STATE OF HP Vs. ASHWANI KUMAR

JUDGEMENT

(1.) 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 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 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.