The central legal point established in the judgment is the requirement of intention or knowledge to commit culpable homicide not amounting to murder in cases involving Section 308 IPC.

JUDGMENT :

1. By this petition, the petitioner seeks setting aside of order dated 7th October, 2020 passed by the Ld. ASJ, Tis Hazari Courts wherein order on charge was passed under Sections 323/341/34 IPC in proceedings arising out of FIR No.42/2012 PS Swaroop Nagar and consequently uphold the framing of charge under Sections 323/341/34 as well as Section 308 IPC by Ld. MM. As per the case of the prosecution, the case was registered on the complaint of the petitioner against the accused persons viz. Kaptan Singh and his son Vivek Singh. The complainant/petitioner alleged that he is residing on the ground floor of House No.3/61, Swaroop Nagar, Delhi and on 30th March, 2012 at about 10:30 am he was present in his room and heard some noise. The complainant alleged that he went upstairs and saw that the accused persons were beating his elder brother Pawan Kumar. Accused Vivek Singh had caught hold of his brother with his hair and hit his head against the grill till he sustained injuries on the head. Accused Kaptan Singh was exhorting Vivek Singh to throw the petitioner’s brother out of the grill. The petitioner’s niece made a call at 100 Number, the police reached the spot and injured persons Sanjeev Kumar, the petitioner and Pawan Kumar were medically examined vide MLC Nos.1771/19 and 1769/19, respectively. During the medical examination of Pawan Kumar, the doctor opined that they were two lacerated wounds parallel to each other on the scalp of frontal bone measuring 4 cm x 0.5 cm and the nature of the injuries was opined as simple and the weapon used as blunt. The statements were recorded and after completion of investigation, a charge-sheet was filed under Sections 323/341/34 IPC. During the arguments on charge, the Ld. Trial Court (Ld. MM, Tis Hazari Courts) invoked Section 308 IPC as well and the case was committed to Ld. Sessions Court. The accused Kaptan Singh filed a Revision Petition (Cr.) No.671/2019 before the Ld. Sessions Court which held that offence under Section 308 IPC was not made out and revoked it from the proceedings. The petitioners have assailed this order of the Ld. ASJ revoking the addition of charge under Section 308 IPC.

2. As per the learned counsel for the petitioner, the accused had attempted to hurt the victims, the petitioner and his brother, in order to cause harm to their life and that the order of committal dated 12th September, 2019 was passed after perusal of materials on record and prolonged judicial deliberation. As per the petitioners, it was evident that the intention of the accused was severe harm to the victims. The petitioners had also insisted on showing the video footage of the injuries which were caused to the victim Pawan Kumar and to canvass the point of view that this would attract Section 308 IPC and that the Ld. MM had appropriately and correctly added that charge and committed the case to the Sessions Court. Reliance was placed on judgments of the Hon’ble Supreme Court in Sadakat Kotwar v. State of Jharkhand, 2021 SCC OnLine SC 1046 at para 4; Nallapareddy Sridhar Reddy v. State of A.P., (2020) 12 SCC 467 (para 21 to 24) and Sanjay Gandhi v. Union of India, (1978) 2 SCC 39 of the High Court of Allahabad in Vijay Mishra v. State of U.P., Crl.Rev. No.584/2022 of the (para 6, 13, 14, 17 and 20). It was contended that the video had been authenticated by the FSL and would show that there was blood oozing out from the head of the victim Pawan Kumar which was a vital part of the body. It was further contended that even if charges were framed under Section 308 imposing graver punishment the Court has always the liberty to convict the accused on a lenient provision.

3. The learned counsel for the respondent Nos. 2 and 3 refuting the submissions of the petitioner stated that it has been almost 10 years since the incident where cross-complaints and FIRs were registered. Petitioners are cousin brothers of respondent No.3 and nephews of respondent No.2. The petitioners were accused in FIR No