Karnataka High Court
Sri. Junaid B vs The State Of Karnataka on 20 February, 2024
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 1328 of 2012
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 1328 OF 2012
BETWEEN:
SRI JUNAID B
S/O MOOSA
AGED ABOUT 20 YEARS
R/AT MADALA QUARTER HOUSE
PERAJE VILLAGE
BANTWAL TALUK - 570 097.
...APPELLANT
Digitally signed by
LAKSHMINARAYANA
MURTHY RAJASHRI (BY SRI S BALAKRISHNAN, ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA AND:
THE STATE OF KARNATAKA
BY VITTAL POLICE STATION
...RESPONDENT
(BY SMT. N ANITHA GIRISH, HCGP)
THIS CRL.A IS FILED U/S.374(2)CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION PASSED BY THE II -
ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K.,
MANGALORE DATED 31.10.2012/2.11.2012 IN S.C.No.2/2012 -
CONVICTING THE APPELLANT/ACCUSED No.1 FOR THE
OFFENCE P/U/S 326 OF IPC AND ETC.,
THIS APPEAL COMING ON FOR DICTATING JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 1328 of 2012
JUDGMENT
1. This appeal is filed by the appellant - accused
No. 1 praying to set aside the judgment of conviction
dated 31.10.2012 and order on sentence dated
02.11.2012 passed in S.C. No. 2/2012 by II Additional
District and Sessions Judge, D.K., Mangaluru. Appellant -
accused No. 1 has been convicted for offence under
Section 326 of IPC and sentenced to undergo simple
imprisonment for a period of 3 years and to pay fine of
Rs.10,000/- and in default to pay the fine amount, to
undergo simple imprisonment for a period of 3 months.
2. Factual matrix of the prosecution case is as
under:
The injured Abdul Razak (P.W.2) and Junaid
(appellant - accused No. 1) were neighbours and
appellant - accused No. 1 - Junaid borrowed Rs.300/- from
P.W.2, but, inspite of demanding he had not returned the
said amount. That on 24.10.2010 at about 10.30 pm
Abdul Razak met accused No. 1 near Budoli junction and
at that time P.W.2 asked appellant - accused No. 1 to
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return the money. Appellant - accused No. 1 told him that
he will not return the money and went to a mutton shop
and brought knife (kathi) and tried to give blow on his
neck and P.W.2 brought his left hand to protect himself
and sustained injury to his left hand; thereafter appellant -
accused No.1 assaulted him on his left cheek and left eye
and P.W.2 screamed for help and other accused who were
present there asked appellant - accused No. 1 not to leave
P.W.2. At that time brother of P.W.2 - Adram (P.W.1)
came there and accused persons, on seeing them
threatened them by giving life threat and went away.
P.W.1 and his mother took P.W.2 to Puttur Hospital and
from there they were asked to take P.W.2 to Mangaluru as
the injury was serious and they took the injured to A.J.
Hospital, Mangaluru and there he was admitted in ICU.
Thereafter, P.W.1 lodged complaint with Vittla Police
Station on 25.10.2010 at about 09.00 am. The Police after
investigation filed charge sheet for offence under Sections
341, 326, 506, 307 read with Section 34 of IPC. After
committal, the Sessions Court framed charge for offence
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under Section 341 read with section 34, Section 307 read
with Section 34 and Section 506 read with section 34 of
IPC. The prosecution, in order to prove the charges, has
examined P.W.1 to P.W.10 and got marked Ex.P.1 to
Ex.P.11 and M.O.1 to M.O.3. Two documents were marked
on the defence side i.e., Ex.D.1 - certified copy of FIR and
Ex.D.2 - certified copy of the charge sheet. Statement of
accused came to be recorded under Section 313 of Cr.P.C.
The trial Court after hearing arguments formulated points
for consideration and after appreciating evidence on record
convicted appellant - accused No. 1 for offence under
Section 326 of IPC and sentenced him as noted above. The
trial Court acquitted accused Nos.1 to 4 for offence under
Sections 341, 506, 307 read with Section 34 of IPC. Said
judgment of conviction and order of sentence has been
challenged in this appeal.
3. Heard arguments of learned counsel for
appellant - accused No. 1 and learned HCGP for
respondent - State.
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4. Learned counsel to appellant - accused No.1
would contend that there is no charge for offence under
Section 326 of IPC for which the appellant - accused No. 1
has been convicted. He contends that offence under
Section 326 of IPC is not a minor offence to offence under
Section 307 of IPC. He contends that punishment provided
for offence under Section 307 and Section 326 of IPC is
same and therefore, offence under Section 326 of IPC is
not a minor offence to offence under Section 307 of IPC.
He contends that as per sub-section (2) of Section 222 of
Cr.P.C. an accused can be convicted only for a minor
offence to the offence to which he has been charged with
even though there is no charge for that minor offence. On
that point he placed reliance on the following decisions:
I. Suramani and others Vs. State by Inspector of
Police, Kangayam Police Station, Erode District,
Crime No.90 of 2003 - Crl. A. No.363/2005,
2011(3) MWN (Cr.)27.
II. Sangaraboina Sreenu Vs. State of Andra
Pradesh- Crl.A. No.182/1990, (1997) 5 SCC
348.
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III. Soundararajan Vs. Subramani and another -
Crl.r.C776/1983, 1988 (2) Crimes 781(Mad.)
IV. Surendra Rai Vs. State of Bihar - Crl.A (SJ)
No.257/2000, 2012 SCC online pat 914.
5. He further contends, that eye witnesses -
P.W.3 and P.W.4 have not supported the case of the
prosecution and there is only evidence of P.W.1 - brother
of injured and P.W.2 - injured. He contends that there is
delay in filing the complaint. The incident has taken place
at 10.30 pm on 24.10.2010 and complaint came to be
lodged on 25.10.2010 at 09.00 am and the delay has not
been explained. He further contends that out of 4 injuries,
2 are chop wounds and 2 are stab wounds and they
cannot be caused with the same weapon. He contends that
M.O.1 - chopper which was found at the spot had no
blood stains. There is no recovery from appellant -
accused No. 1. On these grounds he prayed to allow the
appeal and acquit appellant - accused No.1.
6. Per contra learned HCGP has argued that the
trial Court on proper appreciation of the evidence on
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record has rightly convicted the appellant - accused No. 1.
She has supported the reasons assigned by the trial Court.
She has further argued that evidence of P.W.1 and P.W.2
and evidence of P.W.8 - the Doctor who has issued the
wound certificate - Ex.P.7 is sufficient to convict appellant
- accused No.1 for offence under Section 326 of IPC. She
placed reliance on the decision of the Hon'ble Apex Court
in the case of Pancharam Vs. State of Chattisgarh and
another reported in 2023 SCC OnLine SC 394 wherein
the appellant - accused has been acquitted for offence
under section 307 of IPC and he has been convicted for
offence under Section 326 of IPC. On these grounds she
has sought for dismissal of the appeal.
7. P.W.1 is the complainant and P.W.2 is the
injured. The incident has taken place at 10.30 pm on
24.10.2010 and Ex.P.1 - complaint has been filed on
25.10.2010 at 09.00 am. Learned counsel for appellant -
accused No. 1 has contended that there is delay in filing
the complaint and it has not been properly explained.
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8. The Hon'ble Apex Court considered the effect
of delay in filing FIR in the following decisions:
In the case of Amar Singh Vs. Balwinder Singh
and others reported in 2003 (2) SCC 518 the Hon'ble
Apex Court has held thus:
"There is no hard and fast rule that any
delay in lodging the FIR would automatically
render the prosecution case doubtful. It
necessarily depends upon facts and
circumstances of each case whether there has
been any such delay in lodging the FIR which
may cast doubt about the veracity of the
prosecution case and for this a host of
circumstances like the condition of the first
informant, the nature of injuries sustained, the
number of victims, the efforts made to provide
medical aid to them, the distance of the
hospital and the police station etc. have to be
taken into consideration. There is no
mathematical formula by which an inference
may be drawn either way merely on account of
delay in lodging of the FIR."
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Further, the Hon'ble Apex Court in the case of Raghbir
Singh Vs. the State of Haryana reported in 2000 (2)
RCR (Criminal) 717 (SC) has observed that the trial
Court has taken the view that delaying the filing of the FIR
was justified by the need to rush to the hospital in order to
preserve the victim's life rather than going to the Police
station first and the same view was affirmed by the
Hon'ble Apex Court.
The Hon'ble Apex Court in the case of State of
Himachal Pradesh Vs. Gian Chand reported in AIR
2001 SC 2075 has held thus:
"Delay in lodging the FIR cannot be used
as a ritualistic formula for doubting the
prosecution case and discarding the same
solely on the ground of delay in lodging the first
information report. Delay has the effect of
putting the Court in its guard to search if any
explanation has been offered for the delay, and
if offered, whether it is satisfactory or not. If
the prosecution fails to satisfactorily explain the
delay and there is possibility of embellishment
in prosecution version on account of such delay,
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the delay would be fatal to the prosecution.
However, if the delay is explained to the
satisfaction of the Court, the delay cannot by
itself be a ground for disbelieving and
discarding the entire prosecution case."
9. P.W.1 has deposed that he took his brother
P.W.2 who sustained severe injuries in Car to Adarsh
Hospital, Puttur and there injured was not admitted and
they asked him to take injured to hospital at Mangaluru.
Therefore, he took P.W.2 to Mangaluru and got him
admitted at A.J. Hospital and he was admitted to the ICU.
At that time, he was not in a condition to speak. He
further deposes that in the early morning at 05.30 am he
came from Mangaluru to his house at Budoli and got
written the complaint from his son and thereafter, went to
Vittla Police Station and filed complaint as per Ex.P.1.
Considering the said evidence it is clear that the delay has
been properly explained. It is not the case of the learned
counsel for accused that the accused has been falsely
implicated after due deliberations and it caused delay in
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filing the complaint. Therefore, time spent from the time
of incident till the time of filing of complaint as per Ex.P.1
is immaterial and it has been explained properly.
10. P.W.2 is the injured and he has deposed that
appellant - accused No.1 assaulted him with kathi which is
used for cutting flesh on his head and he held the said
kathi with his left hand and it caused injury and thereafter
accused No.1 assaulted him on his left side cheek and
back and he sustained 4 injuries. Said evidence of P.W.2 is
corroborated by the evidence of P.W.1 who has deposed
that on hearing the sound of galata he, his mother and
sister went there and saw appellant - accused No.1
assaulting P.W.2 with kathi on his face, head and back and
causing injury. Ex.P.7 is the wound certificate issued by
the Doctor - P.W.8. As per the wound certificate - Ex.P.7
and evidence of the Doctor - P.W.8, P.W.2 has sustained
the following injuries:
a. Chop wound, 15cm X 3 cm, over left side of the
face directed downwards and slightly outwards,
extending from the forehead to lower jaw
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involving both upper & lower eyelids, cheek and
lower face along with fracture of left frontal
bone, orbit and maxilla (CT Scan Head No.
23054)
b. Chop wound, 10 cm X 4 cm, over the back
aspect of right forearm, 6cm below the elbow,
exposing the cut muscles, fracture of shaft of
ulna with dislocation of head of the radius
c. Stab wound, 3 cm X 0.5 cm (on approximation
3.3 cm) over outer back aspect of left lower
chest with haemothorax and sub cutaneous
emphysema in that region (CT Scan of Chest
and Abdomen No. 23055)
d. Stab wound, 2 cm X 0.4 cm (on approximation
2.2 cm) over outer aspect of left side of the
abdomen.
11. P.W.8 - the Doctor has opined that injury Nos.
1 to 3 are grievous in nature and injury No. 4 is simple in
nature. Said injuries sustained by P.W.2 are on his head,
abdomen, hand and back. Said injuries corroborate with
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the overt act stated by P.W.2. P.W.8 has opined that
M.O.1 - kathi can cause injuries noted in Ex.P.7 - wound
certificate. In the cross-examination P.W.8 has stated that
injuries can be caused by any sharp weapon similar to
M.O.1. It is not suggested to P.W.8 that one weapon
cannot cause all the 4 injuries as contended by the learned
counsel for appellant - accused No. 1. Even though there
is lengthy cross-examination of witnesses, in the cross-
examination of P.W.1 and P.W.2, nothing material has
been elicited to disbelieve their testimony. Therefore,
evidence on record is sufficient to hold that appellant -
accused No.1 has assaulted the injured - P.W.2 with kathi
and caused grievous injuries.
12. The trial Court considering the evidence on
record held that ingredients of Section 307 of IPC are not
attracted as intention or knowledge that death will be
caused cannot be inferred. The trial Court convicted
appellant - accused No.1 for causing grievous injury with
deadly weapon for offence under Section 326 of IPC.
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13. There was no charge for offence under Section
326 of IPC. Charge was for offence under Section 307 of
IPC. The appellant - accused No.1 came to be convicted
for an offence even though charge has not been framed
for the said offence as has been provided under Section
222 of Cr.P.C. which reads thus:
222. 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
a minor offence, he may he 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
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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."
14. Learned counsel for appellant - accused No. 1
would contend that as per sub-section (2) of Section 222
of Cr.P.C. an accused can be convicted only for a minor
offence even though he has not been charged for it. He
contended that Section 326 of IPC is not a minor offence
to the offence charged against appellant - accused No.1,
i.e., Section 307 of IPC. He contended that punishment
provided for both offences i.e, for offence under Sections
307 and 326 of IPC is the same and therefore, Section 326
is not a minor offence to that of offence under Section 307
of IPC. Punishment provided for offence under Section 307
is imprisonment of either description with a term which
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may extend up to 10 years and shall also be liable for fine;
and if hurt is caused to any person by such act, the
offender shall be liable for either to imprisonment for life
or to such punishment as is hereinbefore mentioned.
Punishment provided for offence under Section 326 of IPC
is imprisonment for life or with imprisonment of either
description for a term which may extend to 10 years and
shall also be liable to fine. A perusal of the punishments
prescribed for offence under Sections 307 and 326 of IPC
indicates that sentence is the same for both the offences.
15. Learned counsel for appellant - accused No.1
placed reliance on the decision of High Court of Madras in
the case of Suramani and others vs. State by
Inspector of Police, Kangayam Police Station, Erode
District, reported in 2011(3) MWN (Cr.)27 wherein it is
held as under:
"4. At the outset, Mr.R.Rajasekaran,
learned counsel appearing for the appellants
would submit that there has been no charge
under Section 366A IPC against any of the
appellants, whereas, there is conviction
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under Section 366A IPC. The learned counsel
would submit that one of the charges framed
against all the four accused is under Section
366 IPC simpliciter. But, without there being a
charge under Section 366A IPC, according to
the learned counsel, the conviction has been
recorded against all the accused, which is
illegal.
5. On going through the records, Mr. R.
Muniapparaj, learned Government Advocate
would also concede that there was no charge
under Section 366A IPC, instead, there was
only a charge under Section 366 IPC.
6. Now the question is in the absence of any
charge under Section 366A IPC, whether the
conviction of these appellants under the said
provision is sustainable.
7. For this, I may usefully refer to Section
222 Cr.P.C., which reads as follows:-
"222. When offence proved included in offence
charged.-
(1) When a person is charged with an offence
consisting of several particulars, a combination
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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,
thought he was not charged with it.
(2) When a person is charged with an offence
and facts are proved which reduce it to a 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
authorize 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."
8. Here, in this case, though the offences
under Sections 366 and 366A are of more or
less similar in nature, still the punishment
provided for both the offences is imprisonment
for ten years and fine. Therefore, the offence
under Section 366A is not a minor offence
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to Section 366 IPC, so as to invoke Section
222(2) Cr.P.C. Thus, in my considered opinion,
the conviction of these appellants/accused 1 to
4 under Section 366A IPC, without there being
a charge, is illegal and therefore, the same is
liable to be set aside."
16. In the said case the Madras High Court has held
that even though offence under Section 366 and 366A of
IPC are more or less similar in nature, as punishment
provided for those two offences is imprisonment for 10
years and fine, therefore, offence under Section 366-A is
not minor offence to offence under Section 366 of IPC so
as to invoke Section 222(2) of Cr.P.C.
17. In the case on hand also punishment provided
for offence under Sections 307 and 326 IPC is same and
therefore, the offence under Section 326 IPC is not a
minor offence to offence under Section 307 of IPC so as to
invoke Section 222(2) of Cr.P.C.
18. Learned counsel for appellant - accused No.1
has relied on the judgment of the Hon'ble Apex Court in
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the case of Sangaraboina Sreenu Vs. State of Andra
Pradesh reported in (1997) 5 SCC 348 wherein it is held
as under:
2. This appeal must succeed for the
simple reason that having acquitted the
appellant of the charge under Section 302 IPC -
which was the only charge framed against him -
the High Court could not have convicted him of
the offence under Section 306 IPC. It is true
that Section 222 Cr.PC entitles a Court to
convict a person of an offence which is minor in
comparison to the one for which he is tried
but Section 306 IPC cannot be said to be a
minor offence in relation to an offence
under Section 302 IPC within the meaning
of Section 222 Cr.PC for the two offences are of
distinct and different categories. While the basic
constituent of an offence under Section 302 IPC
is homicidal death those of Section 306 IPC are
suicidal death and abetment thereof."
19. In the said judgment, the Hon'ble Apex Court
has held that offences under Sections 306 and 302 of IPC
within the meaning of Section 222 Cr.P.C. are different
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and distinct categories and offence under Section 302 IPC
is homicidal death, those of Section 306 of IPC are suicidal
death and abetment thereof.
20. Learned counsel for appellant - accused No. 1
has placed reliance on the decision of the Patna High Court
in the case of Surendra Rai Vs. State of Bihar reported
in 2012 SCC online pat 914 wherein it is held as under:
9. The learned trial court while disbelieved
the allegation of rape on the informant, Usha
Devi (P.W.3) but held the accused-appellants
guilty for the offence under Section 366 of the
Penal Code, 1860 under which the charge was
not framed and form the offence under Sections
323 and 452 of the Penal Code, 1860.
It is true that Section 222 of the Code of
Criminal Procedure entitles a Court to convict a
person of an offence which is minor in
comparison to the one for which he is tried but
Section 366 of the Penal Code, 1860 cannot be
said to be a minor offence in relation to an
offence under Section 376 of the Penal Code,
1860 as both the offences are of distinct and
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different categories having different
ingredients."
21. Considering the above aspects, an accused
cannot be convicted for a minor offence if it is distinct and
different and having different ingredients.
22. The term, "minor offence" has to be interpreted
in its ordinary sense and not technical sense. The test is
not the gravity of punishment. When a person is charged
with an offence, consisting of several particulars and if all
the particulars are proved then it will constitute the major
offence, while if some of those particulars are proved and
their combination constitutes a minor offence the accused
can be convicted for the minor offence though he was not
charged with it. Thus, a minor offence within the meaning
of section 222 Cr.P.C, would not be something
independent of the main offence or an offence merely
involving lesser punishments. The minor offence should
be composed of some of the ingredients constituting the
main offence and be a part of it. In other words the minor
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offence should essentially be a cognate offence of the
major offence and not entirely a distinct and different
offence constituted by altogether different ingredients.
23. The ingredient of an offence under Section 324
of IPC is voluntarily causing hurt by means of dangerous
weapons. Ingredient of an offence under Section 325 of
IPC is voluntarily causing grievous hurt. Therefore, offence
under Sections 324 and 325 of IPC are not distinct and
different than offence under Section 307 of IPC as
ingredient of hurt is common in the two offences. Offence
under Sections 324 and 325 of IPC can be considered to
be minor offences to offence under Section 307 of IPC.
Therefore, a person who is charged for an offence under
Section 307 of IPC can be convicted for offence under
Sections 324 or 325 of IPC as the case may be if the
ingredients of the said offence are attracted.
24. In the case on hand prosecution has established
that appellant - accused No. 1 has voluntarily caused
grievous hurt. Therefore, appellant - accused No. 1 can be
convicted for offence under Section 325 of IPC as it is
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cognate and minor offence to offence under Section 307 of
IPC even in the absence of charge in view of Section
222(2) of Cr.P.C. The trial Court erred in convicting
appellant - accused No. 1 for offence under Section 326 of
IPC instead of convicting under Section 325 of IPC in the
absence of charge for the said offence as it is a minor
offence to offence under Section 307 of IPC. Therefore,
conviction of appellant - accused No. 1 for offence under
Section 326 of IPC requires to be modified to offence
under Section 325 of IPC. The maximum sentence that can
be imposed for an offence under Section 325 IPC is
imprisonment of either description for a term which may
extend to 7 years and also fine.
25. Learned counsel for appellant - accused No. 1
submits that sentence may be imposed to the period for
which he has already undergone and by imposing fine.
26. Maximum sentence that can be imposed for an
offence under Section 325 IPC is imprisonment of either
description for a term which may extend to 7 years and
also fine. Considering the nature of injuries caused to
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P.W.2 by appellant - accused No. 1, age of appellant -
accused No. 1, i.e., 20 years as on the date of offence and
lapse of time, i.e., 13 years since the date of incident, the
appellant - accused No. 1 can be sentenced to undergo
rigorous imprisonment for a period of 1 year and to pay
fine of Rs.10,000/- and in default to pay the fine amount
to undergo simple imprisonment for a period of 2 months.
27. In the result, the following;
ORDER
I. Appeal is allowed in part.
II. The conviction of appellant - accused No.1 is
modified from offence under Section 326 of IPC
to Section 325 of IPC.
III. The appellant - accused No. 1 is sentenced to
undergo rigorous imprisonment for a period of
1 year and to pay fine of Rs.10,000/- and in
default of payment of fine, to undergo simple
imprisonment for a period of 2 months for
offence under Section 325 of IPC.
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IV. The entire fine amount shall be paid to P.W.2
as compensation.
V. Appellant - accused No.1 is entitled for the
benefit of setoff under Section 428 of Cr.P.C.
Sd/-
JUDGE
LRS
