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Heard on I.A. No.906/2023 - an application seeking grant of leave to appeal against the judgment and order of acquittal dated 27.07.2022 passed in Special Case No.192/2016 by the Special Judge (Electricity Act), Bijawar, District Chhatarpur, (M.P.) whereby the respondent/accused has been acquitted of the offence under Section 135 of the Electricity Act.
2 . The complaint of the Officer/Complainant, that the complainant, Ganesh Daheria, was posted as Junior Engineer in M.P. Poorva Kshetra Vidyut Vitaran Company Limited, Buxwaha District, Chhatarpur. The complaint, in brief, is that on 15.07.2015, he was conducting an inspection in village Majhaura regarding electricity theft. He found that the accused was illegally using electricity at his establishment by directly hooking a katiya to the L.T. line of the electricity company. At the spot, he found a flour mill being operated with a 3 H.P. electric motor at the accused's establishment, with a total load of 2238 watts. On finding the accused stealing electricity with dishonest intent, a site map of the incident location was prepared on the spot and a panchnama was drawn up. The accused refused to sign the panchnama. The accompanying employee witnesses Govinda Kushwaha and Rajbhan Patel signed it. A provisional assessment order no. 8572/3 dated 28.07.2015 was prepared, a copy of which was given to the accused. Due to the said act of the accused, the electricity company suffered a financial loss of Rs. 25,568/-. The act of the accused falls under the category of a cognizable offence under Section 135 of the Electricity Act, 2003, which is an offence punishable with fine and imprisonment. Hence, the complaint be accepted and the accused be proceeded against in accordance with law.
Thereafter a charge sheet was filed. Charge was framed against the accused. The accused denied the charges levelled against him and sought trial.
In order to bring home charges, the prosecution has examined as many as 02 witnesses, namely, Ganesh Kumar Dehriya (PW-1) and Rajbhan Patel (PW-2), whereas, the accused has not examined in his defense and placed Ex.P/1 and P/2 the documents on record.
Learned trial Court after recording of evidence of the parties acquitted the respondent/accused, hence, this appeal.
It is submitted by learned counsel appearing on behalf of the appellant/complainant that the learned trial Court erroneously acquitted the respondent/accused on the ground that no independent witness was examined by the prosecution and no independent witness had signed the panchnama (Ex.P/1) prepared at the spot. It is further submitted that no villager was willing to sign the panchnama due to cordial relations with the accused and, therefore, the prosecution could not include any independent witness in the case. It is also submitted that although the flour mill and starter were not seized, the reasons for non-seizure have been specifically mentioned in the panchnama. So far as the identity of the house is concerned, the same has been duly established by the statements of Ganesh Kumar Dehriya (PW-1) and Rajbhan Patel (PW-2). Therefore, the grounds assigned by the learned trial Court for acquitting the accused are unsustainable in law. The impugned judgment, being perverse and illegal, is liable to be set aside and the appeal deserves to be allowed by convicting and sentencing the respondent/accused appropriately.
I have heard the learned counsel for the appellant and perused the record meticulously.
The important witness of the prosecution, Ganesh Kumar Dehriya (P.W.1), though supported the prosecution story in his statement, which is further corroborated by the statement of Rajbhan Patel (P.W.2), serious infirmities have emerged from the prosecution case which create doubt regarding its veracity. At the outset, the prosecution failed to establish that the house searched by these witnesses belonged to or was in possession of accused Ratiram Yadav. There is no evidence in the form of Gram Panchayat records or revenue records to show the possession of the accused over the said house. Ganesh Kumar Dehriya (P.W.1) has categorically admitted that he did not personally know the accused. Similarly, Rajbhan Patel (P.W.2) has stated that he neither knew the house of the accused nor the accused himself. The best evidence, in the form of title documents, records, or any other document establishing possession of the house by the accused, could have been obtained and produced by the prosecution, but the same was not brought on record in the present case.
Even the villagers of Village Majhoura or the persons residing in the vicinity could have been examined as witnesses on the point in issue, but neither were they cited as witnesses nor examined on behalf of the complainant/prosecution. Moreover, the panchnama (Ex.P/1) has not been signed by any independent witness or resident of Village Majhoura, and in this regard no plausible explanation has been offered by the complainant witnesses, despite their admission that other houses were situated nearby. The panchnama (Ex.P/1) further records that the accused refused to sign the same; however, no independent witness has been examined on behalf of the prosecution to establish that the accused had in fact refused to affix his signature on Ex.P/1.
1 0 . The panchnama (Ex.P/1) records that a 5-meter wire was seized; however, the said seized property was not exhibited during the examination of the complainant witnesses, and no explanation for such omission has been furnished by the prosecution. Moreover, the flour mill and starter, which were allegedly found at the spot in running condition through illegal electricity connection, were also not seized by the witnesses for reasons best known to them. Such equipment, being material evidence allegedly used for commission of electricity theft, ought to have been seized by the concerned witnesses.
In the conspectus of the aforesaid facts and circumstances, the view taken by learned trial Court is found to be plausible one and lawful. It cannot be said that it is perverse or illegal warranting any interference.
It is settled principle of law that if there two views are possible from the evidence, the view favourable to the accused will prevail. Therefore, the learned trial Court has rightly adopted such view and acquitted the respondent/accused from the levelled charge. No ground emerges to this Court warranting interference in the judgment of acquittal by the learned trial Court.
In case of H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581 , the Hon’ble Supreme Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows:
“8.1.The acquittal of the accused further strengthens the presumption of innocence;
8.2.The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;
8 . 3 . The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;
8.4.If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and
8.5.The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.” (Emphasis Supplied)
In case of Babu Sahebagouda Rudragoudar Vs. State of Karnataka, 2024 SCC Online SC 561, the Hon’ble Supreme Court, after referring to relevant precedents, has observed as follows:-
“39.Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles:
(a)That the judgment of acquittal suffers from patent perversity;
(b)That the same is based on a misreading/omission to consider material evidence on record;
(c)That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.
40.The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court.” (Emphasis Supplied)
In case of Sadhu Saran Singh vs. State of U.P., (2016) 4 SCC 397 , the Hon'ble Supreme Court has held that:-
"In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate Court would interfere with the order of acquittal only when there is perversity of fact and law. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. Appellate Curt, while enunciating the principles with regard to the scope of powers of the appellate Court in an appeal against acquittal, has not absolute restriction in law to review and relook the entire evidence on which the order of acquittal is founded."
Similarly, in case of Harijan Bhala Teja vs. State of Gujarat , (2016) 12 SCC 665, the Hon'ble Supreme Court has held that:-
"No doubt, where, on appreciation of evidence on record, two views are possible, and the trial court has taken a view of acquittal, the appellate court should not interfere with the same. However, this does not mean that in all the cases where the trial court has recorded acquittal, the same should not be interfered with, even if the view is perverse. Where the view taken by the trial court is against the weight of evidence on record, or perverse, it is always open for the appellate court to express the right conclusion after re-appreciating the evidence if the charge is proved beyond reasonable doubt on record, and convict the accused."
In the light of the aforesaid discussion and the ratio of law laid down by Hon'ble Apex Court in aforesaid cases, on careful analysis of the evidence, the observations made by the learned trial Court in the impugned judgment are not found to be faulty. The learned trial Court on proper appreciation of evidence available on record has rightly acquitted the respondent/accused. There is no ground to interfere with the findings of the learned trial Court.
Resultantly, I.A. No.906/2023 - application seeking grant of leave to appeal to dismissed. Consequently, the criminal appeal stands dismissed.