1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 542 of 2000 alongwith Cr.Appeal No.453 of 2000 Decided on September 27, 2010 __________________________________________________________ State of H.P. …Appellant. Versus Ashwani Kumar ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? For the appellant: Mr. R.K. Sharma, Senior Additional Advocate General, with Mr.Rajinder Dogra, Additional Advocate General. For the respondent: Mr. Chaman Negi, vice Mr.Om Prakash Sharma, Advocate. Justice R.B. Misra,J. (Oral) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of Criminal Procedure has been granted in reference to judgment dated 31.5.2000, passed by Learned Sessions Judge, Una, H.P., in Criminal Appeal No. 20 of 1996, whereby accused- respondent Ashwani Kumar has been convicted for the offence under Sections 325 and 323 of the Indian Penal Code instead of conviction of the accused-respondent by the trial court for the offence under Sections 326 and 323 of the Indian Penal Code. The accused-respondent 2 was sentenced to imprisonment till rising of the court and to pay a fine of Rs. 2500/- for the offence punishable under Section 325 of the Indian Penal Code and till rising of court and to pay a fine of Rs.500/- for the offence punishable under Section 323 of the Indian Penal Code and Rs.2000/- out of the fine, if realized, was to be paid to complainant Shiv Kumar. 2. The prosecution case is that on 14.10.1991, Shiv Kumar lodged the report that in the night his brother Rajinder Kumar with Sucha Singh, Madan Lal and Rakesh Kumar went to see Ram Leela at village Khad, and at about 1.30 in the night Madan and rakesh informed him that Ashwani Kumar, Yogesh Kumar, Raj Kyumar and Yash Pal were giving beating to Rajinder Kumar on which complainant alongwith his father and one Onkar Nath went, and accused Ashwani Kumar, Yogesh, Raj Kumar and Yash Pal met them in the way and when the father of the complainant asked them as to why they gave beatings to his son Rajinder Kumar, they flatly refused to have given beatings. About 200 yards away Rajinder Kumar met them and told that Yash Pal and others gave him beatings and while coming back, the accused persons met them near the house of Shiv Dev Sarpanch, and accused stopped them and started giving beatings with fist blows to Onkar Nath, and Shiv Kumar tried to rescue Rajinder when Ashwani 3 Kumar accused gave knife blow on his face as a result of which three teeth of lower jaw and four teeth of upper jaw were broken. On hearing the noise, Shiv Chand Panch reached and rescued the complainant. The report was lodged next morning on which FIR was registered and after necessary investigation a case under Section 147, 323, 324 and 326 of the Indian Penal Code was sent up for trial to the Court. 3. The case was tried by Judicial Magistrate, 1st Class and all the accused except accused-respondent Ashwani Kumar, were acquitted and accused-respondent Ashwani Kumar held guilty of offence under Sections 326 and 323 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.3000/- for the offence under Section 326 of the Indian Penal Code and simple imprisonment for three months for the offence under Section 323 of the Indian Penal Code. 4. In order to prove its case, the prosecution has examined as many as 20 prosecution witnesses, whereas, the accused through his statement under Section 313 of Cr.P.C., has shown his innocence and denied the prosecution case. 5. On analysis of the prosecution witnesses and materials on record, the learned Judicial Magistrate has convicted respondent-accused Ashwani Kumar, however, 4 learned Appellate Court/Sessions Judge has taken into consideration the opinion Ex.PW.8/A and injury No.3, where it was indicated that injury No.3 was not possible by knife Ex.P5 because such injury can be caused with heavy weapon. Whereas, complainant Shiv Kumar (PW.1) has stated that he was given knife blow by accused-respondent Ashwani Kumar and he has categorically stated that the knife shown in the Court was not the same with which the injury was given to him. None of the prosecution witnesses has stated that injury No.3 which is grievous was caused with knife Ex.P5 which has been recovered by the police as the weapon of offence. 6. PW.7 Dr.G.I. Dev has categorically stated that injuries No. 3 and 4 which are grievous in nature are possible with blunt weapon. The benefit of this discrepancy in the evidence of the prosecution has to go to the accused-respondent, therefore, it could be inferred that the prosecution has failed to prove that complainant Shiv Kumar sustained grievous injuries No.3 and 4 with sharp edged weapon i.e. knife Ex.P5 and such injuries are possible with blunt weapon as deposed by Dr.G.I. Dev (PW.7). Therefore, the offence under Section 325 of the Indian Penal Code could have made out and not under Section 326 of the Indian Penal Code. 5 7. Keeping in view the facts and circumstances and that accused-respondent Ashwani Kumar was the first offender and no previous conviction is proved against him, as such, he was sentenced to imprisonment till rising of the court and to pay a fine of Rs.2500/- for the offence punishable under Section 325 of the Indian Penal Code and for imprisonment till rising of the Court and to pay fine of Rs. 500/- for the offence punishable under Section 323 of the Indian Penal Code we do not find any scope of interference in the impugned judgment. Accordingly, the present criminal appeal, being devoid of any merit, is dismissed. 8. In view of the dismissal of the present Criminal Appeal No. 542 of 2000, Criminal Appeal No. 453 of 2000 is also dismissed, as the same has also been preferred against the same impugned judgment dated 31.5.2000. (R.B. Misra) Judge September 27, 2010 (V.K. Sharma) (Purohit) Judge