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(Delivered on 31-07-2023)

1. This revision petition under Sections 397/401 of Cr.P.C. has been preferred by the petitioner against the judgment/order dated 20.09.2018 and 07.12.2018 passed in a case bearing FIR No. 181/02, P.S. Shalimar Bagh titled as "State Vs. Sushil Jain"

by the Court of Sh. Anurag Thakur, Ld. MM-02, North West, Rohini Courts, Delhi (herein after called the impugned order) whereby the Ld. MM convicted the respondent/accused for the offence under Section 325 IPC and vide order dated 07.12.2018, sentenced the convict by releasing him on Probation of good conduct for a period of 02 years in accordance with Section 4 of the Probation of Offenders Act, 1958 and also awarded compensation to the revisionist/wife of the respondent/accused to the tune of Rs. 5,00,000/- and in default, to undergo simple imprisonment for a period of one year. The first instalment of Rs.1,50,000/- was to be paid within 30 days latest by 07.01.2019 and the second instalment of Rs.1,50,000/- on or before 05.02.20219 and the last instalment of Rs.2,00,000/- on or before 07.03.2019.

6. The petitioner impugns the judgment as well as sentence order on the ground that the conviction of R-2 under Section 325 IPC, when charges are framed under Section 326 IPC, is illegal as the prosecution had proved that the injury was caused by sharp edged weapon and ld. MM once accepted that the injury was caused voluntarily should not have reduced the charge under Section 325 IPC while convicting R-2 for same injuries. The petitioner has also contended that even the release of R-2 on probation is illegal as R-2 has committed a heinous offence and the ground given by the ld. MM releasing the accused on probation of good conduct were not justified.

7. Per contra it is submitted on behalf of respondent that the petitioner cannot challenged the conviction under Section 325 IPC to enhance it to Section 326 IPC in revision petition as it would amount to an appeal and the petitioner has been consistently pressing this case to be treated as revision because of which detailed order dated 22.03.2019 was passed to treat the case as revision petition for the enhancement of sentence only. It is also submitted on behalf of respondent that although it was not a case where R-2 should have been convicted as there was no intention but R-2 has challanged the conviction under Section 325 IPC, however, there is no illegality in the order of ld. MM in releasing the R-2 on probation of good conduct with compensation of Rs. 5 lacs. It is further submitted that at this stage the probation period has already expired and the compensation amount has already been deposited with the Trial Court.

11. The prayer clause by itself shows that in the form of revision petition the petitioner has cahllanged the acquittal of R-2 from offence under Section 326 IPC with which R-2 was charged, but convicted under Section 325 IPC. This was, therefore, an appeal filed in the form of revision. The petitioner has failed to explained how the reason given by ld. MM not convicting the R-2 under Section 325 IPC instead of Section 326 IPC was wrong. The evidence clearly shows that the injury was caused from a glass of window pane and that glass was not used by R-2 as a weapon. It happened as the R-2 hit the arm of injured against window pane, during exchange of words between both brothers. Therefore, ld. MM was right in observing that there was absence of mens rea to use the window pane or the glass as a weapon. Before ld. MM there was no evidence to show that window was already broken before the arm of injured was hit against same. Therefore, no ground is made out to convert the finding of ld. MM convicting the R-2 for the offence under Section 325 IPC to Section 326 IPC as charged.