CR.A/423/1984 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 423 of 1984 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= STATE OF GUJARAT - Appellant(s) Versus CHINTAMAN @ NARAYAN LAXMAN & 7 - Opponent(s) ========================================================= Appearance : Mr. S.P. Hasurkar, APP, for Appellant(s) : 1, NOTICE SERVED for Opponent(s) : 1, 5, 7, MR BP JOSHI for Opponent(s) : 2, RULE UNSERVED for Opponent(s) : 3, MR CJ VIN for Opponent(s) : 4, MR RA BUDDHADEV for Opponent(s) : 6, MR HL JANI for Opponent(s) : 8, ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 14/07/2008 CR.A/423/1984 2/6 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) This appeal is filed against the acquittal award passed by the learned Additional Sessions Judge, Surat, on 31.1.1984 in Sessions Case No. 116 of 1983. 2. The facts of the case are 8 accused and one absconding person named Edvin Alesh Rodricks conspired together. They decided to rob a man who was the proprietor of a diamond polishing factory in Surat. The conspiracy was hatched about a month prior to the day on which robbery took place. 3. The case was that one Ashok A. Savani was running a diamond polishing factory known as “Sun Diamond”. It was situated in Bhatti Sheri in Bagampura area of the city of Surat. At about 5.00 p.m. On 11.1.1983 the six accused went to the factory by car. They entered the factory. Ashok was in room No. 2. A large quantity of diamonds was lying there. Accused No. 1 was armed with a revolver. The rest carried knives. The revolver was pointed towards Ashok. The telephone was immediately disconnected. All doors and windows were closed. Nobody was allowed to move. Two men carrying knives stood in each of the three rooms. These men carried away diamonds worth Rs. 10 lakhs. They also carried away currency notes of the value of Rs. 60,000/-. At the time of departing accused No. 1 had said that Ashok be carried away but others did not approve of the idea. Ashok was slapped. The main entrance door was closed from outside. CR.A/423/1984 3/6 JUDGMENT 4. After the dacoits left, the inmates opened the windows and saw a blue coloured fiat Car. The robbers took their seats in the car and left the place. The number on the number plate was noted down. Soon Ashok filed a complaint. During the investigation, firstly the car was recovered seven days later. Diamonds were traced from the car. Then the accused were traced from Bombay and Surat. From each accused a large quantity of diamonds was traced. The accused were not dealing in diamonds. They could not duly account for the possession of the diamonds. The witnesses of the prosecution adhered to the story. 5. The learned Sessions Judge having considered the entire evidence acquitted all the accused persons for the offence committed by them vide judgement and order dated 31.1.1984. The State being aggrieved by the acquittal, preferred this appeal. Private parties have also preferred appeal but in course of time they were disposed of. Now this appeal is being heard finally. 6. We have gone through the record and proceedings of the case. We have also considered the entire evidence in detail. The learned Additional Public Prosecutor has taken us through the evidence of Richard Exh. 30, Anil P. Sharma Exh. 31 and Mulchand Gagaji Ex. 36 and contended that all the witnesses have supported the prosecution story regarding conspiracy. We have gone through the evidence and found that Richard was not believed by the learned Sessions Judge because the nature of his evidence suggested that he was an accomplice. He was produced by the prosecution as witness. CR.A/423/1984 4/6 JUDGMENT There is a set procedure as to how an accomplice can be made a witness. He was produced as witness without following the law. The learned Sessions Judge has therefore rightly rejected the evidence of the said witness as being not trustworthy. 7. Similarly, Anil P. Sharma was not believed because the learned Sessions Judge observed him in witness box and found that such person was having hardly any means so that he can lend any money to the tune of Rs. 600/- to Motiram and his version cannot be believed that for recovery of such amount he used to visit Motiram and in that course of such time he heard about the hatching of the conspiracy. Mulchand Gagaji was also not believed by the Court because he had hardly any time to remain in contact with the accused persons. He also did not throw any light to corroborate the version of the prosecution and except saying that there was a gang, this person he has not stated anything which throws light for corroborating the evidence of prosecution. In this background the story of prosecution regarding conspiracy falls to ground. 8. The learned Additional Public Prosecutor also took us through the evidence of eye witnesses and contended that all the eye witnesses have seen the incidence and their version ought not to have been discarded by the learned Sessions Judge. Having gone through the evidence we found that the witness were subject to the test identification parade. However, the learned Sessions Judge did not believe the test identification parade because obviously the same took after more than 20 days. Delay explained by the prosecution was not satisfactory. The witnesses were not personally known to the accused. The identification was conducted belatedly. In the CR.A/423/1984 5/6 JUDGMENT meantime, pictures of the accused were published for public viewing. Thus identification became subject to doubt. 9. The learned Assistant Public Prosecutor also took us to the part of recovery and discovery. Perusing the evidence regarding the recovery we have hardly any doubts about correctness of the findings recorded by the learned Sessions Judge regarding recovery. Firstly this recovery from the car was very doubtful because the same was not found from the possession of any of the accused persons and there is one more aspect in which the entire evidence is lacking is with reference to the identification of the said muddamal in its correct perspective. The recovered diamonds were the looted diamonds have not been established by proper way of identification i.e. giving weight in carats of dimension of cutting. The learned Sessions Judge at one point of time observed that perusing the entire evidence regarding recovery of diamonds, was evidently planted subsequently in the car. With reference to other the discovery of diamonds from the accused No. 1 the recovery was not rightly believed because panch witness appears to be in control of police and he has admitted that he came into contact with police personnels in one kidnapping case in 1982 and he was subjected to detention proceedings, such witness was rightly not believed by the learned Sessions Judge so far as discovery part is concerned. Considering the evidence on record, we find that the learned trial Judge has not committed any error in acquitting the accused respondents. We are aware, in acquittal appeal, we cannot reappreciate the evidence to frame another opinion CR.A/423/1984 6/6 JUDGMENT if the opinion expressed in one possible view. Even we cannot substitute our opinion unless the view taken by the learned trial Judge is perverse or contrary to the principles established by law. We are, therefore, of the considered opinion that the finding recorded by the learned trial Judge does not call for interference. There is no substance in the appeal. Hence dismissed. Bail bonds stand dismissed. (BHAGWATI PRASAD, J) (S.R. BRAHMBHATT, J) (pkn)