The presumption of innocence and the principles for appellate courts to review evidence in appeals against acquittal were central to the judgment.

JUDGMENT :

1. Heard learned Additional Public Prosecutor Ms. Jirga Jhaveri for the appellant – State.

2. The State has filed this acquittal appeal challenging the judgment and order dated 30.06.2010 passed by the learned Special Judge (Electricity), Mehsana in Special (GEB) Case No. 20 of 2009 for the offences punishable under Section 135(I)(B) of the Indian Electricity Act.

3. The brief facts of the case are that on 18.10.2008 at about 7.00 hours, complainant - Junior Engineer, Shri R.J.Patel alongwith Junior Engineer Shri M.R. Patel and Lineman P.I. Patel as well as other staff members had carried out inspection at the premises of respondent accused situated at Sath Bazar Navgari, besides Taluka Panchayat, Vijapur, District : Mehsana and during their inspection, respondent was found committing theft of electricity by way of illegal means. Therefore, an average bills of Rs. 27,901.20/- was prepared and issued respondent, which was not paid by him within period of limitation and therefore, complaint was filed against respondent. It is to be noted at this stage that earlier on 13.03.2007, respondent was found committing theft of electricity accordingly checking sheet bearing No. 003886 dated 13.03.2007 was prepared and issued to respondent. Thus, this is the second time, that respondent was found committing theft of electricity and accordingly complainant has filed aforesaid complaint before UGVCL Police Station, Sabarmati, vide CR No. II- 166/2008 for the alleged offences under Section 135(1)(B) of the Indian Electricity Act, 2005.

3.1 On the basis of aforesaid complaint, police recorded statement of witnesses and as there was sufficient evidence connecting respondent with crime produced in this case, charge-sheet was filed before the court of learned Judicial Magistrate, First Class, Vijapur. As the offence committed by respondent was absolutely triable by the court of learned Special Judge, same was committed to the court of learned Special Judge (Electricity), Mehsana and numbered as Special Electricity Case No. 20/2009.

3.2 Thereafter, respondent was ordered to issue with summons and after service of summons, respondent has appeared before the Court, wherein he has not pleaded guilty for the charges levelled against him and claimed to be tried.

3.3 Before trial, prosecution has examined complainant, police witnesses and panch witneses, who were supporting to the case of prosecution. At the end of trial, the learned Judge after appreciating necessary evidence laid down by prosecution was pleased to acquit respondent by his Judgement and order of acquittal dated. 30.06.2018 for the offences with which he was charged. Therefore, appellant- State of Gujarat has preferred present appeal under sec. 378(1)(3) of Criminal Procedure Code, 1973 against order of acquittal.

4. Learned Additional Public Prosecutor Ms. Jirga Jhaveri for the appellant -State has taken this Court at different depositions as deposed by the witnesses and submitted that the learned Special Judge has committed error in appreciation of evidence. It is further contended that the learned Special Judge has committed error in arriving at the acquittal of the accused person and therefore appeal may be allowed and reversion be made to the extent the conviction of the accused person.

5. Having heard the arguments advanced by learned advocate for the appellant and considering the materials available on record, this Court would like to refer as under:

5.1 Before adverting to the facts of the case, it would be worthwhile to refer to the scope of interference in acquittal appeals. It is well settled by catena of decisions that an appellate Court has full power to review, re-appreciate and consider the evidence upon which the order of acquittal is founded. However, the Appellate Court must bear in mind that in case of acquittal, there is prejudice in favour of the accused, firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurispr