Hurt and Grievous Hurt

Hurt and Grievous Hurt

3rd Semester Section A

Acknowledgement Firstly, I would like to express my profound sense of gratitude towards the almighty for providing me with the authentic circumstances which were mandatory for the completion of my project.

Secondly, I am highly indebted to at Faculty of Law, Jamia Millia Islamia University, New Delhi for providing me with constant encouragement and guidance throughout the preparation of this project.

My cardinal thanks are also for my parents, friends and all teachers of law department in our college who have always been the source of my inspiration and

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motivation without which I would have never been able to unabridged my project.

Kashif Zafar

Contents 1.Introduction to Criminal Law 2.Hurt 3.Grievous hurt o Rational behind the Section o Scope 4.Difference between hurt and grievous hurt o Difference between punishments for hurt and grievous hurt o Difference between grievous hurt and culpable homicide 5.Grievous hurt and compelling wife to prostitution 6.Acid Attack 7.Latest Development 8.Case Analysis 9.Conclusion 10. Bibliography 2 Submitted by: Kashif Zafar

Criminal Law: Introduction Criminal law is the body of law that relates to crime. It regulates social conduct and proscribes whatever is threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people. It includes the punishment of people who violate these laws. Criminal law varies according to jurisdiction, and differs from civil law, where emphasis is more on dispute resolution and victim compensation than on punishment. Criminal law is distinctive for the uniquely serious potential consequences or sanctions for failure to abide by its rules. Every crime is composed of criminal elements. Capital punishment may be imposed in some jurisdictions for the most serious crimes. Physical or corporal punishment may be imposed such as whipping or caning, although these punishments are prohibited in much of the world. Individuals may be incarcerated in prison or jail in a variety of conditions depending on the jurisdiction. Confinement may be solitary. Length of incarceration may vary from a day to life. Government supervision may be imposed, including house arrest, and convicts may be required to conform to particularized guidelines as part of a parole or probation regimen. Fines also may be imposed, seizing money or property from a person convicted of a crime. Five objectives are widely accepted for enforcement of the criminal law by punishments: retribution, deterrence, incapacitation, rehabilitation and restoration . Jurisdictions differ on the value to be placed on each.

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Retribution – Criminals ought to suffer in some way. This is the most widely seen goal. Criminals have taken improper advantage, or inflicted unfair detriment, upon others and consequently, the criminal law will put criminals at some unpleasant disadvantage to "balance the scales." People submit to the law to receive the right not to be murdered and if people contravene these laws, they surrender the rights granted to them by the law. Thus, one who murders may be executed himself. A related theory includes the idea of "righting the balance."

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Deterrence – Individual deterrence is aimed toward the specific offender. The aim is to impose a sufficient penalty to discourage the offender from criminal behavior. General deterrence aims at society at large. By imposing a penalty on those who commit offenses, other individuals are discouraged from committing those offenses.

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Incapacitation – Designed simply to keep criminals away from society so that the public is protected from their misconduct. This is often achieved through prison sentences today. The death penalty or banishment has served the same purpose.

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Rehabilitation – Aims at transforming an offender into a valuable member of society. Its primary goal is to prevent further offense by convincing the offender that their conduct was wrong.

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Restoration – This is a victim-oriented theory of punishment. The goal is to repair, through state authority, any injury inflicted upon the victim by the offender. For example, one who embezzles will be required to repay the amount improperly acquired. Restoration is commonly combined with other main goals of criminal justice and is closely related to concepts in the civil law, i.e., returning the victim to his or her original position before the injury.

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Hurt In normal sense, hurt means to cause bodily injury and/or pain to another person. IPC defines Hurt as follows Section 319 - Whoever causes bodily pain, disease, or infirmity to any person is said to cause hurt. Based on this, the essential ingredients of Hurt are 1. Bodily Pain:- Bodily pain, except such slight harm for which nobody would complain, is hurt. For example, pricking a person with pointed object like a needle or punching somebody in the face, or pulling a woman's hair. The duration of the pain is immaterial. Infirmity means when any organ is not able to function normally. It can be temporary or permanent. It also includes state of mind such as hysteria or terror. 2. Disease:- A person communicating a particular disease to another would be guilty of hurt. However, there appears to be conflicting judicial decisions w.r.t. cases of communication of sexual diseases by one to another. In R. v. Clarence1, the husband was convicted by the lower court for communicating a disease to his wife. By a majority of nine to four the Court for Crown Cases quashed the conviction and held that it is neither an infliction of grievous bodily harm, nor an assault for a men to infect his wife with gonorrhea by 1 (1888) 22 QBD 23 (42-43) (HL). 5 Submitted by: Kashif Zafar

having sexual intercourse with her, even though was aware of his condition and she was ignorant of it, and even though she wouldn’t have had intercourse with him had she known of his condition. In Raka v. Emperor2, the Bombay High Court held a prostitute who had sexual intercourse with the complainant and thereby communicated syphilis, liable under section 269, I.P.C., for spreading of infection and not causing hurt, because the interval between the act and disease was too remote to attract sections 319 and 321 I.P.C. On the other hand, an accused who had veneral disease induced a girl of 13 years of age, who was ignorant of his condition, to have sexual intercourse with him and infected her with the disease, was held guilty of indecent assault. 3. Infirmity:- infirmity means a temporary mental impairment, hysteria or terror. In Jashanmal Jhamatmal v. Brahmanand Sarupanand3, the accused landlord in order to frighten the complainant’s wife uttered a piercing sound like ‘Haoo’ and, extending his arms towards the lady pointed a pistol at her, with a view to causing the couple to vacate the premises. Due to shock, the complainant’s wife collapsed and become seriously ill for some considerable time. Held, the act was sufficient to cause a state of temporary mental impairment or hysteria resulting in infirmity of the mind of the lady to attract section 319, I.P.C. Act neither intended to cause death nor grievous hurt may be hurt even though it results in death- When there is no intention of causing death or bodily injury as is likely to cause death, and there is no knowledge that inflicting such injury would cause death, the accused would be guilty of hurt if the injury is not serious. In a case in 1883, the accused struck a man one blow on the head with a bamboo yoke and the injured man died, primarily due to excessive opium administered by his friends to alleviate pain. He was held guilty under this section. In Bysagoo Noshyo4, A, on a grave and sudden provocation given by B, gave B a kick on the abdomen. B had an enlarged spleen which was punctured by the blow, 2 1887 ILR 11 Bom 59. 3 A.I.R. 1944 Sind. 19. 4 (1867) 8 WR (Cr) 29. 6 Submitted by: Kashif Zafar

and B died in consequence. Since a had no intention to cause death, nor any knowledge that injury was likely to cause death, he was held liable for causing simple hurt under sections 319 and 321 of I.P.C. In re Marana Goundan5, A demanded ten rupees from B which latter owed him. B promised to pay later. A thereupon kicked B twice in his abdomen. B collapsed and died. A was held guilty of voluntarily causing hurt. In Beshor Bewa6 , the accused lady, gave a kick on the back and two slaps on the face of her 10 year old daughter which resulted in her death. She was held guilty of causing hurt only. The authors of the code have observed that in many cases offences that fall under hurt will also fall under assault. However, there can be certain situations, where they may not. For example, if A leaves food mixed with poison on B's desk and later on B eats the food causing hurt, it cannot be a case of assault. If the accused did not know about any special condition of the deceased and causes death because of hurt, he will be held guilty of only hurt. Thus, in Marana Goundan's case AIR 1941, when the accused kicked a person and the person died because of a diseased spleen, he was held guilty of only hurt. A physical contact is not necessary. Thus, a when an accused gave food mixed with dhatura and caused poisoning, he was held guilty of Hurt.

5 A.I.R. 1971 Goa, Daman and Diu 18. 6 (1872) 18 WR (Cr.) 29. 7 Submitted by: Kashif Zafar

Grievous Hurt Cases of severe hurt are classified under grievous hurt. The authors of the code observed that it would be very difficult to draw a line between hurt and grievous hurt but it was important to draw a line even if it is not perfect so as to punish the cases which are clearly more than hurt. Section 320- Grievous Hurt- The following kinds of hurt are designated 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 victim to be in severe bodily pain or unable to follow his ordinary pursuits for a period of 20 days. The section is explained in the following lines. Firstly- ‘Emasculation’- the term ‘emasculation’ means the depriving a person of masculine vigor, castration. Injury to the scrotum would render a man impotent. A person emasculating himself cannot be convicted under this section. A person causing hurt to himself does not come within the purview of this section. Secondly- Losing eye sight-where as many as twenty four persons lost their eye-sight permanently in consequence of arrack distributed by the accused after mixing methyl 8 Submitted by: Kashif Zafar

alcohol in it, the hurt has to be regarded as grievous hurt because of what has been stated in the clause 2. Thirdly- It deprives a man of his sense of hearing. Injury to the tympanum or auditory nerve or by thrusting something into the ear which causes deafness. Fourthly- The term ‘member’ means an organ or a limb being part of man capable of performing a distinct function. It includes, nose, mouth, hands, feet, phalanges etc. Fifthly- The use of limbs and joints of body are essential to the discharge of the normal functions of the body. Their deprivation causes lifelong crippling and makes the person defenseless and miserable. Sixthly- The word ‘disfigure’ means to cause some external injuries which detracts from his personal appearance but does not weaken him. In Gangaram v. State of Rajasthan7 the bridge of the nose was cut, as the injury was inflicted by a sharp – edged weapon, it was held that the act amounted to permanent disfiguration within the meaning of this clause and hence the injury was grievous. Seventhly- It is not necessary that a bone should be cut through and, the cut should be up to the medulla. If there is a break by cutting or splintering of the bone or there is a rupture or fissure in it, it would amount to a fracture but the doctor must document the dimensions of fracture and duration/age correlation with age of injury. Dislocation means displacement. Mere looseness of teeth will not amount to dislocation. It has to be proved that the tooth was originally not loose and that there was fracture or dislocation by the injury. In Horilal8, the Supreme Court held that ordinary fracture means breaking of a bone. A mere abrasion or cut that does not go across the bone cannot be called a fracture of the bone9 Eighthly- Any hurt which endangers life or which causes the victim to be in severe bodily pain or unable to follow his ordinary pursuits for a period of 20 days. A wound may cause intense pain, prolonged disease or long lasting body injury but does not fall 7 1984 Cr LJ 180 NOC (Raj) 8 Horilal v. State of Uttar Pradesh, A.I.R. 1970 SC 1969 9 Parma, A.I.R. 1956, Raj 39. 9 Submitted by: Kashif Zafar

under any of the seven clauses. A body injury/beating may not mutilate the sufferer or fracture his bones but may be so harsh and painful may cause even death. The eighth clause provides for such hurts. Under this, three different clauses of hurt are included. These are:   

Any hurt which endangers life. Any hurt which causes the victim to be in severe bodily pain for a period of 20 days. Any hurt which prevents the victim from following his ordinary pursuits for a period

of 20 days.

In Muhammad Rafi’s10 case, the accused, a mocha (cobbler) aged about 20 years who inflicted an injury on the neck of the deceased with a penknife from behind, was convicted by the Session’s Court under section 304(2) IPC for culpable homicide to murder. The tragedy took place as a result of a quarrel between the two boys over a loan of sum of fifteen paisa. The deceased was taken to the hospital and died fifteen days later as a result of septic poisoning from the wound. Allowing the appeal partially, the Lahore High Court held the accused liable under section 322, IPC for causing death by grievous hurt as against culpable homicide not amounting to murder as the circumstances did not justify a time a wound on the neck is dangerous to life within the meaning of clause 8 of section 320, IPC. In Mohindar Singh v. Emperor11, the accused on 22nd August, 1922 inflicted a wound on Sarwan singh’s leg with a gandasa (a sharp – edged weapon) and gave him blows with the back of the gandasa. Tetanus set in on 31st August, 1922 which caused his death. Held, a wound in the leg was not in itself sufficiently dangerous to bring the case within the meaning of grievous hurt when death due to tetanus which supervened and resulted in the death of deceased. Rational behind the section- The authors of the code observe: “we have found it very difficult to draw a line between those bodily hurts which are serious and those 10 AIR 1930 Lah. 305 11 AIR 1925 Lah. 297. 10 Submitted by: Kashif Zafar

which are slight. To draw such a line between with perfect accuracy is absolutely impossible; but it is far better that such a line should be drawn, though rudely, than that offences some of which approach in enormity to murder, while others are little more than frolics which a good natures man would hardly recent, should be classed together. Some hurts which are not, like those kinds of hurt which are mentioned in condition 1 to 7, distinguished by a broad and obvious line from slight hurts, may nevertheless be most serious. A wound, for example, which neither emasculates the sufferer, nor blinds him, nor destroys his hearing, nor deprives him of a member or a joint, nor breaks his bones, nor dislocate them, may yet cause intense pain, prolonged disease, lasting injury to constitution. It is evidently desirable that law should make a distinction between such a wound, mad scratch which he headed by just sticking plaster. A beating, again, which does not maim the sufferer or break his bones may be so cruel as to bring him to point of death. Such a beating, it is clear, ought not to be confounded with a bruise, which requires only to be bathed with vinegar, and of which the traces disappear in a day.” Scope- Like in Section 319, this section is also in the nature of definite clause. Section 319 defines hurt, whereas section 320 defines ‘grievous hurt’. To make out the offence of voluntarily causing grievous hurt, there must be some specific hurt, voluntarily inflicted, and coming within the eight kinds enumerated in this section. When a person forcibly thrust lathi into the rectum of another person and causes serious injuries, he was held guilty of causing grievous hurt. Injuries inflicted with the help of burning firewood cannot be considered as grievous hurt as they do not come within the specific items of the injuries mentioned in the definition of grievous hurt; nor do they endanger life.

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Difference between hurt and grievous hurt Section 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". Section 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 himself to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another kind. Illustration- A, intending or knowing himself to be likely permanently to disfigure Z’s face, gives Z a below which does not permanently disfigure Z’s face, but which cause Z to suffer severe bodily pain for the space of twenty days. A has voluntarily caused grievous hurt. The provisions of this section are very precise and incapable of misconstruction. A magistrate dealing with charges of voluntarily causing grievous hurt must consider and decide not only whether grievous hurt has been caused but if it has been caused voluntarily or himself knew to be likely to cause grievous hurt. If he intended or knew 12 Submitted by: Kashif Zafar

himself to be likely to cause only simple hurt, he cannot be convicted under section 325. Section 321 and the explanation to section 322 make it clear that either the ingredient of intention or that of knowledge, must be essentially present in order to constitute the offence of hurt. Such a knowledge cab be inferred from the part of body chosen for inflicting violence and the severity of that violence as shown by the injuries on the body of the victim. The means by which the injury was cause is not the true criterion. The answer really depends on the nature of the injury caused and the manner in which the blows were administered, whether by fists and slaps or by a weapon.

Difference between punishments for “hurt” and “grievous hurt” Section 323- Punishment for voluntarily causing hurt – “Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.” When the injury is not serious and there was no intention to cause death or grievous hurt, nor did the accused have knowledge that it was likely to cause grievous hurt or death, he is guilty of causing hurt and not death, even though death is caused. Where the accused was one of the persons who assaulted the deceased with a stick but there was no proof that the fatal blow or grievous injury was caused by him, it was held, that the accused could only be convicted under section 323.12 Where evidence gave no clue as to on which part of the body of deceased the accused has struck and prosecution also could not establish that the death of deceased was caused by striking on some vital body, the accused could only be convicted under section 323. 12 Babu Bika Jadhav 1996 Cri LJ 3952 (Bom) 13 Submitted by: Kashif Zafar

Chart showing the amount of penalty prescribed under the code in case of hurt and grievous hurt: depending on the nature and gravity of the injury

Circumstance leading to injury

Penalties Hurt

Grievous Hurt

Injury caused by (a) dangerous weapon likely to cause death, or (b) fire, or (c) any heated substance, or (d)poison, or (e) any corrosive substance, or (f) any explosive substance, or (g) by means of animal Injury inflicted for purpose of extorting property or valuable security, or to constrain someone to do anything illegal, or to facilitate the commission of an offence Injury caused by administering poison or any stupefying, intoxicating or unwholesome drug with intent to commit or facilitate the commission of an offence. Injury inflicted for purpose of (a) extorting a confession (b) to compel restoration of any property Injury to a public servant

Up to 3 years and/ or fine (I.P.C. Sec. 324)

Up to 10 years, and fine (I.P.C. sec. 326)

Up to 10 years and fine (I.P.C. sec. 327)

Up to 10 year and fine (I.P.C. sec 329)

Up to 10 years and fine (I.P.C. sec 328)

-

Up to 7 years and fine (I.P.C. sec 330)

Up to 10 years and fine (I.P.C. sec 331)

Up to 3 years and/or fine

Up to 10 years and fine

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in the discharge of his (I.P.C. sec 332) duty Injury inflicted due to Up to 1 month and/or fine grave and sudden to Rs. 2000 (I.P.C sec335) provocation up to Rs500 (I.P.C. sec 334) Injury inflicted by acting Up to 6 months and/or so rashly or negligently as fine up to Rs. 500 (I.P.C. to endanger human life or sec 337) the personal safety of others. Act doing so rashly and Up to 3 months or fine up negligently, as to to Rs. 200 or both (I.P.C. endanger human life or sec. 336) personal safety of others

(I.P.C. sec333) Up to 4 years and/or fine

Up to 2 years and/or fine up to Rs. 1000. (I.P.C. sec338)

Up to 2 years and or fine up to Rs. 1000

Section 324- Voluntarily causing hurt by dangerous weapons or means- Whoever, except in the case provided by section 334, voluntarily causes hurt 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 by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any poison or any corrosive substance, or by means of any explosive substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. Section 325- Punishment for voluntarily causing grievous hurt – Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. The prosecution may prove: That the accused caused of any kind described in section 320. 15 Submitted by: Kashif Zafar

That the accused intended, or knew that he was likely, to cause grievous hurt of any kind described; That the accused did so voluntarily. Where there is no evidence to indicate as to which of the accused persons actually caused grievous hurt none of them could be convicted under section 325. It may be presumed that each of them intended to cause grievous hurt but such a presumption alone is not sufficient to establish the offence of causing grievous hurt unless it is further shown that the accused actually caused grievous hurt.13 The prosecution does not have to prove hurt under s.319 in order to prove grievous hurt under s.320 as they have to prove homicide under s.299 and then move on to s.300 in order to prove murder. Section 320 has very clearly laid down hurt which are to be classified as grievous hurt and the eighthly clause is the only one in which some interpretation and misuse is possible. The only catch in this section is the intention part. Although intention can be inferred from the way in which the injury was caused, but it takes a little more for the prosecution to prove grievous hurt because the defense would always like to bring the injury from s.320 to s.319 because the punishment and fine imposed is much less. An illustration in this respect can be that if a person slaps another person and he falls down, hitting his head on the ground which results in his death. This is only a case of simple hurt as the person had only slapped and in ordinary course of things it would not lead to death. Now let us consider another case, a boxer ‘punches’ a person in his stomach twice. The person falls down, head hits the ground and he dies. In this case it is very clearly evident from the circumstances that the intention was to cause to grievous hurt as he was a ‘boxer’ and he ‘punched’ twice. It can safely inferred that the boxer ‘knew’ if not ‘intended’ that if he ‘punches’ a person twice in his stomach, it will cause grievous hurt if not death. Although there is a huge fundamental difference between the offence of hurt and grievous hurt, but in practice, they are not that minutely followed in practical application. Going by the language of the section 319, there is no clear cut definition of hurt whereas on the contrary section 320 has defined which categories of hurt fall under grievous hurt.

13 Dipa AIR 1947 All 408. 16 Submitted by: Kashif Zafar

Difference between Grievous Hurt and Culpable Homicide The line separating Grievous Hurt and Culpable Homicide is very thin. In Grievous Hurt, the life is endangered due to injury while in culpable homicide, death is likely to be caused. Thus, acts neither intended nor likely to cause death may amount to grievous hurt even though death is caused. In case of Formina Sbastio Azardeo v. State of Goa Daman and Diu14, the deceased was making publicity about the illicit intimacy between N and W. On the fateful day, N, W, and her husband A caught hold of D and tied him up to a pole and beat him as a 14 1992 CLJ SC. 17 Submitted by: Kashif Zafar

result of which he died. They were not armed with any dangerous weapon and had no intention to kill him. N and W were held guilty of only causing grievous hurt.

Grievous hurt and compelling wife to prostitution The Parsi Act in Section 32(e) of the Parsi Act has clubbed the three different grounds of divorce, viz., (i) Grievous Hurt, (ii) V.D. - Venereal Diseases and (iii) Compelling the wife to submit herself to Prostitution. No doubt all these three grounds operate in three different lines and bear no relation with one another. The Act could have and should have spelt out these three grounds and should have added them separately in the list of grounds of divorce nevertheless, the Act has chosen to put them together, for no obvious reason or for no reasons explained in the Act. Be it as it is. The grounds of divorce are, in any case boon to the married women and therefore, welcome in any combination. The grounds, VD, Compelling Wife to Prostitution and Grievous Hurt, are not based on void or voidable marriage but proceed from the valid marriage or the marriage which does not suffer from any legal infirmity under the Law of Contract.

Compelling Wife to Prostitution Compelling wife to prostitution is a ground of divorce under Section 32(e) of the Act. Indeed, this ground is more akin to immoral behaviour of the husband, such as sodomy, bestiality, etc. It is not unusual in this strange world that, in some rare of rarest cases, men do behave in this inexplicable manner. The women are, therefore, given a 'right' to seek divorce on the strange behaviour of man of forcing his wife to prostitution.

Venereal Disease 18 Submitted by: Kashif Zafar

The other ground; Venereal Disease (VD) is also a ground for divorce. This ground is discussed in the commentary on Divorce Act in this Book and hence, not repeated here.

Grievous Hurt The 'Grievous Hurt' is also the ground for divorce under the Act, however, nowhere, it states what it means. Whereas, the term cruelty, as understood, as of now, means physical injury, however, the Parsi Act, separately and independently enumerates this ground in the list of ground of divorce. The term 'Grievous Hurt' is peculiar to Criminal Law. The Indian Penal Code in Section 320 lies down thus: For matrimonial purpose, the eighth clause would be more in use than the other clauses. It only means that life is in immediate danger and doctors describe it danger to life. Although the medical evidence may be more reliable but is not legally necessary. The apex Court has held that cutting or splintering of the bone or a rupture or Fissure in it, would amount to "fracture" within the meaning of Clause 7 of Section 320 of IPC. The Parsi Act prescribes the period of limitation of two years. The period of limitation begins under the Act: 1. After infliction of the grievous hurt. 2. After the knowledge of suffering of the venereal disease of the other spouse.

Acid Attack15 It is most shocking and distressing to see that in-spite of incidents of acid attacks mounting very high in our country, adequate punishment is not meted out to the offenders and in most cases they escape unpunished or with very minor punishment. This is just not done. Section 326 of IPC which covers grievous hurt caused by throwing of corrosive substance etc. is just not adequate to deal with cases of acid

15 Acid Attack: Talibanic Act Must be Punished in Same WayGoIndoCal, Sanjeev Sirohi , Jan. 2, 2012, 6:40pm IST.

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throwing. It contains glaring infirmities and time is ripe now to remove such infirmities and make it more stringent. 226th report of Law Commission titled “The Inclusion of Acid Attacks as Specific Offences in the IPC and a law for Compensation for Victims of Crime” very categorically points out that Section 326 of IPC is just insufficient/inadequate to deal with it. Firstly, the definition of grievous hurt is not broad enough to cover the various kinds of injuries which are inflicted during acid attacks. Secondly, the section does not cover the act of administering acid. Thirdly, the section gives a wide discretion to the courts as far as punishment is concerned. The cases on acid attacks in India show that normally inadequate punishment is awarded in these cases. Fourthly, the section in the IPC does not punish the intentional act of throwing of acid if no injuries occur. Lastly, the section also does not specify who the fine should be awarded to. All these glaring anomalies and infirmities must be addressed properly so that no offender is able to escape unpunished by taking undue advantage of them. I also very strongly feel that 226th report of Law Commission very rightly recommends that a new section 326A be added to the IPC. The proposed Section 326A will read as follows: “Whoever burns or maims or disfigures or disables any part or parts of the body of a person or causes grievous hurt by throwing acid on or administering acid to that person, with the intention of causing or with the knowledge that he is likely to cause such injury or hurt shall be punishable with imprisonment of either description which shall not be less than 10 years but which may extend to life and with fine which may extend to Rs 10 Lakhs. Provided that any fine levied under this section shall be given to the person on whom acid has been thrown or administered. Also, it is a cognizable , non–bailable and non– compoundable and triable by court of session. Further, Section 326 A (ii) provides that, “Whoever throws acid on or administers acid to, any person with the intention of causing burns or maiming or disfiguring or disabling or causing grievous hurt to that person shall be liable to imprisonment of either description for a term not less than 5 years but which may extend to 10 years and with fine which may extend to Rs 5 Lakh. 20 Submitted by: Kashif Zafar

The classification of offence is same as mentioned in Section 326 (i). Apart from all this, it was also proposed that in cases of acid attacks a presumption be incorporated in the Indian Evidence Act as Section 114B. Section 114B dealing with presumption as to acid attack reads: “If a person has thrown acid on, or administered acid to, another person the court shall presume that such an act has been done with the intention of causing, or with the knowledge that such an act is likely to cause such hurt or injury as is mentioned in Section 326A of the IPC.” Acid when thrown on face can severely damage the eyes, ears, mouth and nose apart from lips and eyelids. Also, when the acid splashes or drips over any organ of the body, it burns everything which comes in its ambit. Breathing problems or failure in extreme cases is another potential hazards which the victims of acid attacks have to grapple with. It can cause permanent or temporary disfigurements with either chin becoming welded to the chest or mouth no longer opening or eyelids no longer closing which itself speaks volumes of the serious gravity of the crime and must never go unpunished or even lightly punished because it spoils the entire life of the person on whom it is thrown and who prior to the attack was leading a normal life. No provocation, no matter how strong it may be, can ever even remotely be allowed to be justified under any circumstances, come what may! The victims die daily and suffer from not only psychological symptoms like weakness, insomnia, depression, fear of another similar attack but also face discrimination as no one wants to employ them nor their own relatives are happy to be at their constant services. Of course, exceptions are there but they are few and far between. There goes a well known old adage: “Prevention is better than cure.’’ This resoundingly applies to acid attacks also which even the Law Commission realized and therefore in its 226th report recommended that the distribution and sale of acid be strictly regulated and the sale of acid across shop counters be banned which most unfortunately has not been the case till now.

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Infact, it is a child’s play to obtain acid from across the counter in medical and other stores and therefore it has become a relatively cheap and effective way of committing acts of violence against women. This is exactly what is most concerning and it would not be proper to downplay it because acid attack incidents on especially innocent, hapless women or girls have witnessed an astronomical increase in the last few years.

Latest Development Insertion of new section 326A- throwing or using of acid in any form on the body of another person- notwithstanding contained in s.324 or 326 of the code, whoever does any act of throwing acid or using acid in any form on the other person with the intention of or with the knowledge that he is likely to cause such person permanent or partial damage or deformity disfiguration or disability to any part of the body of such person shall be punished with imprisonment of either description for a term which shall not be less than 10 years but which may extend to life and shall also be liable to fine which shall be minimum of Rs. 2 lakhs and may extend to Rs. 5 lakhs. The offence shall be cognizable, non-bailable and non-compoundable. Justification: Although the offences relating to acid throwing is covered under s.320 and 326 of the IPC but keeping in view the extreme heinous nature of the act and the fact that under s. 326 the offence can be punished with imprisonment for life or with imprisonment of either description for a term which may extend to 10 years, it is proposed in the bill that atleast the minimum punishment be not less than 10 years and extend to life imprisonment.

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Case Analysis with latest judgements Sushil Raikwar v. The State Of M.P. on 18 October, 201216 Facts The complainant Nathuram was working on his handcart shop of snacks. His son Raju @ Kamlesh was selling Samosas. At about 9:00 PM in the night the appellant went to the shop of the complainant and took some Samosas. Thereafter Raju @ Kamlesh asked for money, then the quarrel started. The appellant gave a slap to Raju @ Kamlesh. The complainant tried to stop their quarrel and when he intervened in that quarrel, the appellant took hot oil from the utensil kept on the handcart and poured upon the complainant due to which the complainant sustained burn injuries on his right chest, right abdomen, right hand and right leg. The customers of the complainant saw the incident.

Arguments on behalf of Respondent The learned counsel for the State has submitted that the appellant was to be convicted for the offence under Section 308 of IPC, because the victim sustained 25-30% burns and he could die. Similarly, the sentence directed by the trial Court appears to be correct.

Arguments on behalf of Appellant The appellant-accused abjured his guilt. He did not take any specific plea, but he has stated that due to his quarrel with Raju, a push was given to the handcart of the complainant and it was disbalanced, and therefore the utensil having hot oil turned on the complainant. He did not assault the complainant in such a manner. 16 Criminal Appeal No. 2259 OF 1996. 23 Submitted by: Kashif Zafar

The learned counsel for the appellant has submitted that there was no willful act of the appellant, but a push was caused suddenly to the handcart, and therefore the complainant sustained some superficial burns. The injuries caused to the victim were not fatal in nature, therefore no offence under Section 308 of IPC was made out. In the alternate, it is submitted that the appellant remained in the custody for 22 days. He was a youth of 22 years at the time of the incident, who has faced the trial and appeal for the last 16 years and now he has settled in the life, and therefore he may not be sent to the jail again. The learned counsel for the appellant has submitted that there was no willful act of the appellant, but a push was caused suddenly to the handcart, and therefore the complainant sustained some superficial burns. The injuries caused to the victim were not fatal in nature, therefore no offence under Section 308 of IPC was made out. In the alternate, it is submitted that the appellant remained in the custody for 22 days. He was a youth of 22 years at the time of the incident, who has faced the trial and appeal for the last 16 years and now he has settled in the life, and therefore he may not be sent to the jail again.

Prayers 1. Whether the appeal of the appellant can be accepted? 2. And whether the sentence directed by the trial Court against the appellant can be reduced?

Judgement The presence of the appellant is proved. There is no doubt in his identification. If the handcart was pushed and hot oil fell upon the victim due to disbalance, then the oil should have fell on the lower part of the body of the victim Nathuram, but some drops of the oil might have reached to the upper part of his body, but the entire oil could not reach to the upper part of the body. Therefore the defence taken by the appellant cannot be accepted. The trial Court has convicted the appellant for commission of offence under Section 308 of IPC. If the evidence of Nathuram and Raju is considered along with the medical evidence, then it would be clear that the quarrel took place in a spur of moment. It was not pre- planned incident caused by the appellant. He could not hold 24 Submitted by: Kashif Zafar

the hot utensil in his hands for a longer period, and therefore he could pour the hot oil upon the complainant in a very small period of time, and therefore it cannot be said that he was intended to kill the victim. Similarly, the victim Nathuram did not sustain any fatal injury. He sustained only simple injuries. The injuries sustained by the complainant do not fall within the ingredients of Section 320 of IPC, and therefore it was not grievous. Hence the case of the appellant does not fall in any ingredients of Section 300 of IPC. It is a case of causing simple hurt by hot oil, and therefore the crime committed by the appellant falls within the purview of Section 324 of IPC only. The quarrel took place for payment of Rs.2/-, and therefore it cannot be said that either the complainant or his son gave any sudden or grave provocation to the appellant when he was throwing hot oil. He ought to have been known that by such an act, the complainant may sustain such burn injuries, and therefore the act done by the appellant appears to be so voluntary, hence he has caused some injuries to the victim by throwing hot oil upon him, and therefore he is guilty of offence under Section 324 of IPC. The instant appeal filed by the appellant is partly allowed. The conviction as well as the sentence directed by the trial Court for the offence under Section 308 of IPC is hereby set aside. He is acquitted from the charge of offence under Section 308 of IPC, but convicted for commission of offence under Section 324 of IPC and sentenced to the period which he has already undergone in the custody by enhancing the fine amount from Rs.1,000/- to Rs.7,000/.

Bade Lal Parshad & Ors vs $ State & Ors on 17 October, 2012 Facts A complaint was lodged by the complainant Bade Lal Parshad, on 22nd March, 2006 against the accused persons herein, alleging that on 21nd March, 2006, wife of the accused Parbhu Nath had thrown garbage in front of the house of the complainant and when it was objected to by his wife son of the accused Parbhu Nath abused her. In order to put an end to the fight, the complainant went to the house of one of his 25 Submitted by: Kashif Zafar

neighbours and in the meantime his daughter came and said that some persons were beating his son. It was further alleged that on reaching his house Pintu and Chottu caught hold of the complainant and exhorted their co-accused to beat him and then other accused, having iron rods started beating him as a result of which he sustained many injuries on his head, right elbow and his upper lips and accused Prema Devi, wife of the accused Parbhu Nath, injured the son of the complainant by hitting him on his head with a brick.

Judgement According to Session Court, accused persons cannot be charged for an offence punishable under Section 308/34 IPC. The only offence under Section 324/34 IPC is made out against the accused persons. However, the apex court allowed the petition. The impugned order is set aside and framing of charge under Section 308/34 IPC in place of 324/34 IPC against all the accused persons is ordered.

Jagdamba Prasad & Ors. vs The State Of M.P.17 on 5 September, 2012 Facts On 18.8.1994 at about 7-7.30 p.m in the evening, the victim Khadiya was going from his field to his house at Village Thigri. In front of the house of Jagadamba Khare, the appellants abused the victim Khadiya with obscene words and words based upon his caste. They have told to the victim Khadiya that why he was not living like a Chamar. Thereafter, victim Khadiya was taken in the house of Jagadamba Khare and the appellants had assaulted him. Hakka, brother of the victim Khadiya, went to the Outpost Mohendra of P.S. Simaria, and gave a written report with the statement that Khadiya is still in the house of Jagadamba. At Outpost Mohendra a case was registered and thereafter, it was transferred to the Police Station Simaria. The victim 17 Criminal Appeal No.280 of 1997. 26 Submitted by: Kashif Zafar

Khadiya was sent to the hospital for his medico legal examination. Dr. P.K. Jain examined Khadiya and gave a report. He found six injuries to the victim Khadiya situated on left scapula, left forearm, left ear, right hand, right feet and right hip. He was referred for the X-Ray examination. Dr. Singh took the X- Ray of the victim Khadiya and gave a report. He found a fracture of the right tibia bone to the victim Khadiya. The appellants abjured their guilt. They have stated that they were falsely implicated due to the enmity. They never assaulted the victim on the basis of the caste or otherwise. After considering the evidence adduced by both the parties the learned Special Judge acquitted the appellants from the charges of offence punishable under Section 3(1) (xiv) of the Special Act and convicted them for offence punishable under Section 3(1) (x) of the Special Act. The appellants have preferred this appeal against the judgment dated 6.1.1997 passed by the Special Judge under the SC/ST (Prevention of Atrocities) Act in ST whereby the appellants were convicted for offence punishable under Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act, 1989 and sentenced for six months rigorous imprisonment with fine of Rs.500/-. In default of payment of fine one month's rigorous imprisonment was also directed.

Arguments on behalf of Appellants The learned counsel for the appellants has submitted that according to the prosecution's story no offence was committed at the public place. It was not told by the witness Khadiya that the appellants told him to live like a Chamar. On the contrary he has accepted that there was enmity with the appellants since last five years and therefore, the victim Khadiya was not ready to do the work of the appellants and therefore, no offence punishable under Section 3(1)(x) of the Special Act is made out against the appellants.

Arguments on behalf of Petitioners 27 Submitted by: Kashif Zafar

The learned Panel Lawyer has submitted that the conviction and sentence directed by the trial Court appears to be correct whereas the trial Court has not framed the charges under Section 325 read with Section 34 of the I.P.C. Khadiya sustained a grievous hurt due to the assault caused by the appellants and therefore, the appellants are culprits for the offence punishable under Section 325 read with Section 34 of I.P.C.

Payers 1.

Whether the appellants could be convicted for offence punishable under Section 3(1)(x) of the Special Act ? 2. Whether the case may be remanded for trial of the appellants for the charge of offence under Section 325 read with Section 34 of the I.P.C ? 3. Whether the sentence directed against the appellant can be reduced ?

Judgement It is apparent that the appellants cannot be convicted for offence punishable under Section 3(1)(x) of the SC/ST (Prevention of Atrocities) act and therefore, the trial Court has erred in convicting them for such an offence. Consequently, the appeal filed by the appellants is hereby allowed. Conviction as well as the sentence directed against the appellants for offence punishable under Section 3(1)(x) of the SC/ST (Prevention of Atrocities) Act is hereby set aside. The appellants are acquitted from the charges of offence punishable under Section 3(1)(x) of the SC/ST (Prevention of Atrocities) Act. They would be entitled to get the fine amount back, if they have deposited the same.

Tufani Bhuiyan And Ors. vs State Of Jharkhand18 on 3 January, 2006 Facts PW 2 Mewalal Bhuiyan is the son of Kishun Bhuiyan who is the deceased. PW 3, Sitwa Devi is the mother of PW 2 and wife of Kishun Bhuiyan. The appellants are 18 2006 CriLJ 1878, 2006 (1) JCR 279 Jhr. 28 Submitted by: Kashif Zafar

related with the deceased and were residing in the same premises. The case of the prosecution is that the deceased was a witch and he is responsible for the death of the wife of Charan Bhuiyan. It is said that; witchcraft was the motive for which the unfortunate incident took place at about 7 p.m. on 30.7.1986. PW 2, Mewalal was grazing his cattle and at that time the appellants and two others who died before trial, went to the place of occurrence. They asked PW 2 about the where about of Kishun Bhuiyan, the deceased in the case, PW 2 refused to reply and so he was beaten. PW 2, thereafter, proceeded towards the village Gidhoor and on the way, saw his uncle Rameshwar Bhuiyan and his mother Sitwa Devi. PW 2 requested his father not to go to the place where he was earlier grazing the cattle as the appellants were searching for him. The deceased ignoring the request of PW 2 went towards the place where PW 2 was grazing cattle and seeing him the appellants 1 to 3 assaulted him with lathi and spear. PW 3 intervened but he was also beaten by Pokhan, the other accused who is since dead. Thereafter the appellants went away from that place. Kishun Bhuiyan died due to the injury sustained by him.

Arguments on behalf of Appellants Learned counsel, appearing on behalf of the appellants, submits that the prosecution having miserably failed to establish the cause of death of the deceased Kishun Bhuiyan, the trial Court was not justified in convicting the appellants under Section 302, IPC. Learned counsel further, submits that the prosecution did not examine any of the doctors to hold that PWs 2 and 3 suffered injuries and therefore, the accused are entitled for acquittal.

Judgement The prosecution did not even produce the document i.e. post-mortem examination report, nor did it examine the doctor. Therefore, there is no evidence on record to show that Kishun Bhuiyan died on account of homicidal violence. In the absence of any medical evidence, we are unable to hold that the prosecution has proved its case under Sections 323 and 324, IPC, There is nothing on record to prove that Kishun Bhuiyan died on account of homicidal violence and that PWs 2 and 3 suffered injury. Judges, therefore, hold that, the prosecution has miserably failed to establish the charge of murder as well as the charges under Sections 323 and 324, IPC. Judges have 29 Submitted by: Kashif Zafar

no option but to acquit the appellants and accordingly, the appellants were acquitted of the charges levelled against them. This appeal was accordingly allowed.

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Conclusion Section 321 and explanation of section 322 make it clear that either the ingredients of intention or that of knowledge must be essentially present in order to constitute the offence of hurt. In Dalapati Mahji’s19 case, during the quarrel the accused dragged the victim by holding his hand, whereby the victim fell down and sustained leg injuries. It appeared as if the victim was drunk and the accused dragged him with no intention to aasault. It could be inferred that the accused did not intend to cause grievous hurt, but grievous hurt ensued unexpectedly. Therefore, conviction under section 325 was liable to be set aside.

So punishments of HURT is just like Newton’s third law of motion which states that “every action have an equal and opposite reaction” mean if today you are injuring somebody with guilty mind tomorrow he can file case against you and get relief of what you had given to him.

19 1982 Cri LJ 134. 31 Submitted by: Kashif Zafar

Bibliography  Basu’s INDIAN PENAL CODE, 10th ed., Ashok Law House, New Delhi.  Dr. Hari Singh Gour, PENAL LAW OF INDIA, 11th ed., Vol. 3, Law Publishers India Pvt. Ltd.  K.D. Gaur, CRIMINAL LAW: CASES AND MATERIALS, 6th ed., Lexis Nexis Butterworths.  K.I. Vibhute, P.S.A. Pillai’s CRIMINAL LAW, 10th ed., Lexis Nexis Butterworths.  Faculty of Law, University of Delhi, CRIMINAL LAW-I, July 2011.

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