Point of Law: Criminal Law – Offence of Attempt to commit culpable Homicide - Revision petition – Whether accused had intention or knowledge that injuries inflicted on the victim would cause death and as a result thereof the accused could be guilty of committing culpable homicide not amounting to murder - Intention can be established only at the time of trial. Four people have assaulted the respondent/victim and he has been hit on his head by an iron rod - 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 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

JUDGMENT :

SUBRAMONIUM PRASAD, J.

1. This revision petition filed under Section 397/401 Cr.P.C is directed against the order dated 07.03.2018, passed by the Additional Session Judge-06, (South-East), Saket Courts, New Delhi, in SC No. 130/2017, framing charges against the petitioner for offences under Sections 308, 385, and 34 IPC. It is stated that on 10.10.2016, at about 3:25 A.M. an information was received that a man has been stabbed in front of Okhla Sabzi Mandi. The said message was entered vide DD No.6-PP at Police Post S.N. Puri.

2. In the hospital the complainant/respondent No.2 told the police that he conducts business of selling vegetables near Gate No. 2, Okhla Sabzi Mandi. It is alleged in the FIR that one Anwar/petitioner No.4 herein and his children Salman/petitioner No.1 herein, Shahrukh/petitioner No.2 herein and Imran/petitioner No.3 herein, who also do business of selling vegetables used to demand money from the complainant/respondent No.2 for conducting business there. It is stated that on 10.10.2016, the petitioners came to the complainant, Anwar was armed with a Danda, Imran and Shahrukh were armed with iron rods and Salman was armed with a knife. They demanded money from the complainant. It is stated that Shahrukh hit the complainant with the iron rod on his head. It is stated that all four of them started hitting the complainant. It is further stated that when the petitioner’s brother, one Naazim, rescued him, Salman ran after him and that they also took away Rs.4,800/- of the petitioner. It is stated that the brother of the petitioner, Naazim, gave a call to the Police. The accused left after threatening the complainant of dire consequences. On the said statement, FIR No.609/2016 was registered on 10.10.2016, for offences under Sections 384/308/34 IPC. After investigation charge-sheet has been filed. In the charge-sheet it is stated that from the investigation conducted and the statements of the witnesses there is sufficient evidence for filing charge-sheet against the petitioners under Sections 308, 384, 34 IPC.

3. On 07.03.2018, by the order impugned herein, the learned Additional Session Judge-06, (South-East), Saket Courts, found that prima facie a case under section 308 IPC is made out against the accused/petitioners herein and charges under Sections 308, 384 and 34 IPC were accordingly framed. The petitioners pleaded not guilty and claimed trial. This order has been challenged in the present revision petition.

4. Mr. Ajayinder Sangwan, learned counsel for the petitioner states that there is a contradiction between DD entry and the version narrated by the victim in the FIR. He states that the DD entry shows that a person was stabbed while the case in the FIR is only for assault. Mr. Ajayinder Sangwan has taken this Court through the MLC report which states that the nature of injury is only simple. Mr. Sangwan also places emphasis on a medical opinion wherein it has been opined by Dr. Shashi Kant Yadav, Junior Resident, AIIMS, that the nature of injury is simple and the weapon used is blunt and that the injury mentioned in the MLC No. 588759/10OCT2016 is simple in nature and is possibly by blunt force/impact and is not sufficient to cause death in ordinary circumstances. Mr. Ajayinder Sagwan, learned counsel for the petitioner, argues that since the nature of injury is only simple and the doctor has opined that the injury is not sufficient to cause death in the ordinary circumstances charges under Section 308 IPC could not be framed. He places reliance on a judgement of this Court in Narinder Kaur Oberoi v. State, 2015 SCC OnLine Del. 7864, and Rajiv Sharma v. State, 2015 SCC OnLine Del. 12138, to contend that in view of the injuries suffered by the petitioner charges under Section 308 IPC could not be framed.

5. Per contra, Ms. Meenakshi Chauhan, learned AAP for the State submits that the nature of injury cannot be a decisive factor at the time of framing charge under Section 308 IPC. She would contend