Ubedulla Vs State of Karnataka

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

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HC-KAR

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

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CORAM: HON'BLE MRS. JUSTICE M G UMA

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ORAL JUDGMENT

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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.

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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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HC-KAR

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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.

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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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HC-KAR

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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.

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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.

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In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is:

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“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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HC-KAR

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My answer to the above point is in the 'Partly Affirmative' for the following:

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REASONS

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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.

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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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HC-KAR

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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.

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

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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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HC-KAR

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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.

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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.

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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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HC-KAR

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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.

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As per Section 320 of IPC, 8 kinds of hurts are designated as grievous in nature. The 7^th category is the fracture or dislocation of a bone or tooth and the 8^th 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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HC-KAR

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brought under category 7 under Section 320 of IPC to classify it as grievous hurt.

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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.

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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

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1 2010 SCC Online Kar 5294

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HC-KAR

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be convicted for the offence punishable under Section 324 of IPC and not under Section 326 of IPC.

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I have gone through the impugned judgment of

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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

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IPC and sentencing them as stated above. Hence I answer the above point partly in the affirmative and proceed to pass the following:

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ORDER

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(i) Criminal Appeal is allowed in part.

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(ii) The Judgment of Conviction dated 29.06.2013 and

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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.

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(iii) Consequently, accused Nos.1 and 2 are convicted for the offence punishable under Section 324 r/w Section 34 of