IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 31ST JULY 2008 / 9TH SRAVANA 1930 Crl.Rev.Pet.No. 2533 of 2008() ------------------------------ CRA.286/2007 of SPL. COURT (NDPS ACT CASES), THODUPUZHA CC.664/2005 of CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA .................... REVN. PETITIONER: APPELLANT --------------------------- ITHAQ @ THAKACHAN, S/O. XAVIER, KAKKALLIL HOUSE, NELLAPPARA BHAGAM, MOONILAVU VILLAGE. BY ADV. SRI.GEORGEKUTTY MATHEW SMT.G.R.LEKSHMI RESPONDENTS: RESPONDENT ----------------------- STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGHER COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. K.C. SANTHOSH KUMAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 31/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. ````````````````` Crl.R.P. NO. 2533 of 2008 ````````````````` Dated: 31-07-2008 O R D E R In this revision filed under Sec. 397 read with Sec. 401 Cr.P.C. the petitioner who is the accused in C.C. No.664 of 2005 on the file of the Chief Judicial Magistrate, Thodupuzha for an offence punishable under Sec. 326 I.P.C. challenges the conviction entered and the sentence passed by the lower appellate court against him for for an offence punishable under Sec. 324 I.P.C. The case of the prosecution can be summarised as follows: On 28-2-2005 at about 9.10 a.m. the accused out of his previous enmity towards his elder brother P.W.1 and with the intention of voluntarily causing grievous hurt to him hit him with a pickaxe on the left cheek causing a fracture of the left jaw bone (mandible) at a place calaled Mechalkara. The accused has thereby committed the aforementioned offence. 3. On the accused pleading not guilty to the charge framed against him by the trial court for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 8 witnesses as P.Ws 1 to 8 and Crl.R.P. NO. 2533 of 2008 -:2:- got marked 5 documents as Exts. P1 to P5. 4. After the close of the prosecution evidence, the accused was questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. He did not adduce any defence evidence when called upon to do so. 5. The learned Magistrate, after trial, as per judgment dated 1-10-2007 found the revision petitioner guilty of the offence punishable under Sec. 326 I.P.c. and sentenced him to rigorous imprisonment for one year. On appeal preferred by the revision petitioner before the Sessions Court, Thodupuzha, the learned Addl. Sessions Judge altered the conviction into one punishable under Sec. 324 I.P.c. and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 2,500/- and on default to pay the fine to undergo simple imprisonment for one week. Hence, this Revision. 6. Eventhough the learned counsel appearing for the revision petitioner assailed on various grounds the conviction entered against the revision petitioner, in as much as the conviction has been recorded by the courts below concurrently after a careful evaluation of the oral Crl.R.P. NO. 2533 of 2008 -:3:- and documentary evidence in the case, this Court sitting in revision will be loathe to interfere with the said conviction which is accordingly confirmed. 7. What now survives for consideration is the question regarding the adequacy or otherwise of the sentence imposed on the revision petitioner. Having regard to the facts and circumstances of the case, I do not think that the revision petitioner deserves penal servitude by way of incarceration for the said conviction. I am of the view that interest justice will be adequately met by imposing a sentence to be passed hereinafter. Accordingly, the sentence imposed on the revision petitioner is set aside and he is sentenced to imprisonment till rising of the court and to pay fine of Rs. 7,500/- within one month from today failing which he shall suffer simple imprisonment for one month by way of default sentence. From out of the fine amount a sum of Rs. 5000/- shall be paid to P.W.1 as compensation under Sec. 357 (1) Cr.P.C. In the result, this Revision is disposed of confirming the conviction entered but modifying the sentence imposed as above. V.Ramkumar, Judge. ani. Crl.R.P. NO. 2533 of 2008 -:4:-