Partly allowed

Mukesh Kumar v. State of U.P.

Allahabad HC18 Jan 2021CRLA/2591/2020

Case brief

AI extract

What is this about?

In this criminal appeal under Section 374(2) Cr.P.C., the High Court reviewed a conviction under Section 308 IPC for attempted culpable homicide not amounting to murder. The single judge held that the evidence did not establish the requisite intention to cause death but proved voluntary causing of hurt with a sharp weapon. The appeal was partly allowed, modifying the conviction to Section 324 IPC

What did the court decide?

Conviction modified from Section 308 IPC to Section 324 IPC; sentence reduced to the period of imprisonment already undergone; bail bonds discharged.

Mukesh Kumar Vs State of U.P. — Cheating and Forgery | Allahabad HC (2021)

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Court No. - 90 A.F.R.

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Case :- CRIMINAL APPEAL No. - 2591 of 2020

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Appellant :- Mukesh Kumar Respondent :- State of U.P. Counsel for Appellant :- Munesh Kumar Upadhyay Counsel for Respondent :- G.A.

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Hon'ble Ajit Singh,J.

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Counter affidavit filed on behalf of State in the Court today is taken on record.

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

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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.

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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.

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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.

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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 crossexamination 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. 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.

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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

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accused is liable to be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."

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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.

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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."

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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.

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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?

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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.

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Accepting true what the injured has deposed, I find it difficult to hold that the appellant had any intention or knowledge to

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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.

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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.

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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.

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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 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.

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For the reasons aforestated, the appeal is allowed in part; conviction of the appellant is modified, from one under Section

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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. Order Date :- 18.1.2021 Faridul

Mukesh Kumar v. State of U.P.

Case brief

What is this about?

What did the court decide?

Mukesh Kumar v. State of U.P.

Case brief

What is this about?

What did the court decide?

What the court decided

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