STATE OF HIMACHAL PRADESH Vs. OM PSKASH @ OMI
LAWS(HPH)-1997-4-32
HIGH COURT OF HIMACHAL PRADESH
Decided on April 19,1997

STATE OF HIMACHAL PRADESH Appellant
VERSUS
OM PSKASH @ OMI Respondents

JUDGEMENT

ARUN KUMAR GOEL,J. - (1.)State has filed Ibis appeal against the judgment passed by Shri P.C. Sharma, Chief Judicial Magistrate, Solan, District Solan in case No.60/2 of 1989 dated 24 -4 -1990. By means of impugned judgment, die respondent has been acquitted of the offence under Sections 437/380 of die Indian Penal Code registered against him vide FIR No. 104 of 1988, Police Station Dharampur.
(2.)According to the prosecution, a complaint was made by Nathu Ram, Secretary of Agricultural Co -operative Society, Khalogra, within die jurisdiction of Police Station, Dharampur alleging that he is the Secretary of the Society for the last 12 years. After closing the office as usual at 5 -00 P.M. he went to his residence on 8 -11 -1988. Next day, he did not come to his office being Diwali and thus on 10 -l 1 -1988 when as per routine, he came to ate office of Society at 10 -00 A.M. and was trying to open the same, it was observed by him that bolt of the door was open and lock was missing therefrom. In these circumstances he suspected that some un -known person had entered the office premises of the Society with a purpose to commit theft. The complainant did not open die door so as to keep the inside position intact. On receipt of this information initially a case under Section 457 of the Indian Penal Code came to be register xi was commenced. During die course of investigation, it came to light that on 9 - 11 -1988 the respondent was proceeding from his house towards Solan, who showed an envelope filled with currency notes to one Sukh Ram (PW -1) while the former was under the influence of liquor. On this basis the respondent was interrogated by the police and while in its custody, he made statement vide Ex.PW -1/A under Section 27 of the Indian Evidence Act as well as vide Ex.PW -1/D regarding the amount spent by him out of the case property for the purchase of Radio from Solan Radio Service. Pursuant to such disclosure statements, the prosecution claims to have recovered a sum of Rs.9,053/ -from below the heap of ashes from the court -yard of the respondent which were taken into possession vide recovery memo Ex.PW -1/B as well as Ike Hammer and Screw -driver which were taken into possession vide memo Ex.PWl/C. Similarly, vide -Ex.PW6/B, currency notes of the value of Rs.230/ - were taken into possession from M/s Solan Radio Service, Solan and the Transistor was also taken into possession vide recoveiymemoEx.PW -1/E from the room of the respondent. After completion of the investigation, challan was put -in against the respondent before the trial court who after being satisfied that there are prima facie grounds to proceed against the respondent, framed charges under Sections 457/380 of the Indian Penal Code against the respondent and after conclusion of the trial, the respondent has been acquitted, hence this appeal.
(3.)Shri Chauhan, learned Assistant Advocate General, in support of this appeal ha; urged that the prosecution has been able to bring home the guilt against the respondent and in this behalf he has referred to the statements of PW -1 Sukh Ram - complainant as well as to that of PW -3 and thereby he pointed out that recovery of the case property stands established beyond any shadow of doubt, pursuant to the statement of the respondent that too from below the heap of ashes in his courtyard.


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