Del HC | What is the most crucial element to be determined while finding a person guilty under attempted culpable homicide – S. 308 IPC? Vegetable seller beaten up on failing to provide money for conducting business outside Okhla Sabzi Mandi

Delhi High Court: Subramonium Prasad, J., while addressing an issue with respect to culpable homicide expressed that:

“…crucial to determine whether the accused had intention or knowledge that the injuries inflicted on the victim would cause the death and as a result thereof the accused could be guilty of committing culpable homicide not amounting to murder.”

The instant revision petition was filed under Section 397/401 of Criminal Procedure Code directed against the order passed by the Additional Session Judge, framing charges against the petitioner for offences under Section 308, 385 and 34 of the Penal Code, 1860.

A piece of information was received that a man had been stabbed in front of Okhla Sabzi Mandi.

Further, it was added that the petitioners came to the complainant, Anwar/petitioner 4 was armed with a Danda Imran/petitioner 3 and Sharukh/petitioner 2 were armed with iron rods and Salman was armed with a knife. They demanded money from the complainant.

Further, it was stated that all four petitioners started hitting the complainant, later petitioners’ brother, Nazim rescued him.

The accused left after threatening the complainant of dire consequences.

From the investigation, sufficient evidence for filing charge-sheet against the petitioners under Sections 308, 384 and 24 of Penal Code 1860 was found.

Additional Sessions Judge found that prima facie a case under Section 308 IPC was made out against the accused. The said order has been challenged in the present revision petition.

What is Section 308 of Penal Code, 1860?

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.

In the decision of Rajiv Sharma v. State, 2015 SCC OnLine Del 12138, it was held that:

“4. To proceed under Section 308 IPC, it is not essential that the injury actually caused to the victim should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the 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…”

Case of Scuffle

 It was noted in the view of facts and circumstances of the present case that it was a simple case of scuffle/quarrel between the parties where injuries were inflicted voluntarily and the High Court opined that the assailants could be proceeded for causing hurt under Section 323/324 IPC.

Complainant has submitted that the petitioner used to demand money for conducting business from that place and four of them attacked the victim.

Culpable Homicide

To secure conviction under Section 308 IPC the prosecution must prove that the accused had requisite intention or knowledge to cause culpable homicide.

With regard to determining the intention of whether the accused had intention or knowledge that injuries inflicted by him on the victim would cause death can be determined only at the stage of trial and not at the time of discharge.

Elaborating on the aspect of discharge in a case under Section 308 IPC, Bench referred to the decision of Supreme Court in Sunil Kumar v. N.C.T. of Delhi, (1998) 8 SCC 557.

High Court stated that APP, Meenakshi Chauhan was right in her submissions that the injury alone sustained by the accused at the time of framing charge cannot be the only criterion to discharge a person from an offence under Section 308 IPC. The attempt of that nature may or may not actually result in injury.

What is relevant for framing charges under Section 308 IPC is that an act done by the accused with intention or knowledge that under such circumstance’s death could have been caused or not.

Fact that the injury suffered by the victim is simple might not be a very relevant circumstance at this juncture in view of the circumstances of the Supreme Court decision cited above.

Hence, High Court upheld the decision of the Additional Sessions Judge. [Salman v. State, Crl.,  2021 SCC OnLine Del 1247, decided on 12-03-2021]


Advocates before the Court:

For the Petitioners: Ajayinder Sangwan, Advocate

For the Respondents: Meenakshi Chauhan, APP for the State

Sumer Kumar Sethi, Advocate for respondent 2

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