The nature of injury is not conclusive in determining the offense under Section 308 IPC, and the intention to kill or knowledge that death will be caused is a question of fact.

Manmohan, J.— (Oral)

CRL.M.A. 15944/2012

Allowed, subject to just exceptions.

CRL.REV.P. 489/2012 & CRL.M.A. 15943/2012

1. Present revision petition has been filed challenging the order dated 13th August, 2012 passed by learned Additional Sessions Judge-2, SD, Saket, New Delhi whereby petitioners have been charged under Section 308/34 IPC.

2. Mr. Rajiv K. Garg, learned counsel for the petitioners submits that the trial court has failed to appreciate that the doctor had in no uncertain words opined the injury as simple after examining the same. He further submits that as the doctor had opined the injury not to be dangerous or grievous, petitioner could not have been charged under Section 308 IPC. In this connection, he relied upon following judgments of this Court:-

i) Brahm Dutt & Ors. Vs. State & Ors., 1996 JCC 183.

ii) Surinder Kumar Vs. State, 1997 JCC 45.

iii) Desh Raj Vs. Kewal Krishan & Ors., Crl. Rev.P. 544/2001 decided on 23rd November, 2009.

3. However, the Supreme Court in Sunil Kumar Vs. NCT of Delhi & Ors., (1998) 8 SCC 557 has held that to make an offence under Section 308 IPC, the nature of injury is not conclusive. The relevant portion of the Sunil Kumar (supra) is reproduced hereinbelow:-

“4. The view taken by the High Court is obviously erroneous because offence punishable under Section 308 IPC postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act caused death, he would be guilty of culpable homicide not amounting to murder. An attempt of that nature may actually result in hurt or may not. It is the attempt to commit culpable homicide which is punishable under Section 308 IPC whereas punishment for simple hurts can be meted out under Sections 323 and 324 and for grievous hurts under Sections 325 and 326 IPC. Qualitatively, these offences are different. The High Court was thus not well advised to take the view as afore-extracted to bring down the offence to be under Sections 323/34 IPC and then in turn to hold that since that offence was investigated by the police without permission of the magistrate, the proceedings under that provision be quashed. For the view afore-taken as to the commission of the offence under Sections 308/34 IPC, it is not necessary to dwell on the correctness of the second part of the order relating to quashing of proceedings under Sections 323/34 IPC. Thus, the entire order of the High Court deserves to be and is hereby quashed, restoring the status quo ante of the trial remaining with the Additional Sessions Judge to proceed in accordance with law.”

4. The Supreme Court in State of M.P. vs. Kashiram & Ors., JT 2009 (2) SC 140, Ratan Singh vs. State of M.P. & Anr., AIR 2010 SC 597 and State of Madhya Pradesh vs. Imrat & Anr., AIR 2008 SC 2967 has reiterated that whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case. The circumstance that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 IPC. Consequently, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt.

5. This Court is of the view that in view of the subsequent Supreme Court’s judgments, the judgments of this Court Brahm Dutt (supra) and Surinder Kumar (supra) offer no assistance to the petitioners.

6. This Court is also of the opinion that the judgment in Desh Raj Vs. Kewal Krishan & Ors (supra) offers no assistance to the petitioners as in the said case the Court was hearing an appeal against a conviction order. In fact, in Desh Raj Vs. Kewal Krishan & Ors (supra) the Court not only made a distinction between the stage of framing of charge and the stage of conviction, but also clearly pointed out that in view of the ocular evidence in the said case, the ingredient of Section 308 IPC had not been made out.

7. Consequently, in view of