary entry and initially entrusted
the investigation to Police Head Constable P.K. Piyatra. Upon
his demise, the investigation was entrusted to Head Constable
R.K. Lubana and thereafter to Head Constable Rambhai
Chanabhai Chavda. They recorded the statements of the
relevant witnesses and arrested the accused. The accused was
produced before the concerned Court and was thereafter
released on bail.
2.2 Thereafter, as sufficient evidence was found against the
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accused, at Exh.4, the charge was framed against the accused
and explained to him. At Exh.5, his statement was recorded,
wherein he denied the offence alleged against him and stated
that he wanted to contest the case. Accordingly, the evidence
of the prosecution was recorded. To prove its case the
prosecution has examined six witnesses and led twelve
documentary evidence.
2.3 After hearing both sides and considering the evidence on
records, the trial Court by impugned judgment and order has
acquitted the accused from Section 135 of the Indian
Electricity Act.
2.4 Being aggrieved by and dissatisfied with the aforesaid
judgment and order of acquittal the appellant-State has
preferred this Appeal.
3. Heard Ms. Jirga Jhaveri, learned APP for the appellant
and Mr. U.M. Shastri, learned counsel for the respondent.
4. Learned APP has submitted that the order of acquittal
dated 22.10.2012 passed by the Trial Court is contrary to law
and the evidence on record. She has submitted that the
prosecution examined 12 witnesses and produced
documentary evidence in support of its case. However, the
Trial Court failed to properly appreciate the oral as well as
documentary evidence available on record in its proper
perspective.
4.1 Learned APP has submitted that PW-1, complainant
Virjibhai Govindbhai Dholariya, examined at Exh. 9, has fully
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supported the FIR produced at Exh. 16. He has clearly
narrated the manner in which the accused committed theft of
electricity and the acts committed by the accused. However,
the Trial Court failed to properly appreciate the evidence of
the complainant and disbelieved his testimony while arriving
at the conclusion that the prosecution had failed to prove
beyond reasonable doubt that the accused had committed the
offences charged against them.
4.2 Learned APP has submitted that, in view of the material
available on record, the Trial Court ought to have
appropriately considered the facts and circumstances of the
case in light of the documentary as well as oral evidence
available on record and the legal provisions applicable to the
facts of the case, and ought to have convicted the accused.
The Trial Court failed to do so.
4.3 Learned APP has submitted that the prosecution examined
the complainant, other witnesses and the Investigating Officer
in support of its case and also produced sufficient material in
the form of documentary as well as oral evidence on record.
However, the Trial Court failed to properly appreciate the oral
and documentary evidence available on record.
4.4 Learned APP has submitted that the Trial Court failed to
appreciate that the names of the present accused were shown
as accused by the Investigating Agency and that, during the
course of trial, no sufficient evidence was brought forth
against the accused to establish their guilt. In such
circumstances, the Trial Court ought to have examined the
matter in detail and considered the reasons for the absence of
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sufficient oral or documentary evidence in support of the
prosecution case. If such deficiency was occasioned by any
omission, commission or dereliction of duty on the part of the
prosecution witnesses or the Investigating Agency or the
concerned Officer, the Trial Court ought to have exercised the
powers conferred upon it under law.
4.5 Learned APP has submitted that the paramount
consideration of the Court is to ensure that miscarriage of
justice is avoided. A miscarriage of justice may arise not only
from the conviction of an innocent person but also from the
acquittal of a guilty person. The order of acquittal passed by
the Trial Court, without properly examining the material
available on record and without exercising the powers
conferred upon it under law to ascertain the truth, has
resulted in a miscarriage of justice.
4.6 Learned APP has submitted that this is a fit case in which
this Court may exercise the powers conferred upon it under
law, reverse the order of acquittal passed by the Trial Court
and direct further inquiry and/or retrial in accordance with
the legal provisions applicable to the facts of the case, so as to
avoid miscarriage of justice and secure the ends of substantial
justice.
5. On the other hand learned counsel for the respondent
accused has supported the judgment and order of acquittal.
5.1 Learned counsel for the respondent has submitted that the
impugned judgment and order of acquittal passed by the
learned Trial Court is legal, just, and proper and has been
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passed after thorough appreciation of the oral as well as
documentary evidence available on record. The learned Trial
Court has assigned cogent, convincing, and well-reasoned
findings while acquitting the respondent–accused, and the
same does not warrant any interference by this Court.
5.2 Learned counsel for the respondent has submitted that the
prosecution has failed to prove the charges levelled against
the respondent beyond reasonable doubt. The evidence led by
the prosecution suffers from material contradictions,
omissions, and inconsistencies, which create serious doubt
about the veracity of the prosecution case. The prosecution
has failed to establish the essential ingredients of the alleged
offences and has not produced reliable, trustworthy, and
corroborative evidence connecting the respondent with the
commission of the alleged offence.
5.3 It is a settled principle of criminal jurisprudence that the
presumption of innocence in favour of an accused is further
strengthened by an order of acquittal. Unless the findings
recorded by the Trial Court are shown to be perverse, illegal,
or contrary to the evidence on record, the Appellate Court
should be slow in interfering with an order of acquittal.
5.4 It is submitted that the appellant has failed to point out
any infirmity, illegality, perversity, or misreading of evidence
in the impugned judgment and order. The findings recorded
by the learned Trial Court are based upon proper appreciation
of the evidence and settled legal principles. The learned Trial
Court has rightly extended the benefit of doubt to the
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respondents–accused, which is a substantive right flowing
from the fundamental principles of criminal law.
5.5 In view of the aforesaid facts and circumstances, it is
submitted that the present appeal is devoid of merits and
deserves to be dismissed. The impugned judgment and order
of acquittal passed by the learned Trial Court therefore
deserves to be confirmed.
6. Upon perusal of the impugned judgment and order, as well
as the submissions advanced by the learned advocates for
both sides, the issues that arises for consideration before this
Court are as under:-
Whether the Trial Court committed any error in passing
the impugned judgment and order of acquittal?
Whether the Trial Court, while appreciating the evidence
of the prosecution witnesses, has committed any error of
law or fact?
Whether the impugned judgment and order of acquittal
suffers from any illegality or perversity?
7. In view of the above-stated submissions and upon perusal of
the impugned judgment and order of acquittal, as well as the
evidence recorded by the Trial Court, it is appropriate to first
examine the facts of the case. On 03.06.2008, Shri S.Y.
Pathan, Junior Engineer, East Kalavad Sub-Division, along
with Shri J.K. Shantoki, Junior Engineer, West Sub-Division,
and other staff members, conducted group checking at Village
Nikava, Taluka Kalavad. Near the shop of the respondent,
Murlidhar Pan, they found him allegedly using an electric
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cable and other apparatus to directly abstract electricity from
a nearby electricity pole. After completing the necessary
formalities, the checking sheet was prepared and the electric
cable and other apparatus were seized. The team thereafter
returned to the Sub-Division Office and informed the Deputy
Engineer, Shri Virjibhai G. Dholaria (PW-1), about the alleged
unauthorised use of electricity. PW-1 subsequently lodged a
complaint under Section 135 of the Indian Electricity Act
before the GEB Police Station, Rajkot, which was registered
as C.R. No. II-3212 of 2008.
7.1 The investigation was initially entrusted to Mr. Miyatra.
However, during the investigation, he died in an accident. The
investigation was thereafter handed over to Mr. R.K. Lubana,
Head Constable at GEB Police Station, Rajkot, and
subsequently to PW-6, Mr. Rambhai Chanabhai Chavda.
8. It appears that during the course of investigation,
investigation officer admitted before the court that the
complainant has not produced any authorisation as required
under Section 151 of Indian Electricity Act, which is read as
under:-
“ 151. Cognizance of offences.– No court shall take cognizance of
an offence punishable under this Act except upon a complaint in
writing made by the Appropriate Government or Appropriate
Commission or any of their officer authorised by them or a Chief
Electrical Inspector or an Electrical Inspector or licensee or the
generating company, as the case may be, for this purpose.
Provided that the court may also take cognizance of an offence
punishable under this Act upon a report of a police officer filed
under section 173 of the Code of Criminal Procedure, 1973 (2 of
1974):
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Provided further that a special court constituted under section 153
shall be competent to take cognizance of an offence without the
accused being committed to it for trial.”
9. Even they have not drawn the panchnama of the place of
the incident, nor they have collected the mudamala from the
complainant, nor it was produced before the Trial Court by
the investigation officer. In the absence of any cogent and any
relevant clinching evidence produced by the prosecution
before the Trial Court, the prosecution failed to establish the
charge against the present respondent under Section 135 of
the Indian Electricity Act. The Trial Court has discussed the
evidence oral led by the prosecution witnesses and also
discussed the documentary evidence. After considering the
arguments advanced by both the sides, the Trial Court framed
the issue in paragraph 7, which was dealt with in paragraph
10 onwards while recording the reasons.
10. After dealing with the deposition of the prosecution
witnesses, the Trial Court in paragraph 18 has referred the
provision of Section 151 of the Indian Electricity Act r/w
Section 50 of the Indian Electricity Act and after considering
the provision referred as above, the Trial Court has also
further discussed the provision of Section 135 of the Indian
Electricity Act and after referring and relying upon the
decision of this Court and the Hon’ble Apex Court in
paragraph 23 to paragraph 40 and after considering the
submission and after considering the facts of the case, the
Trial Court has rightly decided the issue No.1 in negative, as
the prosecution failed to establish the charge under Section
135 of the Indian Electricity Act against the present
respondent by producing any cogent and clinching evidence
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and prove the charge against the present respondent beyond
reasonable doubt.
11. Even the Trial Court has also recorded the conclusion that
why the court is not believe the case of the prosecution as
adhered before the court and in the absence of any cogent
and clinching evidence produced by the prosecution, the Trial
Court has rightly passed the impugned judgement and order.
In fact, the prosecution has also produced the documentary
evidence collected during the course of investigation, at Exh.
26, that the property is stood in the name of the father of the
present respondent and the present respondent is not the
owner of the said property, wherein the investigation was
carried out and in absence of joining that owner of the
property, the prosecution was only initiated against the
present respondent is also bad in law and illegal, and thus the
Trial Court after considering all this relevant documentary
evidence and after considering the deposition of the
witnesses, has rightly passed the impugned judgement and
order, whereby the order of acquittal was recorded in favour
of the present respondent.
12. On perusal of the impugned judgment and the
conclusion recorded by the Trial Court after considering the
evidence at length and after referring the various
pronouncement of the this court and the Hon’ble Apex Court
and after considering the deposition of all the six prosecution
witnesses, the Trial Court has rightly passed the impugned
judgement and order of acquittal, and there is no any infirmity
or any illegality found in the impugned judgement and order.
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13. For sake of convenience, it is appropriate to refer the
observations made by this Court in case of Barot Vitthalbhai
Damodardas vs. Natwarbhai Umedbhai Patel reported in
2009(3) GLR 1947 which reads as under:-
“5. It is true that the essential purpose of enactment of the
Act and more particularly Sec. 135 of the Act is to book the
offenders, who are committing theft of electricity, but as
observed earlier, there cannot be any intention of the
legislature to punish the persons other than the offenders. If
the property is in possession of a tenant and the theft of
electricity is found, it may be reasonable for the Electricity
Company to proceed on the basis that the person, who is
beneciary of the alleged offence namely; the occupant could
be said to have been involving in commission of offence, but it
would be only wholly absurd on the part of the Electricity
Company to proceed on the basis that the owner of the
property since he is consumer can also be fastened with the
criminal liability even if there is no material found during the
course of investigation that the owner of the property, who is
actually not in occupation of the premises has played any role
in commission of the alleged offence of the theft under Sec.
135 of the Act. If such contention is entertained, it would
result into abuse of process of law, and since in the present
case, the complaint is led by the Electricity Company against
the landlord on the premise that he is the owner of the
property, though in the very complaint it has been mentioned
that the tenant one Mr. Patel Pankajkumar Bhikhabhai is in
occupation of the property, the complaint can be said as
abuse of process of law and if such complaint is not quashed,
it would result into miscarriage of justice.”
14. Further, on perusal of the record of the appeal, it
transpires that the respondent-accused has established his
innocence before the Trial Court and that, after due
appreciation of the oral as well as documentary evidence and
other material placed on record, the Trial Court has rightly
passed the impugned judgment and order of acquittal. The
findings recorded by the Trial Court are just, proper and in
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accordance with the settled principles of law and, therefore,
no interference is warranted by this Court.
15. It is well settled by catena of decisions that the Appellate
Court has full power to review, re-appreciate and reconsider
the evidence upon which the order of acquittal is founded.
However, Appellate Court must bear in mind that in case of
acquittal there is double presumption in favour of the
accused. Firstly, the presumption of innocence is available to
him under the fundamental principle of criminal jurisprudence
that every person shall be presumed to be innocent unless he
is proved guilty by a competent Court of law. Secondly, the
accused having secured his acquittal, the presumption of their
innocence is further reinforced, reaffirmed and strengthened
by the trial Court.
16. Further, if two reasonable conclusions are possible on
the basis of the evidence on record, the Appellate Court
should not disturb the finding of acquittal recorded by the
trial Court. Further, while exercising the powers in appeal
against the order of acquittal, the Court of appeal would not
ordinarily interfere with the order of acquittal unless the
approach of the lower Court is vitiated by some manifest
illegality and the conclusion arrived at would not be arrived at
by any reasonable person and, therefore, the decision is to be
characterized as perverse. Merely because two views are
possible, the Court of appeal would not take the view which
would upset the judgment delivered by the Court below.
However, the Appellate Court has a power to review the
evidence if it is of the view that the conclusion arrived at by
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the Court below is perverse and the Court has committed a
manifest error of law and ignored the material evidence on
record. A duty is cast upon the Appellate Court, in such
circumstances, to re-appreciate the evidence to arrive to a
just decision on the basis of material placed on record to find
out whether the accused are connected with the commission
of the crime with which he is charged.
17. The scope and principles are enunciated by the Hon’ble
Apex Court in case of Chandrappa and others Vs. State of
Karnataka reported in (2007) 4 SCC 415 , more particularly
paragraph Nos. 42 and 43 , which was subsequently re-
affirmed by the Hon’ble Apex Court Rajesh Prasad Vs. State
of Bihar and another , reported in [ 2022] 3 SCC 471 ,
wherein, the Hon’ble Apex Court has enunciated the general
principles in case of acquittal, more particularly in paragraph
No. 26 the general principles are set out by the Hon’ble Apex
Court based upon various decisions of the Hon’ble Apex
Court. Then in case of Babu Sahebagouda Rudragoudar
Vs. State of Karnataka, reported in AIR 2024 SC 2252 =
(2024) 8 SCC 149, the Hon'ble Apex Court has dealt with
the similar issue, more particularly, in paragraph Nos. 37 to
40. Hence, I am in complete agreement with the findings
recorded by the trial Court.
18. It is also worthwhile to refer to the recent decision of the
Hon’ble Supreme Court in the case of Ramesh vs. State of
Karnataka, reported in [2024] 9 SCC 169 , wherein the
Hon’ble Supreme Court has held and observed in paras-20
and 21 as under:-
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“20. At this stage, it would be relevant to refer to the general
principles culled out by this Court in Chandrappa and others vs.
State of Karnataka , regarding the power of the appellate Court
while dealing with an appeal against a judgment of acquittal. The
principles read thus:
“42. …. (1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon which the order of
acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation,
restriction or condition on exercise of such power and an
appellate court on the evidence before it may reach its own
conclusion, both on questions of fact and of law.
(3) Various expressions, such as, “substantial and compelling
reasons”, “good and sufficient grounds”, “very strong
circumstances”, “distorted conclusions”, “glaring mistakes”, etc.
are not intended to curtail extensive powers of an appellate court
in an appeal against acquittal. Such phraseologies are more in the
nature of “flourishes of language” to emphasize the reluctance of
an appellate court to interfere with acquittal than to curtail the
power of the court to review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in mind that in case of
acquittal, there is double presumption in favour of the accused.
Firstly, the presumption of innocence is available to him under
the fundamental principle of criminal jurisprudence that every
person shall be presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly, the accused having
secured his acquittal, the presumption of his innocence is further
reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the
evidence on record, the appellate court should not disturb the
finding of acquittal recorded by the trial court.
21. In Rajendra Prasad v. State of Bihar, a three-Judge Bench of
this Court pointed out that it would be essential for the High
Court, in an appeal against acquittal, to clearly indicate firm and
weighty grounds from the record for discarding the reasons of the
Trial Court in order to be able to reach a contrary conclusion of
guilt of the accused. It was further observed that, in an appeal
against acquittal, it would not be legally sufficient for the High
Court to take a contrary view about the credibility of witnesses
and it is absolutely imperative that the High Court convincingly
finds it well-nigh impossible for the Trial Court to reject their
testimony. This was identified as the quintessence of the
jurisprudential aspect of criminal justice. Viewed in this light, the
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brusque approach of the High Court in dealing with the appeal,
resulting in the conviction of Appellant Nos. 1 and 2, reversing
the cogent and well-considered judgment of acquittal by the Trial
Court giving them the benefit of doubt, cannot be sustained.”
19. Considering the entire evidence on record, it clearly
appears that there is no credible evidence to connect the
present accused with the alleged crime and the evidence on
record is not so convincing to prove beyond reasonable doubt
that the accused has committed the alleged crime. Therefore,
the accused cannot be convicted on the evidence on record.
20. On perusal of the impugned judgment and order, it
clearly transpires that the trial Court has not committed any
error of fact and law in appreciating the evidence on record
and in acquitting the accused from the charges levelled
against them. Even on re-appreciation of the evidence, it
clearly transpires that the prosecution has miserably failed to
prove the charge levelled against the accused beyond
reasonable doubt. Therefore, the impugned judgment and
order of the trial Court is sustainable and the present appeal
is liable to be dismissed.
21. In view of the above, t h e present appeal is devoid of
merits and it deserves to be dismissed. Resultantly, it is
dismissed. The impugned judgment and order of acquittal
passed by the Trial Court is hereby confirmed. Bail bond
stands cancelled. Record and proceedings be sent back to the
concerned Trial Court forthwith.
Sd/-
(HEMANT M. PRACHCHHAK,J)
SURESH SOLANKI
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