MANOJ KUMAR Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) Accused, Manoj Kumar has preferred this petition against the judgment dated 27.9.2006 passed in Criminal Appeal No.16-NL/10 of 2001 by learned Additional Sessions Judge, Solan confirming thereby the judgment dated 17.5.2001 of learned Sub Divisional Judicial Magistrate, Nalagarh in Criminal Case No.145/2 of 1997 whereby the accused/petitioner has been convicted for the commission of an offence punishable under Sec. 326/323 of Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of two years and also to pay Rs. 12,000.00 as fine under Sec. 326 of Indian Penal Code, to undergo simple imprisonment for a period of one month and to pay a fine of Rs. 1500.00 under Sec. 323 of Indian Penal Code.

(2.) The challenge to the impugned judgment is on the ground, inter-alia, that from the record no case under Sec. 326, Indian Penal Code is made out and, therefore, the findings of conviction for the commission of such offence are not legally sustainable. Although weapon of offence is sharp edged, however, irrespective of there being many injuries allegedly noticed on the person of injured, only injury No.1 is stated to be grievous in nature. The prosecution story has not been supported by PW.5 Lekh Ram, PW.6 Pawan Kumar and PW-7 Darbara Singh. Therefore, the accused should have been given the benefit of doubt as he could have not been convicted on the solitary statement of injured complainant PW.11, Kali Dass. Undue delay as occurred in the registration of the F.I.R. remained unexplained and diary No.10 dated 23.7.2000 which finds mention in the F.I.R., is not produced. The complaint made in writing by PW-2, the son of injured Kali Dass for registration of the case, has not been produced. Also that the weapon of offence was not sent to Serologist for examination to find out as to whether there was human blood present on it or not. Material contradictions in the statements of complainant himself and the other witnesses which rendered the entire prosecution story doubtful were not considered. Therefore, the findings recorded by both the Courts below against the accused/petitioner are stated to be based on conjectures and surmises. It is also the case of accused that in view of the compromise dated 14.12.2005 produced in the lower Appellate Court, application filed by the complainant for compounding the case should have been allowed. Otherwise also, the petitioner being of very young age and first offender, should have been given the benefit under the Probation of Offenders Act or benevolent provisions of the Code of Criminal Procedure.

(3.) The report under Sec. 173 Crimial P.C. and the documents annexed therewith reveals that on 22.7.1997, PW-11 Kali Dass was grazing his goats in village Kayardu. Accused Manoj Kumar came to him and disclosed that he had picked Rs.2500.00 belonging to one Ram Sarup, mistakenly. He handed over Rs.2500.00 to PW-11 and requested him to return the same to Ram Sarup. The accused further requested PW-11 not to disclose his name to Ram Sarup.