Gauhati High Court
Rizapliana vs The State Of Mizoram on 31 October, 1990
Equivalent citations: 1992CRILJ621
JUDGMENT J.M. Srivastava, J.
1. This appeal is directed against the judgment and order dated 17-3-86 passed by the learned Additional Deputy Commissioner, Aizawl, whereby the appellant was convicted under Section 409, IPC and sentenced to three years' imprisonment and to pay a fine of Rs. 500/-, in default to undergo ten days' further imprisonment.
2. The prosecution case was that Rizapliana, the appellant was Administrative Officer (A.O.) at Phuldungsei Block in Mizoram and as such was entrusted with Government rice meant for distribution to the villagers by sale through retailers. On 29-3-80 in the evening at about 7 p.m. in a drunken state the appellant called the Store Keeper, Godown Chowkidar, went to the godown within the BSF campus where on his instructions eight quintals (bags) of rice was taken out from the godown and loaded in a jeep bearing registration No. ZRM 1491. The appellant thereafter wanted to take out the rice from the campus but was prevented from doing so by the Post Commander who did not allow the jeep with rice to be taken out of the security parameter because of late hours. The jeep loaded with rice was kept there for the night. Next morning, i.e. on 30-3-80 the appellant took away the rice in the aforesaid jeep to Aizawl and misappropriated the same. The successor of the appellant informed the Deputy Commissioner, Aizawl on 30-3-80 by a message. The appellant was placed under suspension. The Additional Deputy Commissioner, Aizawl on 30-3-80 by a message. The appellant was placed under suspension. The Additional Deputy Commissioner, Aizawl on 23-5-80 wrote a letter to the Superintendent of Police, Aizawl for registration of the offence, whereupon Case No. 1(7)/80 under Section 409, IPC at Marapara Police Station was registered. The Investigating Officer, after investigation, submitted charge sheet against the appellant.
3. At the trial, charge under Section 409, IPC was framed against the appellant to which the appellant pleaded not guilty and claimed trial. The prosecution in support of the charge examined PW 1 Dengthangpuia, Godown Chowkidar who deposed about the occurrence on 29-3-80, PW2 Saikungi who was retailer of rice sold to the villagers and denied having taken out said eight quintals of rice, PW 3 M.C. Nath, Store Keeper who also testified about the occurrence on 29-3-80 in the evening and also the next morning, PW 4 Khualtawna also supported the prosecution version, PW 5 Hauthuama, Additional Deputy Commissioner (A) who lodged the report (Ext. 3) had testified that to remove A.O. Government sanction was necessary, PW 6 D. N. Prasad, Post Commander, BSF who on 29-3-80 had prevented the jeep loaded with rice from being taken out of the campus for security reasons because it was late in the evening and who also testified that on the morning of 30-3-80 the appellant had taken away the jeep loaded with rice, and PW 7 Narayan Singh, the Investigating Officer. The appellant had declined to cross-examine the prosecution witnesses. The defence had only made a suggestion to PW 2 Saikungi that rice was taken out from the Government Godown for a village which was denied.
4. The defence did not lead any evidence. The accused in his statement under Section 313 of the Code of Criminal Procedure, hereinafter referred as the 'Code' had accepted that he had taken out eight bags of Government rice from the godown in the evening of 29-3-80, but denied that he had taken said rice to Aizawl in the jeep. He further said that he had issued vouchers in respect of said rice and handed over to the Storekeeper for sale to the buyers on cash payment. The issue vouchers were available in the file. The Storekpper had handed over the to him and he had entered in the Cash Book. He had further accepted that as per the prevailing system nobody was allowed to take out rice in the evening from the Government Godown situated within BSF campus, without A.O.'s presence. He also accepted that he went there but while the rice was being taken out, the BSF men demanded weightment in their presence. After weightment was made rice was kept in the custody of the security forces as it was too late. Next morning he was informed by the Storekeeper that one jeep had come to the G.G. and proposed to him to carry the rice in that jeep from BSF camp, that he approved but did not know what had happened thereafter.
5. On consideration of the evidence, the learned Additional Deputy Commissioner held that the charge under Section 409, IPC had been established against the accused who was accordingly convicted and sentenced, as noted earlier.
6. Aggrieved, Rizapliana has come in appeal, and Sri P. Deka, learned counsel appearing on his behalf, has submitted that there was no evidence of misappropriation, that the prosecution had not proved any dishonesty on the part of the appellant, that the allegations were falsely made against the appellant by his successor, that there were contradictions in the wireless message sent by the successor and the message sent by the BSF authorities. Sri Deka has also pointed out that in the charge sheet (submitted by the police) it was stated that seventeen quintals of rice had been misappropriated and in the charge framed against the appellant, also it was stated that he had misappropriated seventeen quintals of rice, but that the evidence was only about eight quintals of rice which was a major discrepency in the prosecution version, of which benefit should be given to the accused appellant. Sri Deka has also submitted that even though PW 5 Hauthuama, Additional Deputy Commissioner deposed that to remove an A.O., Government sanction was necessary, no sanction for prosecution of the accused appellant had been obtained and as such the prosecution was incompetent and the trial was vitiated. Sri Deka has accordingly argued that the conviction and sentence impugned cannot be sustained and should be set aside.
7. Sri K.M.M. Khan, learned Assistant Advocate General, on the other hand, has refuted the Submissions on behalf of the appellant and has supported the impugned judgment and order of the learned trial Court.
8. I have considered the submissions for the parties, and the evidence on record.
9. It was not disputed that the appellant was Administrative Officer and as such was a public servant. It was also not disputed that as Administrative Officer, he was in charge and control of the Government Godown which had rice meant for distribution to the villagers by sale through retailers or otherwise and that thus said rice had been entrusted to him. The rice could not be taken out without his authority, even though in his absence the Storekeeper could distribute the rice and duly account for it to the A.O. on his return.
10. Even though the charge sheet submitted by the police and the charge framed by the learned trial Court stated that seventeen quintals of rice had been misappropriated, it did not make any substantial difference to the basic prosecution contention in regard to the eight quintals of rice stated to have been taken away by the accused appellant on 29-3-80 and 30-3-80, for the reasons that, the appellant's successor had on 30-3-80 by message Ext. 3 clearly stated that eight quintals of rice had been taken away, the Additional Deputy Commissioner also in his letter dated 23-5-80 stated, that about eight quintals of rice had been misappropriated. The Investigating Officer could have found some material to think that there was misappropriation of seventeen quintals of rice and had accordingly submitted the charge sheet, and on its basis the charge also was framed, but at the trial, the evidence led by the prosecution was only in regard to eight quintals of rice. Sri Deka, learned counsel for the appellant, has submitted that no explanation by the prosecution had been given for this discrepency. It appears no question was asked from Investigating Officer Narayan Singh and as such no explanation in so many words was available in evidence on record, but. considering the prosecution case at its inception and as it was presented at the trial, I think the figure of seventeen quintals of rice was due to the opinion formed by the I.O. on the basis of some material during investigation, but for that reason, it should not be said that there was any infirmity or discrepency in the prosecution version as may make it doubtful or unreliable.
11. PW 1 Dengthangpuia had testified that on 29-3-80 in the evening he was called by A.O. Rizapliana (the appellant) and when he went to his (appellant) house, the appellant had asked him to take out rice from the godown. The witness with Rizapliana, Storekeeper, and some others went to the godown. The Storekeeper gave him the key and he opened the godown as per direction and took out some bags of rice from the godown, and put them on the jeep waiting near the godown which was so placed by the A.O. The witness said so far as he remembered eight bags of rice were loaded in the jeep. He came to know on the next day, i.e. 30-3-80 that the A.O. had gone to Aizawl in the jeep with the rice. PW 3 M.C. Nath, Storekeeper, testified that at the instance of the accused appellant, eight quintals of rice had been taken out from the godown and had been loaded in the jeep. The accused appellant then wanted to leave the place in the jeep with the rice, but the Post Commander had objected and did not allow to take the jeep outside the security parameter. The Post Commander detained the jeep for the night. Next morning at 6.30 a.m. the accused appellant called him to accompany him to the Security Post. There was another man with the accused appellant. They went to the Security Post. The Post Commandar asked them to sign on a paper which appeard to be a receipt for taking out the jeep loaded with rice. All three of them, i.e. he himself the A.O., and his companion signed the paper and thereafter the accused Rizapliana and his companion boarded the jeep and drove away. He further deposed that the aforesaid written document dated 30-3-80 was later seized by the police during investigation from D. N. Prasad, Post Commander. PW 6 D. N. Prasad, who was the Post Commander of the BSF campus in which the Government Godown was located, testified that eight quintals of rice loaded in the jeep was attempted to be taken out, but he had prevented and that next morning the accused appellant had again come and after taking acknowledgement receipt from them, he had allowed the jeep to be taken away by the accused appellant.
12. The accused appellant had declined cross-examination and as such the version given by the witnesses which was clear should be accepted as correct. Moreover, the appellant himself had in his statement under Section 313 of the Code as noted earlier accepted that eight quintals of rice had been taken out from the godown on 29-3-80. The prosecution had therefore satisfactorily established from the Government godown had been taken out on 29-3-80 by the accused appellant, who was the A.O. The Storekeeper and the Chowkidar had just carried out his instructions.
13. Even though the accused appellant had not accepted that said rice was loaded in the jeep and was taken away by him to Aizawl next morning, the unchallenged testimony of the PW 3 M.C. Nath, Storekeeper and PW 6 D. N. Prasad, Post Commander supported with that of PW 1 Dengthangpuia, further clearly established that said rice on 29-3-80 was loaded in a jeep but was not allowed to be taken out by the Post Commander, however the next morning, i.e. 30-3-80 it was taken out by the accused appellant in the jeep. The successor of the appellant had reported the facts to the Deputy Commissioner, Aizawl (Ext. 3). It may also be noted that there was no evidence at all in support of the version in defence. The version was that 'rice' had been sold to the villagers and the Storekeeper had given him the money which he had entered in the Cash Book. There was no evidence of sale or vouchers or Case Book to bear out the defence version. The incorrectness or falsity of the defence version, as a circumstance also is in support of the prosecution version.
14. Sri Deka, learned counsel for the appellant has argued that there was no evidence of misappropriation and of dishonesty on the part of the appellant. In the facts established on record, there could be no doubt that the appellant had misappropriated the said rice. The appellant was the A.O. and had on 29-3-80 taken out the said rice from the Government Godown and next morning, i.e. on 30-3-80 had taken away the said eight quintals of rice. His version that it was sold and the money deposited and entry made in the Cash Book was not correct. The clear inference was that rice had been misappropriated by the accused appellant. There could hardly be any direct evidence of how the rice had been utilised. All that the prosecution could show was that the property was entrusted to the accused, but was not utilised for the purpose it was entrusted to him, and which the prosecution had established. It was then for the accused to show that the property was in fact utilised for the purpose it was meant or at least produce evidence of a plausible and acceptable version of utilisation of the property. In the absence of any such plausible version in defence, the inference should be that the property has been misappropriated. In the instant case, the accused appellant had taken away the said rice and not having accounted for it, it could safely be concluded that he had misappropriated the same. The dishonesty on the part of the accused appellant was obvious and did not require any further direct proof.
15. Sri Deka, learned counsel for the appellant has submitted that there was no clear evidence whether the jeep was private or Government jeep and that if it was Government jeep, the probability of the offence having been committed would be much less. In my opinion, whether the jeep was private or Government hardly made any difference for the prosecution evidence was that the rice had been taken away in a jeep by the appellant.
16. Sri P. Deka, learned counsel for the appellant has invited attention to Ext. 3 the message sent by the successor-in-office of the appellant, and the message also Ext. 3 sent by the BSF and has contended that there was serious contradiction therein, in that in the latter message it was stated that the accused had informed the Post Commander that the rice was being taken for laboratory test, which had not been stated in the message sent by the successor. While it is true that there is variation to that extent in the two messages, the difference is not of any significance mainly because the message emanated from different authorities and also because the basic facts that the appellant had taken eight quintals of rice from the godown in a jeep were the same in both the messages. There was no such contradiction as may be of any assistance to the appellant. Sri Deka, learned counsel for the appellant has also submitted that the successor-in-office of the appellant was not examined and to that extent it affected the importance of the message sent by him. PW 5 Hauthuama, Additional Deputy Commissioner had testified that the said message had been received and on its basis subsequently the report was sent and action taken. The mere fact that the successor-in-office had not been examined does not make any difference for he had not seen the occurrence but had informed the Deputy Commissioner, Aizawl about the misappropriation of rice by the appellant immediately on 30-3-80. Sri Deka has also submitted that the successor had made false allegations and had a motive to do so because the appellant had not handed over charge of his office. The appellant had been transferred but had not handed over charge. However, that was hardly any reasonable basis to conclude for that reason, that the report by message was not correct. Moreover, the appellant himself had accepted that he had taken out eight bags of rice from the godown. The fact that he had not handed over charge on transfer to his successor in the circumstances of the case, therefore, was not enough to take the view that the successor had any motive or interest in making any allegations which were not true. Sri Deka has also pointed out that even though the report to the Superintendent of Police by the Additional Deputy Commissioner had been endorsed to the Deputy Secretary, GAD, Government of Mizoram, for information, the said Deputy Secretary had not been examined and there was delay in lodging the FIR. A copy of the letter by the ADC to the S. P. dated 23-5-80 appears to have been endorsed to the Deputy Secretary, GAD, with reference to a letter from him, but it does not mean that the Deputy Secretary to the Government of Mizoram in the GA Department was required to be examined in the case against the appellant. There was nothing to show that the Deputy Secretary had anything to do with the facts on which the prosecution case rested against the appellant. As regards the delay in lodging the FIR, while it is true that the Additional Deputy Commissioner had reported to the Superintendent of Police on 23-5-80 and the occurrence had taken place on 29-3-80/30-3-80, there was no delay in the information sent by the successor-in-office of the appellant to the Deputy Commissioner, Aizawl and subsequent delay in reporting to the police could have occurred because of the consideration of the matter by the authorities at different levels of the Government before the FIR was finally lodged.
17. Sri Deka, learned counsel for the appellant has submitted that the appellant was a public servant and as admitted by PW 5 Hauthuama, he could be removed by the Government and no sanction for prosecution having been obtained, the trial was vitiated. Section 197 of the Code provides for sanction of the Government for prosecution for an offence committed by a public servant while acting or purporting to act in the discharge of official duty. The fact that the appellant was Administrative Officer does not mean that the acts in question which he had committed, were in the discharge of his official duties, more so acts which constituted misappropriation of Government rice. It is no part of the official duty of a Government servant to misappropriate Government property and accordingly, in my opinion, no sanction under Section 197 of the Code was required for the prosecution of the appellant.
18. For the aforesaid reasons, the prosecution had established beyond any reasonable doubt that the appellant had committed the offence under Section 409, IPC and hence his conviction by the learned trial Court was correct.
19. In so far as sentence is concerned, considering that the offence had been committed in the year 1980 and the services of the appellant had been terminated, I am inclined to reduce the sentence from three years' to two years' imprisonment.
20. This appeal is dismissed with the only modification in the sentence indicated above. The appellant is on bail. His bail bonds are cancelled. He shall surrender to serve out the sentence.