Judgment

SUBBA RAO, J. : 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. One Capt. Pratap Singh was the Security Officer in the Depot; but, during the period in question, one Lawrence was acting as the Security Officer in place of Capt. Pratap Singh, Kochhar, accused No. 2, who was on leave from October 25, 1954, was recalled to duty by accused No. 1 and was put in charge of kit stores in the Depot. Avatarsingh accused No. 3, who was working in the Unfit Sub Park, was transferred to the Kit Stores by accused No. 1 during the absence on leave of Col. Rao. Accused no. 4, Saighal, was an Ex-Col. and was at one time the Station Commandant of the Depot; after retirement he had been staying in a bungalow at a short distance from mile No. 92/7 on the Poona-Bombay Road. Accused No. 5, Ramchand Gangwani, was a refugee from Sind and he was running a hotel at Lonavala. Accused No. 6, Devichand, and one Khemchand, who is absconding, are sons of accused No. 5. Accused Nos. 4 and 5 were friends and they were also partners along with one Bhagwan Parshuram of Bombay in "The Bombay Lonavala Disposal Syndicate." There were large consignments of Kits in Shed No. 48 of Kit Stores which were unitemized and unaccounted for in the books of the Depot. The accused entered into a conspiracy to smuggle out some of the said stores and to make an illegal gain by selling them at Bombay through accused No. 4.

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