IMPORTANT POINT
There is no irdlexible rule that fentence of imprisonment under Section 323, Indian Penal Code is awardable if the trial Magistrate has failed to record special reasons for not extending benefit of Probation Act to the accused.

JUDGMENT

N. N. Sharma, J.-This revision is directed against the order dated 18.11.1981 by Sri Prem Singh, learned Sessions Judge, Ghazipur in Criminal Appeal No. 190 of 1981, by which he set aside the conviction of appellants under Section 394, Indian Penal Code but affirmed their convictions and sentences 'under sections 323/504/506, Indian Penal Code.

2. The revisionists were initially convicted under Section 324 Indian Penal Code. And sentenced to four months R.I each, under Section 323, Indian Penal Code to three months R.I. each, under Section 50t, Indian Penal Code, they were convicted and sentenced to IS days imprisonment each, they were further convicted under Section 506, Indian Penal Code and sentenced to three months R.I. each by Sri V. P. Lukariya, learned Munsif-Magistrate Saidpur district Ghazipur vide order dated 25.9.1981 in case No. 313 of 1981, The aforesaid sentences were ordered to run concurrently.

3. The prosecution story briefly stated is that parties are residents of village Kabla Jakhaniyan police-station Murkura. District Ghazipur. On 20.2.1981 complainant Purshottam P.W. 1 was digging foundation in his court-yard at about 3 P.M., when both the revisionists who are own brothers arrived and belabured Purshottam with lately and spade blows; when his wife came to his rescue she was also belaboured with kicks and fist s. Witnesses Musafir, P.W. 2, and Kharman were attracted and intervened; while revisionists were threatening to kill and lot the property of the complainant. Complainant went to police-station and lodged the F.I.R. Ext. Ka 2 in the same afternoon at 6.10 PM. The F.I.R. was proved by secondary evidence of P.W. 4 Sri Satdeo who was well acquainted with the hand writing of the complainant. Injured got himself medically examined by Dr. S.L. Garg. Medical Officer, Jakhaniya in the same evening on 21.2.1981 at 8 A.M. Two injuries were detected on his person as detailed in injury report Ext. Ka. l. Injury No. 1 was incised wound on the skull right fore head. Injury No. 2 which was also a simple injury was caused by some blunt weapon. Duration was about one day at the time of examination. As local police did not take any interest in the matter so the complaint was filed by the Complainant who examined himself and Musafir P.s. 1 and 2 in support of the prosecution story.

4. Revisionist denied their participation in the occurrence and alleged their implication to ill-will. In their statements recorded under Section 313, Criminal Procedure Code they alleged that witnesses perjured. No evidence was adduced in defence.

5. Learned trial Magistrate believed the testimony of P.Ws. while the learned Appellate Court agreed with him except that he did not accept the allegations of prosecution that some spade or spear was used during the occurrence by the revisionists, In this connection he pointed out that use of a spade or spear was not mentioned by the complainant in F.I.R. but it was simply an improvement which was occasioned as the doctor found one incised wound. Learned Judge observed that such incised wound was capable of being caused by a lathi blow also on the fore-head which was a bony part and such lacerated wound on a bony part could have looked like incised wound. This appears to be a Mistake committed by the doctor. Even though the injury on the forehead was caused by lathi yet the doctor took it to be an incised wound. Under the circumstances the use of spade by the assailants was ruled out and so conviction and sentence under Section 324 of the Indian Penal Code was set aside. However, conviction under remaining counts and sentences awarded there under were confirmed.

6. I have heard learned Advocate for the parties at length and carefully perused the record. On behalf of the revisionists it was argued before me that when major motions of the prosecution story was found false by the trial Magistrate the entire case should have been thrown out.

7. In this connection reliance was placed upon Bhagi