SEVANTILAL GAGALDAS DOSHI v. STATE — 1994 DIGILAW 335 (GUJ)

M. S. PARIKH, J. ( 1 ) THE petitioners in these Revision Applications came to be prosecuted in Criminal Case No. 142 of 1982 for the offences punishable under secs. 409 and 465 read with Sec. 120b of the Indian Penal Code (for short the code ). The learned Judicial Magistrate, First Class, Tharad (for short the trial Court) by judgment and order dated 30-11-1983 convicted the petitioners for the offences punishable under the aforesaid provisions of the Code and sentenced them to undergo simple imprisonment for a period of two years and pay fine of Rs. 2,000. 00 each, in default simple imprisonment for a period of two months in so far as the offences under Sec. 409 and Sec. 120-B of the Code are concerned and simple imprisonment for a period of one year and fine of Rs. 1,000. 00 each, in default simple imprisonment for a period of two months in so far as offence under Sec. 465 of the Code is concerned. The petitioners carried the matter in appeal before the learned Additional sessions Judge at Palanpur in Criminal Appeal Nos. 62, 64, 65 and 67 of 1983. The learned Additional Sessions Judge dismissed all the four appeals and confirmed the judgment of conviction and sentence. The petitioner in Criminal Revision application No. 659 of 1984 is original accused No. 1 - Mr. Ajesingbhai Gangaram pandya. The petitioner in Criminal Revn. Application No. 638 of 1984 is original accused No. 2 - Mr. Kanajibhai Gokulbhai Parmar. The petitioner in Criminal Revn. Application No. 646 of 1984 is original accused No. 3 - Mr. Karmanbhai Revabhai parmar and petitioner in Criminal Revn. Application No. 631 of 1984 is original accused No. 4 - Mr. Sevantilal Gagaldas Doshi. The parties have been referred to as the respective accused in the trial Court. After the rule was issued at the admission, the matters came up for final hearing before this Court. ( 2 ) I have heard learned Advocates for the parties and learned A. P. Ps. who have appeared in these petitions. Facts of the case :- ( 3 ) THE facts of the case may be recapitulated from the appellate Courts judgment. One Mr. ( 2 ) I have heard learned Advocates for the parties and learned A. P. Ps. who have appeared in these petitions. Facts of the case :- ( 3 ) THE facts of the case may be recapitulated from the appellate Courts judgment. One Mr. Mukundlal Gokaldas Mehta, the complainant before the trial court was Mamlatdar and District Supply Mamlatdar of Gujarat Civil Supply corporation at Palanpur for a period of about one and half year from before lodging of the complaint by him. According to his complaint Civil Supply Corporation came into existence from 1-11-1980, prior to which Government Civil Supply Department handled and managed supplies of essential commodities to the fair price shops. After the Civil Supply Corporation came into existence certain Government employees were deputed to the Corporation. Accordingly, the accused No. 1 was entrusted the work of Godown Manager before two years of the complaint, at Tharad. The accused no. 2 was serving as a Godown Keeper before one and half year at Tharad. The accused No. 3 was inducted as Godown Clerk after 1-11-1980. All the three happened to be Government servants and they were deputed to the Civil Supply Corporation at Tharad. The accused No. 4 ran fair price shop at Tharad for the last about 10 to 12 years before the date of the complaint. He had to take the cereals, oil, etc. from the godown of the Civil Supply Corporation. The office of the Godown Manager was located in the godown itself and the accused persons were remaining in contact of one another constantly. In May 1981 the Government decided to sell pamolin oil (edible oil) to the fair price shops and for that purpose the sealed pamolin tins were allotted to the Corporation godown from where the essential commodities were supplied to the fair price shop owners, who were required to obtain permit from the Mamlatdar. The shop-keepers were to deposit the price of essential commodites in the bank through the requisite challans. The Godown Manager used to give the quantity of commodities to the shop-keepers according to the quantity mentioned in the permit. He had, therefore, to write in the various stock registers as to how much quantity of essential commodities was issued to particular shop-keeper and the signature of the shop-keeper was also obtained in the relevant register. This was the routine procedure of the working in the godown. He had, therefore, to write in the various stock registers as to how much quantity of essential commodities was issued to particular shop-keeper and the signature of the shop-keeper was also obtained in the relevant register. This was the routine procedure of the working in the godown. In or around July 1981 all the accused conspired to lift or remove the pamolin oil tins secretly and hatched a plan of selling the pamolin oil. They accordingly stealthily removed pamolin oil tins and sold to accused No. 4 at the rate of Rs. 130. 00 per tin pursuant to such conspiracy. The accused No. 4 had the discretion to sell the tins at a price favourable to him and the other three accused were to share the price of the tin sold at Rs. 130. 00 per tin to accused No. 4. They also conspired that whatever number of tins were sold by them the same number of empty tins were to be replaced in the godown so that the secret dealing could hardly be suspected. They also conspired to show such empty tins as the tins which had leakage. The accused No. 4 agreed to supply such tins. As a result of this conspiracy, the accused Nos. 1 to 3 removed 17 pamolin tins in july 1981 and disposed them of secretly. Thereafter, 30 tins were also removed by them. In the same way on or about 15-8-1981 70 tins were removed and then on 16-8-1981 60 tins were removed. The accused persons removed in all 199 pamolin oil tins in pursuance of the conspiracy as aforesaid and thereby they obtained wrongful gain in the sum of Rs. 25,870. 00 and the accused No. 4 disposed of the said tins by getting better price. The controlled rate amount of all these tins, according to the complainant, would be Rs. 26,560. 68. The accused No. 4 supplied the empty tins for showing replacement and the other accused placed them in the godown in such manner that nobody would doubt their secret dealings. The empty tins were replaced with a view to advance an explanation that the tins were showing heavy leakage. However, all the sealed lids on the upper portion of the tins were not intact and were removed. The empty tins were replaced with a view to advance an explanation that the tins were showing heavy leakage. However, all the sealed lids on the upper portion of the tins were not intact and were removed. ( 4 ) IT was the prosecution case that the accused No. 1 was the master mind behind the conspiracy and in order to escape from his responsibility, he went on leave from 1-7-1981 to 31-7-1981 and extended the leave upto 31-8-1981. He reported on duty as on 1-9-1981 and having taken charge he informed that 199 tins were empty due to leakage. He made this report on 20-9-1981. Pursuant to such report, the complainant went to Tharad and saw the 199 empty tins. He, however, suspected some foul play and made a report to the Department. According to his say one Mr. Jose was the Collector of Banaskantha at the relevant point of time. He had learnt about some rumour in respect of theft of some pamolin tins on a large scale. He made surprise checking of the godown in question on 7-12-1981 when the three accused reported to him that as the tins had holes, the oil had leaked out. The collector, however called the Panchas and got 36 tins out of the tins in question filled with water and found to his surpirse that the tins did not show any leakage. He thereupon told Deputy Collector Mr. Suthar to go to the godown and make panchnama of the remaining 163 tins. The instruction was carried out and it was found that the tins were not showing any leakage. Panchnama accordingly was prepared. Upon inquiry it was also found that in the process of committing the offences as aforesaid the accused had also forged the documents of the Corporation. ( 5 ) THE Collector Mr. Jose thereafter took the statements of concerned persons and accused No. 4 and others were arrested under the provisions of Prevention of black Marketing and Maintenance of Essential Commodities Act, 1960. The record was placed before the Advisory Board. ( 5 ) THE Collector Mr. Jose thereafter took the statements of concerned persons and accused No. 4 and others were arrested under the provisions of Prevention of black Marketing and Maintenance of Essential Commodities Act, 1960. The record was placed before the Advisory Board. The Board observed that it was really surprising that so far no Government servant has been prosecuted for criminal breach of trust because, but for the active participation of those Government servants, it would not be possible for the detenus by themselves to remove the pamolin oil from the Government godown and dispose it of in the black market. The Collector and the District Magistrate, Banaskantha, therefore, accorded sanction to the complaint being lodged and accordingly the complainant lodged the complaint. The learned Judicial Magistrate took the cognizance, issued bailable warrants and upon recording of preliminary evidence found that there was prima facie evidence againt the accused persons for framing charge, which was done on 5-5-1983. The accused pleaded not guilty. The witnesses whose preliminary examination was recorded by the Court were further cross-examined and after the evidence was over, further statements of the accused were recorded on 25-8-1983. The accused nos. 2, 3 and 4 made voluntary confessions in the statements made before the collector as can be seen in the record of the case. The accused Nos. 2, 3 and 4 vide their applications Exhs. 16, 17 and 18 dated 7-12-1983 retracted from the said confessions alleging that the confessions were recorded by the higher officer and the Collector Shri Jose, who made them to make the confessions under threats and by causing them mental fear and by giving promises of not putting them in jail. Thus, according to the said accused the confessional statements were not voluntary and, therefore, they were retracting from the same. ( 6 ) AT the trial, as many as 11 witnesses were examined and after hearing the parties, the trial Court rendered its judgment of conviction and sentence as aforesaid. On appeals by the respective accused persons, the said judgment came to be confirmed; that is how the accused persons are before this Court as stated above. ( 7 ) AT the outset, it has to be borne in mind that all these revisions are against the concurrent finding of guilt against the accused persons. On appeals by the respective accused persons, the said judgment came to be confirmed; that is how the accused persons are before this Court as stated above. ( 7 ) AT the outset, it has to be borne in mind that all these revisions are against the concurrent finding of guilt against the accused persons. However, in order that substantial justice is done, the evidence was permitted to be read by allowing paper book being prepared and tendered to this Court. The submissions made on behalf of the accused persons may now be summarised and dealt with : (1) It has been submitted on behalf of the accused No. 1 that the accused No. 1 was on leave from 1-7-1981 to 31-8-1981 and, therefore, he cannot be held responsible for the disposal of 199 tins of pamolin except by relying upon the retracted confessional statements of accused Nos. 2, 3 and 4. (2) It has been submitted on behalf of the rest of the accused that they are innocent in as much as having taken a stand that there was a heavy leakage of pamolin oil, they would not have allowed to remain in the godown 199 empty tins of pamolin oil. It is submitted that no person on earth would keep evidence in the form of empty tins under such circumstances. (3) The prosecution has failed to establish nexus to show that the 199 empty tins of pamolin oil were the particular tins which had leakage. (4) The 199 empty tins or any part thereof was not brought before the Court by way of Muddamal articles and, therefore, the benefit of doubt should have been accorded to the accused persons. (5) The retracted confessional statements could not have been relied upon by the Courts below in any manner and in their absence the prosecution could not have been in a position to bring home the guilt of accused persons. (6) In the further statements of the accused persons under Sec. 313 of the code of Criminal Procedure, 1973, all the circumstances which go against the accused persons are not specifically placed. ( 8 ) NOW, before dealing with the aforesaid submissions, salient features of the prosecution evidence may be noticed. It is an admitted position that the accused no. 1 went on one months earned leave from 1-7-1981 till 31-7-1981. This is borne from application Exh. ( 8 ) NOW, before dealing with the aforesaid submissions, salient features of the prosecution evidence may be noticed. It is an admitted position that the accused no. 1 went on one months earned leave from 1-7-1981 till 31-7-1981. This is borne from application Exh. 20 in the form of Earned Leave submitted by the accused No. 1. However, it also emerges from the evidence of the complainant that inspite of the fact that accused No. 1 went on leave from 1-7-1981 the accused no. 1 has shown in stock register Exh. 42 the receipt of 550 tins on 4-7-1981. He had also shown receipt of 500 tins on 4-7-1981 as per Exh. 43. On 6-7-1981,7- 7-1981 and 8-7-1981 550 tins were shown to have been received on each of these three days. This can be seen from Exhs. 44, 45 and 46. The complainant in his oral evidence identified the writing of accused No. 1 in all these entries and both the Courts below have accepted the evidence of this witness. The accused Nos. 2 and 3 were on duty during the period in question. It is nobodys case that instead of tins full of pamolin oil empty tins were received. It is thus clear that the entrustment of the pamolin oil tins in so far as first three accused are concerned has been established from the prosecution evidence consisting of the complainants oral evidence and evidence in the form of stock registers which have been also examined by the learned Advocates appearing on behalf of three accused persons even on this side. That was the first ingredient of the offence of criminal breach of trust in the form of entrustment of the property which has been established. ( 9 ) IT has then appeared in the complainants evidence that the accused No. 1 resumed duty as on 1-9-1981 and that is the admitted fact. However, he sent report of taking the charge on 20-9-1981. That letter is produced on record at Exh. 31. According to that letter, the accused No. 1 stated to have resumed duty from 1-9-1981 and he was given charge of the stock by the accused No. 2 on 13-9-1981. He also reported that there was a deficit of pamolin oil tins as there were 199 empty tins and that all these tins were taken on register and had become empty due to heavy leakage. He also reported that there was a deficit of pamolin oil tins as there were 199 empty tins and that all these tins were taken on register and had become empty due to heavy leakage. The prosecution case is that even though the accused No. 1 had resumed duty, he did not intentionally take the charge of the stock as he wanted to adjust registers by showing deficit in pamolin oil tins and that for that reason after the adjustment entries in registers were made, he has made charge report on 13-9-1981. He did not set out the fact that the deficit of pamolin oil tins was incorrect and that there was something wrong with the stock. The charge list sent by the accused no. 1 has been placed on record at Exh. 31 and in that also the fact with regard to empty tins has been noted. The complainant in this connection deposed that the deficit was disproportionate and more than permissible limit, with the result that the accused No. 1 ought to have immediately made the report. It is the prosecution case that the conspiracy was hatched in the initial stage between accused No. 1 and accused No. 2 on 30-6-1981 and the accused No. 1 was the master mind behind this conspiracy. Dealing with the arguments at length, the appellate Court has noted with care the outcome of the complainants evidence so as to connect the accused no. 1 both with the entrustment as also with the disposal of 199 pamolin oil tins. With regard to loss there is further evidence of panchnama and panch witnesses dealt with at length by both the Courts below. There are also evidences of Collector mr. Jose at whose instance the panchnama was prepared at the godown itself and of Deputy Collector Mr. Ambalal Suthar. It was found that out of 199 tins only 2 tins lids were intact while other tins were without any lid. Experiment was performed by filling the tins with water so as to find out leakage and it was noticed that there was no leakage as such and the tins were merely empty tins. Ambalal Suthar. It was found that out of 199 tins only 2 tins lids were intact while other tins were without any lid. Experiment was performed by filling the tins with water so as to find out leakage and it was noticed that there was no leakage as such and the tins were merely empty tins. It may be true that nobody would consciously leave such a glaring evidence in the form of empty tins in the godown, but as can be seen from the manner in which the conspiracy was hatched and the bringing in of empty tins and showing gradually the said empty tins by way of leakage was the part of the plan. It is truly said that man lie but circumstances may not. In this case also the plan failed as the exercise of finding out whether there was leakage as a matter of fact, it revealed that there was no leakage and the tins were merely empty tins with the upper lids opened up. It is not shown as to whether in all cases such muddamal would be as a rule required to be placed before the Court, when the exercise was done in the godown itself in the presence of the accused persons and the panchnama was prepared there and that. It cannot be said that it was incumbent upon the prosecution to bring the muddamal tins before the Court. As a matter of fact, the Deputy Collector made the panchnama in the presence of accused Nos. 1 and 2 and the panchnama also bears their signatures. This evidence clearly indicates the disposal of the 199 pamolin oil tins by replacing them with 199 empty tins. This would reveal both the loss to the Corporation/government (the employer) and dishonest intention behind the act of disposal of the tins. All the aforesaid pieces of evidence which prima facie connect the first three accused persons clearly go to establish the offence of criminal breach of trust and the conspiracy can be inferred from the circumstances disclosed in the evidence. The appellate Court has observed that the evidence of the Collector as well as the Deputy Collector and Mamlatdar is so clear and convincing that it was not possible to hold that there was any irregularity committed by the Collector while making the panchnama. The appellate Court has observed that the evidence of the Collector as well as the Deputy Collector and Mamlatdar is so clear and convincing that it was not possible to hold that there was any irregularity committed by the Collector while making the panchnama. Merely because the empty tins were not before the Court, it cannot be said that the panchnama evidence should be brushed aside. Mr. K. J. Shethna, learned Advocate appearing on behalf of the accused placed reliance upon a decision of the Honble Supreme Court in the case of Valasa v. State of Kerala, reported in JT 1993 (4) SC 549; that is a case with regard to seizure of brown sugar and article seized and sample sent to the chemical examiner. In that case the seized article was produced in Court after 3 months and no evidence was led to show as to with whom the seized article was lying and whether it was sealed. Under such circumstances, the seized article was found to be not in proper custody and proper form. Thus, both on account of inordinate delay with regard to seized article being produced in the Court and the missing link in respect thereof the conviction and sentence was set aside. This decision can hardly be said to be applicable on the points sought to be canvassed and in the facts noted above. While exercising the revisional jurisdiction the evidence cannot be reappreciated. However, for satisfying myself I have gone through all pieces of evidence including the stock registers and the panchnama for seeing that the judgments of the Courts below are in accordance with law. The above position, then, emerges from the prosecution evidence itself even without the retracted confessional statements by the accused Nos. 2, 3 and 4. The matter does not end here. The prosecution has also examined the drivers of the jeeps with the help of which the pamolin oil tins were disposed of. The evidence of jeep driver supports the prosecution case in respect of this part of the prosecution story. That evidence also connects the accused No. 4 with the offences charged against the accused persons. ( 10 ) THEN the attack is on the confessional statements of the accused Nos. 2, 3 and 4 which completely unfolds the conspiracy amongst all the accused persons in respect of the misappropriation of 199 pamolin oil tins. That evidence also connects the accused No. 4 with the offences charged against the accused persons. ( 10 ) THEN the attack is on the confessional statements of the accused Nos. 2, 3 and 4 which completely unfolds the conspiracy amongst all the accused persons in respect of the misappropriation of 199 pamolin oil tins. The appellate Court has set out the contents of the confessional statements which completely support the prosecution story as briefly stated in the opening part of this judgment. A faint effort has been made to say these confessional statements could not have been looked at and used even for the purpose of corroboration as they are not under Sec. 164 of the Criminal Procedure Code, which requires recording of confessional statements by the Judicial Magistrate. The statements were recorded by the Collector, who is also designated as District Magistrate. This argument is stated to be rejected, for the statements are extra-judicial statements and they are not recorded in the exercise of magisterial powers of the Collector. A reference in this connection was made to a decision of the Honble Supreme Court in the case of State of U. P. v. Singhara singh and Ors. reported in AIR 1964 SC 358 . It was held in respect of confession recorded by the Magistrate not empowered by the State Government that oral evidence in that respect could not be admissible. This is not the case where a magistrate who is not empowered by the State Government to record confessional statements has recorded statements. This is a case where extra-judicial confessions were made by the accused persons before the officer who had a supervisory power over the Corporation. It is no doubt true that law requires retracted confessional statements to be supported by independent corroboration and as said in Palaniswamy v. State of Tamilnadu, reported in 1986 Cri. LJ 551 if retracted confessions by the accused persons were found to be tainted and not supported by independent corroboration, benefit of doubt can be extended to accused persons. In the present case, the facts are quite different and as stated above the prosecution has led independent evidence to establish the main ingredient of offence of criminal breach of trust as also the conspiracy. In the present case, the facts are quite different and as stated above the prosecution has led independent evidence to establish the main ingredient of offence of criminal breach of trust as also the conspiracy. Law with regard to the use of retracted confessional statements can be found succinctly stated in the case of Haricharan Kurmi v. State of Bihar, reported in AIR 1964 SC 1184 , as has been cited by Mr. A. J. Patel, learned Advocate for the accused No. 1. Accordingly, as a result of provision contained in Sec. 30 of the Evidence Act, the confession of a co-accused has to be recorded as amounting to evidence in a general way, because whatever is considered by the Court is evidence; circumstances which are considered by the Court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense by virtue of Sec. 30 of the evidence Act, the fact remains that it is not evidence as defined by Sec. 8 of the said act. The result, therefore, is that in dealing with a case against an accused person, the Court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. Both the Courts below have made a reference of the evidence both documentary and oral which establish beyond reasonable doubt the entrustment of all the pamolin oil tins, the disposal of 199 tins out of the said tins and the false account rendered in that respect by the accused persons, particularly accused No. 1. Both the Courts below have made a reference of the evidence both documentary and oral which establish beyond reasonable doubt the entrustment of all the pamolin oil tins, the disposal of 199 tins out of the said tins and the false account rendered in that respect by the accused persons, particularly accused No. 1. The learned Advocate and the learned A. G. P. appearing on behalf of prosecuting agency have rightly submitted, relying upon the decision in the case of Baburao Bajirao Patil v. State of Maharashtra, reported in 1971 (3) SCC 432 that in a case of conspiracy in which only circumstantial evidence is forthcoming, when the broad features are proved by trustworthy evidence connecting all the links of a complete chain, then on isolated events the confessional statements of the co-accused lending assurance to the conclusions of the Court can be considered as relevant material and the principle laid down in the case of Hari charan Kurmi (supra) would neither vitiate the proceedings nor be applicable. As has been said in Abdul Gani v. State of U. P. , reported in AIR 1973 SC 264 , a retracted extra-judicial confession can also legally form the basis of a conviction, though as a matter of prudence the Courts try to look for corroboration from some independent source so as to satisfy their conscience that the confession is true. ( 11 ) IN the present case, however, there are basic pieces of evidence as noted above and the confessional statements unfold the whole story about the manner in which the fraud is practised and the oil tins are misappropriated. Besides, the confessional statements are extra-judicial and both the Courts below have held that they are made by the concerned accused persons without there being any force, undue influence or any other such cause. Above all, this is a case of conspiracy as well and more often then not, conspiracy is hatched in secrecy. In a case of entrustment of property if there is a loss, the person to whom the property is entrusted is under a duty to account for the same and giving of false account would be a strong circumstance against the person to whom the property is entrusted. In a case of entrustment of property if there is a loss, the person to whom the property is entrusted is under a duty to account for the same and giving of false account would be a strong circumstance against the person to whom the property is entrusted. In the present case, the accused persons have given false account of the loss in as much as although there were 199 absolutely empty pamolin oil tins, it was reported that there was heavy leakage and under the circumstances that there were no sign of leakages either in the godown or on or around the tins and in as much as the procedure required to be followed in respect of more than permissible leakage has also not been followed. The details with regard to all these facts are set out in the evidence by the Courts below and it would not be necessary to repeat them over here. As has been said in Krishan Kumar v. Union of India, reported in AIR 1959 SC 1390 , it is not necessary or possible in every case to prove in what precise manner the accused person has dealt with or appropriated the goods of his master. The question is one of intention and not a matter of direct proof but giving a false account of what he has done with the goods received by him may be treated a strong circumstance against the accused person. (Emphasis supplied ). In such a case, it would be sufficient to establish the receipt of goods by the servant and failure to account for such loss or showing that it was an accidental loss. In such types of cases the facts being within the servants knowledge, it would be for him to explain the loss. The Apex Court has observed in Krishan Kumar (supra) as under :"it is not the law of this country that the prosecution has to eliminate all possible defences or circumstances which may exonerate him. If these facts are within the knowledge of the accused, then he has to prove them. Of course, the prosecution has to establish a prima facie case in the first instance. It is not enough to establish facts which give rise to a suspicion and then by reason of Sec. 106 of the Evidence act to throw the onus on him to prove his innocence. Of course, the prosecution has to establish a prima facie case in the first instance. It is not enough to establish facts which give rise to a suspicion and then by reason of Sec. 106 of the Evidence act to throw the onus on him to prove his innocence. "the result is that whereas on one hand there is no error of law committed by the Courts below in accepting the confessional statements, on the other, even if the confessional statements were to be accepted only for the purpose of lending support to the prosecution case, the offences would have to be held established. Statements under Sec. 313 of the Code of Criminal Procedure, 1973 : ( 12 ) AS before the appellate Court, here also grievance is made about the further statements of the accused persons under Sec. 313 of the Code. It has been submitted that all the circumstances which go against the accused persons are not specifically placed to them. With regard to accused No. 1 it has also been submitted that he has not been asked about his presence on 4-7-1981, 6-7-1981, 7-7-1981 and 8-7-1981. It has also been submitted on behalf of the accused persons that they have not been asked about the documents Exhs. 34 to 50 with reference to the words "taken over" written in the stock register. Before the appellate Court a reference was made to a decision of the Honble Supreme Court in the case of Kaur Sain v. State of Punjab, reported in AIR 1974 SC 329 and a decision in the case of Harnam singh v. The State (Delhi Administration), reported in AIR 1976 SC 2140 . Before this Court also reference has been made to the decisions of the Apex Court in the cases of Megha Jesha v. State of Gujarat, reported in AIR 1979 SC 1566 , C. M. Narayan v. State of Travankore, reported in AIR 1953 SC 478 , Machander v. Hyderabad State, reported in AIR 1955 SC 792 and Sharad v. State of Maharashtra reported in AIR 1984 SC 1622 . ( 13 ) THE first two decisions have been explained by the appellate Court and rightly, as in the present case till upto the time the matter was heard by this Court no prejudice has been shown, whereas the evidence disclosing the aforesaid facts has been placed to the accused persons in their further statements. With regard to the second decision cited before the appellate Court, the concept of prejudice is noticed. It is no doubt true that any circumstance appearing against the accused is required to be put to him in his further examination under Sec. 313 of the Code. However, the principle further says that failure to put every material circumstance appearing in the evidence against the accused specifically, distinctly and separately would amount to serious irregularity and the trial would be vitiated in case prejudice is shown to have been caused to accused persons. In the present case, so far as accused No. 1 is concerned, the appellate Court has held that he has not been prejudiced on account of specific question having not been asked about his presence on 4-7-1981, 6-7-1981, 7-7-1981 and 8-7-1981, but he has been asked about the evidence of the complainant wherein these facts have been disclosed and there was a complete denial on the part of the accused. In explaining the circumstances against him, he has very clearly stated that from 1-7-1981 to 31-7-1981 he was not in charge of the godown and, therefore, he did not know what transpired during that period. In other words he specifically denied his presence on 4-7-1981, 6-7-1981, 7-7-1981 and 8-7-1981. Therefore, the appellate Court came to the conclusion and, rightly, that accused No. 1 has not been prejudiced by the manner in which his statement has been recorded. Same would be the position with regard to the statements of other accused persons and their explanations. The question is one of prejudice. Even before this Court no further or other explanation could be tendered by the accused persons except denying the circumstances. Hence, this is not the case where the manner of recording of statement under Sec. 313 of the code adopted by the trial Court would enure to the benefit of the accused persons. ( 14 ) THE result is that these Revision Applications shall have to be dismissed, confirming the conviction recorded by the Courts below. Hence, this is not the case where the manner of recording of statement under Sec. 313 of the code adopted by the trial Court would enure to the benefit of the accused persons. ( 14 ) THE result is that these Revision Applications shall have to be dismissed, confirming the conviction recorded by the Courts below. (Rest of the Judgment is not material for the Reports.) .