Karnataka High Court

Ubedulla vs State Of Karnataka on 23 July, 2025

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                                                            NC: 2025:KHC:27990
                                                        CRL.A No. 683 of 2013


                 HC-KAR



                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 23RD DAY OF JULY, 2025

                                            BEFORE
                             THE HON'BLE MRS. JUSTICE M G UMA

                            CRIMINAL APPEAL NO.683 OF 2013 (C)
                BETWEEN:
                1.   UBEDULLA
                     AGED ABOUT 32 YEARS,
                     S/O ABDUL KHADER,
                     R/AT VALACHIL, PADAVPU
                     HOUSE, NEAR SRINIVASA COLLEGE,
                     ADYAR VILLAGE, MANGALORE - 575001.

                2.   MOHAMMED SHARIFF
                     @ KUNTA SHARIF,
                     AGED ABOUT 29 YEARS,
                     R/O KUMPANA MAJAL HOUSE,
                     PARANGIPETE, PADU VILLAGE,
                     BANTWAL TALUK.
                                                                  ...APPELLANTS
                (BY SRI. B. LETHIEF, ADVOCATE)

                AND:
Digitally
signed by       STATE OF KARNATAKA
SWAPNA V
                POLICE SUB-INSPECTOR
Location:
High Court of   BANTWAL TOWN POLICE
Karnataka       STATION, MANGALORE
                                                                 ...RESPONDENT
                (BY SMT. RASHMI JADHAV, ADDL.SPP)

                       THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET
                ASIDE THE ORDER DATED: 29.06.2013/02.07.2013 PASSED BY THE
                III ADDL. DIST., AND SESSIONS JUDGE, D.K., MANGALORE IN
                S.C.NO.102/10      AND   S.C.NO.76/11   -   CONVICTING     THE
                APPELLANTS/ACCUSED FOR THE OFFENCE P/U/S 326 R/W SEC. 34
                OF IPC AND ETC.,
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                                             NC: 2025:KHC:27990
                                          CRL.A No. 683 of 2013


HC-KAR



      THIS CRL.A., COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:    HON'BLE MRS. JUSTICE M G UMA

                       ORAL JUDGMENT

The appellants being accused No.1 in S.C.No.76 of 2011

and accused No.2 in S.C.No.102 of 2010, on the file of the

learned III Additional District and Sessions Judge, D.K.,

Mangalore are impugning the common Judgment of Conviction

dated 29.06.2013 and Order of Sentence dated 02.07.2013

passed along with S.C.Nos.179 & 198 of 2012, convicting them

for the offence punishable under Section 326 r/w Section 34 of

IPC and sentencing to undergo simple imprisonment for a

period of 3 years with fine of Rs.10,000/- each, with default

sentence. While acquitting them for the offences punishable

under Sections 307, 448, 120B r/w Section 149 of IPC and also

acquitting the other accused for all the offences.

2. Brief facts of the case of the prosecution are that,

PW11, being the injured eye-witness was in his shop on

20.05.2008. It is stated that, the accused have criminally

conspired to cause the death of the injured- PW11 and in

furtherance of their common object, they came armed with

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talwars, assaulted the injured, caused bleeding injuries and

thereby, committed the offence punishable under Section 120B,

307, 326 r/w 149 of IPC. PW1 - one of the eye-witnesses

lodged first information as per Ex.P1. The FIR, as per Ex.P15

came to be registered against 4 unknown persons.

Investigation was conducted and the weapons used in

commission of the offence, i.e., 2 talwars were recovered along

with blood stained sample mud etc., After completing the

investigation, the final report came to be filed.

3. The learned Magistrate took cognizance of the

offence, and committed the matter to the learned Sessions

Judge. The Trial Court summoned the accused. The accused

have appeared before the Trial Court, pleaded not guilty and

claimed to be tried. Prosecution examined PWs.1 to PW16, got

marked Exs.P1 to 19 and identified MOs. 1 to 11 in support of

its contention. The accused have denied all the incriminating

materials available on record in their statement recorded under

Section 313 of Cr.PC, but have not chosen to lead any evidence

in their defence.

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4. The Trial Court, after taking into consideration all

these materials on record came to the conclusion that, the

prosecution is successful in proving the guilt of accused Nos.1

and 2 for the offence under Section 326 r/w Section 34 of IPC

and accordingly, convicted and sentenced them, while

acquitting them for the offences punishable under Sections

120B, 307, 448 r/w 149 of IPC and acquitting the other

accused for all the offences. Being aggrieved by the same, the

accused are before this Court.

5. Heard Sri. B. Lethif, learned counsel for the

appellants and Smt. Rashmi Jadhav, learned ASPP for the

respondent. Perused the materials including the Trial Court

records.

6. In view of the rival contentions urged by learned

counsel for both the parties, the point that would arise for my

consideration is:

"Whether the appellants-accused Nos.1 and 2 have made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court?

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My answer to the above point is in the 'Partly Affirmative'

for the following:

REASONS

7. It is the contention of the prosecution that, when

the injured eye-witness- PW11 was in his shop, two unknown

persons came, assaulted him with talwars and caused bleeding

injuries. Immediately after assaulting, they ran away from the

scene of occurrence. PWs.1 to 3 are cited as eye-witnesses to

the incident and PW11 is the injured eye-witness. It is pertinent

to note that, initially PW1 - one of the eye-witnesses filed the

first information as per Ex.P1. According to Ex.P1, 2 unknown

persons came with talwars and assaulted the injured. Later,

they ran away from the scene of occurrence. However, FIR

came to be registered against 4 unknown persons. After

investigation, charge sheet came to be filed against accused

Nos.1 to 8 and they were tried in different Sessions cases and

common judgment came to be passed by the Trial Court.

8. PWs.1 to 3 being the eye-witnesses consistently

deposed before the Court that they were not knowing the

assailants, but they could identify them in the police station.

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PW11 also deposed before the Court that, he had seen the

assailants for the first time on the date of incident, and

identified them in the police station. However, all the witnesses

have identified the accused before the Trial Court. But the fact

remains that, no test identification parade was conducted by

the Investigating Officer to confirm that, accused Nos.1 and 2

are the assailants, who have committed the offence.

9. It is pertinent to note that, it is the contention of

the prosecution that, accused Nos. 1 and 2 have led the police

and the panchas to recover MOs.5 and 6 - the talwars used in

commission of the offence. The recovery mahazar is as per

Ex.P12. PW12 has deposed before the Trial Court that it was

accused Nos. 1 and 2, who have led the police and produced

MOs.5 and 6 which were seized under Ex.P12. Ex.P10 is the

FSL report, according to which, these two talwars-MOs.5 and 6

were stained with blood. Ex.P11 is the serology report issued

by the Scientific Officer, Regional FSL, Mangalore, according to

which, both the talwars were stained with human - B group

blood. Exs.P10 and 11 were marked with the consent of learned

counsel for the accused. These materials are very incriminating

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against accused Nos. 1 and 2. The accused have never disputed

these documents. Even though, PW12 was cross examined at

length, nothing has been elicited from him to disbelieve his

version. If these incriminating materials were considered, in the

light of the evidence of PWs.1 to 3 - the eye-witnesses and

PW11 - the injured eye-witness, I am of the opinion that the

prosecution is successful in proving the guilt of the accused

beyond reasonable doubt. Accused Nos.1 and 2 have not taken

any probable defence except taking the defence of bald denial.

Under such circumstances, they are liable for conviction.

10. Learned counsel for the appellants contended that,

even if it is to be held that the prosecution is successful in

proving the guilt of the accused, accused Nos.1 and 2 cannot

be convicted for the offence punishable under Section 326 of

IPC. The injuries said to have been sustained by PW11 do not

fall under any of the categories under Section 320 of IPC.

11. Ex.P5 is the wound certificate relied on by the

prosecution. As per this document, the injured - PW11

sustained as many as 6 injuries, out of which, injury Nos.1, 2,

4 to 6 were grievous in nature, while injury No.3 is simple.

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Injury Nos.1, 2, 4 to 6 are chop wounds with different

measurements on various parts of the body. Injury No.1 is the

chop wound measuring 8cm x 2cm by bone deep on the left

side of the head with underlying comminuted fracture in the

temporal bone extending into occipital bone. There is reference

to CT scan brain No.16972. Injury No.2 is the chop wound

measuring 7cm x 1.5cm by bone deep on the left side of the

head with underlying comminuted displaced fracture of parietal

bone, there is reference to CT scan of the brain. Injury No.6 is

the chop wound measuring 4cm x 2cm by bone deep over left

arm at middle one third with underlying comminuted fracture of

the shaft of ulna with X-Ray No.80524.

12. As per Section 320 of IPC, 8 kinds of hurts are

designated as grievous in nature. The 7th category is the

fracture or dislocation of a bone or tooth and the 8th category is

any hurt which endangers life, causes the sufferer severe body

pain for a period of 20 days. When Ex.P5 discloses that the

injured had suffered 5 grievous hurts, amongst them 3 are

grievous hurt with comminuted fracture, the same can be

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brought under category 7 under Section 320 of IPC to classify it

as grievous hurt.

13. Learned counsel for the appellants has placed

reliance on the decision of the Division Bench of this Court in

State v/s Sheenappa Gowda and Others1, wherein the

Court considered the wound certificate produced in the said

case, where there is reference to fractures sustained by the

injured. It is held that, unless the prosecution produces the X-

ray for confirmation of the fracture as opined by the Doctor, it

cannot be said that the accused had sustained grievous injury

or fracture. It is also noticed that, during cross examination of

the Doctor, who examined the injured, the accused had never

disputed the nature of the injury as spoken to by him. But it

was held that the same will not dispense with production of X-

ray by the prosecution to prove that the injured had sustained

fracture.

14. The decision rendered by the Division Bench of this

Court aptly applies to the facts of the present case and

therefore, I am of the opinion that accused Nos. 1 and 2 could

2010 SCC Online Kar 5294

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be convicted for the offence punishable under Section 324 of

IPC and not under Section 326 of IPC.

15. I have gone through the impugned judgment of

conviction and order of sentence passed by the Trial Court.

Even though the Trial Court has properly appreciated the

materials on record to convict accused Nos.1 and 2, it has

committed an error in convicting them for the offence

punishable under Section 326 of IPC instead of Section 324 of

IPC and sentencing them as stated above. Hence I answer the

above point partly in the affirmative and proceed to pass the

following:

ORDER

(i) Criminal Appeal is allowed in part.

(ii) The Judgment of Conviction dated 29.06.2013 and

Order of Sentence dated 02.07.2013 on the file of the learned

III Additional District and Sessions Judge, D.K., Mangalore, is

hereby set aside.