Grievous hurt requires objective medical evidence; absence of such proof led to a conviction under a lesser charge.

ORDER

Assailing the judgment in Criminal Appeal No.41 of 2023 dated 30.10.2023, delivered by the learned Principal Sessions Judge, Ramanathapuram, confirming the conviction and sentence passed by the learned Chief Judicial Magistrate, Ramanathapuram, in S.C. No.35 of 2019 dated 15.06.2023, for the offence under Section 326 IPC and sentencing A1 to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,000/- (Rupees One Thousand only), in default to undergo simple imprisonment for two months, this Criminal Revision Case has been filed by the first accused.

2. The petitioner in this Criminal Revision Case is the first accused before the learned Trial Court as well as before the learned Principal Sessions Judge, Ramanathapuram.

3. Facts & Prosecution Case:

3.1. On 24.04.2017 at about 7.00 a.m., when PW6/Abdul Kareem was proceeding towards his place of work through the road from his house, the revision petitioner A1 – Rasiq Mohammed Khan @ Rasiq, along with his elder brother Akrosekhan (A2) and his mother Mahaboob Jahan (A3), allegedly waylaid the said Abdul Kareem and scolded him using filthy language. At that time, A1 assaulted PW6 with an iron pipe on the left side of his head and caused injury.

3.2. It is further the prosecution case that A2 and A3 abused PW6 in filthy language on account of a pre-existing pathway dispute and attacked him with bare hands and legs. On these allegations, the prosecution filed a final report against:

A1 under Sections 341, 294(b), 324, and 307 IPC; A2 under Sections 341, 294(b), 323, and 506(ii) IPC; and A3 under Sections 341, 294(b), and 323 IPC.

Further charges were framed by the learned Trial Court against:

A1 under Sections 341, 294(b), and 307 IPC; A2 under Sections 341, 294(b), 323, and 506(ii) IPC; and A3 under Sections 341, 294(b), and 323 IPC.

4. Trial, Evidence & Conviction by the learned Chief Judicial Magistrate:

4.1. The learned Chief Judicial Magistrate, Ramanathapuram, acquitted A2 and A3 but convicted A1 for the offence under Section 326 IPC and sentenced him to two years rigorous imprisonment and fine of Rs.1,000/- (Rupees One Thousand only), in default two months simple imprisonment.

4.2. To substantiate the prosecution case, 11 witnesses (PW1–PW11) were examined; Exhibits P1–P9 and MOs 1–3 were marked. PW1 Mohammed Rishasha (eyewitness) deposed about the pre-existing pathway enmity; he stated that at 7.00 a.m., while opening his cement shop at Kuyavankudi, he saw A1 run towards PW6 and hit him with an iron rod on the head, due to which PW6 fell; a crowd gathered; A2 and A3 allegedly instigated A1; PW1 and PW2 Hasan took PW6 in an auto to Government Hospital, Ramanathapuram, and informed PW7 (wife) Hadi Jatul Kupura and PW8 (brother-in-law) Ahmed Maidin. PW8 later lodged the complaint. PW2 Hasan turned hostile; he admitted knowing PW1 but denied knowledge of the accused/incident and stated he signed a paper at police request. PW3 Akbar Ali and PW4 Jainuladeen were mahazar witnesses for observation and seizure of bloodstained earth and sample earth.

4.3. PW5 Dr. Kalirajan (Vikram Hospital, Madurai) examined PW6 referred from GH Ramanathapuram; he found (i) a 9 cm sutured wound over the left frontal-temporal region and (ii) an abrasion over the right forehead; CT scan was said to reveal bleeding and fractures; he certified injury No.1 as grievous and injury No.2 as simple; wound certificate Ex.P5 was marked. PW6 Abdul Kareem (injured) corroborated assault by A1 with an iron rod on the left side of his head; he said A2 and A3 assaulted him with hands and legs; he was shifted to GH Ramanathapuram and then to Vikram Hospital, Madurai. PW7 (wife) claimed to have rushed to the spot on hearing commotion and to have seen the attack. PW8 (brother-in-law) spoke to receiving information and lodging c