IMPORTANT POINT
A conviction under Section 323 IPC requires proof of bodily pain, disease, or infirmity, which was not established in this case, leading to the acquittal of the accused.

ORDER :

(C. Pratheep Kumar, J.) :

This Revision Petition is filed by the appellant in Crl.Appeal No.351/2014 on the file of the Additional Sessions Judge-I, Thiruvananthapuram, against the judgment partly allowing the said appeal and thereby confirming the conviction under Section 323 IPC passed by the Judicial First Class Magistrate-V, (Special Court for mark list cases), Thiruvananthapuram, in C.C.No.232/2013.

2. The trial court framed charge against the accused under Sections 341, 294(b), 447 and 332 IPC. The prosecution case is that the accused who was a driver in the CBCID Office, Jawahar Nagar Unit, under the mistaken notion that the de-facto complainant, a Grade Sub Inspector, was behind his transfer to Kollam unit, with the intention to wreck vengeance against him, entered the car porch area at the office on 31.5.2012 at 9.45 a.m, used abusive words at the de-facto complainant, caught hold of his shirt and hit on his left cheek. On the basis of the evidence on record, namely, the oral testimony of PWs1 to 8 and Exts.P1 to P5, the trial court found him guilty under Sections 341 and 323 IPC and found him not guilty of the remaining offences. In appeal, the Additional Sessions Judge-I, Thiruvananthapuram, confirmed the conviction under Section 323 IPC alone and acquitted him of the offence under Section 341 IPC. Dissatisfied with the above finding of the appellate court, he preferred this Revision raising various grounds.

3. Heard Adv.Sri.R.T.Pradeep the learned counsel for the revision petitioner and Smt.Maya M.N., the learned Public Prosecutor.

4. In the light of the arguments advanced, the following points are raised for consideration:-

1. Whether an accused charged under section 332 IPC can be punished for the offence under Section 323 IPC?

2. In order to prove the offence under S.323 IPC, whether proof of causing bodily pain, disease or infirmity to any person is necessary?

3. Whether the impugned judgment of conviction passed by the trial court as confirmed by the appellate court is liable to be interfered with, in the light of the grounds raised in the Revision Petition ?

5. P oint No.1:- Now the only head under which the revision petitioner was convicted is under Section 323 IPC, as he was already acquitted of all the remaining charges, either by the trial court or by the appellate court. One of the contentions raised by the learned counsel is that in the absence of separate charge under section 323 IPC, the accused cannot be punished for that offence. It appears that since the original charges against the accused included one under section 332 IPC also, the learned Magistrate tried the case as a warrant trial case and a court charge was framed under sections 341, 294(b), 447 and 332 IPC. It was in the above context, such an argument was advanced by the leaned counsel.

6. However, it is to be noted that, the above argument has no legs to stand, in the light of Section 222 Cr.PC. Section 222 Cr.PC states that:

“When offence proved included in offence charged

(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.

(2) When a person is charged with an offence and facts are proved which reduce it to minor offence, he may be convicted of the minor offence, although he is not charged with it.

(3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.

(4) Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied.”

7. In the decision in S.M.Multtani v. State of Karnataka, (2001)2 SCC 577, the Apex Court while discussing the scope of section 222 Cr.PC