The prosecution must establish grievous injury under IPC Section 326; absence of such evidence permits conviction under lesser offence Section 323.

ORDER :

1. This Criminal Revision Petition is directed against the judgment dated 27.02.2006 in Crl. Appeal No.235 of 2004 on the files of the Additional Sessions Court-III, Kozhikode (for short, 'the appellate court') confirming the judgment dated 23.03.2004 in C.C. No.787 of 1999 on the files of the Judicial First-Class Magistrate Court, Koyilandy (for short 'the trial court').

2. The revision petitioner is the accused in C.C. No.787 of 1999. The offence alleged is under Section 326 of the IPC.

3. The prosecution case in short is that on 01.07.1999 at about 03:00 p.m., in Edakkara amsom, Thalakulathur Panchayat, Ward No.8, the revision petitioner intentionally pushed down the defacto complainant on the floor, caught hold of his neck, and hit on his face with a stone, causing fracture of the bone.

4. On the side of the prosecution, PWs 1 to 10 were examined and Exts.P1 to P5 were marked. MOI and MOII were identified. No defence evidence was adduced. After trial, the trial court found the revision petitioner guilty under Section 326 of IPC and he was convicted for the said offence. He was sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.2,000/- in default, to suffer simple imprisonment for another one month. Out of the fine amount, if realised, Rs.1,000/- was ordered to be paid to the defacto complainant as compensation. The revision petitioner challenged the conviction and sentence of the trial court before the appellate court. The appellate court dismissed the appeal, confirming the conviction and sentence of the trial court. Challenging the judgments of the trial court as well as the appellate court, the revision petitioner preferred this criminal revision petition.

5. When the revision petition came up for hearing, there was no representation for the revision petitioner. Therefore, notice was issued to the revision petitioner, and it was served on him. Still, there was no representation. Since the revision petitioner was not represented, this Court appointed Smt.Thushara K. as Amicus Curiae. However, when the revision petition came up for hearing today, Sri.P.V.Anoop, the counsel for the revision petitioner appeared.

6. I have heard Sri.P.V.Anoop, the learned counsel for the revision petitioner, Smt.Thushara K., the learned Amicus Curiae and Sri.Sangeetha Raj N.R., the learned Public Prosecutor.

7. The learned counsel appearing for the revision petitioner impeached the findings of the trial court as well as the appellate court on the appreciation of evidence and resultant finding as to the guilt. The learned Amicus Curiae submitted that there is no evidence on record to show the size and nature of the stone used for the commission of the offence, and hence the offence under Section 326 of IPC will not be attracted. The learned Amicus Curiae further submitted that there is no evidence to show that the de facto complainant sustained any of the injuries mentioned in Section 326 of IPC and hence, at best, the offence under Section 323 alone would be attracted. Reliance was placed on the decision of the Division Bench of this Court in Joy v. State of Kerala , 2014 (1) KLT 588 . On the other hand, the learned Public Prosecutor supported the findings and verdict handed down by the trial court as well as the appellate court and argued that the necessary ingredients of Section 326 of IPC had been established