A grievous injury from a sudden stone blow does not establish Section 308 without requisite intention or knowledge.

On 20 September 2002, following a dispute in a village lane, the appellant allegedly struck Sharvan Goswami on the head with a stone, causing grievous injury; Arvind Goswami also sustained simple injuries.

The trial court convicted the appellant under Sections 308 and 323/34 IPC and imposed sentences of three years’ and six months’ rigorous imprisonment, respectively.

On appeal, the appellant challenged the Section 308 conviction, relying, among other matters, on the delay in registering the FIR and the absence of evidence of the requisite intention or knowledge.

The High Court upheld the prosecution’s account of the assault but considered whether the evidence supported the more serious offence under Section 308 IPC.

1. Whether the evidence established the appellant’s participation in the assault, notwithstanding the hostile witnesses and the delay in registration of the FIR.

2. Whether the appellant’s act of striking Sharvan with a stone established the intention or knowledge required for conviction under Section 308 IPC.

3. Whether the appellant should be considered for probation following his conviction under Sections 323/34 and 325 IPC.

Section 308 IPC requires proof that the accused acted with such intention or knowledge, and in such circumstances, that if death had resulted, the act would amount to culpable homicide not amounting to murder; intention or knowledge must be assessed from the circumstances, including the weapon used, the part of the body targeted, the nature of the injuries, and the accused’s conduct.

The Court relied on Man Singh v. State (NCT of Delhi, 2016 SCC OnLine Del 1050, and Bishan Singh v. State, (2007) 13 SCC 65, on the requirement to establish that mental element for Section 308 IPC.

Sections 323 and 325 IPC apply to voluntarily causing hurt and grievous hurt, respectively; Section 34 IPC provides for joint liability for acts done in furtherance of common intention.

The Court also noted that the absence of a mandatory minimum sentence under those provisions permits consideration of probation, subject to the circumstances of the case and a Social Investigation Report.

The Court accepted the consistent evidence of PW-2 and PW-3 identifying the appellant and describing his role, finding no material contradiction in their testimony; the hostile witnesses did not negate that evidence.

It also held that the delay in registering the FIR was explained by the police awaiting the final medical opinion, while the complainant’s statement had been recorded on the day of the incident.

However, the assault arose suddenly, without premeditation; the stone was picked up at the scene, was not recovered, and its size or characteristics were not established.

The medical evidence did not show that the injury was sufficient in the ordinary course of nature to cause death.

Considering these circumstances, the Court found the requisite intention or knowledge for Section 308 IPC unproved, while the evidence supported convictions for simple and grievous hurt.

Given the appellant’s plea for probation, the Court directed that a Social Investigation Report be obtained before deciding that relief.

The Court did not finally decide the request for probation; it directed the Registry to obtain and place the appellant’s Social Investigation Report on record and listed the matter for further orders.