Sufficient prima facie evidence can justify prosecution, even without specific overt acts or medical documentation of injury.

ORDER

Revision petitioner is the 2nd accused in C.C.No.177 of

2021 on the files of the Chief Judicial Magistrate's Court, Thiruvananthapuram. On 11.10.2021, Crime No.1212 of 2021 of Museum Police Station, Thiruvananthapuram was registered by the defacto complainant alleging offences punishable under Sections 294 (b), 323, 341 and 506 r/w Section 34 of the Indian Penal Code, 1860 apart from Section 118 (a) of the Kerala Police Act, 2011 . Pursuant to investigation, the police filed a final report arraying two persons as accused. It is alleged that the accused who were under the influence of alcohol had, on 11.10.2021, assaulted the defacto complainant and abused him for having questioned the repeated honkings from behind by the accused and thereby committed the offences alleged.

2. Crl.M.P.No.1407 of 2023 was filed by the revision petitioner before the Chief Judicial Magistrate seeking discharge under Section 239 of the Code of Criminal Procedure, 1973. It was pleaded that there was no material in the final report revealing any offence against the 2nd accused and that there is not even any medical evidence to support the alleged hurt caused to the alleged victim and in the absence of any injury sustained by the alleged victim, the

2nd accused ought to be discharged.

3. By order dated 19.06.2023, the learned Chief Judicial Magistrate dismissed the application for discharge after finding that the materials collected by the investigation prima facie reveal the offences alleged against both accused. It was also held by the learned Chief Judicial Magistrate that the defacto complainant had no case that he had sought any medical treatment for the injury sustained by him and therefore, the absence of a wound certificate will not affect the merits of the prosecution case and on that basis the discharge petition was dismissed.

4. I have heard Sri.R.Sunil Kumar, the learned counsel for the revision petitioner as well as Sri.C.N.Prabhakaran, the learned Public Prosecutor.

5. The 2nd accused in C.C.No.177 of 2021 on the files of the Chief Judicial Magistrate's Court, Thiruvananthapuram seeks discharge from the criminal proceeding. Though the prosecution alleges that the two accused had assaulted the defacto complainant when he questioned the repeated honkings from behind his car and had even been abused by the accused, the revision petitioner contends that there is nothing on record to implicate him as an accused.

6. On a perusal of the final report, it is evident that the prosecution has alleged that the accused, which includes both of them, had abused the defacto complainant and even assaulted him. Though specific overt acts against each of the two accused have not been mentioned, the prosecution alleges that both accused had assaulted and abused the defacto complainant. At this stage of a criminal proceeding, it is not necessary that the specific overt acts against each person must find a place in the final report. Whether any overt acts were done by both accused or only by one of the accused is a matter which can be determined only after trial. Therefore the contention that no specific overt act has been alleged against the petitioner is of no avail, at this juncture.

7. The further contention on behalf of the 2nd accused that the wound certificate had not been produced by the prosecution for the purpose of proving any injury having been occasioned to the defacto complainant is only to be rejected. It is elementary that for the purpose of causing an injury as contemplated under Section 323 of IPC , a physical wound of a particular measurement is not essential. Hurt as defined under Section 319 includes bodily pain as well. The offence alleged against the revision petitioner includes which is the punishment for voluntarily causing hurt. The admitted case of the prosecution is that the defacto complainant had not underwent any medical treatment and hence the absence of a wound certificate would not advance the cause of the accused, atleas