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2025 Supreme(Ker) 1358
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.G. AJITHKUMAR, J.
K.P. Benny Rohal, S/o. Late K.N. Prabhakaran – Appellant
Versus
State Of Kerala, Rep. By CBI, SPE, Cochin, Represented By, Public Prosecutor, CBI, Ernakulam, High Court Of, Kerala, Ernakulam – Respondent
Crl.Appeal Nos.64, 86, 88, 91 and 106 of 2008
Decided On : 20-05-2025
For the Appellants : Sooraj T.Elenjickal, Sri.M. Chandra Bose, R.O. Muhamed Shemeem Randuthaikkal Oosman, Naseeha Beegum P.S., Sri. Shaijan C. George, Sri. John Vipin, Smt. S.A. Sherly, Smt. Sajitha George, Smt. M.R. Anupama, Sri. V. Dipu, Sri. P. Lean Jose.
For the Respondent: Sri. Sreelal Warriar, SC, CBI.
The court upheld the conviction for conspiracy and misappropriation of diesel, emphasizing the reliability of approver testimony corroborated by other evidence.
Headnote:
(A) Indian Penal Code, 1860 - Section 120B, 409, 411 - Prevention of Corruption Act, 1988 - Section 13(1)(c), 13(2) - Conviction for conspiracy and misappropriation of High-Speed Diesel (HSD) - Accused pilfered 1,01,000 litres of HSD from oil tankers and sold it illegally to a petrol pump - Evidence from approvers and corroborating witnesses established the conspiracy and involvement of accused - Sentence modified from three years to one year of rigorous imprisonment. (Paras 1, 65)
Facts of the case:
Accused Nos.1 to 5 were convicted for pilfering HSD from oil tankers while accused No.1 was a Deputy Manager at Indian Oil Corporation. The prosecution proved that the accused conspired to misappropriate HSD and sold it to M/s Bava Enterprises. (Paras 1, 2)
Findings of Court:
The trial court's conviction was upheld, with the sentence modified due to the health conditions of the accused and the time taken for proceedings. (Paras 65)
Issues: The main issues included the establishment of conspiracy, the legality of the evidence from approvers, and the sufficiency of evidence to support the charges. (Paras 46, 65)
Ratio Decidendi: The court found that the evidence from approvers, corroborated by other witnesses, sufficiently established the conspiracy and misappropriation of HSD. The court emphasized the need for caution in accepting approver testimony but concluded it was reliable in this case. (Paras 47, 65)
Result: Conviction upheld; sentence modified to one year of rigorous imprisonment.
JUDGMENT :
(P.G. AJITHKUMAR, J.)
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 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 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 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 prosecutio
