Judicial Analysis Court Copy Headnote Facts Arguments Court observation

IN THE HIGH COURT OF ALLAHABAD
SUBHASH VIDYARTHI, J.
Vijay Mishra - Revisionist
Versus
State of U.P., Thru. Secy. Home Deptt. Lko. and Another - Opposite Parties
Criminal Revision No. 584 of 2022
Decided On : 03-06-2022

Advocates:
Advocate Appeared:
For the Revisionist : Ram Prakash Singh, Vivek Kumar.

An attempt to commit culpable homicide, even if unsuccessful, falls under Section 308 IPC, justifying trial in the Sessions Court.

Headnote:
Section 308 IPC - Transfer of Case - Summary of Acts and Sections
Fact of the Case:
The accused sought to transfer the case to a Magistrate's Court, arguing that the injuries did not indicate a life-threatening situation under Section 308 IPC.
Finding of the Court:
The court rejected the transfer application, stating that the injuries, even if not life-threatening, still indicated an attempt to commit culpable homicide under Section 308 IPC.
Issues: Validity of transfer application under Section 228(1)(a) Cr.P.C.
Ratio Decidendi: The accused's attempt to commit culpable homicide, even if unsuccessful, falls under Section 308 IPC, justifying trial in the Sessions Court.
Final Decision: The revision was dismissed, and the order rejecting the transfer application was upheld.

JUDGMENT :

1. Heard Sri Anoop Kumar Upadhyay, Advocate holding brief of Sri Ram Prakash Singh, learned counsel for the revisionist and Sri Tilak Raj Singh, learned A.G.A. for the State respondents and perused the record.

2. The instant revision under Sections 397/401 of the Criminal Procedure Code has been filed by the accused-revisionist seeking to challenge the validity of the order dated 27.05.2022 passed by the learned Sessions Judge, Gonda in Sessions Trial No. 338 of 2022 (State vs. Vijay Mishra & Others), arising out of Case Crime No. 90 of 2019, under Sections 323, 325, 308 I.P.C., Police Station-Umari Begumganj, District-Gonda whereby the application under Section 228 (1) (a) of the Cr.P.C. filed on behalf of the accused-revisionist for transferring the case to the Court of Magistrate, has been rejected.

3. The aforesaid case has been instituted on the basis of an F.I.R. alleging that the four named accused persons, including the revisionist, had assaulted the informant’s brother with sticks, because of which he fell unconscious. The injured was taken to the police station while he was still unconscious. On these allegations, the F.I.R. was registered in respect of offences under Sections 323, 325 and 308 I.P.C.

4. The medical examination report of the injured mentions following injuries suffered by the victim:-

1. Lacerated Wound - 8 x .5cm I Bron above (Right) ear.

2. Lacerated Wound - 4.8 cm x 1cm Top of Head.

3. Lacerated Wound - 2x2 cm (Right) Leg above 12cm (Right) Ankle.

4. Contused - Swelling 6x4 cm over right shoulder.

5. Contused - Swelling over (Left Right) wrist all around.

6. Swelling over (Right) Ankle.

7. Complaint of Pain-Over back of chest abdomen B/ 1 upper & lower limbs.

8. Contusion 25cm X 13cm right side back of chest.

5. On the basis of the aforesaid F.I.R., a Sessions Trial No. 338 of 2022 has been instituted, which is pending before the learned Sessions Judge, Gonda.

6. The accused persons filed an application under Section 228 (1) (a) of Cr.P.C. in the aforesaid Session Trial stating that none of the injuries reported in the medical examination report of the injured person indicates that death could have been caused by such injury. As there is no injury which could be life threatening, prima facie no offence under Section 308 I.P.C. is made out and it can at the most lead to commission of offences punishable under Section 323 and 325 I.P.C., both of which are triable by a Magistrate. The accused persons accordingly prayed that Section 308 I.P.C. may be expunged and the case be transferred to the Court of Magistrate for its trial.

7. The aforesaid application was rejected by the learned Sessions Judge, Gonda by means of the order dated 27.05.2022 holding that the injured has suffered injuries on his head and head injuries could be life threatening. Therefore, the accused persons have rightly been charged with an offence under Section 308 I.P.C. Accordingly, the application filed under Section 228 (1) (a) Cr.P.C. has been rejected.

8. Assailing the aforesaid order dated 27.05.2022 before this Court in Revision, the learned counsel for the revisionist has submitted that the order dated 27.05.2022 has been passed in a mechanical manner without properly considering the evidence available on record, which does not support the prosecution story regarding commission of an offence under Section 308 I.P.C. The learned counsel for the revisionist has further submitted that the ingredients of Section 308 I.P.C. are not made out in the present case and this aspect has been ignored by the learned court below.

9. On the other hand, Sri Tilak Raj Singh, learned A.G.A. has submitted that there is sufficient material on record to indicate commission of an offence under Section 308 I.P.C. and the order dated 27.05.2022 passed by the learned court below is based on sound reasons and it needs no interference by this Court in exercise of the revisional jurisdiction.

10. Before proceeding to decide the rival submissions made before t

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