Chand Pasha Vs State of Karnataka

THIS CRIMINAL APPEAL IS FILED U/S.374 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:21/29.11.2014, PASSED BY THE II ADDL.S.J., KOLAR IN S.C.NO.195/2011 - CONVICTING THE APPELANTS OF FOR THE OFFENCE P/U/S 144, 148, 307 R/W SEC. 149 OF IPC AND ACQUIT THE ACCUSED APPELLANTS OF ALL THE CHARGES LEVELLED AGAINST THEM.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY,

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JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL

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ORAL JUDGMENT

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The appellants/accused Nos.1, 2, 3, 4 and 6 are before this Court being aggrieved by the judgment of conviction dated 21.11.2014 and order on sentence dated 29.11.2014, passed by the learned II Addl.Sessions Judge, Kolar, (hereinafter referred to as `trial Court’), in Sessions Case No.195/2011, by which the trial Court has convicted them for the offences punishable under Sections 144, 148, 307 r/w. Section 149 of the Indian Penal Code, 1860 and sentenced them accordingly.

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The summary of the case of the prosecution is that, complainant - Mohammed Khuddus filed a complaint as per Ex.P-1 stating that, there was a vacant space measuring 40' x 50' on the rear side of his residential house, which was being claimed by one Chand Pasha @ Mohammad Yakub, which was the reason for frequent quarrels.

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That on 08.05.2010, at about 6.30 p.m., when the

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complainant was at his home, the children of said Chand Pasha viz., Shabbir Pasha, Sikandhar Pasha, Javid Pasha, Jamsheed Pasha and his wife Sayeeda Bhanu, forming an unlawful assembly, trespassed into the house along with weapons and assaulted the complainant and his younger brother Mohammad Basheer and with an intention of eliminating him, accused No.1 Chand Pasha assaulted on his head with the machhet; accused No.6 Jamsheed assaulted on his left hand; accused No.3 Sikandhar Pasha, accused No.2 Shabbir Pasha and accused No.4

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Javid Paasha assaulted him with long chopper. When the complainant and others tried to intervene and to separate

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them, Mohammad Gafoor and his wife Zeenath Unnisa assaulted the complainant and his wife. That the said persons had come to the spot in a TATA Sumo vehicle

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bearing registration No.KA-05-MD-492. The injured were taken to SNR Hospital at Kolar and at the advice of the

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Medical Officer, they were further taken to R.L.Jalappa Hospital, where they underwent the treatment.

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Pursuant to the said complaint, a crime was registered by the jurisdictional police for the offences punishable under Sections 143, 147, 148, 324, 307 read with Section 149 of IPC. After investigation, charge sheet was filed, charges were framed and matter was taken up for trial.

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To prove the guilt of the accused persons, the prosecution examined 12 witnesses as PW-1 to PW-12, marked 8 documents as Exs.P-1 to P-8 and produced 5 materials objects as MO-1 to MO-5. No evidence was led on behalf of the accused.

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The trial Court framed the following points for its consideration :

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1. Whether the prosecution proves beyond all reasonable doubt that on or about 8.5.2010 at 6.30 p.m., near the house of CW.1 Mohammed Khuddus at Seethahalli village, accused No.1 to 6 armed with deadly weapons like chopper and long choppers were members of an unlawful assembly,

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the common object of which was to commit murder of CW.1 Md. Khuddus, CW.2 Md Gafoor and CW.4 Jeeyath Unnisa and thereby committed an offence punishable U/S 144 of IPC?

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2. Whether the prosecution proves that accused No.1 to 6 being members of unlawful assembly, the common object of which was to commit murder of CW. 1, 2 and 4, committed the offence of rioting and at that time were armed with deadly weapons like choppers and long choppers which are if used as weapon were likely to cause death and thereby committed an offence punishable u/s 148 of IPC?

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3. Whether the prosecution proves that accused No.1 to 6 being members of unlawful assembly, the common object of which was to commit murder of CW.1, 2 and 4 and in prosecution of common object of such unlawful assembly, did an act, accused No.1 assaulted CW.1 Md.Khuddus with chopper on his head, elbow, right hand fingers; accused No.2 with but end of butcher's knife and accused No.6 with chopper assaulted CW.2 Mohammed Gafoor, accused No.4 with chopper, accused No.6 with chopper and accused No.5 with hands assaulted CW.4 Jeeyath Unnissa and caused bleeding injuries and that if by that act accused had caused the death of CW1, 2 and 4, they would have been guiltyt of murder and thereby committed an offence punishable under Section 307 r/w. Section 149 of IPC?"

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After hearing and on appreciation of the material

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evidence on record, the trial Court answered point Nos. 1 to 3 in the affirmative in respect of accused Nos.1 to 4 and 6 and passed the impugned order convicting -

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Accused No.1 to 4 and 6 viz Chand Pasha, Shabbir Pasha, Sikandhar Pasha, Javid Pasha and Jamsheed respectively under Sec. 235(2) of Cr.P.C., for the offences punishable under Sec. 144, 148, 307 r/w Sec. 149 IPC.

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Accused No.5 Smt Sayeeda Bhanu is acquitted under Section 235 (1) Cr.P.C., of the offences punishable under Sec. 144, 148, 307 r/w Sec. 149 IPC.

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Consequently, passed the order of sentence,

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which reads as under :

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Accused No.1 to 4 and 6 viz Chand Pasha, Shabbir Rasha, Sikandhar Pasha, Javid Pasha and Jamsheed respectively are sentenced to undergo Simple Imprisonment for a period of six months and also to pay fine of Rs.500/- each for an offence punishable U/S 144 of IPC.

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Accused No.1 to 4 and 6 are sentenced to undergo Simple Imprisonment for a period of one year and also to pay fine of Rs.500/- each for an offence punishable U/S 148 of IPC.

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Accused No.1 to 4 and 6 are sentenced to undergo Rigorous Imprisonment for a period of five years and also to pay fine of Rs.2,000/- each for an offence punishable U/S 307 r/w Sec. 149 of IPC.

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In default of payment of fine, they shall under go SI for another one year. However the substantive sentence shall run concurrently. In the event of deposit of fine amount, a sum of Rs.10,000/- shall be paid to PW.1, as compensation under Sec.357 of Cr.P.C.,

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Accused No.3, 4 and 6 are in judicial custody since from 17.1.2013 in this case The period of detention undergone by accused No.3, 4 and 6 is to be set off against the sentence of imprisonment under Sec.428 of Cr.P.C.

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Being aggrieved by the judgment and order on sentence passed by the trial Court, the accused/appellant Nos.1, 2, 3, 4 and 6 are before this Court.

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Learned counsel for the accused/appellants taking this Court through the records at the out set submits that the trial Court has grossly erred in convicting and sentencing the accused/appellants persons for the offences, more particularly for the offences punishable under Section 307. He submits that there are no cogent acceptable proof of injured witnesses viz., PW-1, PW-2, PW-3 and PW-6 sustaining grievous injuries. He draws attention of this Court to the wound certificates produced by the prosecution at Exs.P-4 to P-7. Ex.P-6 is the wound certificate which purportedly pertain to the injuries sustained by PW-1; Ex.P-5 is the wound certificate which pertains to the injuries sustained by PW-2; Ex.P-4 is the

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wound certificate which pertain to the injuries sustained by PW-3 and Ex.P-7 is the wound certificate which pertain to the injuries sustained by PW-6.

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Referring to the contents of the said wound certificates, learned counsel submits that though the said certificates, except Ex.P-5, indicate certain injuries being described as grievous injuries, involving fracture, no X-Ray documents are produced. He submits that the prosecution who alleges commission of offence causing grievous injuries by the accused/appellants, is duty bound to discharge its burden beyond reasonable doubt by producing legally acceptable medical records in justification of their allegation. Mere evidence of the Medical Officer in furtherance to the wound certificates produced would not suffice compliance of this mandatory requirement. Therefore, he submits that the trial Court ought not have convicted the accused/appellants for the offence punishable under Section 307 of IPC.

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Learned counsel for the appellants relies on the judgment of the Division Bench of this Court in the case of State -vs- Sheenappa Gowda and others, reported in 2011 (4) KCCR 2759 (DB). Referring to paragraph-18 of the said judgment, he submits that the law with regard to requirement of production of X-ray reports to prove the nature of the injuries is well settled. He submits that the said position of law is followed and reiterated by another Division Bench of this Court in its order dated 20.01.2026, in the case of M.Hariprakash -vs- State of Karnataka and others, Criminal Appeal No.2052/2017, dated 20.01.2026.

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Learned counsel submits that since the prosecution has failed to discharge its burden beyond reasonable doubt to bring home the guilt of the accused for the offence punishable under Section 307 of IPC, the only option that was left for the trial Court to have tried the accused/appellants for the offence punishable under Section 324 of IPC. Referring to the provisions of Section

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324 of IPC, learned counsel submits that since the said

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provision provides for punishment in the nature of imprisonment, as well as fine, ends of justice would meet if the accused/appellants are imposed with the fine

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amount. He submits that this is the course of action adopted by the Division Bench in the case of aforesaid order dated 20.01.2026, in case of M.Hariprakash -vsState of Karnataka and others, ( referred supra).

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Learned counsel further submits that the accused/appellants were incarcerated for a period of 51 days. Besides the relationship between the accused/appellants and the respondent/complainant and injured witnesses, it also needs to be kept in mind that, in the incident, accused No.1 had sustained simple injuries and accused No.2 had sustained grievous injuries and in this regard, supporting medical documents have been placed on record by filing IA.No.1/2026. Hence, he seeks for allowing of the appeal and to modify the judgment of

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conviction and order on sentence restricting the same to the offence punishable under Section 324 of IPC.

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In response, learned HCGP justifies the judgment passed by the trial Court and taking this Court through the evidence, submits that PW-1 to PW-6 are the injured witnesses and their testimony cannot be discarded. He submits that the injuries suffered by them is evident in Exs.P-4 to P-7, which describes the nature of injuries sustained by them requiring no further proof in this regard. He further submits that the prosecution has proved beyond reasonable doubt that the accused/appellants with the predetermined mind had come in vehicles with the weapons loaded therein, with a deliberate intention of causing bodily injuries to the victim with an intention to eliminate them. He further submits

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that motive for commission of the offence is culpable. Therefore, even if there is any lapse on the part of the prosecution in not producing the X-rays as sought to be contended, the same would not take away the core of the

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case of the prosecution. Therefore, he submits that the appellants have not made out any ground to interfere in the matter and seeks for dismissal of the appeal.

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Heard learned counsel for the appellants and the learned High Court Government Pleader for the respondent State and Perused the material placed before this Court, including the impugned judgment and also trial Court records.

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The point that arises for consideration in this

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appeal is:

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1. Whether the trial Court is justified in the facts and circumstances of the case in convicting the accused persons for the offences punishable under Sections 144, 148, 307 read with Section 149 of IPC?

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2. Whether the appellants had made out the case for interference?

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The prosecution has examined 12 witnesses, out

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of them, PW-1, PW-2, PW-3, PW-5 and PW-6 are the injured witnesses. As rightly pointed out by the learned HCGP, there is nothing on record to discard or disbelieve

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the evidence of these witnesses on occurrence of the incident. Besides, there is also no denial of the incident having taken place as alleged in the complaint and the charge sheet, inasmuch as, accused No.1 and accused No.2 also stated to have suffered injuries. Having said that, as insisted by the learned counsel for the accused/appellants, the question that requires consideration is whether the prosecution is successful in discharging its burden of proving the commission of offences punishable under Section 307 of IPC by the appellants/accused.

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Section 307 of the IPC reads as below:-

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“307. Attempt to murder.- Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.”

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Section 320 of IPC encapsulates the kinds of

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hurt that are designated as grievous, which is extracted

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hereunder :

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" 320. Grievous hurt.—The following kinds of hurt only are designated as “grievous”:—

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First.—Emasculation.

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Secondly.—Permanent privation of the sight of either eye.

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Thirdly.—Permanent privation of the hearing of either ear.

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Fourthly.—Privation of any member or joint. Fifthly.—Destruction or permanent impairing of the powers of any member or joint.

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Sixthly.—Permanent disfiguration of the head or face.

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Seventhly.—Fracture or dislocation of a bone or tooth.

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Eighthly.—Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."

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In order to constitute character of grievous injury

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which would and can be relied to bring home the guilt

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under Section 307 of IPC, the prosecution is required to prove the nature of injuries as falling within the designation as provided under Section 320 of IPC.

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Ex.P-6 is the wound certificate pertaining to the

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injuries suffered by PW-1. The contents of the said document reads as under :

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" (1) gapping wound on centre forehead measuring 6' x 3'

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(2) gapping wound on left wrist measuring 3' x 3' with fracture of right and little finger and fracture of middle phalanx of left ring finger,

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(3) gapping wound over left elbow joint measuring 2' x 2',

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(4) gapping wound over right big toe measuring 2' x 2'.

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Ex.P-5 is the wound certificate pertaining to the

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injuries suffered by PW-2. The contents of the said document reads as under :

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(1) gapping wound over left wrist measuring 3' x 3', tendon exposed.

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Ex.P-4 is the wound certificate pertaining to the

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injuries suffered by PW-3. The contents of the said document reads as under :

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(1) fracture of right 8^th rib

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(2) Tenderness over right shoulder 6' x 2'.

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Ex.P-7 is the wound certificate pertaining to the

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injuries suffered by PW-6. The contents of the said document reads as under :

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(1) Open type two in numbers involving 1^st and 2^nd finger with fracture and loss of bone of distal phalanges of right index finger,

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(2) unicortical fracture of left tibia with no distal avulsion,

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(3) gapping would of left leg 2' x 3',

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(4) gapping wound left side of back measuring 4" x 1/2'.

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Ex.P-6 indicate injury No.2, which is " gapping wound

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left wrist 3" x 3" ring little fingers " to be the grievous injury.

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Ex.P-4 indicates injury No.1, which is " fracture of right 8^th rib " to be the grievous injury.

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Ex.P-7 indicates injury Nos.1 and 2, which are " open type wound 1^st and 2^nd finger and loss of bone of distal

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phalanx of right index finger, and unicortical fracture of left tibia".

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In support of the wound certificates, the prosecution has examined PW-12 Dr.Shankar Kumar. He has reiterated the contents of the wound certificates extracted hereinabove. Except these exhibits and the oral

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testimony of PW-12, no other evidence is brought on record by the prosecution. Even there are no records with regard to nature of treatment administered or the duration of the treatment, whether as outpatient or inpatient, at least to indicate the nature of injuries sustained by PWs.1, 2, 3 and 5.

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As rightly pointed by the learned counsel for the appellants, mere production of wound certificates, more particularly to describe the nature of grievous injuries which involve fracture, can only be proved beyond reasonable doubt by production of X-rays as held by the Division Bench of this Court in the case of State -vsSheenappa Gowda and others,(supra),

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wherein at Paragraph-18, the Division Bench held as

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"18. Therefore, the question for determination is limited to find out whether the said injury No.2 is proved to be a grievous injury sustained by PW.4. It is well settled that in criminal cases, the burden of proving the guilt of the accused is always on the prosecution and that burden would not shift unless there is a presumption or defence as enumerated in the Penal Code, 1860 is taken by the accused. In this case, the defence taken by the accused is one of denial. It is clear from the evidence of PW.1 that he has given description of injury on physical examination of PW.4 and has come to the conclusion that there was fracture of the middle phalanx. It is well settled that when the prosecution alleges that grievous injury has been caused, it is necessary for the prosecution to prove the same beyond reasonable doubt. The evidence of PW.1 would only show that there was injury as described in the wound certificate - Ex.P2. When PW.1 suspected such fracture, he ought to have referred the injured - PW.4 for taking X-ray to confirm his finding that there is fracture of middle phalanx. It is now well settled that unless the prosecution produces the X-ray for confirmation of fracture opined by the Doctor on medical examination clinically it cannot be said that the accused have caused grievous injury of fracture. It is true that in the cross-examination of PW.1, the learned counsel appearing for the accused has not disputed the nature of injuries spoken to by PW.1.

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However, the same would not dispense with the production of the X-ray by the prosecution to prove beyond reasonable doubt that the injured had sustained fracture of middle phalanx, which is an opinion given by PW.1 Doctor only on clinical examination of PW.4, the injured. Therefore, it is clear that the finding of the learned Sessions Judge holding that the prosecution has failed to prove that the accused Nos.1 to 3 and 5 have committed the offence punishable under Section 326 of I.P.C. and the offence committed by them falls within the ambit of Section 324 of I.P.C. is justified."

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The aforesaid position of law has been followed by another Division Bench of this Court in the case of M.Hariprakash -vs- State of Karnataka and others, (supra).

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Thus, on appreciation of material evidence produced by the prosecution and in the light of settled position of law with regard to requirement of proof of grievous injuries by producing the X-rays, this Court is of the considered view that judgment of conviction and order on sentence passed by the trial Court for the offence punishable under Section 307 of IPC cannot be sustained.

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Having said that, the case against the accused/appellants for the commission of offence

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punishable under Section 324 of IPC cannot be ruled out. The sentence may have therefore be reduced from the offence punishable under Section 307 of IPC to the offence punishable under Section 324 of IPC, as evidenced from the wound certificates referred hereinabove. Therefore, this Court is inclined to accept the submission made by the learned counsel for the accused/appellants to reduce the sentence from one punishable under Section 307 of IPC to Section 324 of IPC.

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The trial Court in addition to sentencing the accused/appellants for rigorous imprisonment of five years, has imposed the fine amount of Rs.500/- each for the offence punishable under Section 144 and fine amount of Rs.500/- each for the offence punishable Section 148 of IPC and Rs.2,000/- each for the offence punishable under Section 307 r/w. Section 149 of IPC.

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Considering the lis between the parties and the background of the dispute being the piece of land and also the age of the accused and their inter se relation namely, accused No.1 being the son of maternal aunt of the complainant, accused Nos.2 to 4 and 6 being the cousin brothers of the injured witnesses, it cannot be said that they are the habitual offenders. This Court therefore deems it appropriate to modify the order of sentence passed by the trial Court by enhancing the fine amount.

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Thus, for the aforesaid reasons and alalysis and considering the overall circumstances of the case and the evidence on record, this Court proceeds to pass the following :

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ORDER

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[i] The appeal filed by accused/appellants is allowed in part;

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[ii] The judgment of conviction dated 21.11.2014 and order on sentence dated 29.11.2014, passed by the learned

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II Addl.District and Sessions Judge, Kolar, in Sessions Case No.195/2011, to the extent of sentencing the accused/appellants to undergo six months imprisonment for the offence punishable under Section 144 of IPC, one year simple imprisonment for the offence punishable under Section 148 of IPC and five years rigorous imprisonment for the offence punishable under Section 307 r/w. Section 149 of IPC and default of payment of fine, he shall undergo sentence of one year, is set aside. Accused/appellants are convicted for the offence punishable under Section 324 of IPC and sentenced them to pay enhanced fine amount of Rs.1 lakh each, that is Rs.4,00,000/- in total, within a period of one month from today and in default of payment of fine amount, they shall undergo simple imprisonment for six months .

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[iii] Out of the fine amount to be deposited as above, a sum of Rs.75,000/- each shall be paid to injured PWs.1 to 3 and 6 and the remaining amount shall be retained by the State.

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[vi] The bail bonds, if any, executed by the accused/appellants stands cancelled.

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