Points Of Law : Voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death", would be punished with "imprisonment of either description for a term which may extend to three years, or with fine, or with both.

ORDER

1. The appellant's conviction under Section 308 of Indian Penal Code (hereinafter, "IPC") and resultant sentence of three years with a fine of Rs. 15,000/-, which has been further upheld by the High Court of Delhi vide impugned judgment dated 08.02.2010, is the subject matter of challenge in this appeal.

2. The prosecution case is that firstly the appellant slapped the injured (PW-2) on 28.01.2003 upon the latter's refusal to repay a debt of Rs.100/-and thereafter, when the injured proceeded to make a telephone call to his father, the appellant attacked him from behind with a sharp-edged weapon and inflicted injury on the left temple/head near his eye. A case under Section 324 of IPC was registered on the statement of the injured, but after obtaining the Medico Legal Report, the offence was converted to one under Section 308 of IPC. The appellant in his defence claimed that a brawl had taken place between his father and the injured over payment of money and he was not present at the place of incident and had been falsely framed in the case. The appellant further took a plea that the injured had collided with a lamp post and cable strips, and had injured himself. The appellant's father entered the witness box in support of defence. The trial Court discarded the defence plea and accepted the prosecution version. The appellant was consequently convicted and sentenced.

3. The aggrieved appellant approached the High Court, which dismissed his challenge by emphasizing the severity of the injury caused which resulted in 15 stitches on the head of the injured and severe swelling, which lead to the victim being unable to speak for a few days. Thus, the High Court held that the appellant was rightly tried and convicted under Section 308 of IPC.

4. This Court on 19.07.2010 issued notice on the limited question of sentence and directed that the appellant be released on bail in the meanwhile. Thereafter, leave to appeal was granted. However, on hearing the submissions of the parties and perusing the materials on record, we are of the opinion that in the facts of the present case a reconsideration of the conviction of the appellant is merited.

5. 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 IPC?

6. Section 308 of IPC 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 of 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."

7. Therefore, to secure conviction under Section 308 of IPC, the prosecution must prove that the accused had requisite 'intention' or 'knowledge' to cause culpable homicide, which in turn can be ascertained from the actual injury as well as from other surrounding circumstances.

8. Section 324 of IPC, on the other hand, criminalises willful infliction of injuries on another and states that whoever "voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death", would be punished with "imprisonment of either description for a term which may extend to three years, or with fine, or with both."

9. In contrast to Section 308 IPC, which necessarily requires proving 'intention' or 'knowledge', to attract Section 324 IPC it is sufficient if a person voluntarily causes hurt by means of an instrument for stabbing or cutting.

10. It is thus crucial to determine whether the appellant had 'intention' or 'knowledge' that the injury inflicted on the victim could cause the latter's death and as a result thereto the appellant could be guilty of committing culpable homicide not amounting to murder?

11. The distinction between atte