HARI CHAND Vs. STATE OF HIMACHAL

JUDGEMENT

(1.) There is no merit in this revision petition which is directed against the order of sentence and conviction passed by the Additional Sessions Judge (II), Kangra at Dharamshala. The petitioner was posted as Moharrir Head Constable Incharge of Judicial Malkhana at Dharamshala. He was receiving the case properties relating to various criminal cases which were kept in his custody. The property was to be distributed finally, as per the order of the concerned Courts. In one case F.I. R. No. 82 of 1974 under section 395/397 of the Indian Penal Code which was registered at Police Station, Dharamshala on 14 -7.1974 one Machlu Ram was a complainant. One golden Nath, one pair of golden Balies and one golden Tikka were the case properties and they were entrusted to the petitioner herein and they were supposed to be kept in the Malkhana under his control. He has acknowledged the receipt of the said property by making an endorsement at page 191 of the register Ex. P -1 of he Malkhana pertaining to the year 1976. A criminal case which related to the said properties was decided by the learned Additional Sessions Judge Kangra at Dharamshala. In the first week of December 1979, application was moved by the complainant Machlu Ram before the Additional Sessions Judge for return of his property and the Court ordered the same. The petitioner was directed to produce the property before the Court. The petitioner could not produce it and on 10 -12 -1979 he made a statement marked as Ex. PA. In that statement, the petitioner had seated that he was making in search of the jewellery and other case property and he shall return back the same to Machlu Ram within two day therefrom He did not do so. but on 13 -12 -1979. some silver ornaments and two wrist watches were returned by the petitioner to Machlu Ram in the Court. For the remaining property, he assured the Sessions Judge that he would return the same on 26 -121979 to Machlu Ram That Statement Marked as Ex. PC, which reads: "Today, as ordered by the Court, out of the deposited property items of silver and two watches as per the statement of Machlu Ram. has been returned back to him as ordered by the Court. I am making a search in the Malkhana for the remaining items of gold and which I shall return back to Machlu Ram on 26 -12 -1979 in the Court itself. Therefore, no action be taken against me till that time."

(2.) As the petitioner could not produce the remaining case property including one golden Nath. one pair of golden Balies and one golden Tikka, a complaint was registered against the petitioner and he was prosecuted. The Chief Judicial Magistrate, Kangra at Dharamshala found the petitioner guilty of an offence under section 409 of the Indian Penal Code and sentenced him to imprisonment for a period of nine months and to pay a fine of Rs. 1,000. The petitioner filed an appeal before the Additional Sessions Judge (II), Kangra at Dharamshala. The appeal was dismissed by an order dated 4 -7 -1987. Feeling aggrieved, the petitioner has preferred this revision petition.

(3.) It may be mentioned that there were number of other similar cases against the petitioner on the footing that he had not returned the case property in those cases also In some cases, he was acquitted and the orders of acquittal were challenged before this Court in Criminal Appeals No. 44 to 51 of 1988, All those appeals were heard by a Division Bench of this Court and disposed of by a judgment dated 7 -8 -1996, The Division Bench concurred with the decision of the Additional Sessions Judge and dismissed the appeals holding that it was not proved by the prosecution that the petitioner was guilty of an offence under section 409 of the Indian Penal Code. The main reasoning of the Division Bench is that the petitioner was absent from 4 -10 -1979 to 2 -12 -1979 and he was not physically incharge of the Malkhana at that time. Though the prosecution case was that the petitioner had absconded, that aspect was not discussed further by the Bench, but the Bench proceeded to point out that some other persons were the Incharge of the Malkhana during that period and they could very well have removed the items of the properties from the Malkhana, On that reasoning, the Bench decided that the petitioner was rightly acquitted,