JUDGMENT

SWARANA KANTA SHARMA, J.

1. The present Criminal Revision Petition filed under Section 397(1) of Code of Criminal Procedure, 1973 is directed against the impugned order dated 13.09.2017 passed by learned Additional Sessions Judge-03, Shahdara District, Karkardooma Courts, Delhi vide which both the respondents herein were discharged in case FIR bearing no. 1146/2014, under Section 308/34 of the Indian Penal Code, 1860, (hereinafter as „IPC‟) registered at Police Station Madhu Vihar.

Factual Background of the case

2. Briefly, the facts of the present case are that on 07.10.2014 at about 09.00 pm, the complainant along with his friend was going to Madhu Vihar. On the way when he had reached near Joshi Colony, accused/respondent no. 1 had called him on the pretext that he wanted to talk to him. When the complainant and respondent no. 1 were talking to each other, respondent no. 2 had hit on the head of the complainant from the back side with an iron rod while respondent no. 1 had caught hold of him. Respondent no. 2 had again hit him with an iron rod. Respondent no.1 hit him with a sharp edged weapon on the back and stomach. The complainant ran towards Hanuman Mandir near Samudai Bhawan where he fell unconscious. A complaint was lodged with the police resulting into FIR bearing no. 11460/2014.

3. Learned Additional Sessions Court while hearing arguments on charge, discharged both the accused persons for the offence punishable under Section 308/34 IPC and remanded the case to learned Metropolitan Magistrate, Shahdara, Delhi for trial for the offence punishable under Section 323/34 IPC. The operative portion of the impugned order dated 13.09.2017 reads as under:

“4. Considering the over all circumstances and further that the victim had suffered only simple injury i.e. one lacerated wound on his head and other injury was merely abrasion on abdomen measuring 7-8 cm, it cannot be said that accused persons herein in furtherance of their common intention had attempted to cause injury which might have been likely to cause death and the victim survived due to the factors beyond their control. Under these circumstances, I discharge both the accused parsons of the offence u/s 303/34 IPC. In my view, the only offence u/s 323/34 IPC is attracted. Accordingly, file be sent to the Court of Sh. Pranjal Aneja, Id. Ilaaka MM, Shahdara for 18.09.2017 at 2.00 pm. Both accused persons shall appear there on that day.”

Submissions by the Learned Counsels

4. Learned APP for the State submits that learned ASJ has committed grave error in not appreciating the contents of the complaint as well as the MLC filed by the prosecution. Learned ASJ also did not appreciate that the injuries were caused on the head i.e. vital part of body of the complainant and therefore had committed an error in discharging the accused persons/respondents for the offence under Section 308/34 IPC.

5. Learned counsel for the respondents opposes the present revision petition on the ground that the complainant had filed the case due to previous animosity between the parties and that no such incident had ever taken place as alleged in the FIR. He, therefore, stated that the order passed by learned ASJ does not suffer from any illegality or infirmity.

6. This Court has heard the submissions of learned counsels and perused the record.

7. This Court deems it appropriate to reproduce Section 308 IPC, which reads as under:

“308. Attempt to commit culpable homicide.—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, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. Illustration A, on grave and sudden provoc