Brijesh Mishra and 8 Others vs State of U.P. and Another

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HIGH COURT OF JUDICATURE AT ALLAHABAD

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CRIMINAL REVISION No. - 2747 of 2024

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Brijesh Mishra And 8 Others

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.....Revisionist(s)

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	Versus
State of U.P. and Another			.....Opposite Party(s)
Counsel for Revisionist(s) Counsel for Opposite Party(s)	: Pushpendra Kumar : Devendra Mani Charan Tripathi	Yadav Tiwari,	G.A., Shiv

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Court No. - 35

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HON'BLE DIVESH CHANDRA SAMANT, J.

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List revised. No one is present on behalf of Opposite Party No.2.

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Heard Pushpendra Kumar Yadav, learned counsel for the revisionist; Sri Rajesh Kumar Rao, learned AGA for State and perused the material available on record.

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The present criminal revision has been filed against the order dated 06.05.2024, passed by the Additional Sessions Judge, Court No.2, District Jaunpur in S.T. No.315 of 2024, (State versus Brijesh Mishra) arising out of Case Crime No.129 of 2021, under Sections 147, 148, 323, 504, 506, 427, 325, 308 IPC, Police Station Sikrara, District Jaunpur by which discharge application of the Revisionists has been rejected.

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The facts given rise to the present case are that on 09.06.2021, an incident took place between the Revisionists and Opposite Party No.2 thereafter an FIR has been lodged against the Revisionists by the Opposite Party No.2. After registering the FIR, the matter was investigated and submitted charge sheet against the Revisionists. During course of trial Revisionists filed discharge application on 10.07.2023 to discharge them under Section 308 and 325 IPC. Thereafter on 23.02.2024, Opposite Party No.2 filed an objection against the discharge application and on 06.05.2024 the discharge application of the Revisionists has been rejected. Hence the present criminal revision.

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It has been argued by learned counsel for the Revisionists that learned Trial Court has not considered the fact that none of the injury caused to

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CRLR No. 2747 of 2024

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Vinay Kumar is dangerous for life. The injuries of the other injured persons are simple in nature. There was no material evidence which can invite the allegation under Sections 325 and 380 IPC.The impugned order passed by the Trial Court is based on surmises and conjuncture and manifestly erroneous. The conclusion drawn by the learned Trial Court is wholly unreasonable and perverse while passing the impugned order the learned Trial Court has committed patent error, therefore, the impugned order observes to be quashed.

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Learned AGA for State has opposed the arguments made by learned counsel for the Revisionists and submitted that the nature of injury necessarily requires to be considered for the charge under Section 308 IPC. The Trial Court has to look into the facts and evidence to find the intention of knowledge for committing offence under Section 308 IPC which is matter of trial. As per injury report, the injury of Aman Kumar and Vinay Kumar are grievous in nature. The learned Trial Court has considered all the materials available on record while passing the impugned order which is just and proper in the eye of law.

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The revisionist has challenged the impugned order mainly on the ground that there was no evidence about the injuries of Vinay Kumar which would have been dangerous for life, only on the perception of the Investigating Officer the allegation under Section 324 IPC has been dropped and the offence under Section 325 and 308 IPC has been added which is against the fact.

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A perusal of the material available on record shows that the Revisionists accused are being tried for the offence under Sections 147, 148, 323, 504, 506, 427, 325, 308 IPC. It also appears from the material on record that initially the FIR was lodged under Section 147, 148, 323, 504, 506, 324, 427 IPC and after investigation the charge sheet has been submitted under Sections 147, 148, 323, 504, 506, 427, 325, 308 IPC. As per the impugned order, NCCT report is available on record. The injuries are grave in nature but the doctor has not given his opinion regarding the injuries to be dangerous for life. For the charge under Section 308 IPC, the nature of injuries not required to be established. Section 308 IPC is reproduced below:-

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" 308. Attempt to commit culpable homicide — Whoever does any act with such intention or knowledge and under such circumstances that, if he

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CRLR No. 2747 of 2024

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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."

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The mental element mens rea of the accused is important for offence under Section 308 IPC merely the nature of injury sustained by the victim would not be sufficient. The voluntarily causing grievous hurt may amount an offence under Section 325 IPC but for bringing the charge under Section 308 IPC i.e. attempt to commit culpable homicide not amounting to murder. The accused must have done an act with the intention of knowledge that if he cause death by that act he would be guilty of culpable homicide not amounting to murder.

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There is fine line between the two sections i.e. Section 325 IPC and Section 308 IPC. The Section 308 IPC does not require the injury to be sufficient in the ordinary course of nature to cause death but only that the act done with the necessary intention or knowledge, if it had caused death, would amount to culpable homicide, the focus should be on the nature of the act and intention behind it nor merely the consequence.

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The knowledge and intention can be gathered and it must be gathered from all surrounding circumstances, including the motive, the nature of the weapon, the manner of the assault, and the part of body on which the injury was inflicted. Where the injuries are on vital part, the presumption of knowledge or intention to cause death is stronger.

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In the case of Hari Kishan and State of Haryana versus Sukhbeer Singh and others, 1988 (4) SCC 551, the Hon'ble Supreme Court has held that :-

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"Under Section 307 IPC what the Court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge or the accused must be such as is necessary constitute' murder. Without this ingredient being established, there can be no offence of "attempt to murder". Under Section 307 IPC the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue."

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CRLR No. 2747 of 2024

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In the case of State of Madhya Pradesh Versus Kashiram & Ors., 2009 (4) SCC 26, the Hon'ble Supreme Court has held that :-

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"It is sufficient to justify a conviction under Section 307 IPC, if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt."

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The principle laid down in the aforesaid cases are also applicable into the offence committed under Section 308 IPC and under scores the importance of the nature of hurt likely to be caused by the act. While dealing with the distinction between the murder and grievous hurt, the principle regarding the requirement of intention / knowledge are paramount. A charge is converted under Section 308 IPC when the circumstances indicate that the accused went beyond merely causing grievous hurt and had with the intention / knowledge that their act was likely to be result in death.

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Thus, it is clear that for the offences under Section 308 IPC, the intention / knowledge is very important ingredient to establish the offence committed. Whether in the case in hand, there was any intention or knowledge prevailing in the mind of the accused for committing offence under Section 308 IPC on the date of occurrence is concerned, it can be ascertain by the proper appreciation of evidence during trial.

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In support of his argument the learned counsel for the Revisionists has relied on the judgement passed in the case of Ram Jash versus State of U.P., 2010 Law Suit (All) 3106 but in view of the above cases of Hon'ble Supreme Court referred herein above, this Court of view that no benefit be given to the Revisionists of the case cited by learned counsel for the Revisionist .

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Therefore, in view of the above discussion, I find no illegality, irregularity or jurisdictional error committed by the Court below in passing the impugned order and the Revisionists are not able to make out a fit case, so as to justify interference by this Court by granting any relief under the revisional jurisdiction of this Court. No interference is warranted.

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CRLR No. 2747 of 2024

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Revision lacks merit and is, accordingly, dismissed.

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November 4, 2025 I.A.Siddiqui

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(Divesh Chandra Samant,J.)

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Digitally signed by :- IMRAN AHMAD SIDDIQUI High Court of Judicature at Allahabad

Brijesh Mishra and 8 Others v. State of U.P. and Another

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Brijesh Mishra and 8 Others v. State of U.P. and Another

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