THE THEORY OF ‘HURT’ AND ‘GRIEVOUS HURT’
THE THEORY OF ‘HURT’ AND ‘GRIEVOUS HURT’
Let me start this article with the famous words of Mahatma Gandhi – “Nobody can hurt me without my permission.” Now a days, majority of criminal cases, more in particular, in the Courts of Judicial Magistrate of First Class in India, are ‘Hurt’ cases such as offences punishable under section 323, 324, and 326 of Indian Penal Code,1860. There is no criminal Court without these cases. ‘Hurt’ is known as cause injury to, cause pain to, injure, maim, damage, wound, incapacitate, impair, mutilate, injure. In other wards, it means ‘ be detrimental to’. If an illustration uses the word “wounds” as a verb, it does not differentiate between an injury of “simple nature” or “grievous nature”.
A reference to Vedas and Upanishads disclose that such indications are in abundance. They are in the form of positive and negative injunctions, i.e Vidhis and Nishedhas. To quote a few:Tell the truth; Never tell untruth; Never hurt anyone; Follow Dharma; Treat your mother and father as God; and Perform only such acts which are not forbidden. There are several such Vidhis and Nishedhas. All they formed the foundation of the Smriti Laws. Out of eighteen topics of law laid in Manu and Yajnavalkya, the five topics which constituted the law of crime are 1. Vakaparushya (defamation), 2.Dandaparushya (assault), 3.Steya (theft), 4.Strisangrahana (Adultery and rape) and 5. Sahasa (all the offences with violance including murder). To whom punishment in necessary in a hurt case? Mit. on Yaj.II Ch.XIX referring to a few provisions of Narada lay down certain guiding principles for award of punishment in the case of Dandaparushya. When an altercation has committed and the both parties ae excited, he who restrains himself is respected and the one who proceeds to assault is punished.
How to determine whether a person has committed an offence or not?
The general rule of the common law is that crime cannot be imputed to a man without mens rea. It is, of course, quite another question how the existence of that mens rea is to be established. So far as the English Law is concerned, Section 8 of the Criminal Justice Act of 1967 applies the necessary corrective to the grossness of the rule supposed to have been laid down in 1961 AC 290. This section provides that “A Court or jury in determining whether a person has committed an offence.-
(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequences of those actions; but
(b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inference from the evidence as appear, proper in the circumstances”.
The natural and probable consequences of a man’s act is only one of the factors from which his intention as to the result may be gathered. The intention is to be gathered from all the circumstances appearing in the evidence. Recently, in 2015, the Hon’ble Gujarath High Court, in Criminal Misc.Application No. 3120 of 2014, observed that in Indian Law, the objective test of the maxim would cover every degree of mens rea from negligence to intention, depending on the degree of probability of the consequenes.
What is injury?
According to medical terminology, Injury means wound or trauma; harm or hurt; usually applied to damage inflicted on the body by an external force. In other words, as was observed in Mrs. Veeda Menezes vs Yusuf Khan And Anr, 1966 AIR 1773=1966 SCR 123, the expression “harm” has not been defined in the ‘Indian Penal Code: in its dictionary meaning it connotes hurt, injury; damage; impairment, moral wrong or evil. There is no warrant for the contention raised that the expression “harm” in s. 95 does not include physical injury. The expression “harm” is used in many sections of the Indian Penal Code. In ss. 81, 87, 88, 89, 91, 92, 100, 104 and 106 the expression can only mean physical injury. In s. 93 it means an injurious mental reaction. In s. 415 it means injury to a person in body, mind, reputation or property. In ss. 469 and 499 harm, it is plain from the context, is to the reputation of the aggrieved party.
What does the word ‘Hurt’ mean?
According to Section 319 IPC whoever causes bodily pain, disease or infirmity to any
person is said to cause hurt.
Age of Injury:-
It means that healing changes of a wound. Colour changes, union of the wound edges indicate approximately the interval between time of wound occurrence and medical examination.
Types of weapons:
Sections 321 to 338 Indian Penal Code,1860 explain various types of ‘Hurts’ and ‘Grievous Hurt’ depending upon various circumstances in which the offence was committed. However, for Forensic point of view one should know what is “dangerous weapon or means”. The Section 326 IPC enumerates various things which are considered as dangerous weapon or mean. Self inflicted injuries are not covered. However, the opinion regarding whether the injury was self inflicted or not is left to the discretion of court. To cause hurt, in short, mostly in Indian villages and cities, the weapons such as sticks, kattuva, knife, stones, iron rod are being used against the victim. In Article titled ‘Medicolegal Aspects of Hurt, Injury and Wound’, it was pointed out that the weapons may be metallic, wooden, fibrous, stone like and even the parts of the body of the offender, viz, teeth, nails, feet, palm, hand fist, fingers, elbows and knees. It was also discussed that ‘Burns’ are caused by flame, heated objects and scalds by hot liquids and vapours or gases. Bodily harm may also be caused by corrosives, electricity, insecticide, high dose of drugs.
Duty of the doctor and preparation of Wound Certificate:-
1. No sooner did the injured admit in the hospital or produce before a doctor, history of the incident should be taken and that general medical examination must be done including detailed description of injuries necessary investigation must be done.
2. Margins, directions and other features should be noted and clinical investigation like X-ray findings, if necessary, must be added.
3. A photograph of the wound/injury with a measuring scale placed by its side can also be added to the injury report/wound certificate.
4. Proper treatment should also be given at the same time. If the victim/injured is about to die, his dying declaration should be taken and his signature and LTI must be taken. The declaration sheet must also be signed by the duty doctor.
5. If there is a sufficient time to call the magistrate, medical intimation must be sent to the nearest Magistrate for recording dying declaration, incase of the injured is about to die.
Section 321 in The Indian Penal Code
321. Voluntarily causing hurt.—Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said “voluntarily to cause hurt”.
The essential ingredients of 323 IPC:
While disposing of CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 3120 of 2014, the Hon’ble Gujarath High Court held, Section 323 of the Indian Penal Code punishes for causing voluntary hurt. The essential ingredients to constitute an offence under section 323 are as under:
“(i) That the accused caused hurt to another person;
(ii) That he caused such hurt voluntarily;
(iii) That such a case was not covered under Section 334 I.P.C.”
To bring home an offence under section 323 IPC, the prosecution is to prove (a) the victim suffered from bodily pain, disease or infirmity; (b) that the accused caused the aforesaid bodily pain etc.; (c) that the accused did so intentionally or with knowledge that in the process hurt would be caused.
As was held in Ramdev And Ors vs State Of Rajasthan (2010), even if a simple injury has been caused, a simple injury does lead to the causing of hurt as defined in Section 319 IPC. If mere causing hurt is covered under Section 307 IPC then, how does one distinguish between Section 307 IPC and 323 IPC, 324 IPC ? In order to understand the distinction between these provisions, it is essential to first notice the definition of word ‘hurt’ as given under Section 319 IPC. Section 319 of Indian Penal Code,1860 defines the word ‘ Hurt’—Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt. There is a clear cut distinction between Section 323 IPC, and Section 324 IPC, on the one hand, and Section 307 IPC, on the other hand. While Sections 323 and 324 IPC do not use the words “under such circumstances”, Section 307 IPC emphatically uses these words.(See Ramdev’s case (supra)). Merely because the element of “hurt” is common to offences under Sections 323, 324 and 307 IPC, it cannot lead to the confusion between the three different provisions.
Voluntarily causing hurt by dangerous weapons or means.—
Section 324 in The Indian Penal Code:
324. Voluntarily causing hurt by dangerous weapons or means.—Whoever, except in the case provided for by section 334, volun-tarily causes hurt by means of any instrument for shooting, stab-bing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to in¬hale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either de¬scription for a term which may extend to three years, or with fine, or with both.
“any instrument which, used as a weapon of offence, is likely to cause death”- Meaning:-
In the case of Prabhu vs State Of M.P (2008), the Apex court held that the expression “any instrument which, used as a weapon of offence, is likely to cause death” has to be gauged taking note of the heading of the Section. What would constitute a `dangerous weapon’ would depend upon the facts of each case and no generalization can be made. As was noted by this Court in State of U.P. v. Indrajeet Alias Sukhatha (2000(7) SCC 249) there is no such thing as a regular or earmarked weapon for committing murder or for that matter a hurt. Sections 324 and 326 expression “dangerous weapon” is used. In some other more serious offences the expression used is “deadly weapon” (e.g. Sections 397 and 398). The facts involved in a particular case, depending upon various factors like size, sharpness, would throw light on the question whether the weapon was a dangerous or deadly weapon or not. That would determine whether in the case Section 325 or Section 326 would be applicable. The above position was highlighted in Mathai v. State of Kerala (2005 (2) JT 365).
In Criminal misc.application (for quashing & set aside fir/order) no. 3120 of 2014, the Hon’ble Gujarath High Court held, Section 324 of the Indian Penal Code is with respect to causing hurt voluntarily by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death….. An offence under section 324 IPC has the following essential ingredients:
“(i) That the accused voluntarily caused hurt to another person;
(ii) That such a hurt was in exception to cases provided under Section 334;
(iii) That such hurt was caused
(a) by means of any instrument for shooting, stabbing or cutting, or any instrument which used as a weapon of offence is likely to cause death; or
(b) by means of five or any heated substance; or (c ) by means of any poison or any corrosive substance; or
(d) by means of any explosive substance; or
(e) by means of any substance which is deleterious to the human body to inhale, to swallow, or receive into the blood; or
(f) by means of any animal.”
To bring home an offence punishable under section 324, the prosecution is to prove (a) that the accused casused hurt i.e., caused bodily pain, or disease or infirmity (vide Section 319, I.P.C.) to another; (b) that it has been caused voluntarily i.e. with knowledge or intention to cause; (c ) that it has been caused by any instrument for shooting, stabbing or cutting, or by any instrument which qua weapon of offence is likely to cause death, or by means of fire or any heated substance or by means of any poison or any corrosive substance or by measns of any explosive substance or by means of any substance which is deleterious to the human body to inhale to swallow or to receive into blood or by any means of any animal, and that the offence does not attract section 334, I.P.C.
The word ‘instrument’:-
The word ‘instrument’ has not been defined in the Indian Penal Code. Webster’ New International Dictionary. 1926 Edition, speaks of instrument as that by means of which any work is performed or result is effected; one that is made a means or is caused to serve a purpose, a medium means or agent. The Shorter Oxford English Dictionary. Vol. 11933 Edition, defines it as a thing with or through which something is done or effected a means, a tool, implement, weapon. a part of the body having special function. In the ordinary primary sense, an instrument has been defined as meaning that by means of which something is done one who, or that which, is made a means or caused to serve a purpose; the agent or means of anything; and more specifically, the means, or the implement or tool, by which work is done.
What is Grievous hurt?
Under Section 320 in The Indian Penal Code, 1860, the following kinds of hurt only are designated as “Grievous”:
320. Grievous hurt.—The following kinds of hurt only are desig-nated as “grievous”:—
(First) — Emasculation.
(Secondly) —Permanent privation of the sight of either eye.
(Thirdly) — Permanent privation of the hearing of either ear,
(Fourthly) —Privation of any member or joint.
(Fifthly) — Destruction or permanent impairing of the powers of any member or joint.
(Sixthly) — Permanent disfiguration of the head or face.
(Seventhly) —Fracture or dislocation of a bone or tooth.
(Eighthly) —Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
322. Voluntarily causing grievous hurt.—Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said “voluntarily to cause grievous hurt.” Explanation.—A person is not said voluntarily to cause grievous hurt except when he both causes grievous hurt and intends or knows himself to be likely to cause grievous hurt. But he is said voluntarily to cause grievous hurt, if intending or knowing him¬self to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another kind.
What is a Fracture?
As was held in Hori Lal And Anr vs State Of U.P, 1970 AIR 1969, fracture has not been defined in the penal code. In the case of Po Yi Maung v. Ma E Tin(A.I.R. (1937′) Rang 253) that the meaning of the word fracture would imply that there should be a break in the bone and that in the case of a skull bone it is not merely sufficient that there is a crack but that the crack must extend from the. outer surface of the skull to the inter surface. In Mutukdhar Singh v. Emperor(A.I.R. (1942) Pat. 376) it was observed that if the evidence is merely that a bone has been cut and there is nothing whatever to indicate the extent of the cut, whether a deep one or a mere scratch on the: surface of the bone, it will be difficult to infer that the injury is a grievous hurt within the meaning of s. 320 of the Panel Code. Considering these two rulings, the Hon’ble Apex Court held that both these assumptions are misleading. And it was held that It is not necessary that a bone should be cut through and through or that the crack must extend from the. outer to the inner surface or that there should be displacement of any fragment of the bone. If there is a break by cutting or ,splintering of the bone or there is a rupture or fissure in it, would amount to. a fracture within the meaning of cl. 7 of s. 320. What we have to see is whether the. cuts in the bones noticed in the injury report are only superficial or do they effect a break in them.
Whether tooth is ‘instrument’, within the meaning of Sections 342 and 326 ?
HUMAN TEETH –
Chandraee vs State
(Rajasthan High Court)
Assailing the judgment and order aforesaid, the learned counsel for the accused petitioner has strenuously contended that the findings as recorded by the learned trial court, as well as endorsed by the learned appellate court, cannot be sustained because the Hon’ble Supreme Court in Shakeel Ahmed vs. State, Delhi [(2004) 10 SCC 103] held that the teeth of the human being cannot be considered as a deadly weapon as per the description of ‘deadly weapon’ enumerated under section 326 IPC. Thus, the offence committed by the present accused petitioner cannot be escalated to section 326 IPC. The counsel for the petitioner contended that the learned trial court, while relying upon the judgment of this Court reported in 1990 WLC (UC) 59, held that the injuries by the teeth comes under the provisions of section 326 IPC, whereas in the light of the law laid down by the Hon’ble Supreme Court in the above referred case , the judgment relied on by the learned trial court cannot be said to be a good law.
NOTE:-Ratio laid down by the Hon’ble Allahabad High court in Jamil Hasan’s case is now NOT a good law wherein it was observed grievous injury caused by human teeth comes under section 326.
The Primary function of human teeth is to bite food, to cut it by the incisors, canine, the premolar and the molar, and to reduce it into pieces and to render it into pulp masticate and then let the system swallow it for easy digestion. The purpose is thus biting or cutting. Man uses it as a means or agent for that purpose, that is to say as an instrument for biting, cutting, gnawing or grinding. But there can be no denying the fact that human teeth can be and are used as a weapon of attack or defence. It is a matter of common experience that urchins usually resort to teeth biting as a weapon of attack and defence. Women in distress, when over-powered and rendered helpless also indulge in the same manner of attack or defence. Human hands can be used as an instrument for causing hurt and even grievous hurt (Jamil Hasan’s case, 1974 CriLJ 867 infra). A direct authority is furnished by Chaurasi Manihi v. State of Bihar wherein his lordship Untwalia. J. held that tooth is an instrument for cutting and serves as weapon of offence and defence and. consequently, an injury caused by teeth bite would be an offence under Section 324 or 326 depending upon whether the injury is simple or grievous. This view is agreed by the Hon’ble Allahabad High Court in Jamil Hasan vs The State, 1974 CriLJ 867. See:- Shakeel Mohd vs State, (2004) 10 SCC 103 wherein tooth is considered to be dangerous weapon to attract sections 324 and 326 of IPC.
The essential ingredients to attract Section 326 are:
Section 326 speaks of causing grievous hurt by means of any instrument for shooting, stabbing or cutting……In CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 3120 of 2014, the Hon’ble Gujarath High Court held, an offence under section 326 has the following essential ingredients:
“(i) That the accused caused grievous hurt to any person;
(ii) That such hurt was caused voluntarily;
(iii) That such grievous hurt (as contemplated under Section 320) was caused by any means given under Section 324 I.P.C.”
To prove an offence under section 326 IPC, the prosecution is to establish (a) that the accused caused grievous hurt as contemplated in Section 320, I.P.C. (b) that the accused caused it voluntarily as envisaged in Section 322, I.P.C. (c ) that causing of such grievous hurt was made by means of an instrument for shooting, etc., or by means of any poison, etc., or by means of any substance which it is deleterious to the human body to inhale, etc., or by means of any animal.
In the case of Prabhu vs State Of M.P (2008), the Apex court held that before a conviction for the sentence of grievous hurt can be passed, one of the injuries defined in Section 320 must be strictly proved, and the eighth clause is no exception to the general rule of law that a penal statute must be construed strictly.
As was held in Hori Lal And Anr vs State Of U.P, 1970 AIR 1969, in order to justify conviction under s. 326. injuries must satisfy the requirements of cl. 7 or cl. 8 of s. 320 of the Indian Panel Code, otherwise they will be treated as simple injuries. Clauses 7 and 8 of s. 320 I.P.C. provide that an injury could only be designated as grievous if it is (l) a fracture or dislocation of a bone or tooth, or (2) any hurt which endangers life or which causes the sufferer to. be ,during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
The Criminal Law (Amendment) Act, 2013:-
Because of recommendation of His lordship Verma’s Committee, the Act, which is known as the Criminal Law (Amendment) Act, 2013, has been brought about several significant changes to the Indian Penal Code, 1860 and the Code of Criminal Procedure, 1973.
Acid Attacks :-
The Amendment has made special provisions for acid attacks. Acid has been defined as any substance which has a corrosive nature; it may include bleach, bathroom and toilet acid, Harpic, etc. Under the new section 326A a person who throws or administers acid on another person and causes damage or deformity is liable for an imprisonment that is not less than ten years, and may extend to life imprisonment. Any fine that is collected under section 326A is granted to the victim for medical expenses. An attempt to throw acid upon a person is met with imprisonment of up to seven years, but not less than five years for the attacker, under section 326B.
Section 307 of the Indian Penal Code reads thus:
In CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 3120 of 2014, the Hon’ble Gujarath High Court held, an offence under section 307 has the following essential ingredients;
“(i)That the accused did an act;
(ii) That the act was done with intention or knowledge and under such circumstances to cause a bodily injury as the accused knew to be likely to cause death or that such bodily injury was in the ordinary course of nature to cause death, or that the accused attempted to cause such death by doing an act known to him to be so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death; and
(iii) That the accused had no excuse for incurring the risk of causing such death or injury.”
23. For liability under section 307, the prosecution has to prove the following facts:
“(1) That the accused did an act, and (2) that the act was done with such intention or knowledge and under such circumstances that if he by that act caused death he would be guilty of murder. If hurt is caused by such act, the offender becomes liable to imprisonment for life, otherwise the maximum term of imprisonment prescribed is 10 years. Thus the section itself does not take into consideration the effect of the act of the accused except as a measure of sentence to be imposed upon him.”
Types of wounds:-
Stab wound :- Stab injury is such that its depth is greater than its length and usually caused by pointed knife or chaku.
Abrasion:- It is the damage occurring in the epidermis; some dermal papillae may also be damaged. It is caused by hard/blunt/rough objects or surfaces or by drawing the tip of the pointed objects against the skin or mucous
membrane. Most abrasions are caused by rubbing effect and others are caused by vertical pressure. Pattern of the impacting object may be retained at the abraded area
Bruise:- The extra vascular collection of blood in the tissue, in other words, it is dermis of the skin, subcutaneous tissue and other deeper tissues due to rupture of blood vessels caused by application of blunt force with overlying tissue remaining intact so that blood cannot escape outside
Bruise, Contusion:- If the lesion is visible from outside, it is called bruise. If not visible from outside, it is called contusion.
Laceration :- Laceration is the tearing or splitting of the skin, mucous membrane and surfaces of any internal organs caused by application of blunt force. Blood escapes from the wound to the exterior or any body cavity
dislocation Dislocation is such that if the bone ends get displaced completely from their normal anatomical positions with damage to the adjacent tissues, it is called dislocation.
Incised wound:- It is caused by the sharp edge of the weapon applied to the skin perpendicularly or obliquely making regular clean edges of the wound.
Slash wound:- If the length of the wound is greater than its depth, it is slash wound.
Is section 324 of IPC compoundable?
In the Code of Criminal Procedure (Amendment) Act of 2005 (Act No. 25 of
2005 effective from 23.06.2006), Section 324 IPC (causing hurt by dangerous weapons
or means), which by all relevant standards qualify as a compoundable offence, was
omitted. In Crl. appeal No.433 of 2004, (Diwaker Singh vs. State of Bihar), the Hon’ble Apex Court made an observations which are extracted hereunder: “Further, we are of the opinion that Section 324 IPC and many other offences should be made compoundable’’. The Law Commission in its 154th and 177th Reports recommended that the offences punishable under section 324 and 325 IPC together with several other offences may be shifted to the Table appended to Section 320 (1) so that it can be compounded without the permission of the Court. The Law Commission in its 237th Report also recommended that the offence punishable under section 324 IPC can be compounded. Of course, under section 320 of the Code of Criminal Procedure,1973, this offence is non-compoundable. But, in the State of Andhra Pradesh, according to a recent judgment reported in 2015(1) ALD (Crl) 280, Darapuneni Raj Kumar Vs State of Andhra Pradesh, a different view has been expressed that this offence can be compounded if both parties are agreed for compromise. The Hon’ble High Court of Andhra Pradesh clearly held that section 324 of IPC can be compounded with permission of the court by the injured.
As is observed supra, ‘Hurt’ is a harm, wounding, pain, soreness, throbbing, discomfort, smarting, stinging, aching, pangs. In all criminal courts, most of the cases are ‘voluntarily causing hurt’ cases. When there is a amicable settlement between the parties in non-compoundable hurt cases like 324 and 326 IPC, it is evident from the rulings of our judiciary that lenient view is being taken. The approach of the Hon’ble Supreme Court of IPC in the cases of B.S. Joshi vs.State of Haryana; Nikhil Merchant vs. CBI and Manoj Sharma vs. State are illustrative of this approach. The Law Commission in its 237th recommend that Section 324 IPC should be reinducted into the ambit of section 320 CrPC and it should retain its original position in Table 2 appended to sub-section (2) thereof. Medical documentary evidences like medicolegal reports on hurts prepared by the medical practitioners are very important for the courts in making their legal judgments. The type of wounds and weapons, legal categories of hurts and their ages must be specifically noted in the injury reports: Medicolegal training and experiences strengthen the abilities of the medical expert witnesses. In my view, to reduce pendency of these cases, it is the duty of the Government of India to take immediate steps to amend section 320 of Cr.P.C to compound section 324 of IPC cases.
The victim may have received compensation from the offender or the attitude of the parties towards each other may have changed for good. The victim is prepared to condone the offensive conduct of the accused who became chastened and repentant. Criminal law needs to be attuned to take note of such situations and to provide a remedy to terminate the criminal proceedings in respect of certain types of offences. That is the rationale behind compounding of offences. Incidentally, the compounding scheme relieves the courts of the burden of accumulated cases. Be sure to taste your words before you spit them out. I conclude this article remembering the great words of Buddha, ‘If you truly loved yourself, you could never hurt anyone.’