R.K. Soni vs Central Bureau Of Investigation, ...
2001 Latest Caselaw 29 Bom

JUDGMENT

J.N. Patel, J.

1. The applicant has impugned his conviction and sentence passed by the learned Chief Judicial Magistrate, Nagpur, on 31-3-1995, in Criminal Case No. 390 of 1992, holding him guilty for having committed offence under section 409 of the Indian Penal Code and under section 409 read with section 511 of the Indian Penal Code and thereby sentencing him to undergo rigorous imprisonment for six months on each count and to pay a fine of Rs. 1000/- or in default to suffer further rigorous imprisonment for one month, on each count. The substantive sentences have been ordered to run concurrently. In the appeal preferred by the applicant before the Court of Sessions at Nagpur, i.e. vide Criminal Appeal No. 35 of 1995, the learned IInd Additional Sessions Judge, by his judgment and order, dated 25-10-1996, confirmed the judgment of the Trial Court and dismissed the appeal.

2. In nutshell, it was the prosecution's case that the applicant, R.K. Soni, who was, at the relevant time, working as Mechanical Chargeman (Construction) at Ajni Workshop, Central Railway, Nagpur, and was looking after the maintenance and repairs of various types of motor vehicles of Central Railway, Nagpur, such as trucks, matadors, jeeps, etc., and was concerned with their maintenance and repairs with the help of his staff, has unauthorisedly removed one complete wheel with tyre; 4 tyres, including one stepney, complete cylinder-head, complete atomizer, self-starter, fuel filter body, dynamo and fuel pump, from Matador No. MTE 3036 which was a Government vehicle belonging to the Central Railway. The said vehicle was entrusted to the applicant as it had met with an accident. This fact came to light when a joint surprise check at Ajni Workshop was conducted on 5-12-1991 by the non applicant, Central Bureau of Investigation (CBI), and that the parts of the said Matador, viz., complete cylinder-head, complete atomizer, self-starter, fuel filter body and dynamo costing Rs. 2250/-, Rs. 1200/-, Rs. 5000/-, Rs. 250/-, Rs. 1500/-, were fitted in the personal Ambassador Car No. MH-31 G-3166 owned by the applicant, with the help of his staff. The said Ambassador Car owned by the applicant was found parked in the Central Railway Workshop Garage at the time of joint surprise check. It was also found that the applicant, with the ulterior motive of selling the fuel pump of the aforesaid Matador No. MTE 3036, got it removed and delivered it to one M/s. Pradhan Diesel, Lodhipura, Nagpur. The fuel pump was of MICO Make bearing No. 9295037 and had a market price of Rs. 12,000/-. The said fuel pump came to be recovered from M/s. Pradhan Diesel. It was also found that the applicant has disposed of unauthorisedly the complete wheel with tyres, costing Rs. 3000/-; as well as four tyres, costing Rs. 8,000/-, after removing the same from Matador No. MTE 3036. It was also found that similarly he has also got removed four tyres from Jeep No. MXQ 5,800 which was lying under his control in the said Workshop. Therefore, a First Information Report came to be lodged against the applicant that, in his capacity as the Mechanical Chargeman (Construction), Central Railway, at Ajni Workshop, he was entrusted with the aforesaid Government property, having abused his official position and being a public servant, he has committed criminal breach of trust in respect of it and thereby caused wrongful gain to himself and wrongful loss to the Central Railway to the tune of Rs. 25,950/- and thereby committed offences punishable under section 409 of the Indian Penal Code and under section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988.

3. On 21-3-1994, the learned Chief Judicial Magistrate, Nagpur, framed charge against the applicant for having committed criminal breach of trust in respect of the complete cylinder head-Rs. 2250/-; self starter-Rs. 5000/-; automizer-Rs. 1200; fuel filter-Rs. 250/- and dynamo-Rs. 1500/-, by conversion of the same and fitting these parts in his Ambassador Car No. MH-31 G-3166, which was found to be belonging to his son, and thereby committed offence punishable under section 409 of the Indian Penal Code. He was further charged of having committed offence under section 409 read with section 511 of the Indian Penal Code for having attempted to commit an offence of criminal breach of trust and in such attempt removed the fuel pump costing Rs. 12,000/- from Matador Van No. MTE 3036 which was sent to M/s. Pradhan Diesel, Nagpur, for repairs. The applicant pleaded not guilty and was tried. The prosecution examined in all 14 witnesses, whereas the applicant examined one witness in his defence. The learned Chief Judicial Magistrate found the applicant guilty of the charges and convicted him for having committed offences under section 409 and section 409 read with section 511 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for six months on each count and to pay a fine of Rs. 1000/-, or in default to suffer further rigorous imprisonment for one month, on each count, and ordered the substantive sentences to run concurrently, by his judgment and order dated 31-3-1995. The same was confirmed by the Court of Sessions.

4. The conviction and sentence is mainly challenged by the applicant, on the ground that the First Information Report (Exhibit 31) cannot be considered as the First Information Report, for the very reason that information of cognizable offence was received by Shri Gopal Motilal Khusikar, Dy. Superintendent of Police (CBI), Nagpur (P.W. 11), that the applicant has removed certain parts of the Matador Van, pursuant to which, a surprise check was conducted on 5-12-1991 and, therefore, the First Information Report lodged after the surprise check and investigation of the case cannot be treated as First Information Report. Secondly, it has been urged that the Court has considered inadmissible evidence, particularly which has been deposed by P.W. 1 Digambar Balkrishan Kulkarni, relating to what the accused/applicant stated to the police during the surprise check and search, and ignored the improvement made by the witness before the Court, which is brought on record as omission. Thirdly, it is submitted that there has been no identification of the spare parts alleged to have been misappropriated by the applicant, by any of the prosecution witnesses, and, therefore, on these three counts, the judgment and order of conviction of the applicant is bad in law and deserves to be quashed and set aside.

5. Mr. Rizvi, learned Counsel appearing for the applicant, submitted that the trial Court as well as the Appellate Court committed an error in accepting the report as First Information Report, which was obviously made after the investigation commenced and, therefore, a charge based on such FIR cannot be sustained. Mr. Rizvi submitted that the Courts below ought to have ignored the evidence of P.W. 1-Digambar Balkrishna Kulkarni, on the ground that his evidence is totally based on what the accused/applicant stated before the officers while the surprise check was going on, which is not admissible, and on the point of identification, as the parts were identified by this witness on the basis of colour-paint, which is not enough to prove that the parts in the motor car were fitted by removing the same from the engine of Matador. In respect of P.W. 7-Bhaskar Laxmanrao Kurewar, it is submitted that this witness has totally improved his case before the Court, as in his cross-examination, he has categorically stated that it is not mentioned in his statement before the police that the spare parts were removed from the Matador and were fitted in the Ambassador Car of the accused/applicant, by him, and for which he could not assign any reason. It is, therefore, submitted that in view of the fact that this witness had admitted in his cross-examination that his relations with the applicant/accused were not good and that he has received warning letters from the applicant/accused, this witness has given false evidence against the applicant/accused. It is submitted by Mr. Rizvi that if the evidence of these two material witnesses cannot be accepted, then nothing remains in the prosecution's case to hold the applicant guilty. Mr. Rizvi has placed reliance on the case of Rameshwar Singh v. State of Jammu and Kashmir, A.I.R. 1992 Supreme Court 102, where it has been held that the contents of statement recorded under section 161 of the Criminal Procedure Code during the course of investigation, cannot be used for any other purpose than what has been provided in section 162 of the Criminal Procedure Code. Mr. Rizvi, therefore, submitted that as there is no legal evidence on record to convict the applicant/accused on the charges levelled against, he deserves to be acquitted.

6. Mr. Khan, the learned Counsel appearing for the non applicant/CBI, submitted that there is a concurrent finding of fact by the trial Court as well as the Appellate Court as regards the guilt of the applicant/accused and, therefore, this Court, while exercising its powers of revision, need not interfere with the said finding, as the evidence, on the basis of which the trial Court as well as the Appellate Court have convicted the applicant/accused, cannot be reappreciated by the High Court in its revisional jurisdiction. Mr. Khan further stated that the omissions and contradictions brought on record are not material and, therefore, the applicant/accused cannot take advantage of the same. Further, the discrepancy, if any, cannot be given much importance as it is a settled law that while appreciating the evidence of witnesses, the Court should take into consideration the various factors as enunciated by the Supreme Court in the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, 1983 Cri.L.J. 1096. It is, therefore, submitted that the Trial Court as well as the Appellate Court, having found that the witnesses examined by the prosecution has proved its case, the same cannot be dislodged, merely on the ground of certain contradictions, omissions or discrepancies, which are not of material nature.

7. It is submitted by Mr. Khan, the learned Counsel appearing for the non applicant-CBI, that any information received cannot be treated as First Information Report. According to him, in the present case, the information received by the CBI in respect of the applicant/accused having removed parts of the Matador led to the surprise check, and it is only after the surprise check was conducted by the CBI Officers that the offence came to the light and the First Information Report was lodged by the CBI, and therefore, it cannot be said that the First Information Report (Exhibit 31) cannot be accepted. It is submitted that even if the same is ignored, it is not fatal to the prosecution's case.

8. Mr. Khan submitted that the prosecution witnesses have not only identified the articles, i.e. the spare parts of the Matador belonging to the Central Railway, but have also supported the prosecution on the point of their removal by the applicant/accused through the Mechanics working under him and getting them fitted in the Ambassador Car of his son, which were also found in the premises of the Railway Garage. Mr. Khan, therefore, submitted that there is no merit in the contentions of the applicant and the present Criminal Revision Application deserves to be dismissed.

9. In order to appreciate the contention of the applicant that the finding of the trial Court as well as the Appellate Court that the appellant is guilty of having committed offences of misappropriation and criminal breach of trust cannot be sustained on inadmissible evidence, I have carefully examined the oral evidence of the witnesses, the documents produced by the prosecution in support of their case and the statement of the applicant/accused under section 313 of the Criminal Procedure Code. Insofar as the oral evidence of P.W. 1 Digambar Kulkarni is concerned, he has stated about the fact of surprise check being conducted in his presence and has supported the prosecution to the effect that on such a surprise check being conducted, the authorities found that some parts of the Matador were missing and those parts were found fitted in the engine of the Ambassador Car. This evidence to the effect that what the applicant/accused stated during the surprise check, even if ignored, does not, in any manner, affect his credibility as regards the surprise check, the detection of certain parts of the Matador in the Ambassador Car obviously not belonging to the Railways, and if his evidence is read with the evidence of other witnesses and the Seizure Panchanama, it clearly establishes the prosecution's case.

10. Another witness, who has been the subject matter of attack by the learned Counsel for the applicant is Bhaskar Laxmanrao Kurewar (P.W. 7). He is the person who was working as Mechanic in the Mechanical Chargeman Workshop at Ajni, Nagpur. In his evidence, he has categorically stated that the applicant/accused brought his Ambassador Car to the Workshop and asked the Helper Ramaji to take out some parts from a Matador which was lying there and to fix those spare parts in his car. Accordingly, Ramaji took out the spare parts from the Matador which was a scrap and fixed the same in the car of the accused. The car of the accused was then repaired by Ramaji and by accused himself. As it was not completely repaired, therefore, the accused asked this witness to look towards the repairs work and so this witness took out some other spare parts from the same Matador and fixed the same in the car of the accused. The car was then completely repaired. He has identified the spare parts which were taken out from the Matador in the Workshop for being fixed in the car of the accused, i.e., (1) Head, (2) Dynamo, (3) Diesel filter, (4) Boss Pump, (5) Self Starter and (6) Automizer, before the Court as Article Nos. EFGHI & J, respectively. He has also identified the photograph taken in his presence.

In his cross-examination, it was put to him that: "It is not mentioned in my statement that the spare parts were removed from the Matador and were fitted in the Ambassador Car of the accused by me for which I can assign no reason". It is this omission on which the applicant is seeking his acquittal. It is submitted by Mr. Rizvi, learned Counsel appearing for the applicant, that this is nothing but an improvement made by the witness in his Examination-in-Chief so as to implicate the applicant/accused and, therefore, this evidence of the witness in his Chief that, they took out the spare parts of the Matador and fitted them in the Ambassador Car of the accused, will have to be ignored as material omission.

11. In order to appreciate the contention of Mr. Rizvi, the learned Counsel appearing for the applicant, this Court, with the Assistance of the learned Counsel for the applicant as well as the learned Counsel for the non applicant, verified the statement of the witness recorded under section 161 of the Criminal Procedure Code, and finds that the aforesaid omission is erroneously brought on record by cross-examining the witness, and cannot be relied upon by the applicant. The accused cannot take advantage of the fact that the witness in his cross-examination admitted of not have made certain statement to the police, unless the attention of the witness is drawn to such statement. To put it in other words, before an omission is put to the witness in relation to his statement under section 161 of the Criminal Procedure Code, his attention must be drawn to his previous statement recorded by the police, so that the witness is given a fair opportunity to examine his previous statement and ascertain whether such omission, in fact, exists or not; it is then only that such omission can be authoritatively taken on record to prove that the prosecution improved its case before the Court through the witness.

12. Section 145 of the Evidence Act provides for the procedure by which a witness may, in cross-examination, be contradicted by confronting him with his previous statement in writing or reduced into writing. It reads as under :

"145. Cross-examination as to previous statements in writing---A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."

In Binay Kumar Singh v. State of Bihar, , the Supreme Court observed :

"The credit of a witness can be impeached by proof of any statement which is inconsistent with any part of his evidence in Court. This principle is delineated in section 155(3) of the Evidence Act and it must be borne in mind when reading section 145 which consists of two limbs. It is provided in the first limb of section 145 that a witness may be cross-examined as to the previous statement made by him without such writing being shown to him. But the second limb provides that 'if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him'. There is thus a distinction between the two vivid limbs, though subtle it may be. The first limb does not envisage impeaching the credit of witness, but it merely enables the opposite party to cross-examine the witness with reference to the previous statements made by him. He may at that stage succeed in eliciting materials to his benefit though such-cross-examination even without resorting to the procedure laid down in the second limb. But if the witness disowns having made any statement which is inconsistent with his present stand, his testimony in Court on that score would not be vitiated until the cross-examiner proceeds to comply with the procedure prescribed in the second limb of section 145".

13. In the present case, the trial Court failed to see that the witness has been afforded reasonable opportunity to verify whether such omission occurred in his statement or not, before putting it on record. The trial Court was also oblivious of his duty of inspecting the previous statement of the witness so as to satisfy for itself that, in fact, such omission do exist and then only it should have allowed to be put it on record in the memorandum of oral evidence of the evidence given by the witness on oath before it. Not only this, the learned Public Prosecutor, who conducted the case in the trial Court, also failed in his duty in drawing the attention of the Court to the fact that the so-called omission, which is being brought on record, cannot be termed as omission as the said fact has been stated by the witness in his police statement, by reading over the police statement of the witness to the Court. The learned Prosecutor had another opportunity of re-examining the witness on this point by confronting him with his previous statement recorded by the police under section 161 of the Criminal Procedure Code, which he could have done in the facts and circumstances of the case. Therefore, this Court finds that the omission, on which heavy reliance is placed by the learned Counsel for the applicant, to show that the prosecution has improved its case through this witness, cannot be accepted for all these reasons; Firstly, that it is an omissions which has not been recorded by giving reasonable opportunity to the witness, as it was with an object to discredit him; secondly, that the Court went on to record the said omission without verifying for itself whether it is really an omission, by referring to the previous statement of the witness recorded by the police under section 161 of the Criminal Procedure Code and, thirdly, that the Prosecutor also failed in his duty. Therefore, this Court finds that the said omission cannot be read in evidence as omission. Hence, the reliance placed by the trial Court as well as the Appellate Court on the evidence of Bhaskar Laxmanrao Kurewar (P.W. 7) cannot be faulted with. Accordingly, because the witness was working under the applicant/accused and on occasion, for the reason that his relations with the applicant/accused were not good or that he was served with warning letters from the applicant/accused, would not make his evidence inadmissible, particularly when it is well corroborated by the evidence of other witnesses and as the crime was detected on a search conducted by the CBI followed by recovery and identification of the spare parts of the Matador, which was fitted in the Ambassador Car of the applicant/accused by this witness. This witness has specifically denied in his cross-examination when he stated that it is not true that he is deposing falsely against the accused. The witness cannot be taken by surprise due to the ingenuity of the defence Counsel in cross-examining him in a particular manner so as to improperly bring on record certain omission and then place reliance on it for seeking acquittal.

14. This Court does not find that the trial Court, as well as the Appellate Court have, in any manner, committed any error or illegality in appreciation of evidence before them. The findings arrived at by the trial Court as well as the Appellate Court, as regards the guilt of the applicant/accused, cannot be said to be perverse as they are based on evidence on record. Therefore, there is no merit in this Criminal Revision Application. The same deserves to be dismissed.

15. At this stage, Mr. Rizvi, learned Counsel for the applicant/accused submitted that the case of the applicant/accused deserves to be considered sympathetically.

16. Mr. Rizvi, learned Counsel for the applicant/accused has filed his affidavit showing the precarious condition in which the applicant/accused is undergoing in the present stage of his life. In the affidavit, it has been stated that the only son of the applicant, aged about 27 years, who was working as Branch Manager in Gati Cargo Management Service and who was bread-earner for the family, has died on 16-4-2000 under unfortunate circumstances on account of accidental injury. It is submitted that presently the applicant has burden of getting married one of his daughters who is aged about 26 years and to look after himself and his aged wife, and in case he is sentenced to suffer imprisonment, it would ruin the life of his wife and daughter who may not be married due to the stigma. Mr. Rizvi, therefore, submits that this Court should consider reduction in substantive sentence and in lieu of the same, the amount of fine can be increased. In support of his contention, Mr. Rizvi, has placed reliance on the cases of (1) B.C. Goswami v. Delhi Administration, ; (2) S. Natrajan v. State of Mysore, in which reliance was placed on B.C. Goswami's case (supra); and (3) Rameshwar Singh v. State of Jammu and Kashmir, A.I.R. 1992 S.C. 102; and made an earnest appeal for mercy. It is submitted that the conviction of the appellant having been upheld till this Court, the applicant/accused has no choice. It is further submitted that except for this case, there is no stigma insofar as the past record of the applicant/accused is concerned. Mr. Rizvi submits that the peculiar circumstances and the manner in which the offence is alleged to have been committed, indicates that it was in weaker moment of one's life that probably the applicant/accused felt that some parts of vehicle belonging to the Central Railway, which had met with an accident and was entrusted to him, could be utilized in repairing his own motor car and, therefore, just tried to utilize the same in his own car, as the fate would have it, and, therefore, this Court should condone the substantive sentence and pass appropriate orders.

17. Mr. Khan, the learned Counsel for the respondent/CBI submits that the Court should not show any mercy to such persons who have misappropriated the Government property which was entrusted to them. It is submitted that such offenders should be sternly dealt with, as such tendency is on the rise and it is very difficult to detect, prosecute and get a conviction in such cases. It is submitted that it is only because of the secret information which the CBI got that the applicant was caught red-handed and, therefore, this Court should not show any mercy to the applicant/accused.

18. I have given my anxious consideration to the plea of mercy made on behalf of the applicant/accused, in the background that he was arrested and prosecuted for an offence registered ten years back. Considering the present condition of the family, viz., that the applicant/accused has no earning member left in the family and that a young unmarried daughter of about 26 years of age and the old wife whose health is also not good, probably sending the applicant/accused to jail would not subserve the ends of justice. In the circumstances, this Court is inclined to reduce the substantive sentence of imprisonment to "till rising of the Court" by increasing the amount of fine to a sum of Rs. 10,000/-.

19. Therefore, this Court maintains the conviction of the applicant/accused but allows the revision to the extent that the substantive sentence of the applicant/accused to suffer rigorous imprisonment for a period of six months on each count and to pay a fine of Rs. 1,000, or in default to suffer further rigorous imprisonment for one month on each count, is modified; instead the applicant/accused is sentenced to undergo the sentence still rising of the Court and to pay a fine of Rs. 10,000, on both the counts. In default of payment of fine, the applicant/accused to undergo rigorous imprisonment for six months. The applicant/accused has already deposited a sum of Rs. 2,000/- as fine. He may deposit the balance amount of Rs. 8,000/- in the trial Court, within a period of two weeks.

The operative part of the order be sent to the trial Court for compliance.