C.A.Rahim - (1.) THIS revision has been directed against the judgment of the learned Sessions Judge, Gorakhpur, dated 29.6.84 in Criminal Appeal No. 74 of 1984 in which he convicted the appellant under Sections 323 and 324, I.P.C. and sentenced to suffer R.I. for 4 months and 6 months respectively. By that judgment he acquitted the two other accused-appellants facing the same charge.
(2.) THE prosecution case is that on 21.6.1977 while the complainant was returning after easing himself he saw that the appellants were digging his NAD with spade to which P.W. 2 son of the complainant protested. All the three accused persons caught hold of P.W. 2 and beat him with fists and kicks. THE complainant intervened. Rameshwar appellant hit the complainant with the spade causing injuries on the head. THE prosecution examined four witnesses to prove the occurrence and at the conclusion of the trial the learned Magistrate convicted all the appellants under Sections 323 and 324/34,I.P.C. During appeal the judgment was modified in the aforesaid manner. Sri Virendra Singh appearing for the appellant has submitted that there could be no discrimination with regard to the assault with fists blows for which the accused-appellant was convicted under Section 323, I.P.C., with the above co-accused persons who have been released by the learned appellate court. In fact, the prosecution has led evidence that all the appellants jointly beat P.W. 2 with fists and kicks. There is nothing to discriminate and to pick up the appellant and to convict him under Section 323, I.P.C. The said conviction appears to be discretionary and liable to be set aside. With regard to the charge under Section 324, I.P.C. I find no illegality in the judgments of both the courts below when there is ample proof that the applicant hit the complainant with one spade causing bleeding injury on the head. So the charge under Section 324, I.P.C. has been proved against the applicant and he was rightly convicted under that section.
(3.) THE learned counsel thereafter submits that the sentence is too severe. Considering the facts that the occurrence took place about 20 years ago and, therefore, the sentence of imprisonment be substituted to a fine. Considering the said submission I find that after so many years it will serve no purpose if the applicant is sent to custody for causing offence under Section 324, I.P.C. and accordingly agreeing with the submission of the learned counsel the sentence is substituted to a fine.;