JUDGMENT R.K. Rastogi, J.
1. This is a revision against the judgment and order dated 23.7.1986 passed by Sri R.C. Agarwal then Session's Judge, Etah in Criminal Appeal No. 152 of 1985, Prem Pal and Anr. v. State.
2. The facts relevant for disposal of this revision are that on 11.5.1983 at 10 A.M. Smt. Margsri lodged a report against the accused Prem Pal and his mother Smt. Javitri Devi under Section 323 I.P.C. with these allegations that on the aforesaid date at about 8 A.M., the above named accused persons had beaten her and she had received injuries in the incident and that the incident was witnessed by Sri Doji and Jai Singh. On the basis of this F.I.R. a non cognizable case under Section 323 I.P.C. was registered at the police station. However, after X-ray, it was found that there was fracture of lower end of radius and styalid process of ulna Rt side and so the offence under Section 325 I.P.C. was also added in the case and the police after investigation submitted a charge sheet against Prem Pal and his mother Javitri Devi. Both of them pleaded not guilty and claimed trial. The trial court framed charges under Sections 323 and 325. I.P.C. against the accused persons. Learned Magistrate after hearing of the case, came to the conclusion that both the charges were proved against the accused persons. He therefore, convicted both of them under Section 323 I.P.C. and sentenced them to three months' R.I. And to a fine of Rs. 100/- each. They were also convicted under Section 325 I.P.C. and sentenced to R.I. of six months and to a fine of Rs. 200 each. Aggrieved with that judgment and order both accused persons filed Criminal Appeal No. 152 of 1985. The appeal was heard and decided by Mr. R.C.Agarwal, then Sessions Judge, Etah. He partly allowed the appeal and set aside the conviction and sentence passed against Smt Javitri Devi and acquitted her. As regard's the co-accused Prem Pal he set aside the conviction and sentence under Section 323 I.P.C. but since it was found that the charge under Section 325 was sufficiently proved against him, he maintained conviction of Prem Pal under Section 325 I.P.C. and the sentences awarded to him. Aggrieved with that judgment and order of learned Sessions Judge this revision was filed.
3. I have heard the learned counsel for the revisionist as well as the learned A.G.A. for the State and perused the record.
4. The learned counsel for the revisionist made only one submission before me. He submitted that this incident is of the year 1983. The accused revisionist Prem Pal was aged about 17 years only at that time because when the statement of accused was recorded on 28.8.1985 he had disclosed his age as 19 years in that statement. He further submitted that the period of more than 22 years has already expired from the date of the incident and after lapse of such a long period the accused should not be sent to Jail. He further contended that the accused revisionist was sent to Jail on 23.7.1986 when his appeal was dismissed and bail was granted to him by this court vide order dated 1.8.1986, but he could not be released on bail as there was mistake in the description of the year of the appeal, which was described as appeal No. 152/86 instead of 152/85 and this correction was made on 9.9.1986 and then the accused was bailed out and thus he remained in Jail for a period of one and half month. He submitted that in this view of the matter, the period of imprisonment already undergone by the accused revisionist should be considered to be sufficient and the remaining part of sentence of imprisonment should be substituted by enhanced amount of fine.
5. Keeping in view all these facts and circumstances of the case, I accede to his request and hold that, taking into consideration that the period of one and half month has already been spent by him in Jail, he should, now, not be sent to Jail to undergo the remaining part of imprisonment, but he shall have to pay a fine of Rs. 2500/- (rupees twenty five hundred only) under Section 325 I.P.C. The revision, in this way, deserves to be allowed to this extent only.
6. The revision is, therefore, partly allowed. The Judgment and order dated 23.7.1986 passed by Sri R.C. Agarwal then Sessions Judge, Etah passed in Criminal Appeal No. 152 of 1985, Prem Pal and Anr. v. State is modified to this extent that the amount of fine under Section 325 I.P.C. is enhanced to Rs. 2500/- in lieu of remaining part of sentence of imprisonment and if the revisionist deposits the above amount of fine, he shall not have to undergo the remaining part of imprisonment awarded under Section 325 I.P.C., but if he fails to make the deposit, he shall have to undergo imprisonment as ordered by the courts below.
7. Let a copy of this order be sent to C.J.M. Etah for recovery of the amount of fine as mentioned above, from the accused revisionist and in case the accused revisionist fails to pay this amount, he shall have to undergo the imprisonment as ordered by the appellate court.