Court No. - 90 A.F.R.

Case :- CRIMINAL APPEAL No. - 2591 of 2020

Appellant :- Mukesh Kumar

Respondent :- State of U.P.

Counsel for Appellant :- Munesh Kumar Upadhyay

Counsel for Respondent :- G.A.

Hon'ble Ajit Singh,J.

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

taken on record.

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

perused the record.

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.

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.

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.

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 cross-

examination 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.

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

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."

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