# Harikesh & Ors v. State of U.P. & Anr

- **Citation:** (2024) 2 ILRA 1492
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-25
- **Case number:** Criminal Revision No. 2680 of 2023
- **Bench:** Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/harikesh-ors-v-state-of-u-p-anr-51283
- **Pages:** 12

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Section 323 & 308 - Code of Criminal
Procedure,
1973
-
Section
227
-
Informant/injured
mentioned
in
his
written report that on date of occurrence
when he along with his son, reached
District Headquarter, accused persons
alongwith co-accused enquired from him
about work done in village - Accused
assaulted him and his son with rod, lathi
and danda causing head injury to them -
Informant further St.d that accused had
assaulted him with intention to kill him -
His son fell on ground and started
vomiting and became unconscious - Eye -
witnesses also mentioned same in their
St.ments
-
Under
Section
308
IPC,
grievous injury or injury on vital part is
not essential, what is material is assault
on victim with requisite intention or
knowledge - On basis of injured's St.ment,
eyewitnesses testimony and injury report,
trial court rightly found prima facie case
against accused and directed framing of
charges, thus, no illegality or infirmity in
impugned order. (Para 21, 30, 32)

Revision dismissed. (E-13)

List of Cases cited:

## Text

1492 INDIAN LAW REPORTS ALLAHABAD SERIES
delicate balance between competing and
more often than not, conflicting demands
of justice where liberty of an individual is
pitted against the larger interest of the society.
In such cases, the need for specific supervision
of the juvenile and wider need to convert the
juvenile into a healthy adult by giving him
professional
counseling
and
behavioral
therapy under the scheme of the Act cannot be
underestimated. Moreover, it may be necessary
to keep him away from the company of elements,
which he previously had.

25. Considering all the above facts and
circumstances of the matter, I concur with the
conclusions arrived at by the Appellate Court and
by the Juvenile Justice Board and am of the
opinion that the revisionist is not entitled to bail.

26. Subject to orders of the Juvenile Justice
Board, in this regard, the District Probation Officer
shall sincerely attend to his duties as assigned to
him in Rule 64 of Juvenile Justice (Care and
Protection) Model Rule, 2016 and prepare
individual care plan, if need arises; likewise
person in charge of child care institution shall
provide care and protection to the child as per
scheme of the Act.

27. Accordingly, the present
criminal
revision
is
dismissed.
However, the Juvenile Justice Board
is directed to expedite the hearing
and
conclude
the
same
at
the
earliest.
----------
(2024) 2 ILRA 1492
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.01.2024

BEFORE

THE HON'BLE SURENDRA SINGH-I, J.

Criminal Revision No. 2680 of 2023
Harikesh & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicants:
Sri Vimal Kumar Pandey

Counsel for the Respondents:
G.A., Sri Rajneesh Kumar Singh

Criminal Law - Indian Penal Code, 1860 -
Section 323 & 308 - Code of Criminal
Procedure,
1973
-
Section
227
-
Informant/injured
mentioned
in
his
written report that on date of occurrence
when he along with his son, reached
District Headquarter, accused persons
alongwith co-accused enquired from him
about work done in village - Accused
assaulted him and his son with rod, lathi
and danda causing head injury to them -
Informant further St.d that accused had
assaulted him with intention to kill him -
His son fell on ground and started
vomiting and became unconscious - Eye -
witnesses also mentioned same in their
St.ments
-
Under
Section
308
IPC,
grievous injury or injury on vital part is
not essential, what is material is assault
on victim with requisite intention or
knowledge - On basis of injured's St.ment,
eyewitnesses testimony and injury report,
trial court rightly found prima facie case
against accused and directed framing of
charges, thus, no illegality or infirmity in
impugned order. (Para 21, 30, 32)

Revision dismissed. (E-13)

List of Cases cited:

1. Trilok Chand & anr. Vs St. of Raj. & anr.,
2011 SCC Online Raj 121

2. Amit Kapoor Vs Ramesh Chander & anr.,
(2012) 9 SCC 460, (Paras 12, 13, 20, 28 to 30)

3. Ghulam Hassan Beigh Vs Mohammad
Maqbool Magrey & Ors. in S.L.P. (Crl.) No. 4599
of 2021, (Paras 15 to 17, 25)

4. U.O.I. Vs Prafulla Kumar Samal & anr.,
(1979)
3
SCC
4,
(Para
10)
2 All. Harikesh & Ors. Vs. State of U.P. & Anr.
1493
5. Dipakbhai Jagdishchandra Patel Vs St. of
Guj., (2019) 16 SCC 547, (Paras 15, 23)

6. Sajjan Kumar Vs C.B.I, (2010) 9 SCC 368,
(Para 21)

7. St. of Karnataka Vs M.R. Hiremath, (2019) 7
SCC 515

8. Tukaram Gundu Naik Vs St. of Mah., (1994) 1
SCC 465

(Delivered by Hon'ble Surendra Singh-I, J.)

Heard Sri Vimal Kumar Pandey,
learned counsel for the revisionists, Sri
Rajneesh Kumar Singh, learned counsel for
the opposite party no. 2 and learned A.G.A.
for the State.

2. This criminal revision has been
filed against the impugned order dated
16.11.2022 passed by Sessions Court,
Kushi Nagar at Padrauna in Sessions Trial
No. 772 of 2021 arising out of Case Crime
No. 1247 of 2015 u/s 323 & 308 I.P.C.,
Police Station- Kotwali Padrauna, District-
Kushi Nagar.

3. By the impugned order, the trial
court rejected the application of the
revisionists u/s 227 Cr.P.C. for discharging
them of the offence.

4. The facts relating to the case in
brief is that the informant Ram Chandra
Kushwaha s/o Late Shiv Shankar, on being
summoned by the Gram Sewak, Devendra
Mishra, reached District Headquarter with
his son Mithilesh. When he reached there,
Gram Sewak, Devendra Mishra, accused
Hrishikesh, Ajay and Pankaj started making
enquiry about the work done in the village.
The accused assaulted them with rod, lathi
and danda causing head injury to them.
Due to the assault of the accused, tension
spread in the village. The accused are
violent and criminal in nature. On the basis
of the written report of the informant,
Case Crime No. 1247 of 2015 u/s 323,
308
I.P.C.
was
registered
against
Hrishikesh, Ajay and Pankaj in P.S.-
Kotwali
Padrauna,
District-
Kushi
Nagar on 25.08.2015 at 7 p.m.

5. It has been submitted by learned counsel
for the revisionists that without considering
the evidence on record, the trial court
illegally rejected the discharge application
of the revisionists. It has next been
submitted in the medical examination
report dated 25.08.2015 that the injuries of
Mithilesh Kushwaha and Ram Chandra
Kushwaha are simple in nature. In the x-ray
report, no fracture was found on the
persons of the injured. No injury was found
on the vital part of the body of the
informant and his son. It has also been
submitted that the informant Ram Chandra
Kushwaha has merely reiterated the facts
given in the report. It has also been
submitted that in the statements of
prosecution
witnesses,
Mahendra
and
Buneli, only general allegations have been
made. No specific role has been assigned to
the revisionist in the scuffle. It has also
been submitted that in the second statement
recorded u/s 161 Cr.P.C. of informant Ram
Chandra Kushwaha, he has for the first
time mentioned that the accused with the
intention to kill his son had caused injury
on his neck. The injured Mithilesh
Kushwaha
in
his
statement
dated
22.11.2015 recorded u/s 161 Cr.P.C. has
merely repeated the statement of his father,
informant Ram Chandra Kushwaha. The
other prosecution witnesses, namely, Habib
Ansari and Sagar in their statements
recorded u/s 161 Cr.P.C. on 22.11.2015
have made specific allegations only against
Hrishikesh regarding his attacking the
injured with a rod. The other prosecution
1494 INDIAN LAW REPORTS ALLAHABAD SERIES
witness, Jitendra Madheshiya, in front of
whose shop the scuffle took place has also
made general allegations against the
accused. It has also been submitted that
since injuries caused to the injured, Ram
Chandra
Kushwaha
and
Mithilesh
Kushwaha are simple in nature, therefore,
offence u/s 308 I.P.C. is not made out
against the accused. It has also been
submitted that the Investigating Officer has
not produced any incriminating material or
evidence to establish the ingredients of
Section 308 I.P.C. Learned counsel for the
revisionists has placed reliance on the
judgement of the Apex Court in Trilok
Chand
and Another Vs.
State
of
Rajasthan and Another, 2011 SCC
Online Raj 121.

6. Per contra, learned counsel for the
opposite party no.2 and learned A.G.A.
submitted that after examining the facts and
circumstances of the case and the evidence
produced by the Investigating Officer, the
trial
court
has
rightly
rejected
the
application u/s 227 Cr.P.C. filed by the
revisionists. The revision is devoid of any
merit and it should be rejected.

7.

Learned
counsel
for
the
revisionists,
learned
counsel
for
the
opposite party no.2 and learned A.G.A.
have been heard. Perused the entire trial
court record and the record of the revision.

8. Before examining the merits of the
present case, the ambit, scope and power of
the Sessions Court as well as the High
Court u/s 397 Cr.P.C. should be discussed
and ascertained.

9. The Hon'ble Apex Court in Amit
Kapoor Vs. Ramesh Chander and
Another, (2012) 9 SCC 460 in paragraph
nos. 12 and 13 of its judgement has
narrated the ambit and scope of revision by
the High Court u/s 397 Cr.P.C. which are as
follows :

12. Section 397 of the Code vests
the court with the power to call for and
examine the records of an inferior court
for the purposes of satisfying itself as to
the
legality
and
regularity
of
any
proceedings or order made in a case. The
object of this provision is to set right a
patent defect or an error of jurisdiction or
law. There has to be a well-founded error
and it may not be appropriate for the court
to scrutinise the orders, which upon the
face of it bears a token of careful
consideration and appear to be in
accordance with law. If one looks into the
various judgments of this Court, it
emerges that the revisional jurisdiction
can be invoked where the decisions under
challenge are grossly erroneous, there is
no compliance with the provisions of law,
the finding recorded is based on no
evidence, material evidence is ignored or
judicial discretion is exercised arbitrarily
or perversely. These are not exhaustive
classes, but are merely indicative. Each
case would have to be determined on its
own merits.
13. Another well-accepted norm is that the
revisional jurisdiction of the higher court
is a very limited one and cannot be
exercised in a routine manner. One of the
inbuilt restrictions is that it should not be
against an interim or interlocutory order.
The Court has to keep in mind that the
exercise of revisional jurisdiction itself
should not lead to injustice ex facie.
Where the Court is dealing with the
question as to whether the charge has
been framed properly and in accordance
with law in a given case, it may be
reluctant to interfere in exercise of its
revisional jurisdiction unless the case
2 All. Harikesh & Ors. Vs. State of U.P. & Anr.
1495
substantially falls within the categories
aforestated. Even framing of charge is a
much advanced stage in the proceedings
under the CrPC.

10. In paragraph nos. 17 and 19 of the
aforesaid judgement, the Apex Court has
narrated that before framing a charge, what
documents should be considered by the
trial court. It has also provided about the
extent of evidence required for framing of a
charge. In paragraph no. 20 of the aforesaid
judgement, the Apex Court has compared
the power and extent of jurisdiction of the
High Court u/s 397 Cr.P.C. which is given
hereunder :

20. The jurisdiction of the court
under Section 397 can be exercised so as
to examine the correctness, legality or
propriety of an order passed by the trial
court or the inferior court, as the case may
be.
Though
the
section
does
not
specifically use the expression "prevent
abuse of process of any court or otherwise
to secure the ends of justice", the
jurisdiction under Section 397 is a very
limited one. The legality, propriety or
correctness of an order passed by a court
is the very foundation of exercise of
jurisdiction
under
Section
397
but
ultimately it also requires justice to be
done. The jurisdiction could be exercised
where there is palpable error, noncompliance with the provisions of law, the
decision is completely erroneous or where
the
judicial
discretion
is
exercised
arbitrarily. On the other hand, Section 482
is based upon the maxim quando lex
aliquid alicui concedit, concedere videtur
id sine quo res ipsa esse non potest i.e.
when the law gives anything to anyone, it
also gives all those things without which
the thing itself would be unavoidable. The
section confers very wide power on the
Court to do justice and to ensure that the
process of the court is not permitted to be
abused.

11. After comprehensive survey and
discussion of the judgement of the Hon'ble
Supreme Court and the factors to be
considered by the trial court while
disposing of application u/s 227 Cr.P.C. and
framing charge u/s 228 Cr.P.C., the Apex
Court in Amit Kapoor (supra) has given
following directions :

27.2. The Court should apply the
test as to whether the uncontroverted
allegations as made from the record of the
case
and
the
documents
submitted
therewith prima facie establish the offence
or not. If the allegations are so patently
absurd and inherently improbable that no
prudent person can ever reach such a
conclusion
and
where
the
basic
ingredients of a criminal offence are not
satisfied then the Court may interfere.

27.3. The High Court should not
unduly
interfere.
No
meticulous
examination of the evidence is needed for
considering whether the case would end in
conviction or not at the stage of framing
of charge or quashing of charge.

27.9. Another very significant
caution that the courts have to observe is
that it cannot examine the facts, evidence
and materials on record to determine
whether there is sufficient material on the
basis of which the case would end in a
conviction;
the
court
is
concerned
primarily with the allegations taken as a
whole whether they will constitute an
offence and, if so, is it an abuse of the
process of court leading to injustice.

27.10. It is neither necessary nor
is the court called upon to hold a fullfledged enquiry or to appreciate evidence
collected by the investigating agencies to
1496 INDIAN LAW REPORTS ALLAHABAD SERIES
find out whether it is a case of acquittal or
conviction.

27.11. Where allegations give
rise to a civil claim and also amount to an
offence, merely because a civil claim is
maintainable, does not mean that a
criminal complaint cannot be maintained.

27.12.
In
exercise
of
its
jurisdiction under Section 228 and/or
under Section 482, the Court cannot take
into consideration external materials
given by an accused for reaching the
conclusion that no offence was disclosed
or that there was possibility of his
acquittal. The Court has to consider the
record and documents annexed therewith
by the prosecution.

12. The statutory provisions regarding
consideration of the case with a view to
framing of charge or discharging the
accused as given in Sections 226, 227 and
228 Cr.P.C. has been laid down by the
Hon'ble Supreme Court in the case of
Ghulam Hassan Beigh Vs. Mohammad
Maqbool Magrey & Ors. in S.L.P. (Crl.)
No. 4599 of 2021 :

15. Section 226 of the CrPC
corresponds to sub-section (1) of the old
Section 286 with verbal changes owing to
the abolition of the jury. Section 286 of
the 1898 Code reads as under:-

"286.(1) In a case triable by jury,
when the jurors have been in chosen or, in
any other case, when the Judge is ready to
hear the case, the prosecutor shall open
his case by reading from the Indian Penal
or other law the description of the offence
charged, and stating shortly by what
evidence he expects to prove the guilt of
the accused. (2) The prosecutor shall then
examine his witnesses."

Section 226 of the 1973 Code
reads thus:

"226.
Opening
case
for
prosecution.─ When the accused appears
or is brought before the Court in
pursuance of a commitment of the case
under section 209, the prosecutor shall
open his case by describing the charge
brought against the accused and stating
by what evidence he proposes to prove the
guilt of the accused."

Section 226 of the CrPC permits
the
prosecution
to
make
the
first
impression regards a case, one which
might be difficult to dispel. In not insisting
upon its right under Section 226 of the
CrPC, the prosecution would be doing
itself a disfavour. If the accused is to
contend that the case against him has not
been explained owing to the noncompliance with Section 226 of the CrPC,
the answer would be that the Section
173(2) of the CrPC report in the case
would give a fair idea thereof, and that the
stage of framing of charges under Section
228 of the CrPC is reached after crossing
the stage of Section 227 of the CrPC,
which affords both the prosecution and
accused a fair opportunity to put forward
their rival contentions.

16. Section 227 of the CrPC
reads thus:

"227.
Discharge.─
If,
upon
consideration of the record of the case and
the documents submitted therewith, and
after hearing the submissions of the
accused and the prosecution in this
behalf, the Judge considers that there is
not sufficient ground for proceeding
against the accused, he shall discharge the
accused and record his reasons for so
doing."

17. Section 228 of the CrPC
reads thus:

"228. Framing of charge.- (1) If,
after such consideration and hearing as
2 All. Harikesh & Ors. Vs. State of U.P. & Anr.
1497
aforesaid,the Judge is of opinion that
there is ground for presuming that the
accused has committed an offence which-

(a) is not exclusively triable by
the Court of Session, he may frame a
charge against the accused and, by order,
transfer the case for trial to the Chief
Judicial Magistrate, or any other Judicial
Magistrate of the first class and direct the
accused to appear before the Chief
Judicial Magistrate, or as the case may be,
the Judicial Magistrate of the first class,
on such date as he deems fit, and
thereupon such Magistrate shall try the
offence in accordance with the procedure
for the trial of warrant cases instituted on
a police report;

(b) is exclusively triable by the
Court, he shall frame in writing a charge
against the accused.

(2) Where the
Judge frames any charge under clause (b)
of sub-section (1), the charge shall be read
and explained to the accused and the
accused shall be asked whether he pleads
guilty of the offence charged or claims to
be tried."

13. While framing charge, the Court
has to ensure that a prima facie case must
be made out against the accused. The
Hon'ble Apex Court in Union of India Vs.
Prafulla Kumar Samal and another,
(1979) 3 SCC 4, considered the scope of
enquiry a judge is required to make while
considering the question of framing of
charges. After an exhaustive survey of the
case law on the point, in paragraph no. 10
of the judgement, has laid down the
following principles :

(1)
That
the
Judge
while
considering the question of framing the
charges under section 227 of the Code has
the undoubted power to sift and weigh the
evidence for the limited purpose of finding
out whether or not a prima facie case
against the accused has been made out.

(2) Where the materials placed
before the Court disclose grave suspicion
against the accused which has not been
properly explained the Court will be, fully
justified in framing a charge and
proceeding with the trial.

(3) The test to determine a prima
facie case would naturally depend upon
the facts of each case and it is difficult to
lay down a rule of universal application.
By and large however if two views are
equally possible and the Judge is satisfied
that the evidence produced before him
while giving rise to some suspicion but not
grave suspicion against the accused, he
will be fully within his right to discharge
the accused.

(4)
That
in
exercising
his
jurisdiction under section 227 of the Code
the Judge which under the present Code is
a senior and experienced Judge cannot
act merely as a Post office or a mouthpiece of the prosecution, but has to
consider the broad probabilities of the
case, the total effect of the evidence and
the documents produced before the Court,
any basic infirmities appearing in the case
and so on. This however does not mean
that the Judge should make a roving
enquiry into the pros and cons of the
matter and weigh the evidence as if he was
conducting a trial.

14. The Hon'ble Apex Court in
paragraph nos. 15 and 23 of its judgement
in Dipakbhai Jagdishchandra Patel Vs.
State of Gujarat, (2019) 16 SCC 547, has
elaborately discussed the law relating to the
framing of charge and discharge of the
accused which is as under :

15. We may profitably, in this
regard, refer to the judgment of this Court
1498 INDIAN LAW REPORTS ALLAHABAD SERIES
in State of Bihar v. Ramesh Singh [State
of Bihar v. Ramesh Singh, (1977) 4 SCC
39 : 1977 SCC (Cri) 533 : AIR 1977 SC
2018] wherein this Court has laid down
the principles relating to framing of
charge and discharge as follows: (SCC pp.
41-42, para 4)

"4. ... Reading Sections 227 and
228 together in juxtaposition, as they have
got to be, it would be clear that at the
beginning and the initial stage of the trial
the truth, veracity and effect of the
evidence which the prosecutor proposes to
adduce are not to be meticulously judged.
Nor is any weight to be attached to the
probable defence of the accused. It is not
obligatory for the Judge at that stage of
the trial to consider in any detail and
weigh in a sensitive balance whether the
facts, if proved, would be incompatible
with the innocence of the accused or not.
The standard of test and judgment which
is to be finally applied before recording a
finding regarding the guilt or otherwise of
the accused is not exactly to be applied at
the stage of deciding the matter under
Section 227 or Section 228 of the Code. At
that stage the court is not to see whether
there is sufficient ground for conviction of
the accused or whether the trial is sure to
end in his conviction. Strong suspicion
against the accused, if the matter remains
in the region of suspicion, cannot take the
place of proof of his guilt at the
conclusion of the trial. But at the initial
stage if there is a strong suspicion which
leads the Court to think that there is
ground for presuming that the accused
has committed an offence then it is not
open to the Court to say that there is no
sufficient ground for proceeding against
the accused. The presumption of the guilt
of the accused which is to be drawn at the
initial stage is not in the sense of the law
governing the trial of criminal cases in
France where the accused is presumed to
be guilty unless the contrary is proved.
But it is only for the purpose of deciding
prima facie whether the court should
proceed with the trial or not. If the
evidence which the prosecutor proposes to
adduce to prove the guilt of the accused
even if fully accepted before it is
challenged
in
cross-examination
or
rebutted by the defence evidence, if any,
cannot show that the accused committed
the offence, then there will be no
sufficient ground for proceeding with the
trial. ... If the scales of pan as to the guilt
or
innocence
of
the
accused
are
something like even, at the conclusion of
the trial, then, on the theory of benefit of
doubt the case is to end in his acquittal.
But if, on the other hand, it is so at the
initial stage of making an order under
Section 227 or Section 228, then in such a
situation ordinarily and generally the
order which will have to be made will be
one under Section 228 and not under
Section 227."

23. At the stage of framing the
charge in accordance with the principles
which have been laid down by this Court,
what the court is expected to do is, it does
not act as a mere post office. The court
must indeed sift the material before it. The
material to be sifted would be the material
which is produced and relied upon by the
prosecution. The sifting is not to be
meticulous in the sense that the court dons
the mantle of the trial Judge hearing
arguments after the entire evidence has
been adduced after a full-fledged trial and
the
question
is
not
whether
the
prosecution has made out the case for the
conviction of the accused. All that is
required is, the court must be satisfied that
with the materials available, a case is
made out for the accused to stand trial. A
strong suspicion suffices. However, a
2 All. Harikesh & Ors. Vs. State of U.P. & Anr.
1499
strong suspicion must be founded on some
material. The material must be such as
can be translated into evidence at the
stage of trial. The strong suspicion cannot
be the pure subjective satisfaction based
on the moral notions of the Judge that
here is a case where it is possible that the
accused has committed the offence. Strong
suspicion must be the suspicion which is
premised
on
some
material
which
commends itself to the court as sufficient
to entertain the prima facie view that the
accused has committed the offence.

15. In Sajjan Kumar Vs. C.B.I,
(2010) 9 SCC 368, the Hon'ble Apex Court
after elaborately discussing the scope of
Sections 227 and 228 Cr.P.C. has laid down
principles which emerge therefrom in
paragraph no. 21 which is as under :

21. On consideration of the
authorities about the scope of Sections
227 and 228 of the Code, the following
principles emerge:

(i) The Judge while considering
the question of framing the charges under
Section 227 CrPC has the undoubted
power to sift and weigh the evidence for
the limited purpose of finding out whether
or not a prima facie case against the
accused has been made out. The test to
determine prima facie case would depend
upon the facts of each case.

(ii) Where the materials placed
before the court disclose grave suspicion
against the accused which has not been
properly explained, the court will be fully
justified in framing a charge and
proceeding with the trial.

(iii) The court cannot act merely
as a post office or a mouthpiece of the
prosecution but has to consider the broad
probabilities of the case, the total effect of
the evidence and the documents produced
before the court, any basic infirmities, etc.
However, at this stage, there cannot be a
roving enquiry into the pros and cons of
the matter and weigh the evidence as if he
was conducting a trial.

(iv) If on the basis of the
material on record, the court could form
an opinion that the accused might have
committed offence, it can frame the
charge,
though
for
conviction
the
conclusion is required to be proved
beyond reasonable doubt that the accused
has committed the offence.

(v) At the time of framing of the
charges, the probative value of the
material on record cannot be gone into
but before framing a charge the court
must apply its judicial mind on the
material placed on record and must be
satisfied that the commission of offence by
the accused was possible.

(vi) At the stage of Sections 227
and 228, the court is required to evaluate
the material and documents on record
with a view to find out if the facts
emerging therefrom taken at their face
value disclose the existence of all the
ingredients
constituting
the
alleged
offence. For this limited purpose, sift the
evidence as it cannot be expected even at
that initial stage to accept all that the
prosecution states as gospel truth even if it
is opposed to common sense or the broad
probabilities of the case.

(vii) If two views are possible
and one of them gives rise to suspicion
only,
as
distinguished
from
grave
suspicion,
the
trial
Judge
will
be
empowered to discharge the accused and
at this stage, he is not to see whether the
trial will end in conviction or acquittal.

16. In the case of State of Karnataka
Vs. M.R. Hiremath, (2019) 7 SCC 515, the
Hon'ble Apex Court has laid down
1500 INDIAN LAW REPORTS ALLAHABAD SERIES
principles
to
be
considered
by
the
Magistrate while dealing with discharge
application of the accused u/s 239 Cr.P.C.
in warrant trial case. The directions given
by the Apex Court is equally applicable to
the discharge of accused u/s 227 Cr.P.C.

17. In paragraph no. 25 of Ghulam
Hassan Beigh (supra), the Apex Court
held as under :

25. In the case of Asim Shariff v.
National Investigation Agency, (2019) 7
SCC 148, this Court, to which one of us
(A.M. Khanwilkar, J.) was a party, in so
many words has expressed that the trial
court is not expected or supposed to hold a
mini trial for the purpose of marshalling
the evidence on record. We quote the
relevant observations as under:-

"18.
Taking
note
of
the
exposition of law on the subject laid down
by this Court, it is settled that the Judge
while considering the question of framing
charge under Section 227 CrPC in
sessions cases(which is akin to Section
239 CrPC pertaining to warrant cases)
has the undoubted power to sift and weigh
the evidence for the limited purpose of
finding out whether or not a prima facie
case against the accused has been made
out; where the material placed before the
Court discloses grave suspicion against
the accused which has not been properly
explained, the Court will be fully justified
in framing the charge; by and large if two
views are possible and one of them giving
rise to suspicion only, as distinguished
from grave suspicion against the accused,
3 2018(13) SCC 455 4 2019(6) SCALE
794 the trial Judge will be justified in
discharging him. It is thus clear that while
examining the discharge application filed
under Section 227 CrPC, it is expected
from the trial Judge to exercise its judicial
mind to determine as to whether a case for
trial has been made out or not. It is true
that in such proceedings, the Court is not
supposed to hold a mini trial by
marshalling the evidence on record.

18. In paragraph nos. 28, 29 and 30 of
the judgement in Amit Kapoor (supra),
the Hon'ble Supreme Court has held as
hereunder :

28. At this stage, we may also
notice that the principle stated by this
Court
in
Madhavrao
Jiwajirao
Scindia[(1988) 1 SCC 692 : 1988 SCC
(Cri) 234] was reconsidered and explained
in two subsequent judgments of this Court
in State of Bihar v. P.P. Sharma [1992
Supp (1) SCC 222 : 1992 SCC (Cri) 192 :
AIR 1991 SC 1260] and M.N. Damani v.
S.K. Sinha [(2001) 5 SCC 156 : 2001 SCC
(Cri) 823 : AIR 2001 SC 2037] . In the
subsequent judgment, the Court held that,
that judgment did not declare a law of
universal application and what was the
principle relating to disputes involving
cases of a predominantly civil nature with
or without criminal intent.

29. In the light of the above
principles, now if we examine the findings
recorded by the High Court, then it is
evident that what weighed with the High
Court was that firstly it was an abuse of
the process of court and, secondly, it was a
case of civil nature and that the facts, as
stated, would not constitute an offence
under Section 306 read with Section 107
IPC. Interestingly and as is evident from
the findings recorded by the High Court
reproduced supra that "this aspect of the
matter will get unravelled only after a fullfledged trial", once the High Court itself
was of the opinion that clear facts and
correctness of the allegations made can be
examined only upon full trial, where was
2 All. Harikesh & Ors. Vs. State of U.P. & Anr.
1501
the need for the Court to quash the charge
under Section 306 at that stage. Framing
of charge is a kind of tentative view that
the trial court forms in terms of Section
228 which is subject to final culmination
of the proceedings.

30. We have already noticed that
the legislature in its wisdom has used the
expression "there is ground for presuming
that the accused has committed an
offence". This has an inbuilt element of
presumption once the ingredients of an
offence with reference to the allegations
made are satisfied, the Court would not
doubt the case of the prosecution unduly
and extend its jurisdiction to quash the
charge in haste. A Bench of this Court in
State of Maharashtra v. Som Nath Thapa
[(1996) 4 SCC 659 : 1996 SCC (Cri) 820]
referred to the meaning of the word
"presume" while relying upon Black's
Law Dictionary. It was defined to mean
"to believe or accept upon probable
evidence"; "to take as proved until
evidence to the contrary is forthcoming".
In other words, the truth of the matter has
to come out when the prosecution
evidence is led, the witnesses are crossexamined
by
the
defence,
the
incriminating material and evidence is put
to the accused in terms of Section 313 of
the Code and then the accused is provided
an opportunity to lead defence, if any. It is
only upon completion of such steps that
the trial concludes with the court forming
its final opinion and delivering its
judgment. Merely because there was a
civil transaction between the parties would
not by itself alter the status of the
allegations
constituting
the
criminal
offence.

19. In the light of the law propounded
by the Apex Court in the aforesaid
judgement, now it will be examined
whether the trial court has rightly framed
the charge against the accused u/s 308
I.P.C. Section 308 I.P.C. defines the offence
of attempt to commit culpable homicide
and provides punishment therefor which is
as follows :

308. Attempt to commit culpable
homicide - 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
culpable homicide not amounting to
murder,
shall
be
punished
with
imprisonment of either description for a
term which may extend to three years, or
with fine, or with both; and, if hurt is
caused to any person by such act, shall be
punished with imprisonment of either
description for a term which may extend
to seven years, or with fine, or with both.

20. Before an accused can be held to
be guilty u/s 308 I.P.C., it was necessary to
arrive at a finding that the ingredients
thereof namely requisite intention or
knowledge was existing. The essential
ingredients of the offence u/s 308 I.P.C. are
as follows :

(1) accused committed an act;

(2) the act was committed with
the intention or knowledge of committing
culpable homicide not amounting to
murder;

(3) the act was committed in such
circumstances that if the accused by that act
had caused the death of the victim, he
would have been guilty of culpable
homicide.

21. The informant/injured, Ram
Chandra Kushwaha has mentioned in his
written report that on the date of occurrence
when he along with his son, Mithilesh
1502 INDIAN LAW REPORTS ALLAHABAD SERIES
Kushwaha
reached
the
District
Headquarter, the accused, Ajay, Hrishikesh
and Pankaj, enquired from him about the
work done in the village. The accused
assaulted him and his son with rod, lathi
and danda causing head injury to them.

22. The informant Ram Chandra
Kushwaha in his statement recorded u/s
161 Cr.P.C. has supported the averments in
the first information report and has stated
as follows :

"नदिांक 25-08-2015 को ग्राम सेवक देवेन्द्र
नमश्र के बुलािे पर मै व मेरा लडका नमनथलेश नजला मुख्यालय गये
थे। दोिो लोग पहुाँचे िो ग्राम सेवक िे पहले से ही ऋनषकेश, अजय
व पंकज जो उसके गांव के निवासी हैं, को बुलाया था। गांव के
कायों के नवषय में पूछिे पर िीिो लोग लाठी डण्डा से पीटिे लगे
और प्राणघािक हमला कर नदये, नजससे मुझे व मेरे लडके को चोटे
आयी। साथ ही सडक पर हम दोिो को पटक नदये। नजससे सर में भी
चोटें आयी। गांव में ििाव उत्पन्ि है। यह घटिा 11 बजे नदि की
है।"

23. The informant Ram Chandra
Kushwaha in his additional statement has
stated that :

"ऋनषकेश मेरे बेटे को जाि से मारिे की िीयि से
अचािक राड से उसके गदाि पर व कन्िे पर प्रहार कर नदये, नजससे
वह िीचे नगर गया और बेहोश हो गया िथा उल्टी करिे लगा।
मुनल्जमाि मुझे भी मारे पीटे व सडक पर पटक नदये। मै व मेरा बेटा
दोिो लोग नजला अस्पिाल में अपिा इलाज कराये उसके बाद
मेनडकल कालेज में भिी रहे।"

24. The informant's son, injured
Mithilesh Kushwaha has adopted the
statement u/s 161 Cr.P.C. of his father as
his statement.

25. The eye-witness, Habib Ansari in
his statement u/s 161 Cr.P.C. given to the
Investigating Officer has stated that :

"नदिांक 25-08-2015 को मै नजिेन्द्र मद्धेनशया
की दुकाि पर मौजूद था। वहां पर ऋनषकेश, अजय व पंकज भी
मौजूद थे। मेरे गांव का रामचन्द्र कुशवाहा व उिका बेटा नमनथलेश
कुशवाहा वहां आये िथा ग्राम नवकास अनिकारी पहले से वहां
मौजूद थे। ऋनषकेश िे दोिो को राड से मारा। नमनथलेश के गदाि पर
लगिे के कारण वह िीचे नगर गया िथा बेहोश हो गया। दोिो को
उठाकर अस्पिाल ले जाया गया। अजय व पंकज भी लोहे की राड
से वार नकये थे।"

26. The other eye-witness, Jitendra
Madheshiya in his statement u/s 161
Cr.P.C. has stated to the Investigating
Officer as follows :

"मै भी दुकाि पर मौजूद था। मेरी चाय की दुकाि है।
नससवा मनठया के प्रिाि ऋनषकेश िथा अजय व पंकज िे अपिे ही
गांव के रामचन्द्र कुशवाहा िथा नमनथलेश को मारे पीटे थे, नजससे
नमनथलेश के गदाि पर राड से चोट आयी थी। वह मौके पर बेहोश हो
गया था।"

27. Thus, the informant and the eyewitnesses
have
mentioned
in
their
statements that accused, Ajay, Hrishikesh
and Pankaj, attacked the informant Ram
Chandra Kushwaha and his son, Mithilesh
Kushwaha on their head with lathi, danda
and rod due to which they received fatal
injuries. The informant Ram Chandra
Kushwaha has also stated that accused had
assaulted him with the intention to kill him.
His son, Mithilesh fell on the ground and
started vomiting and became unconscious.

28. The injured Mithilesh Kushwaha
was medically examined on 25.08.2015 at
6.30 p.m. Following injuries were found on
the person of Mithilesh Kushwaha :

(1) Multiple contusion 7 x 4 cm
over left side back 2 cm above from
interior angle of right scapula.

(2) Abrasion 8 x 1.5 cm over right
side back 4 cm above from interior angle of
right scapula.

(3) Contused swelling 4 x 3 cm
over
tip
of
right
shoulder.
KUO.
2 All. Devinderjeet Singh Vs. State of U.P. & Anr.
1503

(4) Complain of pain over lower
back. KUO

(5) Complain of pain over chest,
back of chest, abdomen.

29. The injured Ram Chandra
Kushwaha was medically examined on
25.08.2015 at 5.50 p.m. Following injuries
were found on the person of Ram Chandra
Kushwaha :

(1) Contused swelling 5 cm x 4
cm over top of right shoulder joint. KUO.

(2) Contused swelling 3.5 cm x 2
cm over right side chest. 6 cm above from
right nipple. KUO. Red in colour.

(3) Complain of pain over lower
back.

(4)
Complain
of
pain
over
anterior chest.

(5) Complain of pain over left
side back.

30. From the definition of the offence
of attempt to commit culpable homicide
provided u/s 308 I.P.C., it is obvious that no
grievous injury or injury on the vital part of
the body is required. Only the injured must
be attacked by the accused with requisite
intention or knowledge.

31. In Tukaram Gundu Naik Vs.
State of Maharashtra, (1994) 1 SCC 465,
where none of the injuries had affected any
vital part of the body and it was doubtful
whether the accused had intended to
commit murder of the victim, the Apex
Court attributed only knowledge that by
inflicting such injuries, he was likely to
cause death and it was held that an attempt
to such an offence would be punishable u/s
308 I.P.C.

32. In the light of the statement of the
injured, Ram Chandra Kushwaha and that
of eye-witnesses, Habib Ansari and Jitendra
Madheshiya and the injury report of the
aforesaid injured, the trial court has rightly
held that prima facie offence u/s 323 and
308 I.P.C. is made out against the accused
and has directed framing of charges under
these sections. There is no illegality,
irregularity or impropriety in the impugned
order passed by the trial court.

33. There is no merit in the criminal
revision and the same is liable to be
dismissed.

34.

The
criminal
revision
is
dismissed, accordingly.

35. Let a copy of this order be sent to
the concerned trial court for necessary
action.
----------
(2024) 2 ILRA 1503
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.05.2023

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Criminal Revision No. 3268 of 2023

Devinderjeet Singh ...Revisionist
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Revisionist:
Sri Sanjay Kumar Mishra, Sri Arvind Kumar
Shukla

Counsel for the Respondents:
G.A., Sri Aushim Luthra, Sri Syed Imran Ibrahim,
Sri Vikas Chandra Srivastava, Sri Manish Tiwary
(Sr. Advocate), Sri V.P. Srivastava (Sr. Advocate)

Criminal Law - Indian Penal Code, 1860 -
Sections 406, 420, 467, 468, 471 & 120B -
Code of Criminal Procedure, 1973
-
Section 245(2) - Complainant lodged FIR