ORDER

Appellant- Santosh Kumar is present in pursuance of the bailable warrant issued by the Court and he is identified by his counsel.

Heard finally.

This Criminal Appeal under Section 374(2) of the Code of Criminal Procedure has been preferred being aggrieved with the judgment dated 30.09.2009 in S.T. No.230/2009 by VIth Additional Sessions Judge, Sagar, whereby appellant/accused has been convicted under Section 325 of the IPC and sentenced to undergo R.I. for one year and a fine of Rs.1,000/- with default stipulations.

2. The prosecution case before the Trial Court was that on 04.03.2007 at 8:00 AM the complainant Surendra Jain (PW-1) was going to his shop and when he reached at Bichhua Pul in front of Kundan Hotel, the appellant came there with iron rod and demanded Rs.15/- for consuming the liquor when complainant denied and proceeded towards his shop then the appellant assaulted with iron rod in his back side of the shoulder and also assaulted in his elbow in the meantime his father Balku came on spot with Lathi in his hand and started beating him. Witness Bhagwan Das (PW-4) and Praful Kumar Jain (PW-

2) reached on the spot and they rescued the complainant. The appellant returned uttering filthy abuses and threatening the complainant that he will kill him. On the report of complainant, Police Station Banda, Sagar lodged an FIR (Ex.P-1) as Crime No.81/2007 under Sections 327, 294, 506, 323 read with 34 of the IPC. The complainant was medically examined by Dr. N.K. Jain (PW-8) and MLC report was prepared and examined through X-Ray by Dr. Jinesh Diwakar (PW-6). As per the report Ex.P-8 the fracture was found on 10th rib of complainant. The spot map was prepared (Ex.P-2). The iron rod was recovered from the possession of the appellant and after completion of the investigation, the charge sheet was filed before Judicial Magistrate First Class, Sagar on 21.05.2007. The case was committed to Sessions Judge and after transfer the case was submitted for trial before the trial Court.

3. Trial Court framed the charges under Sections 329, 325, 294 and 506 against the appellant and against the co-accused Ballu charges under Section 325/34 and 323 were framed and read over the appellant they abjured the guilt and prayed for trial.

4. Trial Court recorded the evidence of prosecution witnesses and examined the appellant under Section 313 of the Cr.P.C. The appellant has pleaded that the complainant has not paid his labour charges and when he demanded that he was assaulted by the family members of the complainant. The appellant has stated that he has been falsely implicated in the case and he has examined himself as a defence witness and exhibited the report as D-1 lodged under Section 155 of the Cr.P.C. and a complaint to DIG, Sagar.

5. Trial Court after hearing the parties has acquitted the appellant for the offence punishable under Sections 329, 294 and 506 of the IPC but has convicted the appellant for the offence punishable under Section 325 of the IPC and sentenced as stated above. Hence, this appeal.

6. Learned counsel for the appellant has submitted that he is not agitating the conviction of the appellant under Section 325 of the IPC and requested that no criminal record was found. At the time of incident he was 33 years old, 15 years have been elapsed. He is facing the proceedings and appeal is pending since 2009, the jail sentenced be quashed and find amount be enhanced.

7. Learned counsel for State has submitted that trial Court has rightly convicted and no leniency is required. Looking to the facts and circumstances of the offence, the appeal be dismissed.

8. I have gone through the record. From the record it is clear that on

04.03.2007, the appellant has assaulted the complainant Surendra Kumar Jain (PW-1) with iron rod and the father of the co-accused also assaulted the victim. The allegation against the victim is that he has assaulted only two times, one time on the back side of right shoulder and another on t