[1] The present appeal, under Section 378 of the Code of Criminal Procedure, 1973, is directed against the Judgment and order of acquittal dated 22.11.2004 passed by the learned Judicial Magistrate, First Class, Jetpur in Criminal Case No. 224 of 1997, whereby the learned Magistrate has acquitted the respondents – original accused from the charges levelled against them.
[2] The brief facts of the case are that complainant Rameshkumar Jayrambhai Patel has filed a complaint against the accused before Jetpur Taluka Police Station for the alleged offences punishable under Sections 379, 114 of the Indian Penal Code and Section 39 of the Indian Electricity Act, vide C.R.No.354/1996 stating the fact that the respondents accused who are residing on Premgadh Road, Kerali, Taluka : Jetpur have taken illegal connection from the low transmission electric line on or before 06.11.1996. It is also the case of the prosecution that Deputy Engineer, Electricity Board, Jetpur Rural has made inquiry about the legality and validity of connection and during inquiry aforesaid connections were found illegal as it was taken without obtaining meters and, therefore, the said complaint was filed before Jetpur Taluka Police Station for the alleged offences under Sections 379 and 114 of the Indian Penal Code as well as under Section 39 of the Indian Electricity Act.
[3] To prove the case against the present respondent – accused, the prosecution has examined the witnesses and also produced documentary evidence.
[4] At the end of trial, after recording the statement of the accused under Section 313 of Cr.P.C., and after hearing the arguments on behalf of the prosecution and the defence, the learned Magistrate has acquitted the accused of all the charges levelled against him by Judgment and order dated 22.11.2004 in Criminal Case No.224 of 1997.
[5] Being aggrieved by and dissatisfied with the Judgment and order passed by the trial Court the appellant – original complainant has preferred the present Appeal.
[6] Heard learned APP for the appellant – State. Though served nobody appears on behalf of the respondents.
[7] Learned A.P.P. on behalf of the appellant – State has contended that the Judgment and order of the trial Court is against the provisions of law; the trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law, it is established that the prosecution has proved all the ingredients of the evidence against the present respondents. He has submitted that the trial Court has not properly appreciated oral well as documentary evidence and thereby committed an error by acquitting the respondents for the alleged offences. He has contended that the complainant Rameshkumar Jayrambhai Patel at Ex.91 has deposed in his deposition that at the relevant point of time he was discharging his duties as Deputy Engineer in Jetpur Rural area. He has contended that the complainant has also deposed in his deposition that on the basis of information, some residents of Village : Kerali has received illegally connection from electric line and, therefore, inspection was arranged on 6.11.1996 with the help of Deputy Engineer, Vadaliya and other three persons and during inspection it was came to know that one cable was going from electric line in the house of Keshubhai Bavanji and said Keshubhai Bavanji was not allotted legally electric connection in spite of the fact he has given other 16 electric connections to the other residents. He has contended that looking to the evidence of the complainant, it appears that the respondents have committed offence of theft of electricity and, therefore, learned trial Court has committed an error in acquitting the accused. He has contended that the accused Batukbhai has given illegal connection from electric line with an intention to get monetary benefit and in the said act, other accused persons had also given cooperation by taking illegal connection though it was within the knowledge of accused persons that they are receiving illegal electric supply and, therefore, they are also liable for the offence under sections 379 and 114 of the Indian Penal Code as well as section 39 of the Indian Electricity Act.
He has contended that it is not possible to get direct electric connection from electric pole without help of technical person. In the present case, one group of 23 members have taken electric connection without obtaining meter with the help of Batukbhai and other accused persons have committed offence of theft of power and, therefore, all the accused persons are liable for punishment under sections 379 and 114 of the Indian Penal Code as well as under section 39 of the Indian Electricity Act. He has contended that the prosecution has examined the independent witnesses, but the trial Court has committed an error in observing that the prosecution has not examined any independent witnesses. Learned APP has also taken this Court through the oral as well as the entire documentary evidence.
[8] At the outset it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court against an order of acquittal passed by the trial Court have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr, reported in (2006)6 SCC, 39, the Apex Court has narrated about the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under:
“54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgement of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below.”
[9] Further, in the case of Chandrappa Vs. State of Karnataka, reported in (2007)4 SCC 415 the Apex Court laid down the following principles:
“42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
[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 curtain extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasis 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.”
[10] Thus, it is a settled principle that while exercising appellate power, even 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.
[11] Even in a recent decision of the Apex Court in the case of State of Goa V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75, the Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision the Court has observed as under:
“16. From the aforesaid decisions, it is apparent that 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 judgement 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 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 any of the accused is connected with the commission of the crime he is charged with.”
[12] Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.
[13] It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgment or to give fresh reasoning, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Hemareddy, reported in AIR 1981 SC 1417 wherein it is held as under:
“… This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice.”
[14] Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not necessary.
[15] I have gone through the judgment and order passed by the trial court. I have also perused the oral as well as documentary evidence led before the trial court and also considered the submissions made by learned APP for the appellant. It is the case of the prosecution that the accused have committed the offences under Sections 379 and 114 of the Indian Penal Code as well as under Section 114 of the Indian Electricity Act. It appears from the record that to prove the guilt of the accused, the Investigating Officer is not examined. Looking to the panch rojkam at Ex.92, it appears that the prosecution has not examined any independent witnesses in support of its case. It also appears that just to prove the alleged offence committed by the respondents, the prosecution has not proved the identification of the respondents. It is the duty of the prosecution to prove the alleged offence committed by the respondent.
[16] The trial court has, after appreciating the oral as well as documentary evidence, has found that the witnesses have not supported the case of prosecution. The trial Court has also found that there are serious lacunae in the evidence of the witnesses. Nothing is produced on record to rebut the concrete findings of the trial Court.
[17] Thus, the appellant could not bring home the charge against the respondent – accused in the present Appeal. The prosecution has miserably failed to prove the charge levelled against the respondent – accused. Thus, from the evidence itself it is established that the prosecution has not proved its case as alleged against the accused beyond reasonable doubt.
[18] Learned APP is not in a position to show any evidence to take a contrary view in the matter or that the approach of the trial court is vitiated by some manifest illegality or that the decision is perverse or that the trial court has ignored the material evidence on record.
[19] In above view of the matter, I am of the considered opinion that the trial court was completely justified in acquitting the respondent of the charges leveled against him. I find that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it.
[20] I am, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reasons to interfere with the same. Hence the appeal is hereby dismissed.
[21] The respondent No.6 – Bavabhai Arjanbhai Rabari expired and the appeal qua the respondent No.6 stands abated.
[22] In view of above the Appeal is dismissed. Bail bonds, if any, shall stand cancelled. Record & Proceeding may be sent back to the trial Court.
[ Z. K. SAIYED, J. ] (vijay)