- (1.) O. P. Mebrotra, J.
(2.) APPELLANTS Mirsa Saheem Beg (wrongly mentioned as Salig Beg in memo of appeal) and Bhurru have filed this appeal against the order dated 31-1-79 passed by IVth Additional District Judge, Banda convicting them for the offence under section 323 IPC and sentencing them to undergo rigorous imprisonment for seven months and a fine of Rs. 500/- each and in default to undergo (further rigorous imprisonment for three months. The two appellants and one Vasiulla, who was acquitted by the trial court, were charged for the offence under section 307 IPC for attempting to commit murder of Swami Nath Pathak. The occurrence is said to have taken place on 27-12-73 at about 4.30 p. m. It is said that while injured Swami Nath Pathak was going from Mansoor Khan street, the three accused persons started assaulting him. The two appellants had lathi while Vasiulla had Panja. A report of this occurrence was lodged by Prem Prakash Pathak PW 1, who was the brother of the injured, at police station Kotwali on the same evening at 7.10 p. m. Prem Prakash Pathak was not an eye witness of this occurrence. He lodged the report on the basis of information received by him from Sunder Singh. Swami Nath Pathak was taken to the hospital where his injuries were examined at 6 p m. He was found to have received five injuries including three lacerated wounds one non-scabbed red abrasion and a contusion. All the accused pleaded not guilty. They denied the prosecution allegations and stated that they had been falsely implicated on account of enmity. They did not adduce any evidence in defence. The learned Sessions Judge placed reliance on the testimony of the informant and the injured coupled with prompt first information report and medical evidence and believing the prosecution case he held that there was nothing to show that assault had been made with the intention to kill. He further found that there was no Panja injury and hence benefit of doubt was given to co-accused Vasiulla. The present appellants were held guilty for the offence under section 323 IPC and were sentenced as mentioned above.
(3.) HAVING heard learned counsel for the appellant and learned AGA, I do not find any merit in this appeal so far as the conviction under section 323 IPC was concerned. It is correct that independent witnesses of the occurrence have not been produced but in my opinion the testimony of injured Swami Nath Pathak coupled with the testimony of his brother Prem Prakash Pathak, who took the injured to the hospital and lodged the first information report and corroborated by medical evidence, was sufficient to prove the prosecution case against the appellants. The learned Counsel for the appellants contended that the sentence inflicted on the appellants was too severe. He pointed out that the appellants were young persons and there was nothing to show that they had committed any such offence on any earlier occasion. It was also pointed out that the occurrence took place about 13 years back and it would not be proper to send them to jail after such long lapse of time. Keeping in view all the facts and circumstances of the case, I am of the opinion that it would be just and proper to reduce the sentence awarded to the appellants to the sentence already undergone and the fine already imposed on the appellants by the learned Sessions Judge. I see no good ground to exempt them from payment of fine or to reduce the amount of fine.;