- 1 - HC-KAR NC: 2026:KHC:21163 CRL.RP No. 1484 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF APRIL, 2026 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA CRIMINAL REVISION PETITION NO. 1484 OF 2022 (397(Cr.PC) / 438(BNSS) BETWEEN: 1. VEERANDRA PATIL S/O DONNEGOWDA AGED ABOUT 48 YEARS R/O MEDAGINAKERE VILLAGE JAGALUR TALUK DAVANAGERE-577553 2. PAMPANAGOUDA S/O DONNEGOUDA AGED ABOUT 57 YEARS R/O MEDAGINAKERE VILLAGE JAGALUR TALUK DAVANAGERE-577553 3. KALLESHI(DEAD) S/O DONNEGOWDA R/O MEDAGINAKERE VILLAGE JAGALUR TALUK DAVANAGERE-577553 4. MADIVALARA ASHOK S/O BASAVARAJAPPA AGED ABOUT 31 YEARS R/O MEDAGINAKERE VILLAGE JAGALUR TALUK DAVANAGERE-577553 5. MALLESHI S/O BASAVARAJAPPA Digitally signed by R MANJUNATHA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:21163 CRL.RP No. 1484 of 2022 AGED ABOUT 33 YEARS R/O MEDAGINAKERE VILLAGE JAGALUR TALUK DAVANAGERE-577553 6. KRISHNAPPA S/O NAGAPPA MADIVALARA AGED ABOUT 55 YEARS R/O MEDAGINAKERE VILLAGE JAGALUR TALUK DAVANAGERE-577553 7. SHIVANNA S/O DODDA NEELAPPA MADIVALARA AGED ABOUT 38 YEARS R/O MEDAGINAKERE VILLAGE JAGALUR TALUK DAVANAGERE-577553 8. RAJAPPA S/O NINGAPPA AGED ABOUT 48 YEARS R/O MEDAGINAKERE VILLAGE JAGALUR TALUK DAVANAGERE-577553 9. SANNA NEELAPPA S/O PRASAPPA AGED ABOUT 60 YEARS R/O MEDAGINAKERE VILLAGE JAGALUR TALUK DAVANAGERE-577553. …PETITIONERS (BY SRI. MAHAMAD TAHIR A, ADVOCATE) AND: 1. STATE OF KARNATAKA BILICHODU POLICE STATION DAVANAGERE DIST-577553 - 3 - HC-KAR NC: 2026:KHC:21163 CRL.RP No. 1484 of 2022 REPRESENTED BY LEARNED PUBLIC PROSECUTOR HIGH COURT BUILIDING-560001 …RESPONDENT (BY SMT. WAHEEDA M.M, H.C.G.P.) THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 29.06.2022 IN CRL.A.NO.28/2019 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAVANAGERE AND ORDER OF COVNICTION AND SENTENCE DATED 16.05.2018 PASSED BY THE CIVIL JUDGE AND J.M.F.C., JAGALURU IN C.C.NO.987/2013 BY ALLOWING THE ABOVE CRL.RP AND ACQUIT THE PETITIONER. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL ORDER Heard Sri. Muhammed Tahir, learned counsel for the petitioner and Learned High Court Government Pleader for the respondent. 2. Accused persons are the revision petitioners challenging the order passed by the First Appellate Court in Criminal Appeal No.28/2019, whereby appeal came to be allowed and matter was remanded to the Trial Magistrate for - 4 - HC-KAR NC: 2026:KHC:21163 CRL.RP No. 1484 of 2022 passing appropriate sentence for the proved offences under Sections 143, 147, 148, 341, 504, 323, 324, 326 and 506 r/w. Section 149 of IPC. 3. Facts in the nutshell which are utmost necessary for disposal of the present petition are as under: 4. A complaint came to be lodged before the Bilichodu Police Station. On 02.07.2013 Contending that on 02.07.2013 at about 08.30 a.m. near Mediginakere cross in the land of Akki Basavarajaiah, when CW1, CW4, CW5 and CW6 were proceeding in an autorikshaw bearing Reg.No.KA-17/A-9563 to their land, all the accused persons in furtherance of the common object, holding deadly weapons intercepted the free movement of CW1, CW4, CW5 and CW6 and assaulted them with stick, stone and with hands and kicked them. 5. Among the injured persons, Veeranna sustained grievous injury inasmuch as both his nasal bones were fractured, as could be seen from the wound certificate marked at Ex.P4. Gurumurthaiah and Ganesh sustained simple injuries in the very same incident. - 5 - HC-KAR NC: 2026:KHC:21163 CRL.RP No. 1484 of 2022 6. Based on the complaint, police investigated the matter and filed the charge sheet for the aforesaid offences. After due trial, learned Trial Magistrate considering the oral and documentary evidence on record, convicted the accused for the aforesaid offences and granted benefit under Section 4 of the Probation of Offenders Act, 1958. 7. State filed an appeal before the District Court, insofar as granting probation to the accused persons especially when there was an order of conviction for the offence under Section 326 IPC. 8. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties and on considering the rival contentions of the parties took into consideration that when there is an order of conviction for the offence under Section 326 IPC, application of Section 4 of the Act is impermissible and set aside the order of the Trial Magistrate insofar as granting the probation to the petitioners and remanded the matter back to the Trial Magistrate for passing appropriate sentence. - 6 - HC-KAR NC: 2026:KHC:21163 CRL.RP No. 1484 of 2022 9. Pertinently, accused persons did not challenge the order of conviction by filing a separate appeal. 10. Therefore, the scope of the present Revision Petition is only to the extent of the validity of the order of the First Appellate Court in remitting the matter to the Trial Magistrate after setting aside the order of the Trial Magistrate granting benefit of probation under Section 4 of the Act to the revision petitioners after holding them guilty for the aforesaid offences. 11. Sri. Mahammed Tahir, learned counsel for the revision petitioners, reiterating the grounds urged in the revision petition would contend that approaching of the First Appellate Court is incorrect inasmuch as the petitioners are the first time offenders and when the Trial Magistrate has used discretion in granting the probation. As such, First Appellate Court ought not to have interfered with the said order of granting probation and sought for allowing the revision. 12. Per contra, Smt. Waheeda M. M., learned High Court Government Pleader supports the order of the First Appellate Court contending that when there is an order of conviction for the offence under Section 326 of IPC, there - 7 - HC-KAR NC: 2026:KHC:21163 CRL.RP No. 1484 of 2022 cannot be any application of the benevolent provisions of the Act and thus sought for dismissal of the Revision Petition. 13. This Court having heard the arguments of both sides, noted that the accused persons did not challenge the order of conviction and it has become final. 14. However, there is a jurisdictional error in recording an order of conviction in the absence of X-ray certificate or the radiological report and Trial Magistrate ought not to have recorded an order of conviction for the offence under Section 326 IPC. 15. It is, in this regard, this Court has to reconsider the order of conviction under Section 326 of IPC supported by the Principles of law enunciated by the Division Bench of this Court in the case of State v. Sheenappa Gowda and Others reported in 2010 SCC OnLine KAR 5294, wherein it is held as under- "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 - 8 - HC-KAR NC: 2026:KHC:21163 CRL.RP No. 1484 of 2022 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 Indian Penal Code 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 hat 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 However, he same would not dispense with the production 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 - 9 - HC-KAR NC: 2026:KHC:21163 CRL.RP No. 1484 of 2022 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 IPC and the offence committed by them falls within the ambit of Section 324 of IPC is justified." 16. Even though when there was no appeal filed by the revision petitioners for the proved offence against the order of conviction, this Court not only under the revisional jurisdiction but also under the supervisory jurisdiction is entitled to correct the jurisdictional error insofar as conviction of accused for the offence punishable under Section 326 of IPC which is totally illegal. 17. Having said so, since there is a bleeding injury caused to all the three injured persons, as could be seen from wound certificates marked at Ex.P3 to Ex.P5, the conviction of the accused persons for the remaining offences needs to be maintained. 18. Having said so, the sentence needs to be appropriately passed and when there is an order of acquittal for the revision petitioner for the offence under Section 326 IPC, - 10 - HC-KAR NC: 2026:KHC:21163 CRL.RP No. 1484 of 2022 benevolent provisions of Section 4 of the Act can be extended to the petitioners by upholding the order of the Trial Magistrate, modifying the order of the First Appellate Court. 19. However, the injured persons cannot be left in lurch without compensating for the injuries sustained by them, especially when there is a voluntary act of revision petitioners intercepting the moving autorickshaw, wherein injured persons P.Ws.1, 5 and 6 were present and assaulting them mercilessly with sticks and stones. 20. Moreover, the order of acquittal of accused persons for the offence punishable under Section 326 of IPC is on technical reason and therefore, Court cannot lose sight of the injury that has been caused to Veeresh as per Ex.P4. 21. Therefore, if the petitioners are directed to pay an enhanced fine amount of Rs.40,000/- each payable in two installments and ordered to undergo simple imprisonment for the day for the proved offences, drudgery in getting the report from the Probation Officer and other required procedures would be avoided that too at this distance of time. - 11 - HC-KAR NC: 2026:KHC:21163 CRL.RP No. 1484 of 2022 22. Accordingly, the following: ORDER i. Revision petition is allowed in part. ii. The accused persons are acquitted for the offence punishable under Section 326 IPC. iii. The conviction order recorded by Trial Magistrate for the remaining offences is maintained. Consequently, the sentence ordered by Trial Magistrate which was set aside by the First Appellate Court is further modified as under- a) The revision petitioners are directed to undergo simple imprisonment for the day till the rising of the Court and to pay enhanced fine amount of Rs.40,000/- each payable in two equal installments. First instalment to be paid on or before 12.05.2026 and second instalment to be paid on or before 02.06.2026. - 12 - HC-KAR NC: 2026:KHC:21163 CRL.RP No. 1484 of 2022 b) On receipt of the entire compensation amount as aforesaid, the Trial Magistrate shall secure the presence of injured witnesses i.e., PW1, PW5 and PW6 and pay a sum of Rs.25,000/- each to PW1- Gurumurthaiah and PW6-Ganesh as compensation; and a sum of Rs.2,00,000/- to PW5-Veeresh under due identification. Balance sum should be appropriated towards defraying expenses of the State. c) In case of failure to pay the enhanced fine amount as per the order of this Court, petitioners shall undergo simple imprisonment for a period of one and a half year. Sd/- (V SRISHANANDA) JUDGE HNM List No.: 2 Sl No.: 35