The court held that intent and knowledge are crucial in determining culpability under Section 308 IPC, and insufficient evidence of intent or aggravating circumstances necessitates acquittal under this section.

JUDGMENT :

CHANDRASEKHARAN SUDHA, J.

1. In this appeal filed under Section 374 of the Code of Criminal Procedure, 1973, (the Cr.P.C.), accused no.2 (A2) in SC No. 44559/2015 on the file of the Additional Sessions Judge-02 (North East), Karkardooma Courts, Delhi, assails the judgment dated 24.02.2018 and order on sentence dated 27.02.2018 as per which he has been convicted and sentenced for the offence punishable under Sections 308 , 341 and 323 read with Section 34of the Indian Penal Code, 1860 (the IPC ).

2. The prosecution case is that on 07.03.2014, at about 11:15 A.M., in Gali No. 1, New Mustafabad, Delhi, A1 and A2, wrongfully restrained PW1, and thereafter abused and assaulted him with a hard blunt object/iron rod, and struck him on his head, causing bleeding injuries. Hence, as per the charge-sheet/final report dated 30.05.2015, the accused were alleged to have committed the offences punishable under Sections 323 , 341 and 308 read with Section 34 IPC .

3. On the basis of Exhibit PW1/A FIS of PW1, given on 07.03.2014, Crime no. 264/2014, Gokul Puri Police Station, i.e., Exhibit PW7/B FIR was registered by PW7, the then Assistant Sub Inspector. PW9, Sub Inspector (SI) was entrusted with the investigation of the case. PW9 conducted investigation into the crime and on completion of the same, filed the charge-sheet/final report alleging commission of the offences punishable under the aforementioned sections.

4. When the accused persons were produced before the trial court, all the copies of the prosecution records were furnished to them, as contemplated under Section 207 Cr.P.C. After hearing both sides, the trial court, vide order dated 03.02.2016, framed a charge under Sections 308 , 341 and 323 read with Section 34 IPC , which was read over and explained to them to which they pleaded not guilty.

5. On behalf of the prosecution, PWs. 1 to 10 were examined and Exhibits PW1/A-G, PW3/A-B, PW5/A, PW6/A-B, PW7/A-B and PW8/A were marked in support of the case. 6. After the close of the prosecution evidence, the accused persons were questioned under Section 313 (1)(b) Cr.P.C. regarding the incriminating circumstances appearing against them in the evidence of the prosecution. The accused denied all those circumstances and maintained their innocence. They claimed that they had been falsely implicated in the case. In fact, PW1 had misbehaved with their niece on the date of incident, which they questioned. They told PW1 that they intend to lodge a complaint against him. Hence, PW1 to save himself, has falsely implicated them in the case.

7. After questioning the accused under Section. 313(1)(b) Cr.P.C., compliance of Section 232 Cr.P.C. was mandatory. In the case on hand, no hearing as contemplated under Cr.P.C. is seen done by the trial court. However, non-compliance of the said provision does not, ipso facto vitiate the proceedings, unless omission to comply with the same is shown to have resulted in serious and substantial prejudice to the accused (SeeMoidu K. vs. State of Kerala, 2009 (3) KHC 89 : 2009 SCC OnLine Ker 2888). Here, the accused has no case that non-compliance of Cr.P.C has caused any prejudice to him.

8. DW1 was examined on behalf of the accused. No documentary evidence was adduced by the accused.

9. Upon consideration of the oral and documentary evidence on record, and after hearing both sides, the trial court, vide the impugned judgement dated 24.02.2018 found the accused persons guilty of the offence punishable under Section 323 read with Section 34 IPC . A2 has also been found guilty of the offences punishable under Sections 341 and 308 . Vide order on sentence dated 27.02.2018, A2 has been sentenced t