Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Online)(Kar) 43466

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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 3^RD DAY OF JANUARY, 2022
BEFORE
THE HON’BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL APPEAL NO.200084/2015
BETWEEN:
Maiboob @ Sharu s/o Dastagirsab Mulla,
Age : 46 years, Occ: Mason,
R/o Otihal, Tq : Sindagi,
Dist : Vijayapur.
… Appellant
(By Sri Shivanand V.Pattanshetti, Advocate)
AND:
The State of Karnataka
R/by Addl. SPP,
High Court of Karnataka,
Kalaburagi Bench.
(Through Sindagi P.S.)
… Respondent
(By Sri Sharanabasappa M. Patil, HCGP)
This Criminal appeal is filed under Section 374(2) of
Criminal Procedure Code praying to set-aside the judgment
of conviction and order of sentence dated 28.07.2015 and
31.07.2015 respectively passed by the II Addl. Sessions
and Special Judge, Vijayapur in Special Case No.6/2014
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and acquit the appellant/accused in the interest of justice
and equity.
This appeal coming on for Final Hearing this day, the
Court delivered the following:

The prosecution must prove beyond reasonable doubt that the accused caused grievous injury to the complainant in order to convict the accused under Section 326 of IPC.

Headnote:
CRIMINAL LAW - SECTION 326 IPC - [ASSAULT WITH DANGEROUS WEAPONS] - [EVIDENCE] - [MEDICAL EVIDENCE] - [X-RAY] - [GRIEVOUS INJURY] - [PROBATION] - [FIRST TIME OFFENDER] - Prosecution failed to prove that the injury sustained by the complainant was a grievous injury as defined under Section 320 of IPC in the absence of furnishing the original x-ray film or the radiological report. Hence, the accused's conviction under Section 326 of IPC was modified to Section 324 of IPC. Since the accused was a first-time offender with no criminal antecedents, he was granted probation upon executing a bond and paying a fine.
Fact of the Case:

The accused was convicted under Section 326 of IPC for assaulting the complainant with a knife and causing grievous injuries. The accused appealed against the conviction, arguing that the prosecution failed to prove that the injury was grievous and that the sentence was excessive.
Finding of the Court:

The court held that the prosecution failed to prove that the injury sustained by the complainant was a grievous injury as defined under Section 320 of IPC in the absence of furnishing the original x-ray film or the radiological report. Hence, the accused's conviction under Section 326 of IPC was modified to Section 324 of IPC. Since the accused was a first-time offender with no criminal antecedents, he was granted probation upon executing a bond and paying a fine.
Issues: 1. Whether the prosecution proved beyond reasonable doubt that the accused caused grievous injury to the complainant?2. Whether the accused was guilty of the offence punishable under Section 326 of IPC?3. Whether the sentence imposed by the trial court was excessive?
Ratio Decidendi: 1. The prosecution failed to prove that the injury sustained by the complainant was a grievous injury as defined under Section 320 of IPC in the absence of furnishing the original x-ray film or the radiological report.2. Hence, the accused's conviction under Section 326 of IPC was modified to Section 324 of IPC.3. Since the accused was a first-time offender with no criminal antecedents, he was granted probation upon executing a bond and paying a fine.
Final Decision: The accused's conviction under Section 326 of IPC was modified to Section 324 of IPC. He was granted probation upon executing a bond and paying a fine.

Accused, who has been convicted for the offence

punishable under Section 326 of Indian Penal Code (for

short, 'IPC'), ordered to pay a fine of `5,000/- and to

undergo rigorous imprisonment for a period of three years

has filed the present appeal.

Brief facts of the case are as under :-

A complaint came to be filed contending that on

30.12.2013, at about 6.00 a.m., when the complainant

had been to attend the nature call, accused knowing fully

well that accused belongs to Scheduled Caste, with an

intention to kill him attacked him by abusing him in filthy

language and thereafter, he stabbed with knife on the left

shoulder near the chest and caused grievous injuries. The

complainant somehow escaped from the clutches of the

accused and lodged a complaint against the accused.

Sindagi Police registered a case in Crime No.317/2013 at

about 8.30 p.m. for the offences punishable under

Section 307 of IPC and Sections 3(1)(x) and 3(2)(v) of

Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989 (for short, SC/ST (POA) Act). The

jurisdictional police after thorough investigation laid

charge-sheet against

the

accused for the

offences

punishable under Sections 504, 201 and 307 of IPC and

Sections 3(1)(x), 2(v) of SC/ST (POA) Act. Presence of the

accused was secured and charges were framed and

therefore, trial was held as he did not plead guilty.

In order to prove the case, prosecution

examined in all 10 witnesses as PWs.1 to 10 and relied on

16 documentary evidences, which were exhibited and

marked as Exs.P1 to P16 and also relied on five material

objects, which were marked as MOs.1 to 5. Thereafter,

accused statement as contemplated under Section 313 of

Code of Criminal Procedure (for short, 'Cr.P.C') came to be

recorded,

wherein,

accused

has

denied

all

the

incriminating materials found in the prosecution case.

Accused did not examine himself as a witness

nor filed any written statement as is contemplated under

Section 313(5) of Cr.P.C. However, in the cross-

examination of prosecution witnesses, marked a portion of

the complaint as Ex.D1 and three charge-sheets were filed

against the complainant in different crime numbers of Indi

and Sindagi Police Station as Exs.D2 to D4.

Learned trial Judge after considering the

material evidence on record and hearing the parties in

detail has convicted the accused for the offence punishable

under Section 326 of IPC and acquitted the accused for the

remaining offences. The trial Judge also imposed fine of

`5,000/- and ordered rigorous imprisonment for a period

of five years against the accused for the offence

punishable under Section 326 of IPC. Being aggrieved by

the same, accused is before this Court in this appeal.

In the appeal the following grounds have been

urged :-

That, the judgment of conviction and order of

sentence passed by the learned judge is

contrary to the facts of the case, evidence on

record and against the settled principles of law.

That, the learned Special Judge has committed

a serious error in convicting the appellant

without properly appreciating the evidence in

its right prospective manner.

That,

the

entire

evidence

led

the

prosecution is against the FIR and Ex.P.1,

more particularly with reference to the motie

aspect, that motive one attributed in the

complaint Ex.P.1 is totally given a go-bye and

second motive, as deposed in the evidence of

prosecution witness, do not find place in the

contents of Ex.P.1. So this material aspect is

over looked by the trial court and convicted the

appellant against the settled principles of law

as contemplated in criminal jurisprudence.

That, as per the law laid down by this Hon'ble

court and Hon'ble Apex Court, the accused

can't be convicted for commission of offence

punishable under Section 326 of IPC in respect

of injury sustained by PW.1 because the

prosecution as failed to prove the allegation of

grievous injuries sustained by PW.1 in view of

non production of x-ray for confirmation of

fractur

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