# Santosh Kumar Shukla (In Jail) / v. State of U.P /Prosecution

- **Citation:** (2014) 1 ILRA 157
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-09-21
- **Case number:** Criminal Appeal No. 348 of 2013
- **Bench:** Vishnu Chandra Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/santosh-kumar-shukla-in-jail-v-state-of-u-p-prosecution-42960
- **Pages:** 6

## Headnote

Cr.P.C.-Section 374(2)- Criminal Appealagainst conviction under section 326
I.P.C.-appeal on ground-if prosecution
case admitted as it is-no offence under
section 326 IPC made out-as non of the
contingencies specified in Section 320
made out-at most can be offence under
section 324 IPC punishable with 3 years.
R.I held-weapon used for assult an
158 INDIAN LAW REPORTS ALLAHABAD SERIES
instrument of picking grains from gunny
bags no repeation of attack-no criminal
history-conviction reduced to already
undergone-with fine of Rs. 10,000/-
appeal partly allowed.

Held: Para-19
From the evidence available on record, it
appears
that
hurt
has
been
caused
voluntarily by a dangerous weapon which
could may be used as an instrument of
stabbing. Hence the offence shall squarely
falls within the ambit of Section 324 IPC
and
consequently,
I
express
my
concurrence with the submission of learned
counsel for the appellant that no offence
under Section 326 IPC is made out and only
offence under Section 324 IPC is made out
against the appellant.

## Text

1 All] Ajay Chaudhary Vs. State of U.P. and Ors.
157
therefore, the question of concealment of
any fact by him does not arise.

6. Para 4 of G-28, which relates to
information regarding some criminal case
reads as under:

^^4& D;k vkosnd dHkh fdlh vkcdkjh vQhe
;k pjl MaDl dkuwu ds vUrxZr ;k fdlh xSj
tekurh nLrkUnkth tqeZ esa ;k 1889 ds epZUMkbt
,DV ;k nQk 382] 489 Hkk0 n0 la0 esa n.Muh;
fdlh tqeZ esa ltk ik pqdk gSA^^

English translation by the Court:

4- Whether applicant has ever been
convicted under any Excise Act or under
Anti-drugs Act involving opium or Charas or
for any non-bailable cognizable offence or
under the Merchandise Act, 1989 or for any
offence punishable u/s 382, 489 of I.P.C."

7. There is no requirement in the
aforesaid Format that an applicant for the
aforesaid licence must disclose about a
criminal case pending against him under any
provision of I.P.C. other than what is
mentioned in para 4. Admittedly, petitioner
has not been convicted under any statute. The
respondents themselves admits that merely a
case is pending against petitioner under
Sections 323, 324, 504 and 506 I.P.C. but that
cannot be a ground to cancel licence since it
cannot be said that petitioner has concealed
some information, which he was supposed to
disclose, but has not disclosed. Learned
Standing Counsel, having gone through the
aforesaid condition, could not seriously
dispute that whatever information is required
therein,
does
not
include
information
regarding pendency of criminal case.

8. Once the respondents themselves
do not require any information regarding
pendency of criminal case, petitioner cannot
be saddled with the responsibility that he
must disclose it and failing to do so would
justify an inference of concealment of a
relevant information that a criminal case is
pending against him.

9. Even otherwise, mere pendency
of criminal case has no connection with
the terms and conditions, which has to be
stated/disclosed by applicant in the
affidavit.
Therefore,
in
my
view,
respondents have acted wholly illegally
and the impugned orders cannot sustain.

10. In the result, writ petition is
allowed.
Impugned
orders
dated
21.9.2011 and 6.1.2012 are hereby
quashed.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 27.01.2014

BEFORE
THE HON'BLE VISHNU CHANDRA GUPTA, J.

Criminal Appeal No. 348 of 2013

Santosh Kumar Shukla (In Jail)...
 Appellant/Accused
Versus
State of U.P.... Respondent/Prosecution

Counsel for the Petitioner:
Sri Arun Sinha

Counsel for the Respondents:
Sri M.Y. Ansari, A.G.A.

Cr.P.C.-Section 374(2)- Criminal Appealagainst conviction under section 326
I.P.C.-appeal on ground-if prosecution
case admitted as it is-no offence under
section 326 IPC made out-as non of the
contingencies specified in Section 320
made out-at most can be offence under
section 324 IPC punishable with 3 years.
R.I held-weapon used for assult an
158 INDIAN LAW REPORTS ALLAHABAD SERIES
instrument of picking grains from gunny
bags no repeation of attack-no criminal
history-conviction reduced to already
undergone-with fine of Rs. 10,000/-
appeal partly allowed.

Held: Para-19
From the evidence available on record, it
appears
that
hurt
has
been
caused
voluntarily by a dangerous weapon which
could may be used as an instrument of
stabbing. Hence the offence shall squarely
falls within the ambit of Section 324 IPC
and
consequently,
I
express
my
concurrence with the submission of learned
counsel for the appellant that no offence
under Section 326 IPC is made out and only
offence under Section 324 IPC is made out
against the appellant.

(Delivered by Hon'ble Vishnu Chandra
Gupta, J.)

1. This Criminal Appeal under
section
374(2)
Code
of
Criminal
Procedure (in short 'CrPC') has been
preferred against the judgement and order
dated 20.02.2013 passed by Additional
District and Sessions Judge/TECP-2,
Lucknow in Sessions Trial No.968 of
2002 having Case Crime No.291 of 2000,
under Section 326 Indian Penal Code (in
short 'IPC') and Section 3(2)(5) Scheduled
Castes and Scheduled Tribes (Prevention
of Atrocities) Act (in short 'SC/ST Act'),
P.S.
Wazirganj,
District
Lucknow,
whereby the appellant has been convicted
and sentenced under Section 326 IPC to
undergo rigorous imprisonment for 10
years and fine of Rs.50,000/- and in
default of payment of fine one and a half
year additional rigorous imprisonment.

2. The facts in brief for deciding this
appeal are that Ram Avatar (PW 2) was
working as 'Palledar' at the 'Aarhat' of
Ranjeetmal Agrawal situated in Pandeyganj
grains market, Lucknow. On 14.08.2000 at
about 10 pm (night), accused appellant
Santosh
Kumar
Shukla,
working
as
accountant (Munim) in the aforesaid Aarhat
asked Ram Avatar to provide wine for him.
Ram Avatar (PW 2) refused to provide the
same. Thereafter in the intervening night of
14/15.08.2000 when Ram Avatar was
sleeping at the campus of Aarhat, the
appellant having animus of not providing the
wine came in the mid night and assaulted
Ram Avatar with a pointed weapon, namely,
'Parkhi' (an instrument use for picking out the
contents from close gunny bags for
inspection) in the stomach of Ram Avatar
and on account of that injury Ram Avatar
cried. The incident was witnessed by Dhani
Ram and Ramesh, who were also sleeping in
the same Aarhat. The accused appellant
managed to escape from the place of
occurrence. The witnesses admitted Ram
Avatar at Balrampur Hospital where he was
medically examined and thereafter the
incident was reported to the police of Police
Station Wazirganj by the brother of injured
Ram Avatar, namely, Ramchandra along
with medical examination report by a written
report (Ext. Ka-1) on 16.08.2000.

3. On the basis of aforesaid written
report, a chick report was prepared at 9.15
pm (Ext.5) and the case was registered
against the appellant in General Diary
(Ext. Ka-6) by the police of P.S.
Wazirganj at Case Crime No.291 of 2000,
under Section 326 IPC and Section
3(2)(5) SC/ST Act. The injured Ram
Avatar was medically examined on
14.08.2000 at 2.50 am in Balrampur
Hospital by Dr.H.I. Rizvi, Senior Medical
Officer, who found following injuries on
the person of the injured as mentioned in
medication examination report (Ex.Ka-2):

"Punctured wound 0.8 cm x 0.8 cm x
depth not proved on right side of
1 All] Santosh Kumar Shukla (In Jail) Vs. State of U.P.
159
abdomen. 7 cm above umbilicus at 11
O'clock position. Crepitation present
around the wound suggestive of surgical
emphysema."

4. The injured was admitted in
emergency ward and advised for x-ray of
stomach. According to Dr. H.I. Rizvi (PW
3), the injury was fresh and the same may
be caused by some pointed weapon and
likely to be caused at 12.00 O'clock in
intervening night of 14/15.08.2000.

5. Investigation of this case was
conducted by Jang Bahadur Singh (PW 4)
who prepared the site plan (Ext. Ka-3)
and submitted the charge sheet (Ext Ka4). The court below took cognizance and
after committal of the case to the court of
sessions charges were framed under
Section 326 IPC and Section 3(2)(5)
SC/ST Act against the appellant. The
appellant denied the charges levelled
against him and claimed for trial.

6. The prosecution examined the
informant Ramchandra (PW 1) who
proved the written report submitted by
him and supported the prosecution story
as narrated in FIR. During trial, PW-1
Ramchandra
in
examination-in-chief
admitted that he is not an eyewitness of
this case and what he stated is on the basis
of information received by him from the
injured Ram Avatar. The injured witness
Ram Avatar (PW 2) was also examined
during
trial,
who
supported
the
prosecution case and stated that when he
was sleeping in Aarhat, the appellant
attacked with Parkhi on his stomach and
after receiving injury he cried and caught
the appellant but the accused appellant
managed to escape from the spot. He
categorically stated that this incident was
seen by Dhani Ram and Ramesh. He also
stated that he was medically examined by
the doctor and remained in the hospital of
13 days.

7. Dr. H.I. Rizvi (PW-3) was also
examined to prove the injury report.
Investigating Officer Jang Bahadur Singh
(PW 4) was examined, who proved the
site plan and charge-sheet submitted
against the accused. S.I. Mangelal was
also examined as PW-5, who at the time
of commission of crime was posted as
Head Constable and scribed the first
information report on the basis of written
report given by Ramchandra and register
the case against the appellant.

8. Thereafter the prosecution closed
its evidence and thereafter accused
appellant was examined under Section
313 CrPC, who denied the allegations
levelled against him on the basis of
evidence of the prosecution and claimed
that he has been implicated falsely in this
case on account of enmity. In defence, he
did not produce any evidence though he
has stated in 313 CrPC that he produced
the defence.

9. The trial court after considering
the
evidence
of
prosecution
and
submissions of both the parties acquitted
the appellant from the charges levelled
under Section 3(2)(5) SC/ST Act and
convicted the appellant under Section 326
IPC. Hence this appeal.

10. I have heard Sri Arun Sinha,
learned counsel for the appellant and Sri
M.Y. Ansari, learned A.G.A. for the
State.

11. Learned counsel for the
appellant confined his submissions to the
extent that even if, the evidence of
160 INDIAN LAW REPORTS ALLAHABAD SERIES
prosecution is taken as such, no offence
under Section 326 IPC is made out and at
the most, offence under Section 324 IPC
would be made out. It was further stated
that the appellant is in jail from the date
of his conviction which was recorded on
20.02.2013 by Additional District and
Sessions Judge/TEPC-2, Lucknow and as
such he was submitted that appellant may
be released after reducing the sentence for
the period, which has already undergone
by him as no minimum sentence is
prescribed
and
maximum
sentence
provided upto three years. It was further
submitted that the manner in which the
incident was taken place and that only one
injury has been caused and the assault has
not been repeated, hence lenient view
may be taken in favour of the appellant.
The appellant is not a previous convict
and he is also entitled to the benefit of
provisions of provocation.

12. On the other hand, Sri M.Y.
Ansari, learned A.G.A. for the State was
submitted that after perusing the material
evidence available in the record of the trial
court, the trial court has rightly passed the
impugned
judgment.
Learned
A.G.A.
supported the version of the prosecution.

13. The main contention of learned
counsel for the appellant is that neither
from the statement of injured nor from the
injury report and from the statement of
doctor, it appears that the injury caused to
Ram Avatar was grievous one. No
supplementary report has been brought on
record to demonstrate that injury was
grievous. During examination, the doctor
did not opined that injury was serious or
dangerous to life or grievous in nature.

14. Learned trial court while
convicting the appellant was of the
opinion that injury caused by the accused
appellant to Ram Avatar was grievous and
dangerous to life. The trial court at pages
12 and 13 of its judgment held that on the
basis of evidence, it is proved that in the
intervening night of 14/15.08.2000 at
about 12.00 (night) at the Aarhat situated
at Pandeyganj, P.S. Wazirganj, District
Lucknow,
appellant
Santosh
Kumar
Shukla by using a dangerous weapon
made
from
iron,
namely,
Parkhi
voluntarily assaulted the injured Ram
Avatar causing grievous injury, which
was dangerous to life and thereby he
committed the offence under Section 326
IPC. So far as the commission of offence
under Section 326 IPC is concerned, the
trial court actually misread the evidence
and formed the opinion on the basis of
evidence which was not at all available on
record.

15. To establish an offence under
Section 326 IPC, the prosecution has to
establish first that an accused voluntarily
causes grievous 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, or by means of fire or any heated
substance, or by means of any poison or
any corrosive substance, or by means of
any explosive substance, or by means of
any substance which it is deleterious to
the human body to inhale, to swallow, or
to receive into the blood, or by means of
any animal.

16. The first ingredient for the
offence under Section 326 IPC is that
injury should be caused voluntarily
having no element of provocation as
defined under Section 335 IPC. The
second ingredient is to prove that injury
caused is grievous and thirdly the weapon
1 All] Santosh Kumar Shukla (In Jail) Vs. State of U.P.
161
classified in Section 326 IPC. In case, any
condition mentioned in Section 326 IPC is
lacking, offence under Section 326 IPC
could not be made out.

17. Grievous hurt has been defined
in Section 320 IPC, which reads as under:

320. Grievous hurt. - The following
kinds of hurt only are designated as
"grievous": -

First - Emasculation.

Secondly - Permanent privation of
the sight of either eye.

Thirdly - Permanent privation of the
hearing of either ear.

Fourthly - Privation of any member
or joint.

Fifthly - Destruction or permanent
impairing of the powers of any member or
joint.

Sixthly - Permanent disfiguration of
the head or fact.

Seventhly - Fracture or dislocation of
a bone or tooth.

Eighthly - Any hurt which endangers
life or which causes the sufferer to be
during the space of twenty days in severe
bodily pain, or unable to follow his
ordinary pursuits.

18. The prosecution admittedly has
not proved any of the category out of
eight categories mentioned under Section
320 IPC. The doctor has not stated that
injury was grievous. The injured himself
stated that he remained hospitalized for 13
days only, so, 8th condition would also
not
be
attracted.
No
emasculation,
permanent privation of the sight of either
eye or of the hearing of either ear or
privation of any member or joint was
established. It was also not proved that
there are any fracture or dislocation of a
bone or tooth or permanent disfigurement
of the head or face or destruction or
permanent impairing of the powers of any
member
or
joint.
Therefore,
the
prosecution has utterly failed to establish
that injury caused to Ram Avatar was
grievous one.

19. From the evidence available on
record, it appears that hurt has been
caused
voluntarily
by
a
dangerous
weapon which could may be used as an
instrument of stabbing. Hence the offence
shall squarely falls within the ambit of
Section 324 IPC and consequently, I
express
my
concurrence
with
the
submission of learned counsel for the
appellant that no offence under Section
326 IPC is made out and only offence
under Section 324 IPC is made out
against the appellant.

20. Offence under Section 324 IPC
is punishable with imprisonment for three
years, or fine or with both.

21. Having considered the period for
which the appellant has undergone, in the
opinion of the Court, would be sufficient
to meet the ends of justice in the present
case for the reason that the only injury
was caused by the accused appellant and
has not repeated the assault and the
weapon used was not a ordinarily used
weapon for assault. The weapon used for
assault is an instrument of picking the
gains from the gunny bags. The appellant
is neither previous convict nor has any
criminal history.
162 INDIAN LAW REPORTS ALLAHABAD SERIES

22. So far as the calculation of
undergone period of the accused appellant
is concerned, the record reveals that the
accused
appellant
was
arrested
on
05.10.2000 and in this regard, an entry
was made in General Diary no.61 at 20.30
hours by the police at Police Station
Wazirganj. When he was arrested, he was
having injuries in his legs and was unable
to move, therefore, the appellant was
released on bail from the police station on
the next day. Thereafter he did not seek
any regular bail from the court concerned.
The case was also committed to the court
of sessions without getting any bail.
Therefore, before conviction, he did not
remain in jail for a single day. However,
when he was convicted in this case, he
was taken into custody on 20.02.2013 and
since then he is in jail. After judgment
and order dated 20.02.2013 passed by the
trial court, the appellant served out more
than eleven months period of his sentence
as a convict.

23. Considering the facts and
circumstances of the case, the appeal is
partly allowed. The conviction of the
appellant Santosh Kumar Shukla is set aside
under Section 326 IPC and is acquitted
from the charges levelled under Section 326
IPC but he is convicted under Section 324
IPC and is sentenced for the period
undergone and fine of Rs.10,000/-. In
default of payment of fine, the appellant
will further undergo imprisonment of one
month. After realization of fine, a sum of
Rs.7500/- shall be paid to the injured of this
case. The sentence awarded to the appellant
is accordingly reduced to meet the ends of
justice in the light of the order passed by
this Court.

24. Let a copy of this judgement be
sent to the trial court and also to Chief
Judicial
Magistrate,
Lucknow
for
compliance of the order passed by this
Court without any delay.

25. The Senior Registrar of this
Court shall ensure the compliance of this
order forthwith.
--------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.01.2014

BEFORE
THE HON'BLE BHARAT BHUSHAN, J.

Criminal Revision No. 1028 of 2011

Ram Bachan & Anr.... Revisionists
Versus
State of U.P. & Anr.... Respondents

Counsel for the Petitioner:
Sri Ajeet Kumar Singh, Sri Shashi Prakash
Rai, Ms. Archita Raghuvanshi, Km. Harshita
Raghuvanshi

Counsel for the Respondents:
A.G.A., Sri Sharad Srivastava

Criminal
Revision-Against
summoning
order-complaint
case-argument
that
unless all witness as well as complainant
not examined as per section 202(2)-where
offence traible by Session Court-can not be
summoned-held-examination
of
all
witnesses-not a condition precedent for
issuance of process-named in complaintno
interference
called
far-revision
dismissed.

Held: Para-8-
The Apex Court in Shivjee Singh Vs.
Nagendra Tiwary reported in 2010 7 SCC
578
has further clarified the legal
position. The Apex Court has held that
examination of all witnesses cited in the
complaint is not a condition precedent
for issuance of process against the
persons
named
as
accused
in
the
complaint.