# Jamshed & Ors. Revisionists v. State of U.P. & Anr

- **Citation:** (2023) 9 ILRA 697
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-04
- **Case number:** Criminal Revision No. 1526 of 2023
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jamshed-ors-revisionists-v-state-of-u-p-anr-50734
- **Pages:** 6

## Headnote

(A) Criminal Law - Revision - Indian Penal
Code, 1860 - Sections 147, 148, 149, 452,
323, 506, 354, 354B, 324, 325 & 308 - The
Code of Criminal Procedure, 1973
-
Section 227- Discharge, Section 228 -
Framing
of
Charge
-
truthfulness,
sufficiency and acceptability of material
produced, can be examined only at the
stage of trial - at the stage of Section 227,
the Judge has merely to sift the evidence
in order to find out whether or not there is
sufficient ground for proceeding against
the accused - a charge can be made
against the accused on grave suspicion of
698 INDIAN LAW REPORTS ALLAHABAD SERIES
the commission of the offense. (Para -
16,17,19 )

(B) Criminal Law - Revision - Indian
Penal Code, 1860 - Section 308 -
Attempt to commit culpable homicide -
to secure conviction under Section 308
IPC - prosecution must prove that the
accused
had
requisite
intention
or
knowledge to cause culpable homicide
which in turn can ascertain the actual
injury as well as other surrounding
circumstances. (Para -12)

Revisionist (accused) moved an application for
discharge - discharge qua charge under Section
308 IPC - no case under Section 308 IPC made
out - X-ray of skull of main injured - no fracture
found - no statement of any doctor that any of
the injury were dangerous to life - original CT
Scan film not placed on record - Injury report
shows an incised wound, a contusion, and two
contused swellings in face - discharge
application moved by accused revisionist for
charge under Section 308 IPC dismissed - hence
revision. (Para -2,9,19)

HELD:- Statement of injured and other
witnesses recorded under Section 161 Cr.P.C.,
it cannot be held at the stage of framing of
charge that there is no sufficient ground for
proceeding against accused under Section 308
IPC in the light of pronouncement of Hon'ble
Apex Court . Prima facie case envisaged for
framing of charge is prima facie formation of
opinion by trial court that there is sufficient
ground to put accused on trial for said charge
and not the formation of opinion that the said
material collected during investigation, if
proved, during trial, the same would be
sufficient to convict the accused for said
charge. No illegality, irregularity or perversity
in order passed by court below.(Para - 20)

Revision dismissed. (E-7)

List of Cases cited:

## Text

9 All. Jamshed & Ors. Vs. State of U.P. & Anr.
697
always vested in the Court, as provided
under Section 216 CrPC to either alter or
add the charge and that such power is
available with the Court at any time before
the judgment is pronounced. It is an
enabling provision for the Court to exercise
its power under certain contingencies
which comes to its notice or brought to its
notice. In such a situation, if it comes to the
knowledge of the Court that a necessity has
arisen for the charge to be altered or
added, it may do so on its own and no
order need to be passed for that purpose.
After such alteration or addition when the
final decision is rendered, it will be open
for the parties to work out their remedies in
accordance with law.

14. This Court in the case of Vibhuti
Narayan Chaubey Alias .. vs State Of U.P,
2003 CrLJ 196 held that Section 216 of the
code did not provide for deletion of a charge
and that the word "delete" had intentionally
not being used by the legislature. I am in
agreement
with
this
conclusion.
The
petitioner is seeking the deletion of a charge
of
conspiracy
altogether
that
is
not
permissible under Section 216 of the Code.
The charge once framed must lead to either
acquittal or conviction at the conclusion of
trial. Section 216 of the Code does not
permit
the
deletion
of
the
same.
Subsequently, Delhi High Court in the case
of Verghese Stephen vs Central Bureau
Of Investigation, 2007 Cr.L.J. 4080,
placed reliance on aforesaid judgement of
this Court in the case of Vibhuti Narayan
Chaubey (supra).

15. Section 222 (2) of the Cr.P.C.
provides that when a person is charged with
an offence and facts are proved which
reduce it to a minor offence, he may be
convicted of the minor offence, although he
is not charged with it.

16. On the basis of foregoing
discussions based on facts of this case
coupled with judicial authorities cited as
above, I find that the revision is devoid of
force. There is no illegality, irregularity or
impropriety in the impugned order passed
by the learned trial court and the revision is
liable to be dismissed.

17. Accordingly, present revision is
dismissed.
----------
(2023) 9 ILRA 697
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.08.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 1526 of 2023

Jamshed & Ors. ...Revisionists
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Revisionists:
Sri Harish Kumar Tripathi

Counsel for the Respondents:
G.A., Sri Ajay Kumar Srivastava, Sri Ram
Raj Pandey

(A) Criminal Law - Revision - Indian Penal
Code, 1860 - Sections 147, 148, 149, 452,
323, 506, 354, 354B, 324, 325 & 308 - The
Code of Criminal Procedure, 1973
-
Section 227- Discharge, Section 228 -
Framing
of
Charge
-
truthfulness,
sufficiency and acceptability of material
produced, can be examined only at the
stage of trial - at the stage of Section 227,
the Judge has merely to sift the evidence
in order to find out whether or not there is
sufficient ground for proceeding against
the accused - a charge can be made
against the accused on grave suspicion of
698 INDIAN LAW REPORTS ALLAHABAD SERIES
the commission of the offense. (Para -
16,17,19 )

(B) Criminal Law - Revision - Indian
Penal Code, 1860 - Section 308 -
Attempt to commit culpable homicide -
to secure conviction under Section 308
IPC - prosecution must prove that the
accused
had
requisite
intention
or
knowledge to cause culpable homicide
which in turn can ascertain the actual
injury as well as other surrounding
circumstances. (Para -12)

Revisionist (accused) moved an application for
discharge - discharge qua charge under Section
308 IPC - no case under Section 308 IPC made
out - X-ray of skull of main injured - no fracture
found - no statement of any doctor that any of
the injury were dangerous to life - original CT
Scan film not placed on record - Injury report
shows an incised wound, a contusion, and two
contused swellings in face - discharge
application moved by accused revisionist for
charge under Section 308 IPC dismissed - hence
revision. (Para -2,9,19)

HELD:- Statement of injured and other
witnesses recorded under Section 161 Cr.P.C.,
it cannot be held at the stage of framing of
charge that there is no sufficient ground for
proceeding against accused under Section 308
IPC in the light of pronouncement of Hon'ble
Apex Court . Prima facie case envisaged for
framing of charge is prima facie formation of
opinion by trial court that there is sufficient
ground to put accused on trial for said charge
and not the formation of opinion that the said
material collected during investigation, if
proved, during trial, the same would be
sufficient to convict the accused for said
charge. No illegality, irregularity or perversity
in order passed by court below.(Para - 20)

Revision dismissed. (E-7)

List of Cases cited:

1. U.O.I. Vs Prafulla Kumar Samal , (1979) 3
SCC 39

2. P. Vijayan Vs St. of Kerala & anr. , (2010)
SCC 398
3. Captain Manjit Singh Virdi (Retd.) Vs Hussain
Mohammed Shattaf & ors. , 2023 LiveLaw (SC)
462

4. St. of Raj. Vs Ashok Kumar Kashyap, (2021)
11 SCC 191

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Heard learned counsel for the
revisionists, learned counsel for the private
respondent and learned A.G.A. for the
State.

2. Instant criminal revision has been
preferred against order dated 1.3.2023
passed by learned Additional Sessions
Judge, Court No. 4, Baghpat in S.T. No.
344 of 2022 (State Vs. Jamshed and
others), arising out of Case Crime No. 759
of 2021, under Sections 147, 148, 149, 452,
323, 506, 354, 354B, 324, 325, 308 IPC,
P.S. Badaut, District Baghpat, whereby
learned court below has dismissed the
discharge application 8B filed by the
revisionists.

3. Factual matrix of the case relevant
for the purpose of present revision are that
informant Irfan lodged an F.I.R. with P.S.
concerned on 1.7.2021 at 18:06 hours by
filing
written
report
before
S.H.O.
concerned with averment that on 30.6.2021
at around 10:00 PM he was sitting at his
home along with family members, accused
persons who harbour enmity with him,
prior to the incident and suddenly emerged
without any reason armed with sharp edged
weapons, clubs and sticks and attacked him
with intention to kill. Informant, his son
Danish and Amir received serious injuries
in the incident. Accused persons had also
torn clothes of his wife and daughter and
molested them. On hearing cries of
informant side, neighbours emerged and
9 All. Jamshed & Ors. Vs. State of U.P. & Anr.
699
thereupon accused persons left the place of
incident after giving threat to informant and
his family. Injured were examined at
C.H.C., Badaut on the date of incident at
around 11:00 PM and main injured Amir
sustained four injuries which are described
as below.

(I) Incised wound of size 4 x 0.5
cm into bone deep. Margin is clear on
lateral to left Eyebrow on lt. Side of face.
K.U.O. X-ray forehead (skull) Ap-Lat.

(ii) Contusion of size 2 x 1 cm on
Rt. Side of face just below Rt. Eye.

(iii) Contused swelling of size 4 x
2 cm on verntral aspect of Rt. Forearm.

(iv) Contused swelling of size
05.0.5 cm on dorsal aspect of Rt. Hand.
KUO X-ray Rt. Hand AP-oblique. Duration
Fresh.

4. In the opinion of doctor, injury
no. 1, kept under observation, which was
caused by sharp edged object. Injury no. 4,
kept under observation. Injury nos. 2 and 3
were found simple in nature.

4. Injured Irfan suffered three injuries
out of which one injury on left shoulder
joint, which was kept under observation.
Injury was found to be caused by hard and
blunt object.

5. Injured Danish Sustained six
injuries out of which two injuries were kept
under observation and rest were found
simple. In X-ray of skull of injured Amir,
no bone injury was seen, however, in X-ray
of right hand of Amir, fracture on second
and fourth of metacarpal bone seen. Doctor
prepared supplementary report of injured
Amir and termed the injuries of finger of
right hand as grievous. In x-ray report of
left hand of Irfan, fracture on fifth
metacarpal bone was seen. These injuries
was found to be grievous. In x-ray report of
left hand of injured Danish, fracture in
distal end of second metacarpal bone was
seen which was found grievous.

6. Injured persons in their statement
under Section 161 Cr.P.C. and aggrieved
ladies of the family of the informant
Nurnisha and Sazia in their statement under
Section 164 Cr.P.C. supported the F.I.R.
version. Injured Amir in statement under
Section 161 Cr.P.C. stated that accused
persons have attacked him with sharp
edged weapons, lathi and danda in which
he has suffered injuries on his head and
spinal cord and referred to district hospital
Baghpat
from
C.H.C.,
Badaut
for
treatment.
Independent
witnesses
also
supported the F.I.R. version in their
statements under Section 161 Cr.P.C. CTScan of head of injured Amir was
conducted on 1.7.2021 and concerned
doctor/radiologist found a linear fracture
involving anterior lateral wall of left
maxillary sinus, however, no abnormality
was detected, parenchyma.

7. The investigating officer recorded
statement of doctor Pravendra Chaurasiya,
who conducted MLC of injured persons and
submitted supplementary report, who has
stated in his statement that no offence under
Section 308 IPC is made out on the basis of
supplementary report of all three injured
persons including Amir and in X-ray report
of Amir, no bone injury was seen. On the
basis of medical evidence, investigating
officer dropped charge under Section 308
IPC, however, in charge sheet, section 308
IPC was also added later on, on the basis of
medical report after further investigation
carried out on orders of Circle Officer.
700 INDIAN LAW REPORTS ALLAHABAD SERIES

8.

Learned
court
below
took
cognizance of the offence on the basis of
charge sheet and summoned the accused
persons to face trial inter alia under Section
147, 148, 149, 452, 323, 324, 325, 308,
506, 354, 354B IPC.

9 . Accused, who are revisionist before
this Court, moved an application for
discharge with prayer to discharge qua
charge under Section 308 IPC stating that
no case under Section 308 IPC is made out
against them as in X-ray of skull of main
injured Amir, no fracture was found,
however, in CT Scan report of doctor Jain
of Jeewan Jyoti Nursing Home, Badaut,
linear fracture was only found in anterior
lateral wall of left maxillary sinus and none
of the injury of accused persons appears to
be dangerous for life. There is also no
statement of any doctor that any of the
injury of Amir were dangerous to life.
Inasmuch as, original CT Scan film was not
placed on record.

10. There is cross case instituted on
complaint of Sameena, wife of Momin on
criminal complaint which is registered as
Crl. Complaint Case No. 3394 of 2021
(Sameena Vs. Danish and others), P.S.
Badot, District Baghpat, wherein Irfan,
Gulfam, Javed, Arshad, Danish and Amir
of prosecution side of present case are
summoned as accused by the court below
vide order dated 1.7.2022 under Sections
147, 148, 452, 323, 307, 506 IPC.

11. Section 308 IPC reads as under:-

"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.
Illustration A, on grave and sudden
provocation, fires a pistol at Z, under such
circumstances that if he thereby caused
death he would be guilty of culpable
homicide not amounting to murder. A has
committed the offence defined in this
section."

12. Hon'ble Supreme Court in Crl.
Appeal No. 2204 of 2010, Roop Chand @
Lala Vs. State (NCT) of Delhi considered
the scope of Section 308 IPC in an appeal
against conviction and held that to secure
conviction
under
Section
308
IPC,
prosecution must prove that the accused
had requisite intention or knowledge to
cause culpable homicide which in turn can
ascertain the actual injury as well as other
surrounding circumstances. Section 308
IPC necessarily requires proving intention
or knowledge. It is thus, crucial to
determine
whether
the
accused
had
intention or knowledge that injury inflicted
on the victim could cause the later death
and as a result thereto the accused could be
guilty of committing culpable homicide not
amounting to murder.

13. In matter of plea seeking
discharge under Section 227 Cr.P.C., some
judicial pronouncements of Hon'ble Apex
Court deserve to be mentioned.

14. Hon'ble Apex Court in the case of
Union of India Vs. Prafulla Kumar
Samal (1979) 3 SCC 39, on the question of
discharge has held as follows:-
9 All. Jamshed & Ors. Vs. State of U.P. & Anr.
701

"
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."

15. Hon'ble Apex Court in the case of
P. Vijayan vs. State of Kerala & Another
(2010) SCC 398, on the question of
discharge has held as follows:-

" At the stage of Section 227, the Judge
has merely to sift the evidence in order to find out
whether or not there is sufficient ground for
proceeding against the accused. In other words,
the sufficiency of ground would take within its fold
the nature of the evidence recorded by the police
or the documents produced before the Court
which ex facie disclose that there are suspicious
circumstances against the accused so as to frame
a charge against him."

16. In recent judgment, Hon'ble
Supreme Court in Captain Manjit Singh
Virdi (Retd.) v. Hussain Mohammed
Shattaf & Ors., 2023 LiveLaw (SC) 462,
held that truthfulness, sufficiency and
acceptability of material produced, can be
examined only at the stage of trial. If the
facts of the case are examined in the light
of law laid down by this Court on the
subject, it is evident that High Court has
not even referred to the evidence collected
by investigating agency produced along
with charge sheet in its identity, rather
there
is
selective
reference
to
the
statements of some of persons recorded
during investigation. It shows that there
was total non application of mind. The
High Court had exercised the jurisdiction
while discharging to murder accused
persons in a manner which is not vested in
it to scuttle the trial of a heinous crime. At
the stage of charge, court had to satisfy that
a prima facie case is made out against
accused persons. Interference of the court
at that stage is required only if there is
strong reason to hold that in case the trial is
allowed to proceed, the same would
amount to abuse of process of the court.

17. In State of Rajasthan Vs. Ashok
Kumar Kashyap, (2021) 11 SCC 191,
Hon'ble Supreme Court placed reliance on
its previous judgment in P. Vijayan vs.
State of Kerala (supra), wherein it is
observed and held that at the stage of
Section 227, the Judge has merely to sift
the evidence in order to find out whether or
not
there
is
sufficient
ground
for
proceeding against the accused. In other
words, the sufficiency of ground would
take within its fold the nature of the
evidence recorded by the police or the
documents produced before the Court
which ex facie disclose that there are
suspicious
circumstances
against
the
accused so as to frame a charge against
him. If the Judge comes to a conclusion
702 INDIAN LAW REPORTS ALLAHABAD SERIES
that there is sufficient ground to proceed,
he will frame a charge under Section 228, if
not, he will discharge the accused. It is
further observed that while exercising his
judicial mind to the facts of the case in
order to determine whether a case for trial
has been made out by the prosecution, it is
not necessary for the Court to enter into the
pros and cons of the matter or into a
weighing and balancing of evidence and
probabilities which is really the function of
the Court, after the trial starts.

18. In present case although Dr.
Pravendra who conducted M.L.C. of injured
persons and submitted supplementary report
stating that no offence under Section 308 IPC is
made out on the basis of supplementary report
as no bone injury was seen on the skull of
injured, however, in CT scan report of injured
Amir, a linear fracture involving anterior lateral
wall of left maxillary sinus was detected,
although there is no opinion of the doctor
regarding the nature and effect of this injury,
however, this injury is on vital part of the body,
just below the skull. Injured Amir has also
stated in his statement that accused persons had
assaulted him and his father and brother Danish
by clubs, sticks and inside weapons in which he
received injuries on his head and spinal cord.

19. In injury report of Amir, one Incised
wound of size 4 x 0.5 cm into bone deep.
Margin is clear on lateral to left Eyebrow on lt.
Side of face and one contusion of size 2 x 1 cm
on Rt. Side of face just below Rt. Eye, were
found apart from two contused swelling on
right forearm and right forehand, thus keeping
in view the nature of injury no. 1 of Amir,
which is in the opinion of the doctor has been
caused by some sharp edged object and the
statement of injured and other witnesses
recorded under Section 161 Cr.P.C., it cannot
be held at the stage of framing of charge that
there is no sufficient ground for proceeding
against accused under Section 308 IPC in the
light of pronouncement of Hon'ble Apex
Court as stated above as a charge can also be
made against accused on grave suspicion of
commission of offence. Prima facie case
envisaged for framing of charge is prima facie
formation of opinion by trial court that there is
sufficient ground to put accused on trial for
said charge and not the formation of opinion
that the said material collected during
investigation, if proved, during trial, the same
would be sufficient to convict the accused for
said charge.

20. Considering rival submissions of
learned counsel for the parties, material on
record
and
totality
of
the
facts
and
circumstances of the case, I find no fault.
Learned court below in passing impugned
order, whereby discharge application moved by
accused revisionist for charge under Section
308 IPC has been dismissed. No illegality,
irregularity or perversity is found in impugned
order passed by learned court below. Revision
is devoid of merit and deserves to be dismissed
in the light of foregoing discussions.

21. Accordingly, impugned order passed
by learned court below is affirmed and revision
stands dismissed.
----------
(2023) 9 ILRA 702
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.08.2023

BEFORE

THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Revision No. 2941 of 2023

Krishna & Anr. ...Revisionists
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Revisionists: