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 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 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.

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.

I