Kerala High Court
Ammu vs Cbi/Spe on 20 May, 2025
2025:KER:34602
1
Crl.Appeal Nos.64 of 2008 and conn.cases
"C.R."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 20TH DAY OF MAY 2025 / 30TH VAISAKHA, 1947
CRL.A NO. 64 OF 2008
AGAINST THE JUDGMENT DATED 28.12.2007 IN CC NO.3 OF 2001 OF
SPECIAL COURT SPE/CBI- II, ERNAKULAM
APPELLANT/ACCUSED NO.2:
K.P.BENNY ROHAL
S/O LATE K.N.PRABHAKARAN, MANAGING DIRECTOR, RON
MARITIME LTD.(PVT. LTD), ERNAKULAM.
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP.BY CBI,SPE,COCHIN,R.C.7(A)2000/CBI/KER,
REPRESENTED BY, PUBLIC PROSECUTOR, CBI,
ERNAKULAM, HIGH COURT OF, KERALA, ERNAKULAM.
SRI.SREELAL WARRIAR, SC, CBI
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING
ON 13.03.2025, ALONG WITH CRL.A.86/2008 AND CONNECTED
CASES, THE COURT ON 20.05.2025 DELIVERED THE FOLLOWING:
2025:KER:34602
2
Crl.Appeal Nos.64 of 2008 and conn.cases
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 20TH DAY OF MAY 2025 / 30TH VAISAKHA, 1947
CRL.APPEAL NO. 86 OF 2008
AGAINST THE JUDGMENT DATED 28.12.2007 IN CC NO.3 OF 2001 OF
SPECIAL COURT SPE/CBI- II, ERNAKULAM
APPELLANT/ACCUSED NO.1:
NATARAJA IYER
DEPUTY MANAGER (REFINERY CO-ORDINATOR), INDIAN
OIL CORPORATION LTD., ERNAKULAM.
BY ADVS.
SOORAJ T.ELENJICKAL
SRI.M.CHANDRA BOSE
RESPONDENTS/COMPLAINANT & STATE:
1 CENTRAL BUREAU OF INVESTIGATION,
KOCHI.
2 STATE OF KERALA,REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
SRI.SREELAL WARRIAR, SC, CBI
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING
ON 13.03.2025, ALONG WITH CRL.A.64/2008, 88/2008 AND
CONNECTED CASES, THE COURT ON 20.05.2025 DELIVERED THE
FOLLOWING:
2025:KER:34602
3
Crl.Appeal Nos.64 of 2008 and conn.cases
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 20TH DAY OF MAY 2025 / 30TH VAISAKHA, 1947
CRL.APPEAL NO. 88 OF 2008
AGAINST THE JUDGMENT DATED 28.12.2007 IN CC NO.3 OF 2001 OF
SPECIAL COURT SPE/CBI- II, ERNAKULAM
APPELLANT/ACCUSED NO.4:
AMMU
AGED 55 YEARS
S/O KUNJUMOHAMMED,16/688, THOPPUMPADY, KOCHI.
BY ADVS.
R O MUHAMED SHEMEEM RANDUTHAIKKAL OOSMAN
NASEEHA BEEGUM P.S.
RESPONDENTS/COMPLAINANT & STATE:
1 CENTRAL BUREAU OF INVESTIGATION/SPE, COCHIN,
KERALA.
2 STATE ,REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
SRI.SREELAL WARRIAR, SC, CBI
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
13.03.2025, ALONG WITH CRL.A.86/2008 AND CONNECTED CASES,
THE COURT ON 20.05.2025 DELIVERED THE FOLLOWING:
2025:KER:34602
4
Crl.Appeal Nos.64 of 2008 and conn.cases
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 20TH DAY OF MAY 2025 / 30TH VAISAKHA, 1947
CRL.APPEAL NO. 91 OF 2008
AGAINST THE JUDGMENT DATED 28.12.2007 IN CC NO.3 OF 2001 OF
SPECIAL COURT SPE/CBI- II, ERNAKULAM
APPELLANT/ACCUSED NO.5:
KURIAKOSE P.MANI
S/O P.J. MANI,DIRECTOR, RON MARITIME PVT. LTD.,
ERNAKULAM.
BY ADVS.
SRI.SHAIJAN C.GEORGE
SRI.JOHN VIPIN
SMT.S.A.SHERLY
SMT.SAJITHA GEORGE
RESPONDENTS/COMPLAINANT:
1 SUPERINTENDENT,CBI/SPE COCHIN
REP.BY STANDING COUNSEL FOR CBI,HIGHCOURT OF
KERALA,ERNAKULAM.
2* STATE OF KERALA
REP. BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
ERNAKULAM.
*ADDL.RESPONDENT NO.2 IS IMPLEADED AS PER THE
ORDER DATED 16.01.2008 IN CRL.MA 431/2008.
SRI.SREELAL WARRIAR, SC, CBI
2025:KER:34602
5
Crl.Appeal Nos.64 of 2008 and conn.cases
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING
ON 13.03.2025, ALONG WITH CRL.A.86/2008 AND CONNECTED
CASES, THE COURT ON 20.05.2025 DELIVERED THE FOLLOWING:
2025:KER:34602
6
Crl.Appeal Nos.64 of 2008 and conn.cases
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 20TH DAY OF MAY 2025 / 30TH VAISAKHA, 1947
CRL.APPEAL NO. 106 OF 2008
AGAINST THE JUDGMENT DATED 28.12.2007 IN CC NO.3 OF 2001 OF
SPECIAL COURT SPE/CBI- II, ERNAKULAM
APPELLANT/ACCUSED NO.3:
N.A.BALRAJ (DIED)
AGED 1 YEARS
S/O M.K.ARJUNAN,PROPRIETOR, M/S. BAVA
ENTERPRISES,, FISHERIES HARBOUR, THOPPUMPADY,
KOCHI.
BY ADVS.
SMT.M.R.ANUPAMA
SRI.V.DIPU
SRI.P.LEAN JOSE
RESPONDENT/COMPLAINANT:
SUPERINDENT OF POLICE, CBI/SPE COCHIN
REPRESENTED BY STANDING COUNSEL, FOR C.B.I, HIGH
COURT OF KERALA.
SRI.SREELAL WARRIAR, SC, CBI
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
13.03.2025, ALONG WITH CRL.A.86/2008 AND CONNECTED CASES,
THE COURT ON 20.05.2025 DELIVERED THE FOLLOWING:
2025:KER:34602
7
Crl.Appeal Nos.64 of 2008 and conn.cases
P.G. AJITHKUMAR, J.
-----------------------------------------------------------
Crl.Appeal Nos.64, 86, 88, 91 and 106 of 2008
-----------------------------------------------------------
Dated this the 20th day of May, 2025
JUDGMENT
Accused Nos.1 to 5 in C.C.No.3 of 2001 on the files of the Special Court (SPE/CBI-II), Ernakulam are the respective appellants. They were convicted and sentenced for the offences punishable under Section 120B read with Sections 409 and 411 of the Indian Penal Code, 1860 (IPC) and Section 13(1)(c) read with Section 13(2) of the Prevention of Corruption Act, 1988 (PC Act). They were sentenced for various terms of imprisonment and to pay fine for each of the said offences. Challenging the said judgment of conviction and sentence, these appeals under Section 374(2) of the Code of Criminal Procedure, 1973 (Code) are filed.
2. The case of the prosecution is the following:
Accused No.1 was the Deputy Manager, Refinery Coordination, Indian Oil Corporation (IOC) at the South Tanker Jetty, Foreshore Road, Ernakulam. Accused Nos.2 and 5 owned a barge named "Dolphin". Accused Nos.3 and 4, based on a 2025:KER:34602 8 Crl.Appeal Nos.64 of 2008 and conn.cases partnership arrangement, were running a petrol pump near Thoppumpady Fishing Harbour under the name and style M/s Bava Enterprises. High Speed Diesel (HSD) was brought to the South Tanker Jetty on three occasions during April and May against the invoice of the Hindustan Petroleum Corporation Ltd. (HPCL) and the IOC in oil tankers, namely, M.T.Prathibha Krishna, Sampurna Swarajya and Suvarna Swarajya. During the night intervening 22nd and 23rd of April, 2000, accused No.1 was on duty of Refinery Coordinator at South Tanker Berth and while discharging HSD from M.T.Prathibha Krishna, he in furtherance of a criminal conspiracy hatched with the other accused, pilfered and loaded 30,000 litres of HSD to Dolphin Barge, which was eventually delivered to M/s.Bava Enterprises with the dishonest intention of its misappropriation. Similarly, during the night intervening 15th and 16th of May, 2000, pilfered 30,000 litres of HSD while pumping HSD from the vessel Sampurna Swarajya and delivered to M/s.Bava Enterprises. Again, during the night intervening 28th and 29th of May, 2000, pilfered 41,000 litres of HSD, while pumping out HSD from oil tanker Suvarna Swarajya, to Dolphin barge and delivered the same to M/s.Bava 2025:KER:34602 9 Crl.Appeal Nos.64 of 2008 and conn.cases Enterprises. Thus, 1,01,000 litres of HSD belonging to HPCL and other oil companies was stolen and misappropriated by the said accused.
3. Accused No.1 allegedly had the deal for illegal sale of HSD to M/s.Bava Enterprises through accused Nos.6 to 8, who were local scrap dealers. The said accused turned approvers.
4. Accused Nos.1 to 5 denied the charge and at the trial, the prosecution has examined PWs.1 to 51 and proved Exts.P1 to P130. MOs.1 to 16 were identified as well. After the close of the prosecution evidence, the accused were questioned under Section 313(1)(b) of the Code. Besides denying the incriminating circumstances against them appeared in evidence, they filed written statements. Accused No.1 maintained that considering the complexity in pumping out oil from the oil tankers using installations at the South Tanker Berth, pilferage as alleged was impossible. Each line is closed by hammer blinds and valves. The pumping speed along a line from the tanker is 1000 metric tons (MT) per hour. If any blockade; however little it is, the result is disasterous and therefore there was no possibility for pilferage of oil by partially opening the blinds and valves. It is further averred by accused No.1 that he was compelled to be an approver by 2025:KER:34602 10 Crl.Appeal Nos.64 of 2008 and conn.cases the CBI officials and on his refusal, he was falsely implicated in the case. He thus claimed to be innocent.
5. Accused Nos.2 to 5 also claimed to be innocent. Accused No.2 raised a plea of alibi stating that during the relevant period he was in Kannur undergoing Ayurvedic treatment in connection with his shoulder fracture. Accused No.1 got examined DWs.1 and 2 and got marked Exts.D8 to D10. In total, Exts.D1 to D10 were marked on the defence side. After hearing both sides and considering the evidence on record, the trial court believed the evidence tendered by the prosecution, including that of the approvers, who are PWs.1 and 2, resulted in conviction of accused Nos.1 to 5. The findings of the trial court are vehemently assailed by each of the accused in the respective appeals.
6. Heard the learned Senior Counsel Adv.(Dr) S. Gopakumaran Nair, who appeared on instructions for accused No.1, Advocate Nirmal Kumar for accused No.2, Advocate R.O.Muhamed Shemeem for accused No.4, Advocate Shaijan C.George for accused No.5 and the learned Standing Counsel for the CBI. The appellant in Crl.Appeal No.106 of 2008-accused No.3 expired and the death was reported as early as on 21.10.2020. Nobody has come forward yet 2025:KER:34602 11 Crl.Appeal Nos.64 of 2008 and conn.cases to get impleaded and pursue the appeal. Since fine also forms part of the sentence, the appeal does not abate and hence the records in Crl.Appeal No.106 of 2008 are consigned to the records room.
7. The case was originated following receipt of information on 29.05.2000 by the CBI as well as IOC regarding illegal sale of HSD to M/s.Bava Enterprises transported using Dolphin Barge. PW39 was the Senior Divisional Manager of IOC, Kochi Divisional Office. He received the information. PW51 who was the Deputy Superintendent of Police, CBI Central, Cochin Branch also received the information. That ensued a joint inspection of M/s Bava Enterprises. At around 1.30 p.m. PW51 along with other officials of the CBI and officials of the IOC reached the Petrol Pump. PWs.19, 21 and 23 were the officials of the IOC. In the inspection, they found more HSD than the stock as per the records. 8,435 litres of HSD was the official stock. Whereas, the HSD found in Tank No.1 was 13402 litres, in Tank No.2 was 14853 litres, in Tanker Lorry bearing Reg.No.KL-I-3289 was 12000 litres, in two barrels 400 litres and in two plastic cans 200 litres. Thus a total of 40755.68 litres of HSD was found in that petrol pump. The search was conducted in the presence of accused Nos.3 and 4 as well as PW5, the 2025:KER:34602 12 Crl.Appeal Nos.64 of 2008 and conn.cases tanker lorry driver and PWs.30 and 32, employees of the petrol pump. Ext.P49 is the mahazar prepared in that regard.
8. Since the excess quantity of about 32,320.68 litres of HSD was found, PW51 with the help of IOC officials prepared samples from the HSD from various tanks and containers. From the ensued enquiry it was revealed that HSD was illegally supplied to the petrol pump using Dolphin Barge. It was on the basis of the said information a crime was registered as per Ext. P106 FIR.
9. PW39 deposed that accused No.3 was the dealer conducting M/s Bava Enterprises under IOC. He asserted that supply of diesel to M/s Bava Enterprises was by IOC in tank trucks alone and each consignment was against invoice or challan. Ext.P51 proved by this witness is a monthly statement in respect of supply of HSD. Based on the said statements, he maintained that the stock found in M/s Bava Enterprises in the search on 29.05.2000 was far exceeding the supply by the IOC. The further version is that the density of the diesel was not in conformity to the standard density; the permissible density variation was plus or minus 0.0030 while the density variation 2025:KER:34602 13 Crl.Appeal Nos.64 of 2008 and conn.cases of HSD found in M/s.Bava Enterprises was more than 0.0040. That led to the conclusion that the stock was unauthorised and obtained in violation of the dealership agreement. That resulted in initiation of action against the dealer, which culminated in termination of the dealership.
10. As regards Ext.P51 objection was raised that it was not a primary evidence being only a computerised statement of accounts. PW39 being the Senior Divisional Manager in charge of sales of petroleum products deposed in court about the entries in Ext.P51 statement. It may be true that this statement of accounts was not prepared by him personally. But it is a statement prepared in the ordinary course of business and as such a document covered by Section 34 of the Indian Evidence Act. When the same is produced before the court by its custodian and deposed endorsing its contents, it is admissible in evidence and relevant.
11. Two facts are proved by the above. That, as a dealer of IOC, M/s.Bava Enterprises could obtain HSD from IOC only; that too supplied using truck tanks, and there was 32,320.68 litres of HSD in excess of the lawful stock. Being a dealer under 2025:KER:34602 14 Crl.Appeal Nos.64 of 2008 and conn.cases the IOC, M/s.Bava Enterprises could act only in accordance with the terms of the dealership agreement. But, violation occurred and in the absence of any explanation about such an unauthorised stock, the irresistible conclusion shall be that M/s Bava Enterprises obtained the excess stock illegally.
12. The learned counsel for accused No.3 would submit that the possible action concerning excess stock is only departmental and therefore the criminal prosecution is illegal. It may be noticed that the prosecution is not for the unauthorised possession of stock, but for receiving stolen property which was in furtherance of a criminal conspiracy to commit misappropriation of HSD. When it took place at the instance of a public servant, accused No.1, the action for unauthorised stock by the IOC is not a bar for the criminal prosecution. If the allegations regarding misappropriation and illegal sale are proved, the prosecution is bound to succeed.
13. In regard to the genesis of the prosecution, two-fold contentions were raised by the learned Senior Counsel for accused No.1 and also the learned counsel for others. Firstly, no crime was registered based on the source information, which 2025:KER:34602 15 Crl.Appeal Nos.64 of 2008 and conn.cases was not disclosed by the prosecution even. Secondly, statements of the witnesses to the search were recorded in the mahazars and when the crime was registered thereafter, it became illegal. Admittedly, the search was conducted on the basis of a source information. Section 125 of the Evidence Act provides immunity to a police officer from disclosing any information received by him as to the commission of an offence. Therefore, PW51 did not have any obligation to mention the source of information in the mahazar or the FIR.
14. Inferably, the information was relating to receipt of HSD by M/s.Bava Enterprises by illegal means. Howsoever reliable was that information has not been sure then. It lacked necessary details also. Therefore, registration of a crime based on that information was not possible. Insistence on registering a crime by Section 154 of the Code on an officer in charge of a police station receiving an information relating to the commission of a cognizable offence does not mean that every cryptic and unverifiable information should result in registration of a crime. The officer is obliged to get necessary details before registering a crime. This is such a case. PW51 registered the 2025:KER:34602 16 Crl.Appeal Nos.64 of 2008 and conn.cases crime only after verifying the genuineness of the information by conducting a search and after collecting the details. Therefore, the contention of the accused in this regard cannot be accepted.
15. Simultaneous to the search of the petrol pump, a search was conducted by PW42, an Inspector of the CBI, in the Dolphin Barge. The mahazar prepared in that regard is Ext.P6. In the said mahazar, information given by the crew members of that barge was stated. Information revealed by the persons present at the time of search of the petrol pump were added in Ext.P49 mahazar also. It is contended that the said act is illegal and the statements inadmissible. Those statements were not recorded during investigation inasmuch as the crime was registered only later. Technically it was so, but those remain to be the statements recorded by the police officer who conducted the investigation. There can be no doubt therefore that such statements come within the mischief of the proviso to Section 162 of the Code. That does not, however, mean that the said mahazars or the FIR registered in sequel to the said mahazars are illegal.
16. At the time of search of the petrol pump, accused 2025:KER:34602 17 Crl.Appeal Nos.64 of 2008 and conn.cases No.3 and 4 were also present. Even the information collected from them is stated in Ext.P49. It is equally trite that the statements of accused and witnesses recorded at the time of search are inadmissible in evidence for, the same amount to only hearsay information. Be noticed, the rest of the facts narrated in those mahazars are what have been noticed by PWs.42 and 51 respectively. Those facts cannot have any such vice.
17. As pointed out above, at the time of search by PW51 on 29.05.2000 an excess stock of 32,320.68 litres of HSD was found. PW5, 30 and 32 have deposed about the source of such excess stock. PW5 was the driver of the tanker lorry bearing Reg.No.KL-I-3289. He deposed that the lorry was usually used to carry furnace oil, but on three occasions, the lorry was availed by the owners of the IOC pump at Thoppumpady for collecting HSD, and Rs.1,250/- was paid as rent for each day. His further version is that on two such occasions, HSD was stored in the tanker lorry which was parked in the said petrol pump. He identified accused No.3 as the owner of that petrol pump. He added that besides in the tanker lorry, HSD was collected in two barrels and two containers on the third 2025:KER:34602 18 Crl.Appeal Nos.64 of 2008 and conn.cases occasion. It is also his version that the HSD brought in a barge was stored in the petrol pump, tanker and containers.
18. PWs.30 and 32 were the employees of M/s Bava Enterprises. They deposed almost in similar terms, particularly in regard to bringing of HSD to M/s. Bava Enterprises on three occasions. These witnesses categorically stated that accused Nos.3 and 4 together were conducting the said petrol pump and both of them were present at the time of search of the petrol pump by the CBI on 29.05.2000. They stated that at the time of search, excess diesel was in stock. Of course, PW30 did not fully support the prosecution in regard to the allegation that he was also present at the time of bringing HSD in Dolphin Barge and pumping to the tanks in the petrol pump, M/s.Bava Enterprises. But he endorsed that it was in his handwriting the endorsements about bringing of diesel by Dolphin Barge in the stock register was written. He tacitly admitted before the court that diesel was brought to the petrol pump unauthorisedly using a barge and there are endorsements in that regard in Ext.P52 series bill books maintained in M/s.Bava Enterprises.
19. PW30 also stated before the court that accused Nos.3 2025:KER:34602 19 Crl.Appeal Nos.64 of 2008 and conn.cases and 4 together were running the said petrol pump. Although he admitted that the CBI inspected the petrol pump and seized unauthorised stock of HSD from there, he did not endorse the fact that such an excess quantity of HSD was brought to the pump using Dolphin Barge. To that extent he turned hostile to the prosecution. The evidence of these three witnesses, namely, PWs.5, 30 and 32, would prove that excess quantity of HSD was seized from M/s Bava Enterprises on 29.05.2000 by the CBI and on two earlier occasions also HSD was unauthorisedly obtained in that petrol pump. Their evidence also proved that accused Nos.3 and 4 were the persons running M/s.Bava Enterprises. Despite turning hostile to the case of the prosecution concerning a few facts, aforesaid versions of PWs 30 and 32 can be relied on.
20. Wife of accused No.4 is PW26. She proved Exts.P43 and P58 as deeds she had entered into with accused No.3. These documents would show that a partnership firm was constituted between herself and accused No.3 in regard to the running of M/s Bava Enterprises. Accused No.3 is the dealer, a fact which is unassailable. PW26, however, denied that her 2025:KER:34602 20 Crl.Appeal Nos.64 of 2008 and conn.cases husband had any role in conducting the petrol pump and the said documents were executed when an amount of Rs.4 lakhs was advanced as loan to accused No.3. Thus, she deposed against the case of the prosecution by resiling from her previous statement. Her deviant statement is against contents of Exts.P43 and P58 and also her previous statement. Hence the same cannot be given any heed to hold that accused No.4 did not have any role in conducting the said petrol pump.
21. None other than his employees, PWs.30 and 32 deposed in court that accused No. 4 in participation with accused No.3 was conducting the petrol pump. His presence during discharge of HSD from the Dolphin Barge on the three occasions was deposed to by PW30 as well as the crew members of the Dolphin Barge, namely, PWs.3 and 49. When the said evidence sufficiently proved that accused No.4 also had active participation in conducting M/s.Bava Enterprises, it can certainly be held that both accused Nos.3 and 4 were involved in the business of M/s Bava Enterprises.
22. I may now consider whether there occurred 2025:KER:34602 21 Crl.Appeal Nos.64 of 2008 and conn.cases transportation of HSD from South Tanker Jetty in Dolphin Barge to M/s Bava Enterprises at Thoppumpady on three occasions as alleged by the prosecution. The prosecution relies on the evidence of PWs.3, 31 and 49, the crew members of the barge, PWs.1 and 2, the approvers, and PWs.5, 30 and 32, the lorry driver and employees of the petrol pump in this regard. Of course, other circumstances are also placed reliance on.
23. PWs.3, 31 and 49 were the members of the crew in Dolphin Barge during the relevant period. PW3 was the Barge Master. PW31 was the Engine Driver and PW49 was the Engine Operator. The facts that they were the employees and on duty on the dates in question are reflected from Ext. P5, the log book maintained in the Barge. All of them stated that accused Nos.2 and 5 were the owners of Dolphin Barge and they were giving instructions concerning the operation of the Barge.
24. PW3 explained in detail about the bunkering for which the said Barge was being used. It was under a contract with the IOC and being used for bunkering oil to ships. On the basis of the intent from ships instructions would be issued from the Karshaka Road office of the IOC for bunkering and oil would 2025:KER:34602 22 Crl.Appeal Nos.64 of 2008 and conn.cases be loaded from South Berth Jetty. He added that besides such usual bunkering operations, the Barge was used thrice to transport HSD from South Barge Jetty to M/s Bava Enterprises at Thoppumpady. He explained that the three incidents were on 22.04.2000, 15.05.2000 and 28.05.2000. All were during night.
25. Regarding the first incident, PW3 stated that on 24.04.2000 accused Nos.1, 2 and 5, whom he had identified before the court, told him at Barge Jetty about such a bunkering operation. Accordingly, on 22.04.2000 at about 8.00 p.m. he was told over telephone by accused No.5 that the Barge should be taken to Thoppumpady with HSD. Accordingly, he reached the Jetty at about 8.45 p.m. and took the Dolphin Barge which was filled with HSD to Thoppumpady. He, along with other crew members among whom were PWs.31 and 49, took the Barge to M/s Bava Enterprises at Thoppumpady where the HSD was discharged. It is also the version of PW3 that while they reached Thoppumpady, owners of M/s.Bava Enterprises, whom he identified as accused Nos. 3 and 4, the Operation Manager of the Barge Sri.Sainuddin (who expired before the commencement of the trial) and staff members of the Petrol 2025:KER:34602 23 Crl.Appeal Nos.64 of 2008 and conn.cases Pump were present. It was in their presence, HSD was pumped into the tanks in the petrol pump.
26. PW3 added that the second time on realising that there was something unusual in transporting HSD to the petrol pump, he resisted the act. However, accused No.2 insisted that he was employed for such activities. The third time when HSD has been transported, PW3 was told about the operation after filling HSD in the Barge. He resisted, but he was compelled to take the Barge to Thoppumpady stating that on his failure to do so, his employment will be lost for, the Barge was already filled with HSD. It is his version that he therefore obliged the direction of accused Nos.2 and 5 and reached Thoppumpady with the Barge at about 2.30 in the night. At that time also, the Operation Manager Sri.Sainuddin, accused No.3 and staff members of M/s.Bava Enterprises were present. The HSD was pumped into the underground tanks and a tanker lorry, two barrels and two cans. PW3 added that on the first two occasions, 30,000 litres each and on the third occasion, 41,000 litres of HSD was pumped to M/s Bava Enterprises from the Dolphin Barge.
27. The version of PW31 regarding transportation of HSD 2025:KER:34602 24 Crl.Appeal Nos.64 of 2008 and conn.cases from South Barge Jetty to M/s.Bava Enterprises is almost the same. Except for a few minor contradictions as to the timing and presence of persons at M/s Bava Enterprises at the time of pumping HSD, his version goes in tandem to that of PW3. Presence of accused Nos.1, 2 and 5 while bunkering to the Dolphin Barge from the South Terminal Jetty on all the three occasions is also consistent. However, PW49 did not support the case of the prosecution insofar as the transportation of HSD from South Terminal Jetty to M/s.Bava Enterprises using Dolphin Barge. He feigned ignorance regarding those matters and in doing so he resiled from his statement to the investigating officer. He was allowed to be cross-examined, but the learned Prosecutor could not bring out much evidence from him. His version that he was employed in Dolphin Barge by accused Nos.2 and 5 was, however, remains unassailed. Accused No.2 tried to bring out from PW49 his case that he was in Kannur during the relevant period. That aspect, which is to support the plea of alibi by accused No.2 will be dealt with later.
28. Evidence of PWs.3 and 31 has been strongly assailed 2025:KER:34602 25 Crl.Appeal Nos.64 of 2008 and conn.cases by the accused. It is alleged that these witnesses stated falsehood in court. Their versions, however, withstood the searching cross-examination. Their assertions that they were given tips after each voyage and Rs.30,000/- after the second trip to be adjusted against arrears of salary add credibility to their oral testimony. It is pertinent to note that these witnesses deposed so against their masters. Nothing is brought out to substantiate that either of them had enmity towards their employers. If so, there is no reason to disbelieve these witnesses.
29. Further, there are other circumstances to lend support to their evidence. As stated, an excess quantity of HSD was found in M/s.Bava Enterprises while the search was carried out on the afternoon of 29.05.2000. The versions of PWs.30 and 32 and to a certain extent that of PW5 are to the effect that such excess quantity was the HSD brought to M/s.Bava Enterprises using Dolphin Barge. Although no tangible evidence is available, versions of PWs.3 and 31 get sufficient support from the other evidence including from the oral testimonies of PWs.30 and 32 that on earlier two occasions also Dolphin Barge 2025:KER:34602 26 Crl.Appeal Nos.64 of 2008 and conn.cases was used to transport HSD from South Terminal Berth to M/s.Bava Enterprises, Thoppumpady.
30. The case of the prosecution is that the Dolphin Barge belonged to a partnership firm, named M/s Ocean Bunkers, which was constituted under the aegis of M/s Ron Maritime Agency. Accused Nos.2 and 5 were the Managing Director and Director of that company. By constituting that partnership firm with accused Nos.2 and 5 and PWs.6 and 50 as partners, the Barge was acquired. PW6 deposed before the court that she was also a partner and the deed of partnership is Ext.P15. She claimed to have invested Rs.2.5 lakhs in the business, but she was not paid any return. She identified Ext.P16 as the specimen signature she had furnished to the investigating officer. A report identifying the signatures in Ext. P16 was obtained from PW18, who was the Assistant Government Examiner of Questioned Documents. His report is Ext. P41 and reasons thereof is Ext.P42. That evidence confirmed the authorship of signatures of accused Nos. 2 and 5 and also that of PWs 6 and 50 in Ext.P15.
31. PW50 is none other than the mother-in-law of 2025:KER:34602 27 Crl.Appeal Nos.64 of 2008 and conn.cases accused No.1. She is also a signatory to Ext.P15 as a partner. But she feigned ignorance about such a transaction while examined before the court. Therefore, her evidence has no much use for the prosecution. While confronting the signature in Ext.P15, she did not deny, but feigned ignorance. However, from the evidence of PWs.6 and 18, the recitals in Ext.P15 and the report of PW18 vide Ext. P41, it is obvious that PW50 was also a partner to M/s Ocean Bunkers, which owned Dolphin Barge.
32. The above fact gets corroboration from the evidence of PW20. She was the accountant in M/s Ron Maritime Agency till 05.08.1999. She deposed before the court that accused Nos.2 and 5 were the Managing Director and Director of the said company. Under that company, a partnership firm was constituted and PW20 proved Ext.P15 as the deed of partnership. She is an attestor to it and her unassailable evidence proves beyond doubt that such a partnership deed was executed for the constitution of M/s Ocean Bunkers and PW50, who is the mother-in-law of accused No.1, was a partner to it. Her evidence further would prove that the share of PW50 in the 2025:KER:34602 28 Crl.Appeal Nos.64 of 2008 and conn.cases partnership was paid by accused No.1. Although she was unable to remember and state every transaction, based on the entry contained in Ext.P53, which is the statement of accounts concerning M/s Ocean Bunkers, she asserted that an amount of Rs.4 lakhs was received from accused No.1 on behalf of PW50 towards the share in the partnership. On 12.07.1999 an amount of Rs.1,02,500 was also received. When the said entries were in the statement, which could be duly proved by PW20, who was none other than the accountant, there can be little doubt that PW50 was a partner of M/s Ocean Bunkers and the investment on behalf of her was made by accused No.1.
33. The evidence tendered by the prosecution would not show that PW6 or PW50 had any role in running of the Dolphin Barge. On the other hand, accused Nos.2 and 5 were the persons in control of the affairs. Their employees deposed in court substantiating their active participation in operating the Dolphin Barge. Also, the transportation of HSD from the Barge Jetty at South Tanker Berth to M/s.Bava Enterprises at Thoppumpady Fishing Harbour on all the three occasions were carried out as instructed by accused Nos.2 and 5. In that 2025:KER:34602 29 Crl.Appeal Nos.64 of 2008 and conn.cases context the contention of accused No.2 that he was not available in station during the relevant period and he was falsely implicated needs consideration. In this regard, accused No.2 essentially relies on the oral testimony of PW49.
34. As pointed out above, PW49 is a hostile witness. His credibility is quite at stake. His version in court is totally against the testimonies of PWs.3 and 31, who were his co-workers in the Dolphin Barge. I found above that both PWs.3 and 31 deposed truth in court about transportation of HSD from South Terminal Berth to M/s.Bava Enterprises. When such a witness, PW49 stated in court as an answer to a pointed question that accused No.2 was undergoing treatment at Kannur during the relevant period, the same can be termed as an incredible statement alone. Further, it may be noted that he stated so not from his personal information, but as stated by Sri.Sainuddin only. Being a hearsay information, that is an inadmissible piece of evidence rather. Therefore, the case of accused No.2 that he was away in Kannur and not available at Kochi during April and May 2000 cannot be countenanced. The plea of alibi is thus not proved.
35. The learned Senior Counsel for accused No.1 would 2025:KER:34602 30 Crl.Appeal Nos.64 of 2008 and conn.cases submit that no sufficient evidence is brought forth to establish the source of unauthorised stock of diesel found in M/s.Bava Enterprises on 29.05.2000. Not only that there is no evidence to prove that the diesel brought in the tanker Suvarna Swarajya was transported using Dolphin Barge, but also the evidence tendered by the prosecution has discredited any such relativity. It is submitted that no sample was taken from the tanker Suvarna Swarajya or the lines in the Exchange Pit. Samples were taken from the Dolphin Barge, but the same did not conform to the sample taken from M/s Bava Enterprises. It is also urged that the samples taken from the petrol pump were prepared not in accordance with the accepted norms and were not homogeneous. Thus, it is contended that a qualitative comparison with reference to the samples collected by the prosecuting agency is not helpful at all to prove the charge.
36. In the circumstances of the case, there was no possibility for a comparison of samples from the diesel pilfered and sold to M/s Bava Enterprises on the first two occasions with the source samples. By the time, the malpractice was detected, which was on 29.05.2000, the previous two loads were already 2025:KER:34602 31 Crl.Appeal Nos.64 of 2008 and conn.cases exhausted. Hence, the other evidence alone could be relied on by the prosecution concerning those incidents.
37. PW38 was the DGM, Quality Control in IOC. He examined the samples collected by PWs.42 and 51 in this case. Two samples were collected from the Dolphin Barge and in samples from the contraband found at M/s.Bava Enterprises. MOs.1 to 16 were the samples. In terms of Ext.P82, PW38 was requested to do scientific examination. PW83 is the forwarding note. He, after conducting necessary tests, issued Ext.P84 report. He is sufficiently experienced and his report can certainly be acted upon. Going by his version and the report contained in Ext.P84 the samples satisfied the qualitative requirements of diesel. A few samples were answering to the standard of HSD, whereas the others were of LSHF HSD. It is seen that the samples collected from the Dolphin Barge were of LSHF standard HSD. Of course, PW38 did not venture to classify each of the samples as LSHF HSD or HSD. But the parameters and data furnished in Ext.P84 would indicate that the samples collected as per Ext.P6 from the Dolphin Barge were LSHF HSD. The reason furnished by the investigating officer for not 2025:KER:34602 32 Crl.Appeal Nos.64 of 2008 and conn.cases collecting samples from the tanker Suvarna Swarajya is that it was empty. It is urged by the learned senior counsel for the 1 st accused that at least from the line inside samples could have been collected. Whether that was possible or not is not able to be ascertained from the available evidence. It remains that no such sample was collected.
38. Version of PW3 in the above context is relevant. He stated that on 29.05.2000 there was a legal bunkering to an Irish Ship subsequent to transportation of HSD to M/s Bava Enterprises. If so, the sample collected from it could only be LSHF HSD. It is alleged that had there been such a bunkering, the documents pertaining to it could have been produced. But the prosecution did not. That also is highlighted to contend that the charge could only fail.
39. It is indisputable that the legal use of Dolphin Barge was to bunker oil to ships. So the version of PW3 that on 29.05.2000 there was such a bunkering cannot be said unusual. No oblique motive for PW3 to state so is brought out or substantiated. Therefore, there is no reason to disbelieve the said version of PW3. In the circumstances the mismatch of the 2025:KER:34602 33 Crl.Appeal Nos.64 of 2008 and conn.cases samples collected from M/s.Bava Enterprise and Dolphin Barge cannot fail the prosecution altogether. The question may be even in the absence of such confirmatory evidence, would the prosecution succeed?
40. One of the facts tried to be proved by the prosecution is that there was short discharge from all the three tankers, namely, M.T.Prathibha Krishna, Sampoorna Swarajya and Suvarna Swarajya. The fact that those ships were chartered to bring HSD to Tanker Jetty, Foreshore Jetty, Ernakulam is beyond dispute. Sufficient evidence; both oral and documentary, has been let in by the prosecution regarding chartering of the said vessels, invoicing and despatching of oil from various ports. M.T.Prathibha Krishna was loaded with HSD from Bahrain, a part of which was discharged at Mumbai and the remaining quantity of 20771.570 MT of HSD was discharged at Tanker Jetty, Ernakulam. The evidence of PWs.13, 22 and 23 together with Exts.P24 to P30 established that fact. It is seen that there was a short discharge by 37.604 MT (a calculation error that the shortage was 137.604 MT is noted in the records). Be that as it may, short discharge of atleast about 37 MT of HSD 2025:KER:34602 34 Crl.Appeal Nos.64 of 2008 and conn.cases is borne by records.
41. In the case of Sampoorna Swarajya, which reached Tanker Jetty, Ernakulam was loaded with 19985.814 MT of HSD from Mangalore Port and the entire load was discharged at Ernakulam. Going by the evidence of PW16, the Surveyor and Exts.P38 and P55, there was a short discharge of 39.466 MT of HSD. Similarly, the tanker Survarna Swarjya was loaded with 16230.188 of MT of HSD to be discharged at Tanker Jetty, Ernakulam. Discharge was completed on 28.05.2000. Going by the evidence of PW16, the Surveyor and relevant pages in Exts.P37 and 55, there was a short discharge of 49.044 MT of HSD. The fact that there was shortage in the discharge of HSD on all the said three occassions is unassailable in the light of the clinching evidence brought on record. The contention of the learned counsel for the accused in the above regard is that shortage in quantity is a natural phenomenon occurred during voyage and therefore that cannot be a circumstance, which can be banked upon by the prosecution. It is further urged that no serious action was taken by the respective oil companies pertaining to such shortage in the quantity.
2025:KER:34602 35 Crl.Appeal Nos.64 of 2008 and conn.cases
42. As is seen from the evidence, HSD brought by various vessels was used to be distributed among the oil companies namely IOC, HPCL and BPCL. Complaints were seen raised regarding the shortage. But no evidence was brought in by the prosecution concerning result of such complaints and action, if any, taken in that regard. From the oral testimony of PW16 shortage of HSD as occured in the instant cases has not been usual. Therefore, the same is an aspect which has to have due reckoning, although that independently will not help to prove the charge, especially when no convincing data concerning normal or standardised shortage is available. What emerges from the above is that HSD brought by the aforesaid three vessels were discharged at Tanker Jetty, Foreshore Road, Ernakulam on the days including the respective dates in question such as, 22.04.2000, 15.05.2000 and 28.05.2000, and that on each of the said occasions there was shortage in discharge.
43. The procedure for discharge of HSD from the vessel has been stated by the officers of IOC, HPCL and BPCL. PWs.17 and 37 were the officers of the IOC. PWs.24 and 25 were the 2025:KER:34602 36 Crl.Appeal Nos.64 of 2008 and conn.cases officers of HPCL. PWs.41 and 47 were the officers of BPCL. These witnesses deposed about the respective role of the officers of the oil companies while a tanker loaded with petroleum product arrived at Tanker Jetty. The consistent version is that the boarding officer, who shall be from the respective oil company to which the consignment or part of the consignment is arrived, along with Surveyor reaches the vessel. Quality of the consignment is tested by preparing a sample and sending it to the Cochin Refineries Ltd., which is an organ of IOC. The Surveyor then prepares an ullage report. By measuring the empty space, the quantity of the oil in the tank is quantified. After thereby confirming the quality and quantity, instructions would be obtained from the oil company concerned. On communicating the instructions, the Refinery Coordinator at the Tanker Jetty takes steps for lining up to ensure discharge of oil to the oil company concerned. When the Refinery Coordinator confirms the due lining up the discharge commences.
44. One of the contentions raised on behalf of accused No.1 is that lining up for discharge of oil to the designated destination was not the sole obligation of the Refinery 2025:KER:34602 37 Crl.Appeal Nos.64 of 2008 and conn.cases Coordinator, but also of the Discharge Officer, who is deputed by the company concerned. Serious contentions were raised in this regard and the evidence of DW2 was relied on to substantiate that contention. However, the cogent and consistent version of the aforesaid witnesses, who are senior officers from all the three oil companies is that the lining up operation at South Tanker Jetty by opening the respective valves and blinds has been the duty of Refinery Coordinator alone and none else. Although the contrary was suggested to PWs.24 and 25 during cross-examination they duly denied them.
45. The Refinery Coordinators were deputed from IOC. That fact cannot be disputed in the light of the oral testimonies of not only PWs.17 and 37, but also PWs.4 and 45. It is pertinent that PWs.4 and 45 were the other two Refinery Coordinators deputed by IOC along with accused No.1 at the Tanker Jetty, Ernakulam. Both PWs.4 and 45 stated in unequivocal terms that they along with accused No.1 were performing the said duty in turn, ordinarily in eight hours' turn. Duty time may have change depending upon availing of leave 2025:KER:34602 38 Crl.Appeal Nos.64 of 2008 and conn.cases by/absence of any one among them. From the said evidence, it is well proved that accused No.1, PW4 and 45 were in charge of lining up operations in the Tanker Berths. The installations there have been used to pump oil brought by vessels to the designated destination. Therefore, the case of the prosecution that distribution of oil from vessels was through the Exchange Pit in the South Tanker Berth and North Tanker Berth, and lining up operation for the same was the sole responsibility of accused No.1, PWs.4 and 45 stand proved.
46. As stated, the prosecution has let in direct evidence to prove transportation of HSD from South Barge Jetty using Dolphin Barge to M/s Bava Enterprises on three occasions. The charge is that accused No.1 being the Operation Coordinator at South Tanker Berth in connivance with accused Nos.2 to 5 diverted HSD from South Exchange Pit for such pilferage and they thereby committed the offences. In order to prove the complicity of accused No.1 and also the conspiracy the said accused allegedly had hatched, there is no direct evidence. The prosecution can rely only on circumstances, especially when PWs.27 to 29 and 48, the casual labourers, who were involved 2025:KER:34602 39 Crl.Appeal Nos.64 of 2008 and conn.cases in undertaking the lining up operation under the instructions of the Operation Coordinators turned hostile to the prosecution. Besides them, one Mr.Reynold was also a casual labourer, but he was not examined. Of course, evidence of the approvers, PWs.1 and 2 also is relied on in the above regard. The question therefore is whether the prosecution succeeded in establishing with the aid of circumstantial evidence, the complicity of accused No.1 and also the conspiracy.
47. It is the fundamental principle of criminal law that the guilt of the accused has to be proved beyond a reasonable doubt. Its corollary is that in a case that rests on circumstantial evidence, the proved circumstances should form a complete chain so as to prove the guilt beyond doubt. Whether each of the circumstances is to be proved beyond a reasonable doubt, has been a debated question. In M.G.Agarwal v. State of Maharashtra [AIR 1963 SC 200], a Constitution Bench of the Apex Court held that every primary fact constituting the circumstances based on which the prosecution proposes to establish the guilt of the accused, need not be proved beyond a reasonable doubt. Therefore, the circumstances proposed by the 2025:KER:34602 40 Crl.Appeal Nos.64 of 2008 and conn.cases prosecution need to be proved by the ordinary standard.
48. The Apex Court in Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116] held that the following must be fulfilled before the case against an accused can be said to be fully established on circumstantial evidence:
"(1) the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely "may be" fully established.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused."
49. A three-Judge Bench of the Apex Court after referring to the earlier decisions on the point right from Hanumant Govind Nargundkar and another v. State of Madhya Pradesh [AIR 1952 SC 343] held in Munikrishna @ Krishna v. State by Ulsoor PS [2022 SCC OnLine SC 1449] that in a 2025:KER:34602 41 Crl.Appeal Nos.64 of 2008 and conn.cases case where circumstantial evidence is relied on, the chain of evidence must be complete and the conclusion which is arrived after examining the chain of evidence must point towards the culpability of the accused and not to any other conclusion. It was also held that in a case of circumstantial evidence, the court has to scrutinize each and every circumstantial possibility, which is placed before it in the form of evidence and the evidence must point towards only one conclusion, which is the guilt of the accused. Therefore, the evidence on record should prove beyond doubt that the proven circumstances lead to the only conclusion that the accused had committed the offence.
50. Accused No.1, PWs.4 and 45, were refinery coordinators at South Tanker Berth. I have already mentioned about their duty arrangements. PWs.4 and 45 deposed in detail about their performing duties during the relevant period. PW4 has proved Ext.P10, the attender register (muster roll), Ext.P11, the file containing log details of discharge of HSD from vessels, Ext.P12, shift day book and Ext.P14, tanker log book. PW45 also deposed substantiating the entries in those registers, besides the duty details. Their categorical assertions are that accused 2025:KER:34602 42 Crl.Appeal Nos.64 of 2008 and conn.cases No.1 was on duty from 7.00 a.m. to 7.00 p.m. on 22.04.2000. He was on duty from 3.00 p.m. to 11.00 p.m. on 15.05.2000. He was also on duty from 7.00 p.m. on 28.05.2000 till 7.00 a.m. on 29.05.2000. The said oral statements are fully supported by the entries in Exts.P10, P11, P12, P14 and also Ext.P96. The question now is whether accused No.1 can be attributed with liability for loading HSD in Dolphin Barge on the said dates.
51. The learned Senior Counsel for accused No.1 would submit that even if he was on duty till 7.00 p.m. on 22.04.2000 bunkering to the Dolphin Barge and transportation of HSD to M/s Bava Enterprises took place thereafter, and therefore, he cannot be roped in. It is also submitted that the oral testimonies of PWs.4 and 45 in the above regard cannot be believed inasmuch as they are interested witnesses being the real culprits and their version is to shirk the responsibility. Certainly, when the evidence fully substantiates that either of the said three officers should always be on duty at South Tanker Berth and such officer will be in absolute domain of the lining up operations, any one of them can be the person behind such pilferage. It is to be noted that PWs.4 and 45 were categoric 2025:KER:34602 43 Crl.Appeal Nos.64 of 2008 and conn.cases concerning the fact that by opening valves concerned in the South Exchange Pit, HSD can be pumped to a barge berthed at South Barge Jetty. PW45 added that while pumping HSD to the designated destination, namely; IOC, HPCL or BPCL, it is possible to divert HSD to the Barge Jetty by loosening one or two threads of the valves concerned.
52. In the above regard, the learned Senior Counsel raised a contention that any such diversion is dangerous for, pumping of oil from the tanker is in such a high pressure and any diversion would blow up the installations. Such a suggestion was put to PWs.4 and 45. When they were the persons who operated the South Exchange Pit for years together, their definite assertion that diversion of HSD to Barge Jetty is possible while pumping to the designated designation is in progress, cannot be doubted. The said version has to be considered in the light of the oral testimonies of PWs.3 and 31, who were the crew members of Dolphin Barge, that on all the three occasions HSD was pumped to the Barge from South Exchange Pit. I found above that the aforesaid version of PWs.3 and 31 was reliable and there occurred transportation of HSD from South Barge 2025:KER:34602 44 Crl.Appeal Nos.64 of 2008 and conn.cases Jetty to M/s Bava Enterprises. When that is the evidence, there can be any doubt about the assertion of PWs.4 and 45 that HSD could be diverted through the designated line to the Barge Jetty by partially opening the valves and blind concerned.
53. Pumping of HSD to Dolphin Barge occurred on three occasions and on all the three occasions, accused No.1 was allegedly on duty at the South Tanker Birth. Going by the evidence, he was on duty till 7.00 p.m. on 22.04.2000. PW4 succeeded him. The handwriting of accused No.1 in Ext.P12 during his duty time on 22.04.2000 has been proved by PW4 and 45. Entries in it from 7.15 p.m. onwards were by PW4. It is possible to contend that at the time of pumping HSD to Dolphin Barge it was not accused No.1, but PW4 was on duty.
54. The oral testimony of PW3 assumes importance in that context. He deposed that at around 4.00 p.m. on 22.04.2000 he was told that there would be a bunkering in the evening. At 8.00 p.m. he was informed by accused No.5 over telephone that the Dolphin Barge was loaded with HSD to be taken to M/s.Bava Enterprises. Availability of accused No.2 in the company of accused No.1 at the Jetty has also been proved.
2025:KER:34602 45 Crl.Appeal Nos.64 of 2008 and conn.cases In the light of the said proved facts, it can only be found that bunkering to the Dolphin Barge on that day had occurred at the instance of accused No.1. There are other reasons for taking such a view, which I shall mention below.
55. On 15.05.2000, accused No.1 was on duty from 3.00 p.m. to 11.00 p.m. On 28.05.2000 he was on duty from 7 O'clock in the night to 7 O'clock the next morning. From the evidence mentioned above, there can be little doubt that bunkering to Dolphin Barge took place on those days while accused No.1 was on duty. From the version of PW3, it is seen that accused Nos.2 and 5 were also found in the company of accused No.1 not only at the barge jetty but also at his residence, which is a pointer to their coordination in the bunkering in question. Of course, in that regard the learned Senior Counsel would submit that being the partners of M/s Ocean Bunkers, which had contractual relationship with IOC, there was nothing unusual for accused Nos. 2 and 5 meeting accused No. 1. To a certain extent that submission is appropriate. But there are the following fouling factors.
(1) The mother-in-law of accused No.1 was also a 2025:KER:34602 46 Crl.Appeal Nos.64 of 2008 and conn.cases partner of M/s Ocean Bunkers;
(2) Share of his mother-in-law to the partnership firm was contributed by accused No.1;
(3) Wages of the crew members of the Dolphin Barge were in arrears necessitating raising of funds; and (4) While illegal bunkering of HSD to Dolphin Barge at the South Barge Jetty also all of them were present.
56. When accused Nos.1, 2 and 5 having had parleys in the above circumstances cannot be said very innocent. When the prosecution succeeded in proving that, bunkering of HSD to Dolphin Barge on all the three occasions for being transported to M/s Bava Enterprises occurred while accused No.1 was on duty, the aforementioned circumstances constitute a complete chain proving complicity of accused No.1 with the crime.
47. It is also relevant to consider how far the evidence of PWs.1 and 2 is trustworthy and it renders support to the other evidence against accused No.1 and others, especially concerning the conspiracy. PWs.1 and 2 having been cited as approvers, the law in that respect needs a mention. Section 133 of the Evidence Act deals with the law relating to accomplice evidence, which reads:
"133. An accomplice shall be a competent witness against 2025:KER:34602 47 Crl.Appeal Nos.64 of 2008 and conn.cases an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice."
The first part says that an accomplice shall be a competent witness. This, in fact, is only a reiteration of Section 118 of the Evidence Act which says that all persons are competent witnesses, except those who suffer from disqualification of an intellectual character. The second part lays down that conviction is "not illegal" merely because it is based on the uncorroborated testimony of an accomplice. This again is the reiteration of Section 134, which does not require any particular number of witnesses for the proof of any fact. The caution placed in illustration (b) to Section 114 of the Evidence Act, which says that an accomplice is unworthy of credit, unless he is corroborated in material particulars, has to be understood in the light of the specific principle of law placed in Section 133 that a conviction based on the uncorroborated testimony of an accomplice is "not illegal".
58. In State of Kerala v. Anilkumar @ Jacky [2024 KHC 739], a Division Bench of this Court dilated on the law relating to evidence of an approver. It was held, 2025:KER:34602 48 Crl.Appeal Nos.64 of 2008 and conn.cases "15. The law relating to the manner of appreciation of the evidence tendered by an approver is also well settled. It recognises that an approver is very often an accomplice ie. a person who participates in the commission of the actual crime charged against an accused. He is a participes criminis. When he agrees to be an approver, and to testify against an accused, he becomes a prosecution witness. The evidence of an accomplice therefore requires to be accepted with a great deal of caution and scrutiny because (i) he has a motive to shift guilt from himself (ii) he is an immoral person likely to commit perjury on occasion; and
(iii) he hopes for pardon or has secured it, and so favours the prosecution (Lal Chand v. State of Haryana - (1984 (1) SCC
686)).
16. S.133 of the Indian Evidence Act states that an accomplice shall be a competent witness against an accused person and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. S.114 of the Evidence Act states that a court may presume the existence of such facts as it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business in their relation to the facts of the particular case. By way of illustration (b), it is clarified that the court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. Reading S.133 and Illustration (b) to S.114 of the Evidence Act together, the courts in India have held that while it is not illegal to act upon the uncorroborated testimony of the accomplice, the rule of prudence so universally followed as to amount to a rule of law, is that it is unsafe to act on the evidence of an accomplice unless it is corroborated in material aspects, so as to implicate the accused. (Rameswar v. State of Rajasthan - (AIR 1952 SC 54);
2025:KER:34602 49 Crl.Appeal Nos.64 of 2008 and conn.cases Dagdu v. State of Maharashtra - (1977 (3) SCC 68); D.Velayudham v. State - (AIR 2015 SC 2506)).
17. Thus, an approver's evidence has to satisfy the double test ie. (i) his evidence must be reliable and (ii) his evidence should be sufficiently corroborated. If the first test of reliability is not satisfied, there is no necessity to look for a satisfaction of the second test. As observed by the Court in Rampal Pithwa Rahidas & Ors v. State of Maharashtra - (1994 Supp (2) SCC 73), it is only when the approver's evidence is considered otherwise acceptable that the court applies its mind to the rule that his testimony requires corroboration in material particulars, connecting or tending to connect each of the accused to the crime charged. This, however, is as a matter of prudence. (Sarwan Singh v. State of Punjab - (AIR 1957 SC 637); Jnanendra Nath Ghose v. State of West Bengal - (AIR 1959 SC 1199)).
18. On the aspect of corroboration, firstly, the court has to satisfy itself that the statement of the approver is credible in itself and there is evidence other than the statement of the approver that the approver himself had taken part in the crime. For this, the court must consider the question as to how the approver came to be arrested, how he became a participant in the crime, the role played by him in the crime and the circumstances in which he decided to become an approver. Secondly, the court has to seek corroboration of the approver's evidence with respect to the part of other accused persons in the crime, and this evidence has to be of such a nature as to connect the other accused with the crime. The corroboration should be sufficient to afford some sort of independent evidence to show that the approver is speaking the truth with regard to the accused person whom he seeks to implicate. (Rameshwar v. State of Rajasthan - (AIR 1952 SC 54); Sarwan Singh v. State of Punjab - (AIR 1957 2025:KER:34602 50 Crl.Appeal Nos.64 of 2008 and conn.cases SC 637); Ranjeet Singh and Anr. v. State of Rajasthan - (1988 (1) SCC 633)).
19. To paraphrase Justice Vivian Bose in Rameshwar (supra), the nature and extent of corroboration required of an approver's statement has to be determined by the following principles viz. (i) it is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant or the accomplice, should in itself be sufficient to sustain conviction; all that is required is that there must be some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it (ii) that independent evidence must not only make it safe to believe that the crime was committed, but must in some way reasonably connect or tend to connect the accused, with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed the crime
(iii) that the corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another and (iv) that the corroboration need not be direct evidence that the accused committed the crime - it is sufficient if it is merely circumstantial evidence of his connection with the crime."
59. The Apex Court in A.Srinivasulu v. State Rep. by the Inspector of Police [(2023) 13 SCC 705] reiterated the twin test as enunciated in Sarwan Singh (supra) to be satisfied before accepting the evidence of an approver, that the approver is a reliable witness and that his statement is corroborated with 2025:KER:34602 51 Crl.Appeal Nos.64 of 2008 and conn.cases sufficient independent evidence. With the above in mind, I shall consider the evidence of PWs 1 and 2.
60. The learned Senior Counsel on behalf of accused No.1 and also the counsel appearing for other accused would submit that PWs.1 and 2, first of all, are not accomplice inasmuch as they deposed before the court that they did not realise what they did was an offence. It is further submitted that the evidence of PWs.1 and 2 is totally contradictory and unreliable. There is no tangible or independent evidence to show that they were scrap dealers as they claimed, they ever had approached accused No.1, there was a dilapidated shed and pump at South Tanker Jetty proposed to be auctioned and that their claim of entry to the Jetty to meet accused No.1 itself is quite improbable. The learned counsel for accused No.2 further submitted that one of the approvers Sri. Ashraf, who since expired and not examined in court, had an oblique motive of cancelling the contract, the Dolphin Barge had with the IOC so as to get that contract to the Barge owned by his brother. Pointing out those aspects, it is contended that PWs.1 and 2 are planted witnesses.
2025:KER:34602 52 Crl.Appeal Nos.64 of 2008 and conn.cases
61. It is true that accused No.1 being a top ranking officer in the IOC need not ordinarily have availed the help of PW1, PW2 and Sri.Ashraf to contact a petrol pump dealer. It is also relevant to mention that the prosecution did not bring forth any tangible evidence to prove the scrap business of PWs.1 and 2, existence of a dilapidated shed and pump in the Tanker Jetty premises and any permission availed by them to enter the Jetty to meet accused No.1. Equally relevant is to consider whether PWs.1 and 2 qualified to be accomplices for them to be treated as approvers.
62. As held in Lal Chand [(1984) 1 SCC 686)] the first aspect to be considered is whether the approver himself has taken part in the crime and is a particeps criminis. What PWs.1 and 2 admitted during cross-examination is that they did not know the act they were doing was an offence. That was only on account of their ignorance of law and not that they did the acts without sufficient knowledge about the nature of the act they were doing. It is obvious that they believed so only because they were not sure that the act was a penal one. If the versions of PWs.1 and 2 can be believed, they were also privy to the crime.
2025:KER:34602 53 Crl.Appeal Nos.64 of 2008 and conn.cases When they arranged a purchaser for HSD on taking commission, that is enough to implicate them as accused, whether or not they knew the law which made the act a crime. Therefore, their aforementioned statement is not an exculpatory one so as to hold them not accomplices. They thus being particeps criminis, can only be treated as approvers. Therefore, their evidence has to succeed the twin test as aforementioned for being relied on.
63. Even assuming that PWs 1 and 2 do not come within the purview of accomplices, the position would not be different. Treating them accomplices, they were granted pardon on the condition of their making a full and true disclosure of the whole of the circumstances within their knowledge relative of the offence and to every other person concerned. Their statements under Section 306(4) of the Code were recorded, which are Exts. P2 and P4. Having pinned them down to such statements and to a potential prosecution as contemplated in Section 308 of the Code, their evidence could be approached with caution only and the vice applicable to approver's evidence does apply.
64. I found above that bunkering of HSD to Dolphin Barge on all the three occasions took place at the instance of 2025:KER:34602 54 Crl.Appeal Nos.64 of 2008 and conn.cases accused No.1. There is concrete evidence in order to establish his complicity in the commission of the offence. Recovery of HSD from M/s Bava Enterprises so transported on 29.05.2000 substantiated the pilferage and sale of HSD. When such substantive pieces of evidence are available, the version of PWs.1 and 2 that they mediated between accused No.1 on the one side and accused Nos.3 and 4 on the other in the sale of HSD gets sufficient corroboration. If so, the inconsistencies and contradictions in their evidence pointed out by the defence, which are not very conspicuous, pale into insignificance. The deal was a clandestine one and therefore accused No.1 availing the help of PWs.1 and 2 and also Sri.Ashraf, who were doing only menial businesses cannot be said to be improbable. The learned Special Judge considered every such aspect of the matter and held that evidence of PWs.1 and 2 can be trusted. The other facts proved by the prosecution with the aid of independent evidence regarding pumping of HSD from South Exchange Pit to Dolphin Barge at the instance of accused No. 1, transporting the same to Thoppumpady and discharging to M/s Bava Enterprises rendered sufficient corroboration to the oral 2025:KER:34602 55 Crl.Appeal Nos.64 of 2008 and conn.cases testimonies of PWs.1 and 2. Thus their evidence stands scrutiny of the twin test concerning trustworthiness.
65. The finding of guilt on the part of accused Nos.1 to 5 based on the aforementioned evidence and circumstances for the offences of conspiracy, misappropriation, receiving of stolen property and criminal misconduct by a public servant cannot therefore be found fault with. Accordingly, it is held that there is no reason to interfere with the conviction of accused Nos.1 to 5 for the offences under Section 120B read with Sections 409 and 411 of the IPC and Section 13(1)(c) read with Section 13(2) of the PC Act. Coming to the sentence, the time taken for concluding the proceedings and the health conditions of the accused persons, assume importance necessitating a benevolent consideration, dehors the serious nature of the offences committed by them.
66. Having regard to the aforementioned aspects, I am of the view that the term of substantive sentence of three years imposed on the accused Nos.1, 2, 4 and 5 can be reduced to rigorous imprisonment for a period of one year. The order of the Special Court imposing sentence on the above accused is 2025:KER:34602 56 Crl.Appeal Nos.64 of 2008 and conn.cases modified to the above extent. Crl.Appeal Nos.64, 86, 88 and 91 of 2008 are allowed in part by confirming the conviction and modifying the sentence as aforementioned. Crl.Appeal No.106 of 2008 is closed and the records are consigned to the Record Room in terms of the law laid down in Pazhani v. State of Kerala [2017 (1) KLT 341]. The trial court shall take steps to execute the sentence and in the case of accused No.3 to realise the fine amount in accordance with law.
Sd/-
P.G. AJITHKUMAR, JUDGE dkr