# Mukesh Kumar (In Jail) v. State of U.P

- **Citation:** (2021) 10 ILRA 536
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-18
- **Case number:** Criminal Appeal No. 2591 of 2020
- **Bench:** Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mukesh-kumar-in-jail-v-state-of-u-p-46369
- **Pages:** 5

## Headnote

Criminal Law - Indian Penal Code, 1860-
Section 308- To secure conviction under
Section 308 I.P.C. the prosecution must
prove that the accused had requisite
'intention'
or
'knowledge'
to
cause
culpable homicide, which in turn can be
ascertained from the actual injury as well
as from other surrounding circumstances.

The presence of intention and knowledge with
the accused can be inferred from the nature and
seat of injury in order to make out an offence
u/s 308 of the IPC.

Indian Penal Code, 1860- Section 308-
Section 324- Distinction between- In
contrast to Section 308 I.P.C., which
necessarily requires proving 'intention' or
'knowledge', to attract Section 324 I.P.C.
it is sufficient if a person voluntarily
causes hurt by means of an instrument for
stabbing or cutting. Under the former
(Section 308), injuries must be such as are
likely to cause death, but in the latter
(Section 324) the injuries may or may not
endanger one's life.

For making out an offence u/s 324 of the IPC,
neither intention nor knowledge is required and
merely causing voluntary hurt, which may not
endanger life, is sufficient.

Indian Penal Code, 1860- Section 308-
The appellant had in a fit of rage inflicted
injuries on the person of injured. Similarly,
given the facts of this case, it would be
far-fetched to hold that the appellant
knew that his actions were likely to cause
the death of the injured as all the injuries
were opined to the simple by the doctor.
The evidence on record falls short of
establishing the requisite ingredients of
Section 304 of Indian Penal Code, though
the appellant is undoubtedly guilty of
voluntarily causing hurt with a sharpedged weapon within the meaning of
Section 324 I.P.C.

Where the injuries are simple and inflicted with
a sharp edged weapon without intention or
knowledge to cause culpable homicide, then the
offence would be one u/s 324 of the IPC instead
of Section 308 of the IPC.

Quantum
of
Sentence-
Proportionate
Sentence- The appellant has undergone
actual sentence of approximately four
years. The incident took place more than
22 years ago, and the appellant has
admittedly not been involved in any other
case. The incident also does not reflect
any mental depravity or criminal instincts
on part of the appellant. It is on record
that the appellant, who appears to be a
young
boy,
has
not
misused
the
concession of bail granted more than ten
years
back.
Courts
must
award
punishment in a judicious manner, after
taking
into
account
various
relevant
circumstances including the gravity and
nature of offence, motive of the crime and
other attendant circumstances. Ends of
justice would be adequately met if the
sentence of the appellant is reduced to the
period which he has already undergone.
Conviction of t

## Text

536 INDIAN LAW REPORTS ALLAHABAD SERIES
are merely regulatory and more or less its
compliance has also been made, that does
not create any dent in the prosecution case,
therefore, the trial court was justified in
recording conviction against the appellant
under Section 8/18 N.D.P.S. Act, for which
no infirmity is perceptible in the judgment
and order impugned in this appeal.
Consequently, the conviction recorded by
the trial court is upheld.

26. Thus insofar as the point of
quantum of sentencing part of the judgment
is concerned that under prevailing facts and
circumstances of this case, appear to be too
harsh for which reasons are specific.
Considering future family liability of the
appellant that the appellant is a young man
and he has old parents to look after, and he
has promised not to repeat similar offence
in future and he is repentful to the situation
and undertakes that he will reform himself
as a good citizen and he will not repeat
similar offence in future and prayed that the
sentence should be confined to the
minimum possible as that would serve ends
of justice.

27. Therefore, imposition of sentence
for 5 years rigorous imprisonment is not
justified in the prevailing facts and
circumstances of this case and it cannot be
approved of at this stage and it should
commensurate with the offence in question;
moreso in proportionate to the degree the
offence has been committed. Here only 300
grams of opium which is much below the
commercial quantity i.e. 2.5kg. has been
recovered in this case. Hence, the sentence
of 5 years rigorous imprisonment with fine
Rs.20,000/- imposed by the trial court is
palliated
to
three
years
rigorous
imprisonment
coupled
with
fine
Rs.10,000/-, in case of default in payment
of fine he would have to suffer additional
two months imprisonment.

28. Accordingly, the sentencing part
of the impugned judgment and order dated
29.05.2018 passed by the Additional
Sessions Judge, Court No.2, Amroha, in
Special Session Trial No.14 of 2015 arising
out of Case Crime No.177 of 2015 State
Vs. Omvir son of Roomal Singh, under
Section 8/18 N.D.P.S. Act, Police Station
Adampur, District Amroha, is hereby
modified to the aforesaid extent.

29. In this case, the accused-appellant
is in jail since 29.05.2018 and sentence of
three years rigorous imprisonment shall
come to an end on 28.05.2021, if the
amount of fine Rs.10,000/- is also paid on
or
before
28.05.2021
otherwise
the
appellant shall have to suffer two months
imprisonment. Therefore, the appellant
shall serve out the aforesaid remaining part
of the sentence as above.

30. The instant appeal is allowed,
partly accordingly.

31. Let a copy of this order/judgment
be certified to the court below for necessary
information and follow up action.
----------
(2021)10ILR A536
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.01.2021

BEFORE

THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 2591 of 2020

Mukesh Kumar ...Appellant(In Jail)
Versus
State of U.P. ...Respondent
10 All. Mukesh Kumar Vs. State of U.P.
537
Counsel for the Appellant:
Munesh Kumar Upadhyay

Counsel for the Respondent:
A.G.A.

Criminal Law - Indian Penal Code, 1860-
Section 308- To secure conviction under
Section 308 I.P.C. the prosecution must
prove that the accused had requisite
'intention'
or
'knowledge'
to
cause
culpable homicide, which in turn can be
ascertained from the actual injury as well
as from other surrounding circumstances.

The presence of intention and knowledge with
the accused can be inferred from the nature and
seat of injury in order to make out an offence
u/s 308 of the IPC.

Indian Penal Code, 1860- Section 308-
Section 324- Distinction between- In
contrast to Section 308 I.P.C., which
necessarily requires proving 'intention' or
'knowledge', to attract Section 324 I.P.C.
it is sufficient if a person voluntarily
causes hurt by means of an instrument for
stabbing or cutting. Under the former
(Section 308), injuries must be such as are
likely to cause death, but in the latter
(Section 324) the injuries may or may not
endanger one's life.

For making out an offence u/s 324 of the IPC,
neither intention nor knowledge is required and
merely causing voluntary hurt, which may not
endanger life, is sufficient.

Indian Penal Code, 1860- Section 308-
The appellant had in a fit of rage inflicted
injuries on the person of injured. Similarly,
given the facts of this case, it would be
far-fetched to hold that the appellant
knew that his actions were likely to cause
the death of the injured as all the injuries
were opined to the simple by the doctor.
The evidence on record falls short of
establishing the requisite ingredients of
Section 304 of Indian Penal Code, though
the appellant is undoubtedly guilty of
voluntarily causing hurt with a sharpedged weapon within the meaning of
Section 324 I.P.C.

Where the injuries are simple and inflicted with
a sharp edged weapon without intention or
knowledge to cause culpable homicide, then the
offence would be one u/s 324 of the IPC instead
of Section 308 of the IPC.

Quantum
of
Sentence-
Proportionate
Sentence- The appellant has undergone
actual sentence of approximately four
years. The incident took place more than
22 years ago, and the appellant has
admittedly not been involved in any other
case. The incident also does not reflect
any mental depravity or criminal instincts
on part of the appellant. It is on record
that the appellant, who appears to be a
young
boy,
has
not
misused
the
concession of bail granted more than ten
years
back.
Courts
must
award
punishment in a judicious manner, after
taking
into
account
various
relevant
circumstances including the gravity and
nature of offence, motive of the crime and
other attendant circumstances. Ends of
justice would be adequately met if the
sentence of the appellant is reduced to the
period which he has already undergone.
Conviction of the appellant is modified,
from one under Section 308 I.P.C. to
section 324 I.P.C. and his sentence is
consequently reduced from five years
rigorous
imprisonment
to the
period
which he has already undergone.

Where the offence u/s 324 of the IPC is made
out instead of Section 308 of the IPC, there is
no misuse of bail and the offence does not
reflect any mental depravity, it would be just
and proper to reduce the sentence to the period
undergone by the accused. ( Para 9, 11, 13, 14,
15, 16, 17, 18 )

Criminal Appeal partly allowed. (E-3)

(Delivered by Hon'ble Ajit Singh, J.)

1. Counter affidavit filed on behalf of
State in the Court today is taken on record.
538 INDIAN LAW REPORTS ALLAHABAD SERIES

2. Heard learned counsel for the
appellant, learned A.G.A. and perused the
record.

3. This criminal appeal u/s 374(2)
Cr.P.C.
has
been
filed
against
the
judgement and order dated 8.9.2020 passed
by learned Additional District and Session
Judge, Court No. 5, Hathras in Session
Trial No. 351 of 2009 (State vs. Mukesh
Kumar) arising out of Case Crime no.104
of 1998, u/s 308 I.P.C., P.S.-Sasani,
District-Hathras, whereby the appellant has
been convicted and sentenced for the
offence u/s 308 I.P.C. for five years
imprisonment and a fine of Rs.5000/- and
in default of payment for five months
additional imprisonment.

4. The prosecution story in brief is
that on 4.5.1998 at about 6:00 O'clock in
the evening the son of the complainant
Ravendra Kumar was going towards the
canal, then the accused who used to live in
his brother-in-law's house, was coming
from the opposite side and having seen the
complainant's son alone, went back to his
house and returned on bicycle with a knife
and started assaulting his son with the
knife, as a result of which he became
unconscious and fell down on the ground.
After seeing the incident Manvendra
Kumar, son of Surendra Kumar, resident of
Sinamai and Kalicharan, son of Vedram ran
towards the son of the complainant and
saved his son. Thereafter the accused ran
away from the spot on his bicycle.

5. At the very outset, learned counsel
for the appellant, on instructions, stated that
he does not propose to challenge the
impugned judgement and order on its merits.
He, however, prayed for modification of the
order of the sentence for the period already
undergone by the appellant.

6. In furtherance to his submission, the
learned counsel for the accused-appellant
submits that the act of the appellant was not
intentional. He next submits that the injured
PW-1 in his examination-in-chief has stated
that some altercation took place between him
and the accused and it arose due to the
collision met to the injured by the accused's
bicycle as a result of which the injured fell
down on the ground when he fell down on
the ground from his bicycle the accused after
taking out the knife from his pocket and
given repeated knife blow, causing injuries
on the chest, neck and other part of the body.
He in his cross-examination has also stated
that he was attacked from back side and he
had not seen the attacker on the spot. He next
submits that the doctor in his report has
specifically
mentioned
that
the
injury
sustained by the injured was simple in nature
and hence the offence under Section 308
I.P.C. is not made out against the appellant.
He also submits that on the question of
legality of sentence he is not pressing this
appeal and only pressing on the quantum of
sentence and he has prayed for taking lenient
view considering the age of the accused and
his age related ailments.

7. The short question which arises for
consideration is whether the offence
committed by the appellant falls within the
ambit of Section 308 or 324 of Indian Penal
Code.

8. Section 308 of Indian Penal code
provides that "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 or
culpable homicide not amounting to
murder" and in case any hurt is caused to
any person by such act, then "the accused is
liable to be punished with imprisonment of
either description for a term which may
10 All. Mukesh Kumar Vs. State of U.P.
539
extend to seven years, or with fine, or with
both."

9. Therefore the secure conviction
under Section 308 I.P.C. the prosecution must
prove that the accused had requisite 'intention'
or 'knowledge' to cause culpable homicide,
which in turn can be ascertained from the
actual injury as well as from other
surrounding circumstances.

10. Section 324 I.P.C., on the other
hand, criminalizes willful infliction of
injuries on another and states that whoever
"voluntarily causes hurt by means of any
instrument for shooting, stabbing or cutting,
or any instrument which, used as a weapon of
offence, is likely to cause death", would be
punished with "imprisonment of either
description for a term which may extend to
three years, or with fine, or with both."

11. In contrast to Section 308 I.P.C.,
which necessarily requires proving 'intention'
or 'knowledge', to attract Section 324 I.P.C. is
is sufficient if a person voluntarily causes
hurt by means of an instrument for stabbing
or cutting.

12. It is thus crucial to determine
whether the appellant had 'intention' or
'knowledge' that the injury inflicted on the
victim could cause the latter's death and as a
result thereto the appellant could be guilty of
committing culpable homicide not amounting
to murder?

13. The distinction between attempt to
commit culpable homicide not amounting to
murder, and voluntarily causing hurt with a
sharp edged weapon, is subtle and nuanced.
Under the former (Section 308), injuries must
be such as are likely to cause death, but in the
latter (Section 324) the injuries may or may
not endanger one's life.

14. Accepting true what the injured
has deposed, I find it difficult to hold that
the
appellant
had
any
intention
or
knowledge to inflict such injury which
could cause the victim's death within the
meaning
of
culpable
homicide
not
amounting to murder. The appellant had in
a fit of rage inflicted injuries on the person
of injured. Similarly, given the facts of this
case, it would be far-fetched to hold that
the appellant knew that his actions were
likely to cause the death of the injured as
all the injuries were opined to the simple by
the doctor.

15. This Court is of the opinion that
the evidence on record falls short of
establishing the requisite ingredients of
Section 304 of Indian Penal Code, though
the appellant is undoubtedly guilty of
voluntarily causing hurt with a sharp-edged
weapon within the meaning of Section 324
I.P.C.

16. Resultantly, it must also be
considered whether the sentence awarded
to the appellant is appropriate. It is not
disputed by the learned State counsel that
the appellant has undergone actual sentence
of approximately four years. The incident
took place more than 22 years ago, and the
appellant has admittedly not been involved
in any other case. The incident also does
not reflect any mental depravity or criminal
instincts on part of the appellant. It is on
record that the appellant, who appears to be
a young boy, has not misused the
concession of bail granted more than ten
years back.

17. It would be trite to note that
Courts must award punishment in a
judicious manner, after taking into account
various relevant circumstances including
the gravity and nature of offence, motive of
540 INDIAN LAW REPORTS ALLAHABAD SERIES
the
crime
and
other
attendant
circumstances. Applying these parameters,
this Court is of the considered view that
ends of justice would be adequately met if
the sentence of the appellant is reduced to
the period which he has already undergone.
I order accordingly.

18. For the reasons aforestated, the
appeal is allowed in part; conviction of the
appellant is modified, from one under
Section 308 I.P.C. to section 324 I.P.C. and
his sentence is consequently reduced from
five years rigorous imprisonment to the
period which he has already undergone. His
bail bonds are consequently discharged.
----------
(2021)10ILR A540
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.09.2021

BEFORE

THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 2465 of 1988

Faqir Mohd. & Ors. ...Appellants(In Jail)
Versus
The State of U.P. ...Respondent

Counsel for the Appellants:
Sri Braham Singh, Sri Abhai Saxena

Counsel for the Respondent:
A.G.A.

Reformative
Theory
of
Punishment-
Proportionate Sentence- Keeping in view
the facts and circumstances of the case
and
also
keeping
in
view
criminal
jurisprudence in our country which is
reformative
and
corrective
and
not
retributive. This Court considers that no
accused person is incapable of being
reformed and therefore, all measures
should be applied to give them an
opportunity of reformation in order to
bring them in the social stream.

The judicial trend is that Sentence must be
proportionate to the offence committed but at
the same time effort should be made to reform
the convict so that he is aligned with the social
mainstream.

Proportionate Sentence - The alleged
incident which took place in the year 1983
about 38 years ago and now accusedappellants are more than 60 and 70 years
of age respectively, it would not be proper
to sent the accused-appellants to jail at
the fag end of their life and the accused
were on bail since 27.10.1988 and the
accused persons have suffered the agony
of conviction for more than 38 years and
no
criminal
antecedents
have
been
shown-It would be appropriate and proper
that the accused be sentenced with the
period already undergone and the amount
of fine be enhanced instead of sending
them to jail.

The long time that has elapsed since the
occurrence, the age of the convicts and their
not misusing the period of bail would be some
of the mitigating circumstances entitling them to
be sentenced with the period undergone along
with enhancement of fine. (Para 17,18)

Criminal Appeal partly allowed. (E-3)

Judgements/ Case law relied upon:-

1. Mohd. Giasuddin Vs St. of AP, AIR 1977 SC
1926

2. Sham Sunder Vs Puran, (1990) 4 SCC 731

3. St. of MP Vs Najab Khan, (2013) 9 SCC 509

4. Deo Narain Mandal Vs St. of UP (2004) 7 SCC
257

5. Shyam Narain Vs St. (NCT of delhi), (2013) 7
SCC 77

6. Sumer Singh Vs Surajbhan Singh, (2014) 7
SCC 323