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2024 DIGILAW 263 (ALL)

Hrishikesh v. State of U. P.

2024-01-25

SURENDRA SINGH I

body2024
JUDGMENT : SURENDRA SINGH-I, J. 1. Heard Sri Vimal Kumar Pandey, learned counsel for the revisionists, Sri Rajneesh Kumar Singh, learned counsel for the opposite party no. 2 and learned A.G.A. for the State. 2. This criminal revision has been filed against the impugned order dated 16.11.2022 passed by Sessions Court, Kushi Nagar at Padrauna in Sessions Trial No. 772 of 2021 arising out of Case Crime No. 1247 of 2015 u/s 323 & 308 I.P.C. Police Station-Kotwali Padrauna, District-Kushi Nagar. 3. By the impugned order, the trial court rejected the application of the revisionists u/s 227 Cr.P.C. for discharging them of the offence. 4. The facts relating to the case in brief is that the informant Ram Chandra Kushwaha s/o Late Shiv Shankar, on being summoned by the Gram Sewak, Devendra Mishra, reached District Headquarter with his son Mithilesh. When he reached there, Gram Sewak, Devendra Mishra, accused Hrishikesh, Ajay and Pankaj started making enquiry about the work done in the village. The accused assaulted them with rod, lathi and danda causing head injury to them. Due to the assault of the accused, tension spread in the village. The accused are violent and criminal in nature. On the basis of the written report of the informant, Case Crime No. 1247 of 2015 u/s 323, 308 I.P.C. was registered against Hrishikesh, Ajay and Pankaj in P.S. Kotwali Padrauna, District-Kushi Nagar on 25.08.2015 at 7 p.m. 5. It has been submitted by learned counsel for the revisionists that without considering the evidence on record, the trial court illegally rejected the discharge application of the revisionists. It has next been submitted in the medical examination report dated 25.08.2015 that the injuries of Mithilesh Kushwaha and Ram Chandra Kushwaha are simple in nature. In the x-ray report, no fracture was found on the persons of the injured. No injury was found on the vital part of the body of the informant and his son. It has also been submitted that the informant Ram Chandra Kushwaha has merely reiterated the facts given in the report. It has also been submitted that in the statements of prosecution witnesses, Mahendra and Buneli, only general allegations have been made. No specific role has been assigned to the revisionist in the scuffle. It has also been submitted that the informant Ram Chandra Kushwaha has merely reiterated the facts given in the report. It has also been submitted that in the statements of prosecution witnesses, Mahendra and Buneli, only general allegations have been made. No specific role has been assigned to the revisionist in the scuffle. It has also been submitted that in the second statement recorded u/s 161 Cr.P.C. of informant Ram Chandra Kushwaha, he has for the first time mentioned that the accused with the intention to kill his son had caused injury on his neck. The injured Mithilesh Kushwaha in his statement dated 22.11.2015 recorded u/s 161 Cr.P.C. has merely repeated the statement of his father, informant Ram Chandra Kushwaha. The other prosecution witnesses, namely, Habib Ansari and Sagar in their statements recorded u/s 161 Cr.P.C. on 22.11.2015 have made specific allegations only against Hrishikesh regarding his attacking the injured with a rod. The other prosecution witness, Jitendra Madheshiya, in front of whose shop the scuffle took place has also made general allegations against the accused. It has also been submitted that since injuries caused to the injured, Ram Chandra Kushwaha and Mithilesh Kushwaha are simple in nature, therefore, offence u/s 308 I.P.C. is not made out against the accused. It has also been submitted that the Investigating Officer has not produced any incriminating material or evidence to establish the ingredients of Section 308 I.P.C. Learned counsel for the revisionists has placed reliance on the judgment of the Apex Court in Trilok Chand and Another vs. State of Rajasthan and Another, 2011 SCC Online Raj. 121. 6. Per contra, learned counsel for the opposite party no. 2 and learned A.G.A. submitted that after examining the facts and circumstances of the case and the evidence produced by the Investigating Officer, the trial court has rightly rejected the application u/s 227 Cr.P.C. filed by the revisionists. The revision is devoid of any merit and it should be rejected. 7. Learned counsel for the revisionists, learned counsel for the opposite party no. 2 and learned A.G.A. have been heard. Perused the entire trial court record and the record of the revision. 8. Before examining the merits of the present case, the ambit, scope and power of the Sessions Court as well as the High Court u/s 397 Cr.P.C. should be discussed and ascertained. 9. 2 and learned A.G.A. have been heard. Perused the entire trial court record and the record of the revision. 8. Before examining the merits of the present case, the ambit, scope and power of the Sessions Court as well as the High Court u/s 397 Cr.P.C. should be discussed and ascertained. 9. The Hon’ble Apex Court in Amit Kapoor vs. Ramesh Chander and Another, (2012) 9 SCC 460 in paragraph nos. 12 and 13 of its judgment has narrated the ambit and scope of revision by the High Court u/s 397 Cr.P.C. which are as follows: 12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits. 13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the Cr.P.C. 10. In paragraph nos. 17 and 19 of the aforesaid judgment, the Apex Court has narrated that before framing a charge, what documents should be considered by the trial court. It has also provided about the extent of evidence required for framing of a charge. In paragraph no. 20 of the aforesaid judgment, the Apex Court has compared the power and extent of jurisdiction of the High Court u/s 397 Cr.P.C. which is given hereunder: 20. The jurisdiction of the court under Section 397 can be exercised so as to examine the correctness, legality or propriety of an order passed by the trial court or the inferior court, as the case may be. Though the section does not specifically use the expression “prevent abuse of process of any court or otherwise to secure the ends of justice”, the jurisdiction under Section 397 is a very limited one. The legality, propriety or correctness of an order passed by a court is the very foundation of exercise of jurisdiction under Section 397 but ultimately it also requires justice to be done. The jurisdiction could be exercised where there is palpable error, non-compliance with the provisions of law, the decision is completely erroneous or where the judicial discretion is exercised arbitrarily. On the other hand, Section 482 is based upon the maxim quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest i.e. when the law gives anything to anyone, it also gives all those things without which the thing itself would be unavoidable. The section confers very wide power on the Court to do justice and to ensure that the process of the court is not permitted to be abused. 11. After comprehensive survey and discussion of the judgment of the Hon’ble Supreme Court and the factors to be considered by the trial court while disposing of application u/s 227 Cr.P.C. and framing charge u/s 228 Cr.P.C. the Apex Court in Amit Kapoor (supra) has given following directions: 27.2. 11. After comprehensive survey and discussion of the judgment of the Hon’ble Supreme Court and the factors to be considered by the trial court while disposing of application u/s 227 Cr.P.C. and framing charge u/s 228 Cr.P.C. the Apex Court in Amit Kapoor (supra) has given following directions: 27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. 27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. 27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction. 27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. 27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution. 12. 27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution. 12. The statutory provisions regarding consideration of the case with a view to framing of charge or discharging the accused as given in Sections 226, 227 and 228 Cr.P.C. has been laid down by the Hon’ble Supreme Court in the case of Ghulam Hassan Beigh vs. Mohammad Maqbool Magrey and Others in S.L.P. (Crl.) No. 4599 of 2021: 15. Section 226 of the Cr.P.C. corresponds to sub-section (1) of the old Section 286 with verbal changes owing to the abolition of the jury. Section 286 of the 1898 Code reads as under: “286.(1) In a case triable by jury, when the jurors have been in chosen or, in any other case, when the Judge is ready to hear the case, the prosecutor shall open his case by reading from the Indian Penal or other law the description of the offence charged, and stating shortly by what evidence he expects to prove the guilt of the accused. (2) The prosecutor shall then examine his witnesses.” Section 226 of the 1973 Code reads thus: “226. Opening case for prosecution - When the accused appears or is brought before the Court in pursuance of a commitment of the case under section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused.” Section 226 of the Cr.P.C. permits the prosecution to make the first impression regards a case, one which might be difficult to dispel. In not insisting upon its right under Section 226 of the Cr.P.C. the prosecution would be doing itself a disfavour. In not insisting upon its right under Section 226 of the Cr.P.C. the prosecution would be doing itself a disfavour. If the accused is to contend that the case against him has not been explained owing to the non-compliance with Section 226 of the Cr.P.C. the answer would be that the Section 173(2) of the Cr.P.C. report in the case would give a fair idea thereof, and that the stage of framing of charges under Section 228 of the Cr.P.C. is reached after crossing the stage of Section 227 of the Cr.P.C. which affords both the prosecution and accused a fair opportunity to put forward their rival contentions. 16. Section 227 of the Cr.P.C. reads thus: “227. Discharge - If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.” 17. Section 228 of the Cr.P.C. reads thus: “228. Framing of charge: (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which: (a) is not exclusively triable by the Court of Session, he may frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report. (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.” 13. While framing charge, the Court has to ensure that a prima facie case must be made out against the accused. While framing charge, the Court has to ensure that a prima facie case must be made out against the accused. The Hon’ble Apex Court in Union of India vs. Prafulla Kumar Samal and Another, (1979) 3 SCC 4 , considered the scope of enquiry a judge is required to make while considering the question of framing of charges. After an exhaustive survey of the case law on the point, in paragraph no. 10 of the judgment, has laid down the following principles: (1) That the Judge while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. 14. The Hon’ble Apex Court in paragraph nos. 15 and 23 of its judgment in Dipakbhai Jagdishchandra Patel vs. State of Gujarat, (2019) 16 SCC 547 , has elaborately discussed the law relating to the framing of charge and discharge of the accused which is as under: 15. 14. The Hon’ble Apex Court in paragraph nos. 15 and 23 of its judgment in Dipakbhai Jagdishchandra Patel vs. State of Gujarat, (2019) 16 SCC 547 , has elaborately discussed the law relating to the framing of charge and discharge of the accused which is as under: 15. We may profitably, in this regard, refer to the judgment of this Court in State of Bihar vs. Ramesh Singh, (1977) 4 SCC 39 : 1977 SCC (Cri) 533 : AIR 1977 SC 2018 , wherein this Court has laid down the principles relating to framing of charge and discharge as follows: (SCC pp. 41-42, Para 4) “4......Reading Sections 227 and 228 together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima-facie whether the court should proceed with the trial or not. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.......If the scales of pan as to the guilt or innocence of the accused are something like even, at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.” 23. At the stage of framing the charge in accordance with the principles which have been laid down by this Court, what the court is expected to do is, it does not act as a mere post office. The court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the court dons the mantle of the trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. The sifting is not to be meticulous in the sense that the court dons the mantle of the trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is, the court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that the accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence. 15. In Sajjan Kumar vs. C.B.I. (2010) 9 SCC 368 , the Hon’ble Apex Court after elaborately discussing the scope of Sections 227 and 228 Cr.P.C. has laid down principles which emerge therefrom in paragraph no. 21 which is as under: 21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge: (i) The Judge while considering the question of framing the charges under Section 227 Cr.P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case. (ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial. (iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. (iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal. 16. In the case of State of Karnataka vs. M.R. Hiremath, (2019) 7 SCC 515 , the Hon’ble Apex Court has laid down principles to be considered by the Magistrate while dealing with discharge application of the accused u/s 239 Cr.P.C. in warrant trial case. The directions given by the Apex Court is equally applicable to the discharge of accused u/s 227 Cr.P.C. 17. In paragraph no. 25 of Ghulam Hassan Beigh (supra), the Apex Court held as under: 25. The directions given by the Apex Court is equally applicable to the discharge of accused u/s 227 Cr.P.C. 17. In paragraph no. 25 of Ghulam Hassan Beigh (supra), the Apex Court held as under: 25. In the case of Asim Shariff vs. National Investigation Agency, (2019) 7 SCC 148 , this Court, to which one of us (A.M. Khanwilkar, J.) was a party, in so many words has expressed that the trial court is not expected or supposed to hold a mini trial for the purpose of marshalling the evidence on record. We quote the relevant observations as under: “18. Taking note of the exposition of law on the subject laid down by this Court, it is settled that the Judge while considering the question of framing charge under Section 227 Cr.P.C. in sessions cases(which is akin to Section 239 Cr.P.C. pertaining to warrant cases) has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the material placed before the Court discloses grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing the charge; by and large if two views are possible and one of them giving rise to suspicion only, as distinguished from grave suspicion against the accused, the trial Judge will be justified in discharging him. It is thus clear that while examining the discharge application filed under Section 227 Cr.P.C. it is expected from the trial Judge to exercise its judicial mind to determine as to whether a case for trial has been made out or not. It is true that in such proceedings, the Court is not supposed to hold a mini trial by marshalling the evidence on record.” 18. In paragraph nos. 28, 29 and 30 of the judgment in Amit Kapoor (supra), the Hon’ble Supreme Court has held as hereunder: 28. At this stage, we may also notice that the principle stated by this Court in Madhavrao Jiwajirao Scindia, (1988) 1 SCC 692 : 1988 SCC (Cri) 234 was reconsidered and explained in two subsequent judgments of this Court in State of Bihar vs. P.P. Sharma, 1992 Supp. At this stage, we may also notice that the principle stated by this Court in Madhavrao Jiwajirao Scindia, (1988) 1 SCC 692 : 1988 SCC (Cri) 234 was reconsidered and explained in two subsequent judgments of this Court in State of Bihar vs. P.P. Sharma, 1992 Supp. (1) SCC 222 : 1992 SCC (Cri) 192 : AIR 1991 SC 1260 and M.N. Damani vs. S.K. Sinha, (2001) 5 SCC 156 : 2001 SCC (Cri) 823 : AIR 2001 SC 2037 . In the subsequent judgment, the Court held that, that judgment did not declare a law of universal application and what was the principle relating to disputes involving cases of a predominantly civil nature with or without criminal intent. 29. In the light of the above principles, now if we examine the findings recorded by the High Court, then it is evident that what weighed with the High Court was that firstly it was an abuse of the process of court and, secondly, it was a case of civil nature and that the facts, as stated, would not constitute an offence under Section 306 read with Section 107 IPC. Interestingly and as is evident from the findings recorded by the High Court reproduced supra that “this aspect of the matter will get unravelled only after a full-fledged trial” once the High Court itself was of the opinion that clear facts and correctness of the allegations made can be examined only upon full trial, where was the need for the Court to quash the charge under Section 306 at that stage. Framing of charge is a kind of tentative view that the trial court forms in terms of Section 228 which is subject to final culmination of the proceedings. 30. We have already noticed that the legislature in its wisdom has used the expression “there is ground for presuming that the accused has committed an offence.” This has an inbuilt element of presumption once the ingredients of an offence with reference to the allegations made are satisfied, the Court would not doubt the case of the prosecution unduly and extend its jurisdiction to quash the charge in haste. A Bench of this Court in State of Maharashtra vs. Som Nath Thapa, (1996) 4 SCC 659 : 1996 SCC (Cri) 820 referred to the meaning of the word “presume” while relying upon Black's Law Dictionary. A Bench of this Court in State of Maharashtra vs. Som Nath Thapa, (1996) 4 SCC 659 : 1996 SCC (Cri) 820 referred to the meaning of the word “presume” while relying upon Black's Law Dictionary. It was defined to mean “to believe or accept upon probable evidence”; “to take as proved until evidence to the contrary is forthcoming.” In other words, the truth of the matter has to come out when the prosecution evidence is led, the witnesses are cross-examined by the defence, the incriminating material and evidence is put to the accused in terms of Section 313 of the Code and then the accused is provided an opportunity to lead defence, if any. It is only upon completion of such steps that the trial concludes with the court forming its final opinion and delivering its judgment. Merely because there was a civil transaction between the parties would not by itself alter the status of the allegations constituting the criminal offence. 19. In the light of the law propounded by the Apex Court in the aforesaid judgment, now it will be examined whether the trial court has rightly framed the charge against the accused u/s 308 I.P.C. Section 308 I.P.C. defines the offence of attempt to commit culpable homicide and provides punishment therefor which is as follows: 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. 20. Before an accused can be held to be guilty u/s 308 I.P.C. it was necessary to arrive at a finding that the ingredients thereof namely requisite intention or knowledge was existing. The essential ingredients of the offence u/s 308 I.P.C. are as follows: (1) accused committed an act. (2) the act was committed with the intention or knowledge of committing culpable homicide not amounting to murder. The essential ingredients of the offence u/s 308 I.P.C. are as follows: (1) accused committed an act. (2) the act was committed with the intention or knowledge of committing culpable homicide not amounting to murder. (3) the act was committed in such circumstances that if the accused by that act had caused the death of the victim, he would have been guilty of culpable homicide. 21. The informant/injured, Ram Chandra Kushwaha has mentioned in his written report that on the date of occurrence when he along with his son, Mithilesh Kushwaha reached the District Headquarter, the accused, Ajay, Hrishikesh and Pankaj, enquired from him about the work done in the village. The accused assaulted him and his son with rod, lathi and danda causing head injury to them. 22. The informant Ram Chandra Kushwaha in his statement recorded u/s 161 Cr.P.C. has supported the averments in the first information report and has stated as follows: ^^fnukad 25-08-2015 dks xzke lsod nsosUæ feJ ds cqykus ij eSa o esjk yM+dk fefFkys'k ftyk eq[;ky; x;s FksA nksuksa yksx igqaps rks xzke lsod us igys ls gh _f"kds'k] vt; o iadt tks mlds xkao ds fuoklh gS] dks cqyk;k FkkA xkao ds dk;ksZ ds fo"k; esa iwNus ij rhuksa yksx ykBh M.Mk ls ihVus yxs vkSj Ák.k?kkrd geyk dj fn;s] ftlls eq>s o esjs yM+ds dks pksVs vk;hA lkFkh gh lM+d ij ge nksuksa dks iVd fn;sA ftlls lj esa Hkh pksVsa vk;hA xkao esa ruko mRiUu gSA ;g ?kVuk 11 cts fnu dh gSA** 23. The informant Ram Chandra Kushwaha in his additional statement has stated that: ^^_f"kds'k esjs csVs dks tku ls ekjus dh fu;r ls vpkud jkM ls mlds xnZu ij o dU/ks ij Ágkj dj fn;s] ftlls og uhps fxj x;k vkSj csgks'k gks x;k rFkk mYVh djus yxkA eqfYteku eq>s Hkh ekjs ihVs o lM+d ij iVd fn;sA eSa o esjk csVk nksuksa yksx ftyk vLirky esa viuk bykt djk;s mlds ckn esfMdy dkyst esa HkrhZ jgsA** 24. The informant’s son, injured Mithilesh Kushwaha has adopted the statement u/s 161 Cr.P.C. of his father as his statement. 25. The informant’s son, injured Mithilesh Kushwaha has adopted the statement u/s 161 Cr.P.C. of his father as his statement. 25. The eye-witness, Habib Ansari in his statement u/s 161 Cr.P.C. given to the Investigating Officer has stated that: ^^fnukad 25-08-2015 dks eSa ftrsUæ e}sf'k;k dh nqdku ij ekStwn FkkA ogka ij _f"kds'k] vt; o iadt Hkh ekStwn FksA esjs xkao dk jkepUæ dq'kokgk o mudk csVk fefFkys'k dq'kokgk ogka vk;s rFkk xzke fodkl vf/kdkjh igys ls ogka ekStwn FkssA _f"kds'k us nksuksa dks jkM ls ekjkA fefFkys'k ds xnZu ij yxus ds dkj.k og uhps fxj x;k rFkk csgks'k gks x;kA nksuksa dk mBkdj vLirky ys tk;k x;kA vt; o iadt Hkh yksgs dh jkM ls okj fd;s FksA** 26. The other eye-witness, Jitendra Madheshiya in his statement u/s 161 Cr.P.C. has stated to the Investigating Officer as follows: ^^eSa Hkh nqdku ij ekStwn FkkA esjh pk; dh nqdku gSA fllok efB;k ds Á/kku _f"kds'k rFkk vt; o iadt us vius gh xkao ds jkepUæ dq'kokgk rFkk fefFkys'k dks ekjs ihVs Fks] ftlls fefFkys'k ds xnZu ij jkM ls pksV vk;h FkhA og ekSds ij csgks'k gks x;k FkkA** 27. Thus, the informant and the eye-witnesses have mentioned in their statements that accused, Ajay, Hrishikesh and Pankaj, attacked the informant Ram Chandra Kushwaha and his son, Mithilesh Kushwaha on their head with lathi, danda and rod due to which they received fatal injuries. The informant Ram Chandra Kushwaha has also stated that accused had assaulted him with the intention to kill him. His son, Mithilesh fell on the ground and started vomiting and became unconscious. 28. The injured Mithilesh Kushwaha was medically examined on 25.08.2015 at 6.30 p.m. Following injuries were found on the person of Mithilesh Kushwaha: (1) Multiple contusion 7 x 4 cm over left side back 2 cm above from interior angle of right scapula. (2) Abrasion 8 x 1.5 cm over right side back 4 cm above from interior angle of right scapula. (3) Contused swelling 4 x 3 cm over tip of right shoulder. KUO. (4) Complain of pain over lower back. KUO (5) Complain of pain over chest, back of chest, abdomen. 29. The injured Ram Chandra Kushwaha was medically examined on 25.08.2015 at 5.50 p.m. Following injuries were found on the person of Ram Chandra Kushwaha: (1) Contused swelling 5 cm x 4 cm over top of right shoulder joint. KUO. KUO. (4) Complain of pain over lower back. KUO (5) Complain of pain over chest, back of chest, abdomen. 29. The injured Ram Chandra Kushwaha was medically examined on 25.08.2015 at 5.50 p.m. Following injuries were found on the person of Ram Chandra Kushwaha: (1) Contused swelling 5 cm x 4 cm over top of right shoulder joint. KUO. (2) Contused swelling 3.5 cm x 2 cm over right side chest. 6 cm above from right nipple. KUO. Red in colour. (3) Complain of pain over lower back. (4) Complain of pain over anterior chest. (5) Complain of pain over left side back. 30. From the definition of the offence of attempt to commit culpable homicide provided u/s 308 I.P.C. it is obvious that no grievous injury or injury on the vital part of the body is required. Only the injured must be attacked by the accused with requisite intention or knowledge. 31. In Tukaram Gundu Naik vs. State of Maharashtra, (1994) 1 SCC 465 , where none of the injuries had affected any vital part of the body and it was doubtful whether the accused had intended to commit murder of the victim, the Apex Court attributed only knowledge that by inflicting such injuries, he was likely to cause death and it was held that an attempt to such an offence would be punishable u/s 308 I.P.C. 32. In the light of the statement of the injured, Ram Chandra Kushwaha and that of eye-witnesses, Habib Ansari and Jitendra Madheshiya and the injury report of the aforesaid injured, the trial court has rightly held that prima facie offence u/s 323 and 308 I.P.C. is made out against the accused and has directed framing of charges under these sections. There is no illegality, irregularity or impropriety in the impugned order passed by the trial court. 33. There is no merit in the criminal revision and the same is liable to be dismissed. 34. The criminal revision is dismissed, accordingly. 35. Let a copy of this order be sent to the concerned trial court for necessary action.