The court modified the conviction from Section 326 IPC to Section 324 IPC due to insufficient evidence of grievous harm while affirming the finding of intentional injury.

ORDER

The concurrent verdicts of the Additional Chief Judicial Magistrate Court, Thalassery, and the Additional Sessions Judge (Adhoc - III), Thalassery, convicting and sentencing the petitioner for the commission of the offence under Section 326 IPC are under challenge in this revision.

2. The prosecution case is that on 17.04.1999, at about 5.00 pm, the petitioner inflicted voluntary grievous hurt upon PW1, an octogenarian, by hitting him with a walking stick.

3. Before the Trial Court, the prosecution examined eight witnesses as PWs 1 to 8, and brought on record four documents as Exts.P1 to P4. The weapon of offence used by the accused was identified as MO1. Relying on the aforesaid evidence, the learned Magistrate found the petitioner guilty of Section 326 IPC and convicted him. The petitioner was sentenced to Rigorous Imprisonment for three years for the commission of the aforesaid offence. Though the petitioner preferred an appeal before the Sessions Court, Thalassery, the learned Additional Sessions Judge, who considered the appeal found that there is absolutely no reason to interfere with the findings of the learned Magistrate. Accordingly, the appeal was dismissed, confirming the conviction and sentence of the petitioner. Aggrieved by the above concurrent verdicts of the courts below, the petitioner is here before this Court with this revision.

4. Heard the learned counsel for the petitioner and the learned Public Prosecutor representing the State of Kerala.

5. The Trial Court relied on the evidence of PWs 1 and 2 to arrive at the finding that the petitioner inflicted voluntary grievous hurt upon PW1 by hitting with a walking stick. In the evidence before the Trial Court, PW1 categorically stated the incident, which happened on 17.04.1999 at about 5.00 pm. According to him, the accused / petitioner nurtured enmity with him, since he demanded back the amount, which the petitioner had borrowed from him. PW1 stated before the Trial Court that the petitioner snatched the walking stick from him and bet him profusely till he fell down with serious injuries. PW2, who was the sister-in-law of PW1 also stated before the Trial Court in categoric terms about the offence committed by the petitioner. PW3, is another witness, who rushed to the spot hearing the cries of PW1. The Trial Court as well as the Appellate Court rightly held that the evidence adduced by PWs 1 to 3 about the alleged act of the petitioner inflicting voluntary grievous hurt upon PW1 cannot be discarded. The concurrent findings of the courts below in the above regard is not liable to be interfered with in exercise of the revisional powers of this Court. The learned counsel for the petitioner pointed out that there was paucity of evidence to show that PW1 sustained fracture as a result of the alleged assault of the petitioner. Adverting to the oral testimony of PW6, the Doctor, who issued Ext.P3 - wound certificate, the learned counsel pointed out that PW6 has categorically stated that she did not see the X-ray to confirm the injury of fracture suffered by the defacto complainant. The Investigating Agency did not conduct any investigation on the above aspect, even though it is discernible from Ext.P3 that the defacto complainant was referred for Orthopedic consultation. In the absence of convincing medical evidence pointing to the fracture sustained by the defacto complainant, it cannot be said that the offence under Section 326 IPC is attracted in the facts and circumstances of the case. To that extent, the courts below went wrong in convicting and sentencing the petitioner for the commissi