Allahabad High Court
Durgesh And Another vs State Of U.P. And Another on 22 May, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:86817 Reserved Court No. - 82 Case :- CRIMINAL REVISION No. - 5802 of 2024 Revisionist :- Durgesh And Another Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Abhisht Jaiswal,Kalyan Sundram Srivastava,Sr. Advocate Counsel for Opposite Party :- Amit Daga,G.A.,Mayank Hon'ble Manjive Shukla,J.
1. Heard Sri Manish Tiwary, learned Senior Advocate assisted by Sri K.S. Srivastava, learned counsel appearing for the revisionists, learned Additional Government Advocate appearing for the State and Sri Amit Daga along with Sri Mayank, learned counsels appearing for Opposite Party No.2.
2. The instant criminal revision has been filed challenging therein, the order dated 30.9.2024 passed by the learned Sessions Judge, Mathura in Sessions Trial No.628 of 2024 (State Vs. Durgesh Kumar and another) whereby, the application filed by the revisionists, under Section 227 Cr.P.C. for their discharge, had been rejected. The revisionists through the instant criminal revision have also challenged another order of the same date i.e. the order dated 30.9.2024 passed by the learned Sessions Judge, Mathura in Sessions Trial No.628 of 2024 (State Vs. Durgesh Kumar and another), whereby charges have been framed against the revisionists for the offences punishable under Sections 308/34, 323/34, 504 & 506 I.P.C.
3. Sri Manish Tiwary, learned Senior Advocate assisted by Sri K.S. Srivastava, learned counsel appearing for the revisionists, at the very outset, has submitted that the revisionists do not want to challenge the order dated 30.9.2024 passed by the learned trial court whereby, their application, filed under Section 227 Cr.P.C. for their discharge, had been rejected. He further submits that the revisionists confine their challenge in this criminal revision only to the order dated 30.9.2024 passed by the learned trial court whereby, the charges have been framed against them under Sections 308/34, 323/34, 504 & 506 I.P.C.
4. The facts of the case, in brief, are that the F.I.R. had been lodged by the victim Shiv Prakash Saraswat, which had been registered as F.I.R. No.0440/2022 in Police Station Highway, District Mathura under Sections 323, 504 and 506 I.P.C. It had been alleged in the F.I.R. that the informant, while he was coming back from the house of his acquaintance and at about 5.00 p.m. while he was on service road in between the Anand Van Gate and the R.B. Furniture House, the revisionists i.e. Durgesh and Vivek along with one unknown person came on motorcycle bearing Registration No.UP85-BY-0759. The revisionists/accused stopped the informant and started abusing. All the three accused started beating the informant and they caused injuries on his scrotum. While the informant was being beaten, Durgesh said that let the informant be beaten in such a manner that he may not be able to take dates. While the informant was being beaten, one Devendra Kaushik came on spot and tried to save the informant, then all the three accused said that today you have been saved but we will not let you live.
5. The informant was hospitalized in M.D.S. District Hospital, Mathura and there an injury report had been prepared and it had been shown that the victim had suffered six injuries including one injury at the left side of the scrotum. Thereafter, the District Hospital, Mathura referred the victim for U.S.G. of the scrotum to R.D.C. District Hospital, Agra. After receiving the report of the U.S.G., a supplementary injury report had been prepared on 25.5.2024 wherein, the doctor had opined that the injury on scrotum is a grievous injury and could have been dangerous to life if not treated properly.
6. The Investigating Officer, after submission of the aforesaid supplementary injury report, recorded the statement of Dr. Devendra Kaushik and on that basis, he submitted Charge Sheet against the revisionists under Sections 323, 504, 506 and 308 I.P.C. The competent court took cognizance over the Charge Sheet filed by the Investigating Officer against the revisionists under Sections 323, 504, 506 and 308 I.P.C. Thereafter, the case was committed to the Sessions Court, Mathura. The revisionists filed an application under Section 227 Cr.P.C. for their discharge, which came to be rejected vide order dated 30.9.2024 passed by the learned Sessions Judge, Mathura in Sessions Trial No.628 of 2024 (State Vs. Durgesh and another).
7. The learned Sessions Judge, Mathura had passed another order dated 30.9.2024 in Sessions Trial No.628 of 2024 whereby, on being prima facie satisfied that the material placed on record constitutes sufficient evidence to frame charges against the revisionists, had framed the charges under Sections 308/34, 323/34, 504 and 506 I.P.C. The revisionists in this criminal revision have confined their prayer only against the order dated 30.9.2024 whereby, the charges have been framed against them and have not pressed their prayer against the order dated 30.9.2024 whereby, the application filed under Section 227 Cr.P.C. had been rejected.
8. Sri Manish Tiwary, learned Senior Advocate appearing for the revisionists has argued that the contents of the First Information Report, registered against the revisionists, do not disclose that the intention of the revisionists was to kill the victim therefore, the revisionists cannot be charged for the offence punishable under Section 308 I.P.C., as to make out an offence punishable under Section 308 I.P.C., it is essential that the intention of the accused must be to kill the victim. It has further been argued that from the facts and circumstances of the case, it is apparent that the victim has suffered only simple injuries, as from the place of occurrence he went to the hospital where he was hospitalized and from the hospital, he went to the Police Station for lodging the F.I.R. Had the injuries of the victim been serious, he would not have gone to the Police Station for lodging the F.I.R.
9. Sri Manish Tiwary, learned Senior Advocate appearing for the revisionists has also argued that the victim was hospitalized in M.D.S. District Hospital, Mathura and from there he went to R.D.C. District Hospital, Agra on his own and got U.S.G. of his scrotum done at Agra. The victim got prepared a false U.S.G. report and on that basis, a supplementary injury report had been prepared wherein the doctor had opined that the injury of scrotum is a serious injury and if it was treated properly, it could have been dangerous to life.
10. Learned Senior Advocate appearing for the revisionists has further argued that once the victim was hospitalized in M.D.S. District Hospital, Mathrua, there was no occasion for U.S.G. of his scrotum to be done at R.D.C. District Hospital, Agra therefore, it is apparent that the entire exercise had been done only just to convert the simple injury into a grievous injury as such, by no stretch of imagination, the charge against the revisionists can be framed under Section 308 I.P.C.
11. Learned Senior Advocate appearing for the revisionists has vehemently argued that once the injuries suffered by the victim are simple injuries and the intention of the accused to kill the victim is missing, the trial court had committed a manifest error while framing charge against the revisionists for the offence punishable under Section 308 I.P.C.
12. It has thus been argued on behalf of the revisionists that the order dated 30.9.2024, to the extent of framing of charge against the revisionists under Section 308/34 I.P.C., is unsustainable therefore, the order dated 30.9.2024, to the extent of framing of charge under Section 308/34 I.P.C., is liable to be set aside by this Court and the trial of the case is liable to be remitted to the competent Magistrate, having jurisdiction in the matter.
13. On the other hand, learned Additional Government Advocate appearing for the State and Sri Amit Daga, learned counsel appearing for Opposite Party No.2 have argued that the contents of the F.I.R. registered against the revisionists, itself disclose their intention to kill the victim as they had caused injuries on the vital part of the victim i.e. scrotum and further they, while leaving the place of occurrence have threatened the victim by saying that today you have been saved but we will not let you live, which categorically reflects that the intention of the revisionists was to kill the victim. It has further been argued that the victim was hospitalized in M.D.S. District Hospital, Mathura wherein, the injury report containing six injuries had been prepared and since the injury on the scrotum was grievous, the victim was referred to R.D.C. District Hospital, Agra for U.S.G. of his scrotum. On receiving the U.S.G. report of the scrotum, the doctor had prepared a supplementary injury report wherein, the doctor had categorically opined that the injury on the scrotum is grievous in nature and could have been dangerous to life, if not treated properly.
14. It has been argued on behalf of the opposite parties that once the intention to kill the victim is apparent from the contents of the First Information Report and the statements of the witnesses recorded under Section 161 Cr.P.C. and further the doctor had opined that the injury on scrotum is a grievous injury and could have been dangerous to life, if not treated properly, the charge for the offence punishable under Section 308 I.P.C. is made out therefore, the learned trial court has not committed any error while framing charge against the revisionists for the offence punishable under Section 308/34 I.P.C.
15. Learned counsels appearing for the opposite parties have also apprised to the Court that the Investigating Officer had recorded the statement of the doctor, who in unequivocal terms, had categorically stated that the injury on scrotum of the victim was of grievous nature and could have been dangerous to life, if not treated properly. It has been argued that once the intention of the accused to kill the victim is apparent and the injury is of grievous nature, the trial court has not committed any error while framing charge against the revisionists for the offence punishable under Section 308/34 I.P.C.
16. Learned Additional Government Advocate appearing for the State and Sri Amit Daga, learned counsel appearing for Opposite Party No.2 have vehemently argued that it is well settled law that at the time of framing of charge, the trial court on the basis of the material placed before it has to draw a prima facie satisfaction that the charge can be framed against the accused and further there is no requirement under law that the trial court, at the time of framing of charge, must make a detailed consideration of the evidence and must be satisfied that the evidence available on record is sufficient for conviction of the accused as such, in the present case the trial court, on the basis of the material collected by the Investigating Officer, had framed charge against the revisionists for the offence punishable under Section 308/34 I.P.C. therefore, it is patently manifest that the impugned order dated 30.9.2024 does not suffer from any illegality.
17. Lastly, it has been argued on behalf of the opposite parties that the instant criminal revision filed by the revisionists, is liable to be dismissed by this Court.
18. I have considered the rival arguments advanced by the learned counsels appearing for the parties and have perused the documents annexed with this criminal revision.
19. The victim had lodged the F.I.R. of the incident in question, which had been registered as F.I.R. No.0440/2022 in Police Station Highway, District Mathura under Sections 323, 504 and 506 I.P.C. For ready reference, the contents of the F.I.R. are extracted as under:-
नकल तहरीर हिन्दी वादी... सेवा में श्रीमान प्रभारी निरीक्षक महोदय थाना हाईवे जिला मथुरा महोदय सविनय निवेदन है कि मैं आज दिनांक 24.4.22 को आनन्दवन कालोनी में अपने मिलने वालों के घर से साइकिल से वापिस नरहोली चौराहे की ओर हाईवे के सर्विस रोड पर होकर आ रहा था जब मैं समय करीब शाम 5 बजे आनन्दवन के गेट से आगे व आरबी फर्नीचर हाउस के गेट से पहले खाली जगह में पहुंचा था तभी मोटर साइकिल सं. UP85-BY-0759 से पीछा करके आये दुर्गेश व विवेक पुत्रगण यादवेन्द्र निवासी कारव थाना महावन जिला मथुरा एवं एक अज्ञात अन्य व्यक्ति ने मुझे रोक लिया और रोकते ही भद्दी-2 गालियां देकर मुझे पीटना शुरू कर दिया इन तीनों लोगों ने मुझे नीचे गिरा लिया और मेरे गुप्तागों व पेट में जोर-2 से लातों से प्रहार किये दुर्गेश ने कहा कि साले को इतना मारो कि यह तारीख करने लायक न रहे। मुझे बिलखता देखकर रास्ते से गुजर रहे देवेन्द्र कोशिक पुत्र रामबाबू कोशिक निवासी धर्मलोक नगर महोली रोड मथुरा ने मुझे बचाया इन तीनों लोगों ने धमकी दी कि आज तो बचा लिया है परन्तु तुझे जिन्दा नहीं रहने देगे दुर्गेश व विवेक की बहन अनामिता मेरे बेटे गोविन्द की पत्नी है ये सब मिलकर गोविन्द का उत्पीडन कर रहे हैं मैं गोविन्द के पारिवारिक केस में पैरवी कर रहा हूँ जिसके कारण मुझसे रजिंश मानते हैं दोनों भाई कई दिन से मेरा पीछा कर रहे थे इन लोगों के द्वारा की गई मारपीट से मेरे गुप्तांगों व पेट में बहुत ज्यादा असहनीय पीड़ा हो रही है मेरी रिपोर्ट दर्ज कराकर उचित कानूनी कार्यवाही कराने की कृपा करें। दिनांक 24/4/2022 प्रार्थी एसडी अंग्रेजी अपठनीय शिव प्रकाश सारस्वत पुत्र श्री देवकी नन्दन निवासी प्रकाश नगर थाना कोतवाली मथुरा मो0 9410477137। नोट मैं है0का0 1027 धीरेन्द्र सिंह प्रमाणित करता हूँ कि तहरीर की नकल शब्द ब शब्द टाइप की गयी है
20. From the aforesaid contents of the F.I.R., it is apparent that it had been alleged that the accused, while leaving the place of occurrence, had extended threat to the victim by saying that today you have been saved but we will not let you live. The informant, in his statement recorded under Section 161 Cr.P.C., had supported the version of the F.I.R. and he had said in categorical terms that the accused had caused grievous injury to him and their intention was to kill him as they, while leaving the place of occurrence, had extended threat by saying that today you have been saved but we will not let you live. The relevant part of the statement of the victim, recorded under Section 161 Cr.P.C., is extracted as under:-
बयान वादी...... शिवप्रकाश पुत्र देवकीनन्दन निवासी प्रकाश नगर थाना कोतवाली मथुरा उम्र करीब 59 वर्ष ने पूछने पर बताया कि साहब दिनांक 24.04.2022 को आनन्दवन कालोनी में अपने मिलने वालों के घर से साइकिल से वापिस नरहोली चौराहे की ओर हाईवे के सर्विस रोड पर होकर आ रहा था। जब मैं समय करीब शाम 5 बजे आनन्दवन के गेट से आगे व आरबी फर्नीचर हाउस के गेट से पहले खाली जगह में पहुंचा था तभी मोटर साइकिल सं० UP 85 BY 0759 से पीछा करके आये दुर्गेश व विवेक पुत्रगण यादवेन्द्र निवासी कारव थाना महावत जिला मथुरा एवं एक अज्ञात अन्य व्यक्ति ने मुझे रोक लिया और रोकते ही भद्दी-2 गालियां देकर मुझे पीटना शुरू कर दिया इन तीनों लोगों ने मुझे नीचे गिरा लिया और मेरे गुप्तांगों व पेट में जोर-2 से लातों से प्रहार किये दुर्गेश ने कहा कि साले को इतना मारो कि यह तारीख करने लायक न रहे। मुझे बिलखता देखकर रास्ते से गुजर रहे देवेन्द्र कोशिक पुत्र रामबाबू कोशिक निवासी धर्मलोक नगर महोली रोड मथुरा ने मुझे बचाया व तीनों लोगों ने धमकी दी कि आज तो बचा लिया है परन्तु तुझे जिन्दा नही रहने देंगे दुर्गेश व विवेक की बहन अनामिता मेरे बेटे गोविन्द की पत्नी है ये सब मिलकर गोविन्द का उत्पीड़न कर रहे है मैं गोविन्द के पारिवारिक केस में पैरवी कर रहा हूँ जिसके कारण मुझसे रंजिश मानते हैं दोनों भाई कई दिन से मेरा पीछा कर रहे थे इन लोगों के द्वारा की गई मारपीट से मेरे गुप्तांगों व पेट में बहुत ज्यादा चोट आयी थी जिसका इलाज मैंने जिला अस्पताल मथुरा में दिनांक 24.04.2022 से दिनांक 27.04.2022 तक एडमिट रहकर कराया था। इसी बीच में दिनांक 25.04.2022 को जिला अस्पताल मथुरा से मुझे जिला अस्पताल आगरा रेफर किया गया था। जहाँ मैंने अपने अण्डकोशों का अल्ट्रासाउन्ड कराया था। अब साहब मुझे न्याय दिलाने की कृपा करें।
21. The victim after the incident was hospitalized in M.D.S. District Hospital, Mathura where he was examined by the doctor and the injury report had been prepared wherein, six injuries including one injury on the scrotum of the victim have been found. The description of the injuries in the injury report is as under:-
"1. Red contusion 7 x 1 cm at front of Neck, lower part
2. T.S. - 3 x 3 cm at back of wrist and hand (left) referred x-ray
3. Red contusion 9 x 1 cm at back of right side chest, middle part
4. Red contusion 9 x 1.5 cm at front of right thigh, middle part
5. Red contusion 6 x 2 cm at front of left thigh
6. c/o pain and swelling at left side scrotum - referred to Surgeon for expert opinion and left thigh and referred to USG of scrotum."
22. The victim was referred from M.D.S. District Hospital, Mathura to R.D.C. District Hospital, Agra for U.S.G. of his scrotum. The U.S.G. of the scrotum of the victim was carried out at R.D.C. District Hospital, Agra and a report was prepared. On the basis of the U.S.G. report, a supplementary injury report had been prepared by the doctor of the M.D.S. District Hospital, Mathura wherein, it had been categorically mentioned that the injury on the scrotum of the victim is a grievous injury and if the said injury was not treated properly, the same could have been dangerous to life. For ready reference, the relevant portion of the supplementary injury report is extracted as under:-
"USG Scrotum testicles B/C is given by Senior Consultant Radiology, District Hospital Agra Dr. Anurag Shukla as US No.8, 25.05.20 as ecogenic and ecoperm resulted in B/L scrot s/o fluid/BC scrotel wall contusional swelling.
Surgeon Dr. Bikas Kumar, District Mahura expert opinion. As per Surgeon's report injury is grievous in nature and could be dangerous to life it not treated properly. Surgeon's opinion report seen and signed by me."
23. The Investigating Officer, on the basis of the aforesaid supplementary injury report, had filed Charge Sheet against the revisionists under Sections 323, 504, 506 and 308 I.P.C. It is noteworthy that the Investigating Officer had also recorded the statement of the doctor under Section 161 Cr.P.C. and there, he had categorically stated that the injury on the scrotum of the victim was a grievous injury and it could have been dangerous to life, if not treated properly. For ready reference, the statement of the doctor recorded under Section 161 Cr.P.C., is extracted as under:-
बयान चिकित्सकः- डा.सुशील कुमार हाल तैनाती जिला अस्पताल मथुरा उम्र करीब 42 वर्ष ने पूछताछ पर बताया कि सर दिनांक 24.04.2022 को मजरूब शिव प्रकाश पुत्र देवकीनन्दन निवासी प्रकाश नगर थाना कोतवाली मथुरा को बहलात मजरूबी को हास्पीटल में लाया गया था। जिसका मेडीकल दिनांक 24.04.2022 को समय 06.40 पर मेरे द्वारा किया गया है। मेडीकल रिपोर्ट में 06 चोटे थी। चोट न० 01 गर्दन में नीचे के हिस्से सामने की तरफ चोट02 बायें हाथ की कलाई में चोट थी जिसके लिए एक्स रे एडवाइज किया गया था। चोट 03 छाती के दाहिनी दिशा में। चोट न० 04 दाहिनी जाँघ के बीच में चोट न० 05 बांयी जाँघ में। चोट नं० 06 दर्द व सूजन अण्डकोश (Scrotum) में इसके लिए सर्जन एक्सपर्ट की राय के लिए मजरूब को रेफर किया गया था। एवं बताया कि चोट इस तरह की थी कि यदि समय पर उपचार न कराया गया होता वो जीवन के लिये खतरनाक साबित हो सकती थी। विस्तृत विवरण मेडिकल रिपोर्ट पर उपलब्ध है। विस्तृत बयान मैं माननीय न्यायालय में दूंगा। यही मेरा बयान है।
24. It is well settled that the trial court, at the time of framing of charge, has to see the material collected by the Investigating Officer and has to draw a prima facie satisfaction that the charge against the accused can be framed. It is also well settled that the trial court, at the time of framing of charge, will neither conduct a detailed inquiry of the evidence nor will draw satisfaction that the evidence on record is such that it would lead to conviction of the accused. The trial court, at the time of framing of charge, has to only assess that there exists such material against the accused which prima facie is sufficient for framing of charge against him. Since the revisionists are aggrieved by the framing of charge against them for the offence punishable under Section 308/34 I.P.C. therefore, it is necessary to have a look over the provisions made in Sections 299, 300 and 308 I.P.C. For ready reference, Sections 299, 300 and 308 I.P.C. are extracted as under:-
"299. Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
"300. Murder. - Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--
2ndly.--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--
3rdly.--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
4thly.--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Illustrations
(a) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder.
(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury. Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Z is labouring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a sound state of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death, or such bodily injury as in the ordinary course of nature would cause death.
(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here A is guilty of murder, although he may not have intended to cause Z's death.
(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual.
Exception 1.--When culpable homicide is not murder.- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos:--
First.--That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly.--That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly.--That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation.--Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
Illustrations
a) A, under the influence of passion excited by a provocation given by Z, intentionally kills Y, Z's child. This is murder, inasmuch as the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in doing an act caused by the provocation.
(b) Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed murder, but merely culpable homicide.
(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest, and kills Z. This is murder, inasmuch as the provocation was given by a thing done by a public servant in the exercise of his powers.
(d) A appears as a witness before Z, a Magistrate. Z says that he does not believe a word of A's deposition, and that A has perjured himself. A is moved to sudden passion by these words, and kills Z. This is murder.
(e)A attempts to pull Z's nose. Z, in the exercise of the right of private defence, lays hold of A to prevent him from doing so. A is moved to sudden and violent passion in consequence, and kills Z. This is murder, inasmuch as the provocation was giving by a thing done in the exercise of the right of private defence.
(f) Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take advantage of B's rage, and to cause him to kill Z, puts a knife into B's hand for that purpose. B kills Z with the knife. Here B may have committed only culpable homicide, but A is guilty of murder.
Exception 2.--Culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
Illustration Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped, shoots Z dead. A has not committed murder, but only culpable homicide.
Exception 3.--Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
Exception 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.
Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault.
Exception 5.--Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.
Illustration A, by instigation, voluntarily causes Z, a person under eighteen years of age to commit suicide. Here, on account of Z's youth, he was incapable of giving consent to his own death; A has therefore abetted murder.
"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.
25. From the bare reading of the aforesaid Sections 299, 300 and 308 I.P.C., it becomes patently manifest that for framing of charge against an accused for the offence punishable under Section 308 IP.C., it is necessary that there must be such material, on the basis of which, prima facie it can be said that the intention of the accused was to kill the victim and further there should be injury on the vital part of the body of the victim. This Court finds that the revisionists, while leaving the place of occurrence, had extended threat to the victim by saying that today you have been saved but we will not let you live. The prima facie inference of the aforesaid threat is that the accused attacked the victim with intention to kill him but somehow he was saved.
26. This Court also finds that there exists a supplementary injury report on record wherein, it had been mentioned that the injury on the scrotum of the victim is grievous in nature and it could have been dangerous to life, if not treated properly. The doctor, while giving his statement under Section 161 Cr.P.C., had categorically stated that the injury on the scrotum of the victim was a grievous injury and it could have been dangerous to life, if not treated properly. From the facts and circumstances of the case, this Court finds that there exists such material, on the basis of which, the trial court can draw prima facie satisfaction that the intention of the accused was to kill the victim and the injury to the victim is on vital part of the body i.e. on his scrotum and further the said injury is grievous in nature. The trial court on the basis of the aforesaid material available before it, had framed charges against the revisionists for the offences punishable under Sections 308/34, 323/34, 504 and 506 I.P.C.
27. This Court is of the view that the trial court, while framing charge against the revisionists under Sections 308/34, 323/34, 504 and 506 I.P.C., has not committed any error.
28. So far as the argument raised on behalf of the revisionists that the victim suffered only simple injuries and somehow a false supplementary injury report has been prepared, is concerned, all these issues cannot be seen and tested at the time of framing of charge, as there can be final determination in the aforesaid regard only after the detailed evidence is led before the trial court.
29. In view of the aforesaid reasons, this criminal revision lacks merit and is hereby dismissed.
Order Date :- 22.5.2025 Salim