HASAN SADIQUE vs THE STATE BY VITTAL POLICE STATION

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CRL.A No. 1586 of 2015


CNR: KAHC010494442015




IN THE HIGH COURT OF KARNATAKA AT BENGALURU


TH
DATED THIS THE 17 DAY OF OCTOBER, 2026

BEFORE

THE HON'BLE MR. JUSTICE G BASAVARAJA

CRIMINAL APPEAL NO. 1586 OF 2015 (C)

BETWEEN:

1. HASAN SADIQUE
S/O ABBAS,
AGED ABOUT 27 YEARS,
R/A BEDRAKADU HOUSE,
KADAMBU, VITTAL PADNOOR VILLAGE,
BANTWALA TALUK, D.K.DISTRICT - 573402.
…APPELLANT







(BY SRI. B LETHIF.,ADVOCATE)

AND:

1. THE STATE BY VITTAL POLICE STATION
D.K.MANGALURU,
REP. BY SPECIAL PUBLIC PROSECUTOR,
HIGH COURT COMPLEX,
BUILDING, BANGALORE.
…RESPONDENT




Digitally signed by
LAKSHMINARAYAN N
Location: High Court
of Karnataka

(BY SRI. K. NAGESHWARAPPA, HCGP)
CRL.A. FILED U/S.374(2) CR.P.C BY THE ADVOCATE FOR
THE APPELLANT PRAYING THAT THIS HON'BLE COURT MAY BE
PLEASED TO SET ASIDE THE JUDGMENT ORDER DATED
07.12.2015 PASSED BY THE PRL. S.J., D.K., MANGALURU, IN
S.C.NO.3/2013 - CONVICTING THE APPELLANT/ACCUSED FOR
THE OFFENCE P/U/S 326,307 OF IPC.

THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE G BASAVARAJA

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CRL.A No. 1586 of 2015


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ORAL JUDGMENT



1. The appellant has preferred this appeal against the
judgment of conviction dated 07.12.2015 and order on
sentence dated 08.12.2015 passed in S.C.No.3/2013 by
the Principal Sessions Judge, Mangaluru (for short, the
'trial Court').


2. For the sake of convenience, the parties herein are
referred to as per their status before the trial Court.


3. Brief facts leading to this appeal are that, the Sub
Inspector of Police, Vittal Police station laid charge sheet
against the accused for the offence punishable under
Sections 326, 307 and 506 of IPC. It is alleged by the
prosecution that on 13.03.2012 at about 4.30 pm, when
CW2-Ashraf was in the bus stand situated in front of Hotel
Safa, belonging to CW4-B.Rafeeq, by the side of Vittal-
Kalladka Road along with CW1-Ismail and CW3-Abdul
Rahiman, the accused suddenly came and called CW2 and
questioned him regarding his demand for repayment of

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the loan amount and with an intention to cause his death,
assaulted with a deadly weapon i.e., knife, on the left side
abdomen and caused bleeding injuries. It is also stated
that the accused had committed the offence with an
intention to cause his death and caused grievous hurt and
thereby committed the offence punishable under Sections
326 and 307 of Indian Penal Code.


4. The accused was arrested on 14.03.2012 and
produced before the Magistrate and he was remanded to
judicial custody and period of custody was extended from
time to time.


5. After filing the charge sheet, case was registered in
CC.No.964/2012 and case was committed to court of
Sessions and the same was registered as SC.No.3/2013.
Accused appeared before the Sessions Court and enlarged
on bail.

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6. On hearing, the trial Court has framed the charges.
Same were read over and explained to the accused.
Having understood the same, accused pleaded not guilty
and claimed to be tried.


7. To prove the guilt of the accused, the prosecution
has examined, in all, 12 witnesses as PWs.1 to 12; marked
15 documents as Exs.P1 to P15 and 4 material objects as
MOs.1 to 4. On closure of prosecution side evidence,
statement under Section 313 was recorded. Accused has
totally denied the evidence of prosecution witnesses,
however, he did not choose to lead any defence evidence
on his behalf.


8. Having heard the arguments on both sides, the trial
Court convicted the accused for the offence under Sections
326 and 307 IPC and passed a sentence to undergo
rigorous imprisonment for a period of 2 years and to pay
fine of Rs.5,000/- for the offence under Section 326 of
IPC. Further, accused is sentenced to undergo rigorous

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imprisonment for a period of 3 years and to pay fine of
Rs.5,000/- for the offence under Section 307 of IPC.
Being aggrieved by the judgment of conviction and order
on sentence, the appellant has preferred this appeal.


9. The learned counsel for the appellant would submit
that the injured not examined. The alleged eye-witnesses
PWs.2 to 4 and 12, have not supported to the case of the
prosecution. Only on the basis of interested witnesses i.e.,
the brother of the complainant, the trial Court has
convicted the accused, which is not sustainable under law.
The recovery of MO.1-knife is not proved for the reason
that PW8 is one of the attesting witnesses to the seizure
mahazar who has deposed that the knife was found in
open place. Blood stain found on MO.1 is not compared
with the blood of the injured. The Doctor who was
examined as PW5, has not produced the X-ray or radiology
report to prove that the alleged fractures are grievous in
nature. To substantiate his argument, he relied on the

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decision in the case of STATE vs. SHEENAPPA GOWDA
AND OTHERS reported in 2010 SCC OnLine Kar 5294.
The trial Court has failed to appreciate the evidence on
record in accordance with law and facts. Since there is a
financial transaction between the accused and the injured,
the complainant lodged a false complaint against the
accused and in all these grounds, sought for allowing the
appeal.


10. The learned HCGP Sri Nageshwarappa K would
submit that the trial Court has properly appreciated the
evidence on record in accordance with law. The NBW is
also issued against the injured. But Police failed to secure
him. Hence, he has not been examined. There are no
grounds to interfere with the impugned judgment of
conviction. On all these grounds, it is sought for dismissal
of the appeal.

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11. Having heard the arguments on both sides and on
perusal of materials placed before this Court, the following
points would arise for my consideration:
(1) Whether the appellant has made out grounds
to interfere with the impugned judgment of
conviction and order on sentence?

(2) What order?


12. My answer to the above points are:
Point No.1 in the Affirmative.
Point No.2 as per final order.


13. I have examined the materials placed before this
Court. It is the case of the prosecution that, on
13.03.2012 at about 4.30 pm, when CW2-Ashraf was in
the bus stand situated in front of Hotel Safa, belonging to
CW4-B. Rafeeq, along with CW1-Ismail and CW3-Abdul
Rahiman, the accused suddenly came and questioned CW2
regarding his demand for repayment of the loan and with
an intention to cause his death, assaulted with knife on

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the left side abdomen and caused bleeding injuries. Thus,
the accused committed the alleged offence.


14. To prove the guilt of the accused, prosecution has
examined 12 witnesses as PW1 to PW12; 15 documents
were marked as Exs.P1 to P15 and 4 material objects as
MOs.1 to 5.


15. PW1-Ismail has deposed before this Court that the
injured CW2 is his brother and he knows the accused.
CW2 had lent a sum of Rs.26,000/- to the accused about
three years back and the said lending was in the presence
of CW3-Abdul Rahiman. Accused had agreed to repay the
loan amount within a week, but he had not repaid the
same. On the other hand, he was gaining time on one or
the other pretext. Further, he has deposed that on
12.03.2012 at about 4.00 pm, accused had called CW2 to
come to Mangala Padavu on 13.03.2012 at about 4.00 pm,
promising to pay back the loan amount along with
interest. Accordingly, on 13.03.2012 at about 4.00 pm, he

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along with his brother CW2 and CW3-Abdul Rahiman went
near the bus stand of Mangala Padavu. The accused came
to the spot and took CW2 near the water tank near the
Hotel and suddenly questioned him as to whether he
wants the money back and took out a knife and stabbed
CW2. CW2 cried out of pain. PW1-Ismail stated that he
along with CW3 went near CW2 and in the meantime
accused had given life threat to CW2 and he had ran away
along with the knife. CW2 had sustained bleeding injury
over his abdomen and immediately he was shifted to
Chethan Hospital, Puttur, where he had taken treatment
as inpatient. CW2 was not in a position to talk and
therefore he himself lodged the complaint against the
accused as per Ex.P1. Thereafter, police came to the spot
and conducted the mahazar as per Ex.P2. Rough sketch
was prepared at the spot as per Ex.P3. MO.1-Knife was
also seized and further he deposed as to the seizure of
clothes-Mos.2 to 4.

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16. PW2-Abdul Rahiman, PW3-T.Rafeeq, PW4-
Mohammed Ishaq and PW12-Sandeep, who are said to be
the eye-witnesses to the incident, have not supported the
case of the prosecution. They have been treated as hostile
and the learned prosecutor has cross-examined them, but
nothing has been elicited to disbelieve their version.


17. PW5-Dr. S. Ravindranatha Bhandary, has deposed
that on 13.03.2012 at about 6.15 pm, a person called as
Ashraf, aged 28 years, was admitted to Chethan Hospital
at Puttur with history of stab injury at about 4.30 pm near
Mangala Padavu, caused by one Saddiq with a knife. On
examination, he found a penetrating wound on his
abdomen and lacerated wound measuring 3x1 cms., over
the left hyphochandom, scanning was done. No injury was
found on the soft organs inside the abdomen. There was
no haemotoma. Surgery was done at closure of Omantem
Peritorium. Further, he has deposed that the injury
sustained by the injured was dangerous to his life and it

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was grievous in nature. He had issued Wound Certificate
as per Ex.P7.


18. PW6-Dr.Geethalakshmi P, who is the Scientific Officer
at R.F.S.L., Mangaluru, has deposed as to the issuance of
FSL Report as per Ex.P8 and also Serology Report as per
Ex.P9.


19. PW7-Khaleed, said to be the attester to the spot
mahazar witness, has deposed as per spot mahazar as per
Ex.P2 and also, he has deposed as to the Preparation of
sketch as per Ex.P3.


20. PW8-Imthiyaz, said to be the attester to the recovery
mahazar as per Ex.P10, has deposed as to the recovery of
weapon used for the commission of alleged offence.


21. PW9-Police Constable Somshekhar has deposed that
on 17.04.2012 he had carried four packets to RFSL,
Mangaluru as per the direction of the Investigating Officer
and produced the same for chemical examination.

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22. PW10-Honnappa Gowda, Police Constable has
deposed that on 13.03.2012 at about 10.30 pm, he had
obtained the FIR and produced the same before the
Jurisdictional Magistrate as per Ex.P12.


23. PW11-Rakshith A K, PSI, has deposed as to his
investigation.


24. PW12-Sandeep, said to be the eye-witness, has not
supported to the case of the prosecution.


25. I have examined the material placed before this
Court. CW2-Ashraf is the injured and eye-witness to the
said incident. The main argument advanced on behalf of
the appellant is that, the learned Sessions Judge failed to
appreciate the prosecution case that injured CW2-Ashraf
has not been examined by the prosecution and during the
course of cross-examination of PW11, it was suggested
that CW2 is in judicial custody, and he pleaded his
ignorance in this regard. The trial Court had issued NBW,
same was unexecuted for want of whereabouts of CW2.

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Additionally, PW1-Ismail, the brother of the injured, has
clearly admitted that he do not know that his brother
Ashraf is in judicial custody involving in a criminal case.
When PW1 has pleaded his ignorance as to the judicial
custody of CW2, the trial Court would have called for the
report from concerned jail authorities to ascertain whether
he is in judicial custody or not. The trial Court has not
taken any steps in this regard. The investigating officer
has not taken any legal steps to secure the injured
witness. Since the prosecution has failed to examine the
material witness injured-CW2, the sole interested
testimony of PW1 is not sufficient to hold that the
prosecution has proved the guilt of the accused.


26. Except sole interested testimony of PW1, absolutely
there is no evidence of other witnesses to substantiate the
case of the prosecution. Though the prosecution has cross-
examined PWs.2 to 4 and 12 after treating them as hostile
witnesses, the prosecution has failed to elicit any

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favourable answers from them to substantiate the case of
the prosecution. Though there is no cogent, convincing,
corroborative, trustworthy evidence, the trial Court has
convicted the accused solely on the interested testimony
of PW1 and the wound certificate, which is not sustainable
under law.


27. On careful re-examination/re-appreciation/
re-consideration of the entire evidence on record, I am of
the considered opinion that prosecution has failed to prove
the guilt of the accused beyond all reasonable doubt.
Hence, I answer Point No.1 in the affirmative.

Regarding Point No.2

28. For the aforestated reasons and discussions,
I proceed to pass the following:

O R D E R
(i) Appeal is allowed ;

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(ii) The judgment of conviction dated
07.12.2015 and order on sentence dated
08.12.2015 passed in S.C.No.3/2013 by the
Principal Sessions Judge, Mangaluru, is set aside;
Consequently, the appellant/accused is acquitted
of the offence under Sections 326 and 307 of
IPC;

(iii) The trial Court is directed to refund the fine
amount, if any, deposited by the appellant;

(iv) The bail bond of the accused shall stand
cancelled.

Registry is directed to send copy of the judgment
along with Trial Court Records to the concerned Court for
necessary action.


Sd/-
(G BASAVARAJA)
JUDGE

DHA
List No.: 1 Sl No.: 39