- (1.) THE petitioner was tried and was convicted and sentenced for a term of two years rigorous imprisonment with a fine of Rs.4,000/ - and in default of payment of fine to further rigorous imprisonment for three months under Section 326 of the Indian Penal Code, 1860 ('IPC", for short) and rigorous imprisonment for six months under Section 323, IPC, vide judgment of conviction and order of sentence dated 06.09.2002 passed by the learned Sub Divisional Judicial Magistrate, Dhuri (hereinafter referred to as the 'trial Court').
(2.) THE case of the prosecution was that Suraj Mohd, who was working as a Hand Pump mechanic, went to village Jakhlan on 18.09.1999. Narinder Kumar, the present petitioner was running a shop of iron goods on Bagrian Road, Meemsa. At 8.00 a.m. on 18.09.1999, complainant went to petitioner's shop and asked for "Dolchi" and "bokki" (components used for repairing hand pump). Petitioner demanded an amount of Rs.30/ - as price of aforesaid articles but complainant asked the petitioner to adjust this amount against the amount of Rs.40/ - which was due from the petitioner to the complainant. Upon this, petitioner started abusing the complainant. In the meantime, one Baldev Singh also reached there. Petitioner took out a gandasi, raised a lalkara and inflicted two gandasi blows on the left elbow and thumb of the complainant. Baldev Singh raised an alarm which made the petitioner to run away. Baldev Singh took the injured -complainant to Civil Hospital, Dhuri and got him admitted there. Doctor sent an intimation to the police, whereupon the investigating officer reached the hospital and recorded statement of the injured complainant.
(3.) PETITIONER challenged his conviction and award of punishment vide Criminal Appeal No.10 dated 12.09.2002, B.T.(T,F,C) No.14 dated 08.04.2004 which was dismissed by the learned Additional Sessions Judge (Adhoc), Fast Track Court, Sangrur vide judgment dated 06.07.2005. However, sentence awarded to the petitioner, under section 326, IPC, was reduced from two years to one year rigorous imprisonment. Judgement dated 06.07.2005 is under challenge in this criminal revision brought by the petitioner under Sections 397/401 of the Criminal Procedure Code, 1973 ('Cr.P.C.', for short). State is contesting the petition. I have heard learned counsel for the petitioner and learned State counsel. The factum of occurrence is not in dispute but it is strongly disputed on behalf of the petitioner that he caused injuries on the person of the injured complainant with a gandasi. Gandasi stated to have been used in the occurrence has not been recovered. It has come in the evidence of PW1 -Dr. Vijay Kumar Jindal that injury on left elbow of the injured complainant could be caused by a gandasi and on the basis of this statement petitioner has been convicted under Section 326 IPC but in the absence of recovery of the gandasi and in view of such vague opinion of the doctor also, it is highly improbable that an offence under Section 326 IPC, is at all made out against the petitioner. Not only this, as observed by the learned Appellate Court, and as is evident from the First Information Report, there was no previous enmity between the petitioner and the injured complainant, the occurrence was result of sudden heated argument that took place between the petitioner and the injured complainant. The petitioner had no intention to cause injury to the injured complainant and the grievous injury is on non -vital part of the body. In view of the cumulative effect of the afore -stated circumstances, coupled with the statement made by learned counsel for the petitioner that the petitioner does not challenge the correctness of conviction, the judgment of conviction as recorded by the trial Court and affirmed by the learned Appellate Court is maintained but order of quantum of sentence is modified and substantive sentence of one year awarded to the petitioner is restricted to the period already spent by him in custody during the course of investigation and pendency of trial and appeal.;