JUDGMENT
Swatanter Kumar, J.
1. I have heard learned counsel for the parties at some length.
2. Vide judgment of conviction and order of sentence both dated 28-7-1989, the learned Chief Judicial Magistrate, Patiala, convicted the appellant for an offence under Section 332/506 of the Indian Penal Code, the Court awarded him sentence for 9 months of rigorous imprisonment and a fine of Rs. 200/- under Section 332 of the Indian Penal Code. In default thereof, to undergo further rigorous imprisonment for a period of one month and under Section 506 of the Indian Penal Code sentenced rigorous imprisonment for the period of six months. Both the sentences were ordered to run concurrently.
3. An appeal was preferred by the appellant, which was also dismissed by the learned Additional Sessions Judge, Patiala, vide his judgment dated 24th August, 1990. However, while sustaining the judgment of conviction order of sentence was modified and the appellant was released on probation under Section 4(1) of the Probation of Offenders Act on furnishing bond in the sum of Rs. 1,000/- for his good conduct. Challenge in this appeal is to the order dated 24-8-1990.
4. Learned counsel for the appellant has argued that there was no independent witness examined by the prosecution to establish its case and furthermore, the S.D.O. who is stated to have forwarded the complaint to the Station House Officer concerned was not examined. Both these draw backs in the prosecution case create serious doubts and benefits of which must be given to the appellant.
5. I find this argument is without any merit. In the judgment under appeal, learned Additional Sessions Judge, has recorded that while arguing the appeal before him, the counsel had not argued on merit of the case and prayed for the benefit of probation. Now a ground has been taken in the appeal, before this Court, that no such concession was given by the counsel and as such the order is vitiated.
6. One fails to understand why would the Court record incorrect fact, particularly in relation to a counsel. The present appeal has neither been filed by the same counsel nor his affidavit has been placed on record to say that such concession was given by him before the first appellate Court. Be that as it may, I am not prepared to accept that the learned Judge has incorrectly recorded the said concession and I am of the considered view that in fact the appeal was not argued on merit.
7. Be that as it may, I still proceed to discuss the merit of this appeal. The case in brief is that Mam Chand, P.W.2 was employed as Junior Engineer in the Punjab State Electricity Board and Biram Dass-accused was working as T-mate under him. He was marked absent for three days when he was not on duty. On 3rd of April, 1985 at 1.30 p.m. appellant came to Mam Chand and told him that why he marked him absent. Pay was to be paid on that date. He agitated over the matter and picked up a stick lying nearby and assaulted with stick to Mam Chand. The complaint was forwarded to the Station Officer. The complainant was subjected to medical examination, vide exhibit PA and his medical examination is PC which shows that there was injury on his body caused by blunt weapon. The prosecution had examined five witnesses in support of its case. Mam Chand was examined as P.W.2 who had suffered injuries. There is nothing on record to show that cross-examination of any of the witnesses indicated that the prosecution has not been able to prove its case.
8. In the circumstances afore-stated, I find no merit in this case and affirm the judgment of the learned first appellate Court dated 28th July, 1989.