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Karnataka High Court
State By Sub-Inspector Of Police vs Sri Ashraf @ Ballary Ashraf on 26 February, 2026
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.A No. 1105 of 2017
C/W CRL.A No. 420 of 2017
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF FEBRUARY, 2026
PRESENT
THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.1105 OF 2017 (A)
CONNECTED WITH
CRIMINAL APPEAL NO.420 OF 2017
IN CRL.A. No.1105/2017:
BETWEEN:
STATE BY SUB-INSPECTOR OF POLICE
ULLAL POLICE STATION
MANGALURU
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-01.
...APPELLANT
(BY SMT. RASHMI PATEL, H.C.G.P.)
Digitally AND:
signed by 1. SRI ASHRAF @ BALLARY ASHRAF
ANJALI M
S/O. ABBOBAKKAR
Location:
AGED ABOUT 39 YEARS
High Court
of Karnataka RESIDING AT FATHUL KUBRA HOUSE
MUKKACHERY, ULLAL VILLLAGE
MANGALURU TALUK-575 020.
2. SRI NAZEEM MUKKACHERRY @ NAZEEM
S/O. UMMARABBA
AGED ABOUT 42 YEARS
RESIDING AT GUDDEMANE
MUKKACHERY ULLAL VILLAGE
MANGALURU TALUK -575 020.
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CRL.A No. 1105 of 2017
C/W CRL.A No. 420 of 2017
HC-KAR
3. SRI AZIZ @ YUROPEAN AZEEZ
S/O. ALIYABBA
AGED ABOUT 41 YEARS
RESIDING AT D.NO.2/10/56
NEAR BARAKA FACTORY, KODI, ULLAL
MANGALURU TALUK - 575 020.
4. SRI MOHAMMED @ FANCY MOHAMMED
S/O. ABDUL RAHIMAN
AGED ABOUT 40 YEARS
RESIDING AT D.NO.18/118
MASTHIKATTE, ULLAL VILLAGE
MANGALURU TALUK - 575 020.
5. SRI MOHIDDIN
S/O. ISMAIL
AGED ABOUT 58 YEARS
RESIDING AT SUNDARI BAGH
ULLAL VILLAGE
MANGALURU TALUK-575 020.
6. SRI KAREEM
S/O. ABOOBAKKAR
AGED ABOUT 37 YEARS
RESIDING AT D.NO.18/8/7
AZAD NAGAR, MASTHIKATTE
ULLAL MANGALURU TALUK-575 020.
7. SRI KANDI AKBAR @ KANDE AKBAR
@ MOHAMMED AKBAR
S/O. UMMARABBA @ KUNHIMONU
AGED ABOUT 35 YEARS
RESIDING AT AZAD NAGAR
2ND CROSS, MASTHIKATTE, ULLAL VILLAGE
MANGALURU TALUK-575 020.
8. IRFAN @ DEADLY IRFAN @ MOHAMMED IRFAN
S/O. K.S. IBRAHIM, MAJOR
RESIDING AT BEHIND JUMMA MASJID
HALEKOTE, ULLAL VILLAGE
MANGALURU TALUK-575 020.
...RESPONDENTS
(BY SRI SHAKEER ABBAS M., ADVOCATE,
FOR SRI SHAHUL HAMEED AND SMT. IRFANA NAZEER,
FOR R-1 TO R-8)
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CRL.A No. 1105 of 2017
C/W CRL.A No. 420 of 2017
HC-KAR
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND
(3) OF THE CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER DATED 6-3-2017 PASSED IN SESSIONS CASE NO.33 OF 2014
ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS
JUDGE, D.K., MANGALURU, IN SO FAR AS ACQUITTING ACCUSED
NOS.2 TO 9/RESPONDENTS OF THE OFFENCES PUNISHABLE UNDER
SECTIONS 120B, 143, 144, 147, 148, 504, 326 and 307 READ WITH
149 OF IPC.
IN CRL.A. NO.420/2017:
BETWEEN:
IMTHIYAZ
S/O. UMMARABBA
AGED ABOUT 31 YEARS
RESIDING AT NOOR MAHAL
AZAD NAGAR, 2ND CROSS
MASTHIKATTE, ULLAL
D.K., MANGALURU-575 020.
...APPELLANT
(BY SRI MUZAFFER AHMED AND SRI SHAKEER ABBAS M.,
ADVOCATES)
AND:
STATE OF KARNATAKA
THROUGH MANGALURU SOUTH POLICE
MANGALURU, D.K. DISTRICT
RERPESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-560 001.
...RESPONDENT
(BY SMT. RASHMI PATEL, H.C.G.P.)
***
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CRL.A No. 1105 of 2017
C/W CRL.A No. 420 of 2017
HC-KAR
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
THE CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
DATED 6-3-2017 PASSED BY THE III ADDITIONAL DISTRICT AND
SESSIONS JUDGE, D.K., MANGALURU, IN SESSIONS CASE NO.33 OF
2014, CONVICTING THE APPELLANT/ACCUSED NO.1 FOR THE
OFFENCES PUNISHALBE UNDER SECTIONS 326 AND 307 OF IPC.
THESE CRIMINAL APPEALS ARE COMING ON FOR HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
and
HON'BLE MR. JUSTICE VENKATESH NAIK T
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE H.P.SANDESH)
Heard Smt. Rashmi Patel, learned High Court
Government Pleader appearing for the State, Sri Muzaffar
Ahmed, learned counsel for accused No.1,
Sri Shakeer Abbas M., learned counsel for accused Nos.2 to 9,
and perused the material available on record.
2. Criminal Appeal No.1105 of 2017 is filed by the State
challenging the judgment of acquittal dated 06.03.2017 passed
by the III Additional District and Sessions Judge, D.K.,
Mangaluru, in Sessions Case No.33 of 2014 against accused
Nos.2 to 9, whereas Criminal Appeal No.420 of 2017 is filed by
accused No.1 being aggrieved by the judgment of conviction
and order on sentence for the offences punishable under
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Sections 326 and 307 of the Indian Penal Code, 1860 (for
short, 'IPC').
3. The factual matrix of the case of the prosecution is
that on 18.10.2013 at about 12:20 p.m., at Hosapalli Masjid,
situated in Melangadi of Ullal Village, accused Nos.1 to 9, being
members of unlawful assembly, armed with deadly weapons
like knife and stones, with common object used it for
committing rioting. All of them conspired to commit illegal act
and caused hurt to PWs.1 and 2, when they were sitting to
perform Jumma Namaz. Further, all the accused breached
public peace in the same community, entered into the Masjid
and accused No.6 intentionally abused PW1 in filthy language
and accused No.1 voluntarily caused grievous hurt to PWs.1
and 2 by means of a knife. PW1 was shifted to Nethaji Hospital
and PW2 was shifted to Unity Hospital. On the same day, at
about 5:00 p.m., after getting information of incident from the
Hospital, the Police Inspector-PW12 visited Nethaji Hospital and
recorded the statement of PW1 and after returning to the Police
Station, he registered the case in Crime No.336 of 2013 for the
offences punishable under Sections 143, 147, 148, 324 and
307 read with Section 149 of IPC.
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4. The Police recorded the statements of eyewitnesses,
who were present at the time of the incident, investigated the
matter, collected all materials and filed the charge-sheet.
Accused Nos.1 to 9 appeared before the Court, pleaded not
guilty and claimed trial. Hence, the prosecution, in order to
prove its case, examined PWs.1 to 12, got marked Exs.P1 to
P28 and MOs.1 to 9. On closure of the evidence of the
prosecution witnesses, the trial Court recorded the statements
of accused Nos.1 to 9 under Section 313 of the Code of
Criminal Procedure, 1973, and the accused have also led their
defence evidence as DWs.1 to 7 and got marked Exs.D1 to D3
since it was dispute between the rival group of the very same
religion and community with regard to conducting prayer.
5. The trial Court considered the evidence available on
record that there was no conspiracy between accused Nos.2
and 3 and so also, with other accused. In the absence of any
material for conspiracy and also overt act of other accused
persons, the trial Court came to the conclusion that the
prosecution not proved the case against accused Nos.2 to 9 and
convicted only accused No.1 taking note of the fact that he
inflicted injury on PWs.1 and 2. The trial Court accepted the
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evidence of PWs.1 and PW2 and other eyewitnesses, and
invoked the offences punishable under Sections 326 and 307 of
IPC and imposed rigorous imprisonment for ten years with fine
of Rs.5,000/- for both the offences against accused No.1. Being
aggrieved by the judgment of acquittal against accused Nos.2
to 9, the State filed Criminal Appeal No.1105 of 2017 and
being aggrieved by the judgment of conviction and order on
sentence, accused No.1 filed Criminal Appeal No.420 of 2017.
6. Learned High Court Government Pleader appearing for
the State would vehemently contend that the incident has
taken place inside the Masjid. All the accused by forming
unlawful assembly, shared common intention and in
furtherance of common object, accused No.1 entered the
Masjid with knife and other accused with stones, inflicted injury
on the people, who were offering prayer at the Masjid. The trial
Court ought not to have extended the benefit of doubt in favour
of accused Nos.2 to 9 as PWs.1 to 8 have categorically deposed
with regard to the role of each of the accused persons and
hence, it requires interference of this Court and prays to set
aside the acquittal order passed against accused Nos.2 to 9.
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7. Learned counsel for accused No.1 mainly contend that
though the incident has taken place inside the Masjid and when
many number of persons were present in the Masjid for prayer,
but none of them attempted to pacify the incident since there
was no such incident as alleged by the prosecution. If any such
incident had taken place, the persons offering prayer in the
Masjid ought to have prevented the incident. Further, it is
contended that that very same PW9-Doctor cannot treat PWs.1
and 2 at the same time at 12.40 p.m. in two different Hospitals
and further, the Doctor has categorically admitted the distance
between both the Hospital is 10 kms. and hence, it is highly
impossible that PWs.1 and 2 sustained injury in the said
incident and hence, the case of the prosecution cannot be
accepted. Therefore, the trial Court committed error in
considering the evidence of PWs.1 and 2 and also the other
eyewitnesses. He further contended that the dispute is of the
year 2013, that too, with regard to conducting prayer at the
Masjid and its administration. Therefore, he prays this Court to
take note of the said fact into consideration and allow the
appeal filed by accused No.1.
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8. Per contra, the learned High Court Government Pleader
submits that the Court has to take note of nature of injuries
inflicted by accused No.1 with knife, that too, on the vital part
of PWs.1 and 2. She also submits that PW2 was in the Hospital
for twenty-eight days, sustained fracture of rib and spent
amount of Rs.4.90 lakh and the same is spoken by PW9-Doctor
in his evidence. Therefore, she prays the Court to take note of
the said fact into consideration and convict accused No.1.
9. Having heard the learned counsel for respective parties
and on perusal of the material available before the Court, i.e.,
ocular evidence of PWs.1 to 12 as well as the documentary
evidence, the points that would arise for consideration of this
Court are:
i. Whether the trial Court committed error in
acquitting accused Nos.2 to 9?
ii. Whether the trial Court committed error in
convicting accused No.1 for the offences punishable
under Sections 326 and 307 of IPC and requires
interference of this Court?
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10. We have considered both oral and documentary
evidence available on record and given our anxious
consideration to the evidence of the prosecution witnesses.
11. According to the prosecution, PWs.1 and 2 are the
injured eyewitnesses and PWs.3 to 8 are the eyewitnesses.
Having considered the material on record, there is minor
discrepancy and no major discrepancy. The only discrepancy is
with regard to Ex.P4 and Ex.P19-Wound Certificates, issued by
PW9-Doctor. The treatments are given by the very same Doctor
at 12.40 p.m., but at two different Hospitals at a distance of
7.5 kms. and 2.5 kms. from the place of incident. The fact is
that PW2 was taken to Unity Hospital, where he was treated for
twenty-eight days for having sustained incised stab wound
measuring 8cms x 3cms obliquely placed over the left lower
chest at 10th inter costal space. PW1 was in the Hospital for
three days and he had sustained incised penetrating injury
(stab wound) measuring 10cm x 2cm obliquely placed over the
left side of the chest and shoulder junction. The same is evident
from the case-sheet and records which have been marked
before the trial Court and also PW2 spending Rs.4.90 lakh for
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treatment at Unity Hospital, the same is also spoken by PW9-
Doctor. No doubt, PW9, in his evidence, says that if PW2 was
not given timely treatment, it would have led to the death of
him. But the factual aspect is clear that it is not the vital part,
but it was below near the rib and there was fracture and the
same is supported by X-ray. Though PWs.1 and 2 have deposed
regarding intention to take away their life, but they have
sustained only one injury. If accused No.1 really had intended
to commit the murder, he would have inflicted more number of
injuries, but PWs.1 and 2 have sustained only one injury.
12. It is also important to note that the Court has to take
note of material contradictions in the evidence of other
eyewitnesses and they have also spoken that others have also
assaulted with stones, however, there are no stone injuries
either on PWs.1 and 2. Hence, the evidence of other witnesses
cannot be believed with regard to the injuries caused by others
with stones and also it is clear that stones were found outside
the Masjid and not inside the Masjid.
13. In order to connect accused Nos.2 and 3, specific
allegation is made that both of them have conspired, but there
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is no direct evidence with regard to conspiracy and conspiracy
would be proved only by placing on record the circumstantial
evidence. In order to substantiate the same, no material is
placed before the Court either oral evidence, or documentary
evidence. Hence, the trial Court, having taken note of the fact
that there is no material available against accused Nos.2 to 9,
rightly acquitted them.
14. Now, coming to the aspect of injury sustained by
PWs.1 and 2. PW1 was treated in the Hospital for three days
and PW2 was treated in the Hospital for twenty-eight days, his
injury was grievous in nature, same is supported by X-ray and
he spent Rs.4.90 lakh towards his treatment. The incident has
occurred between the very same religion and the very same
sect with regard to conducting prayer and administration of
Dargah, and further, the incident had taken place in the year
2013 and when the other accused persons have been acquitted
by extending the benefit of doubt and there is no inconsistency
in the evidence of the prosecution witnesses with regard to the
nature of injury sustained by PW2 that he sustained injury at
12:20 p.m. and was immediately shifted to the Hospital within
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twenty minutes, i.e. at 12:40 p.m., and thereby, he was
treated. Taking into note of the rival conflict between the same
community as well as incident had taken place in the year
2013, it would not be apt for the Court to take note of mens
rea for invoking Section 307 of IPC. The trial Court committed
error in invoking both Sections 326 and 307 of IPC. Therefore,
accused No.1 is convicted only for the offence punishable under
Section 326 of IPC and the sentence is reduced from ten years
to one year with fine of Rs.7.00 lakh taking into consideration
of the fact that the incident had taken place between the same
sect and same community and now, PW2 and accused No.1 are
residing as neighbours and leading happy and peaceful life.
Further, there is no criminal antecedent against accused No.1.
In view of the discussion made above, we pass the following
ORDER
i. Criminal Appeal No.1105 of 2017 filed by the State is
dismissed.
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ii. The judgment of acquittal dated 06.03.2017 passed by
the III Additional District and Sessions Judge, D.K.,
Mangaluru, in Sessions Case No.33 of 2014 against
accused Nos.2 to 9 are confirmed.
iii. Criminal Appeal No.420 of 2017 filed by accused No.1 is
allowed-in-part.
iv. The impugned judgment of conviction and order on
sentence is modified. The appellant/accused No.1 is
convicted for the offence punishable under Section 326 of
the Indian Penal Code, 1860, and sentenced to undergo
simple imprisonment for a period of one year with fine of
Rs.7.00 lakh (Rupees seven lakh only).
v. Accused No.1 is directed to deposit the fine amount of
Rs.7.00 lakh and to surrender before the trial Court, on
or before 27.04.2026, to serve remaining sentence.
Accused No.1 is given set off under Section 428 of the
Code of Criminal Procedure, 1973, for the period of
sentence, he has already undergone.
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vi. Out of the fine amount of Rs.7.00 lakh, Rs.6.50 lakh is
ordered to be released in favour of PW2-Sri Samshuddin,
Rs.25,000/- is ordered to be released in favour of PW1-
Sri Sawad Abdulla, and Rs.25,000/- to be vested with the
State.
vii. It is made clear that, accused No.1 shall not be granted
further time for deposit of fine amount of Rs.7.00 lakh, if
it is not paid on or before 27.04.2026.
Registry is directed to send the trial Court records along
with copy of this judgment, forthwith.
In view of disposal of main appeals, pending interlocutory
applications, if any, stand dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
KVK
List No.: 1 Sl No.: 7
