The intention to kill or knowledge that death will be caused is a question of fact and would depend on the evidence presented in a given case.

JUDGMENT :

1. Leave granted.

2. Heard the matter finally.

3. The appellant is the complainant at whose instance FIR No. 138/2014 dated 10.05.2014 was registered at Police Station Civil Lines, Amritsar, Punjab, under Sections 307, 326, 324, 323, 427, 148, 149, 120-B and 341 of the Indian Penal Code (IPC). The matter was investigated and challan was filed in the Court. The Sessions Judge framed charges under the aforesaid provisions, including Section 307 IPC. This order of framing of charge was challenged by respondent No. 2 by filing revision petition in the High Court. The High Court has, vide the impugned judgment dated 28.08.2015, partly allowed the said revision petition and deleted the charge framed under Section 307 IPC as unsustainable while maintaining the charge in respect of other offences. Being dissatisfied of the aforesaid outcome, the appellant has challenged the said order on the ground that the Sessions Judge has rightly framed the charge under Section 307 IPC as well.

4. The prosecution story, on the basis of which FIR was registered and charge-sheet was filed in the Court, may be recapitulated in brief.

5. According to the appellant, who is a practicing Advocate enrolled with the Bar Counsel of Punjab, he was brutally attacked on 10.05.2004 with intention to kill him, his brother, Avnish Mahajan, and their employee, Avtar Singh, by 10-12 persons, who were armed with sharp and deadly weapons including Gandassa, daatars, baseball bat, etc. at the instance of one Anil Joshi, Cabinet Minister in Punjab Government. Further, the said attack by the 11 accused persons named in the Final Report under Section 173 of the Code of Criminal Procedure (Cr.P.C.), including respondent Nos. 2 to 4, was in execution of the common object of the assailants to punish the appellant/teach him a lesson for instituting four cases against the said Anil Joshi. Resultantly, the appellant suffered 11 injuries, including two grievous injuries, and he remained admitted in Hospital for a period of 12 days. Similarly, victim Avnish Mahajan sustained three injuries, one of which was declared grievous in nature, and victim Avtar Singh sustained four simple injuries. During the course of investigation carried out by the Special Investigation team, 11 accused persons, including respondent Nos. 2 to 4 came to be arrested; weapons and vehicles used in the attack were recovered at their instance; call detail records were summoned and analysed and CCTV footage of cameras installed in Indian Overseas Bank, nearby the place of occurrence, was procured and examined. A comprehensive perusal of the material on record led the SIT to file charge sheet under Sections 307, 326, 323, 324, 420, 468, 471, 427, 341, 148, 149 and 120-B IPC. Accordingly, the Sessions Judge framed charge under Sections 307, 326, 325, 324, 323, 341, 427, 148 and 149 IPC.

6. A perusal of the impugned order passed by the High Court would reveal that respondent Nos. 2-4, who are accused Nos. 4, 11 and 1 respectively did not question the charge on other counts but limited their challenge to the framing of the charge under Section 307 IPC. It was argued by the counsel for these respondents-accused persons that medical evidence available on record does not support the charge under Section 307 IPC and at the most, charge would be made only under Section 326 IPC. This statement was made on the ground that intention to kill was conspicuously missing which is sine qua non of charge under Section 307 IPC. It is this contention which is accepted by the High Court, i.e., intention or knowledge on the part of respondent Nos. 2-4 to kill was conspicuously missing.

7. After hearing learned counsel for the parties and going through the records, we are of the view that the aforesaid approach of the High Court is clearly unsustainable. In the first instance, we may record that in the challan filed by the police under Section 173 Cr.P.C. after investigating into the incident, it is categorically recorded on th