MAJOR E G BARSAY Vs. STATE OF BOMBAY:HARNAM SINGH RAM SINGH KOCHHAR

JUDGEMENT

(1.) These two appeals - one filed by accused No. 1 by certificate and the other filed by the State of Maharashtra by special leave - against the judgment of the High Court of Bombay confirming the conviction and sentence of accused No. 1 and setting aside the conviction and sentences of accused Nos. 2 and 3.

(2.) The prosecution case may be briefly stated. There was a depot called the Dehu Vehicle Depot in which military stores were kept. In the year 1944 Col. Rao, the Chief Ordance Officer, was in charge of the Depot; Col. Sindhi, the Station Commandant, and Brig. Wilson, the Brigadier, Ordinance Southern Command, were his superior officers. Accused No. 1, Major Barsay, was second in command in the Depot and was in charge of stores section; he was subordinate to Col. Rao, Major Nag. another subordinate to Col. Rao was in charge of the administration of the Depot.

(3.) The brain behind the conspiracy was accused No. 1 The plain chalked out to implement the object of the conspiracy may be briefly stated. Col. Rao was to proceed on leave sometime in December, 1954, and Maj Barsay, being the next in command, was naturally to succeed him as Chief Ordinance Officer of the Depot, during the absence on leave of Col. Rao. The smuggling of the goods out of the Depot was therefore, arranged to take place during the period when Maj. Barsay was acting as the Chief Ordnance Officer of the Depot. Col Rao went on leave from December 11, 1954. Kochhar, the second accused, who was in charge of the Fit-Park, proceeded on two months' leave of absence with effect from October 25, 1954, but he was recalled by accused No. 1 and posted as officer in charge of Kit Stores on November 25 1954. Accused No. 3 Avatarsingh, was working in the Unfit Sub Park, and he too was shifted from there to the Kit Stores on or about November 22, 1954. These two postings were made by accused No. 1 without the consent or knowledge of Col. Rao when he had gone to Delhi on some temporary duty for ten days from November 20, 1954 to November 30, 1954. On the night of December 1, 1954, there was a theft of various articles in the Unfit Park of the Depot. Accused No. 1 called in Lawrence, the acting Security Officer, ostensibly to discuss with him certain matters regarding the theft. During the course of the conversation accused No. 1 suggested to Lawrence that valuable stores in Shed No. 48 might be smuggled out and the large amounts expected to be realized from their sale might be shared between the conspirators, including Lawrence. Presumably to put him in a suitable frame of mind to accept the suggestion to become a conspirator, he also hinted to Lawrence that Col. Rao suspected that he (Lawrence) had a hand in the theft. The scheme outlined by accused No. 1 was confirmed by accused No. 2 a few days later. According to the plan chalked out by Maj. Barsay, he was to appoint a board of officers for itemization of "Specialist Boxed Kits" in Shed No. 17 and once the board started functioning there would be shuttle of trucks moving from Shed No. 48 to Shed No. 17 and vice versa and during the movements of those trucks two or three trucks loaded with valuable stores were to be moved out through the main gate of the Depot on the pretext of being back-loaded to the Return Stores Sub-Depot. He was also to take Col. Rao to Shed No. 48 and explain to him that the boxes contained very few items so that he too, on his return from leave, would not be surprised at the final result of the itemization. It was also agreed that the scheme should be pushed through tentatively on December 16, 17 and 18, 1954. But, from one reason or other, it could not be pushed through during those days, as Capt. Kapoor was frequently visiting the scene of itemization.