Introduction:

Dear friends ,,

A doctor when posted in the Accident and Emergency Department or casualty very often deals
with injury cases either come for treatment or those brought by the police. Though injury may be
accidental, suicidal, homicidal or self inflicted, when there is allegation or suspicion of assault,
the medical officer besides treating the patient, is legally bound to examine and opine regarding
injury in the prescribed pro forma i.e. Injury report for the aid of investigating police agency and
administration of justice in the court of law. However, as the promptness of police action against
the alleged accused person who may also bear some vital evidence to the alleged incidence, lies
with the seriousness of injury (nature of injury). Thus medical officer has to opine whether the
bodily injuries found on the alleged victim are simple or grievous. Though sec 320 IPC
enumerates grievous hurt, medical officer dealing such cases found it difficult in more than one
occasion to conclude his/her opinion regarding the nature of injury. The present lecture is an
attempt to minimize their dilemma and understand the concepts from the practical point of view.

When a patient of assault is brought to the casualty, it is the duty of medical officer to guide the
investigating police officer about the type of hurt whether it is simple or grievous. However, it is
ultimately the Court who will decide about this matter after considering all the facts,
circumstances of the case and medical opinion. In casualty, it is sometimes difficult task for a
medical officer to opine about an injury. Sometimes, the injured person may fake serious
disorder to make the simple injury to appear as grievous one. This becomes more difficult when
there is lack of knowledge about the concept of hurt and grievous hurt, inability to understand
the language of law, difficulty in interpretation and also when there are different opinions given
about the same matter by different courts. So, it is required that every medical officer should
have sound knowledge about the concept of hurt and grievous hurt. He should make necessary
investigations and consult another expert in the field, if required, before giving his final opinion.

Under the doctrine of stare decisis, a lower court must honor findings of law made by a higher
court. So it is always good for a medical professional to make their opinion on the basis of
proper knowledge, and judgments made by a higher court. Moreover, it is important that they
should not follow these judgments blindly, because these judgments are based on different facts
and circumstances.
What is Assault?

According to Section 351 IPC, Whoever makes any gesture, or any preparation intending or
knowing it to be likely that such gesture or preparation will cause any person present to
apprehend that he who makes that gesture or preparation is about to use criminal force to that
person, is said to commit an assault.

Explanation: Mere words do not amount to an assault. But the words which a person uses may
give to his gestures or preparation such a meaning as may make those gestures or preparations
amount to an assault.

Illustrations:

a) A shakes his fist at Z, intending or knowing it to be likely that he may thereby cause Z to
believe that A is about to strike Z, A has committed an assault.

b) A begins to unloose the muzzle of a ferocious dog, intending or knowing it to be likely that
he may thereby cause Z to believe that he is about to cause the dog to attack Z. A has committed
an assault upon Z.

c) A takes up a stick, saying to Z, "I will give you a beating". Here, though the words used by A
could in no case amount to an assault, and though the mere gesture, unaccompanied by any other
circumstances, might not amount to an assault, the gesture explained by the words may amount
to an assault.

Therefore the Essential Ingredients of Section 351 IPC are:

apprehend that the person making it is about to use criminal force to him.

every threat that constitutes an assault; there must, in all cases, be the means of
carrying the threat into effect.

specified in this section amounts to an assault.

ded in
every criminal force.
Pointing a loaded pistol at another is undoubtedly an assault within the meaning of this section.

What is injury?

The word “injury” denotes any harm whatever illegally caused to any person, in body, mind,
reputation and property.

Comments:

i.e. illegal.

meaning than the term „Hurt‟, as it also includes illegal damage to reputation or property of
other. In other words, all hurts are injuries, but all injuries are not hurt.

What is Hurt?

According to Section 319 IPC whoever causes bodily pain, disease or infirmity to any person is
said to cause hurt.

Comments:

f assault.
But bodily hurt may be caused by many acts which are not assaults. A person, for example, who
mixes a deleterious potion and places it on the table of another, may cause serious hurt; but
cannot be said to have committed assault.

in‟ covers all harm, except those which no person of ordinary sense or temper
would complain of.

temporary or permanent.

between the accused and victim in Section 319 IPC,

and so nervous shock and mental derangements are also included.

the harm inflicted, and the death is caused, the accused would be guilty of hurt only if the injury
caused was not serious.
fall under the domain of grievous hurt. Grievous hurt is hurt of a more serious nature. It is
sometime difficult to draw a line between those bodily hurt which are serious and those which
are slight.

What is Grievous hurt?

The following kinds of hurt only are designated as "Grievous":

First- Emasculation

Second- Permanent privation of the sight of either eye,

Third- Permanent privation of the hearing of either ear,

Fourth- Privation of any member or joint,

Fifth- Destruction or permanent impairing of the powers of any member or joint,

Sixth- Permanent disfiguration of the head or face,

Seventh- Fracture or dislocation of a bone or tooth,

Eighth- 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.

Comments: “Emasculation” means depriving a male of masculine vigor. So, this clause is not
applicable to female victims. This could be done by castration, by cutting the male organ, or by
causing injury to testis or to the spinal cord at the level of 2nd to 4th lumbar vertebrae to result in
impotence. „

Permanent‟ does not mean that it should be incurable. For instance, loss of sight occurring due to
corneal opacity resulting from injury to the cornea may be curable by corneoplasty but being
permanent by itself constitutes a grievous hurt and chances of treating by corneoplasty do not
lower its gravity. The gravity of injury lies in its permanency because it deprives a person of the
use of the organ of sight and also disfigures him. Permanent privation of sight can be caused by
gouging out of eyes, poking eyes, chemicals, etc.
 Permanent privation of hearing may be caused by a blow on the head or the ear, or by blows
which injure the tympanum or auditory nerves or by trusting something or pouring hot liquid into
the ear which causes deafness. Even, permanent partial loss of hearing is considered as grievous.

The term “member” means any organ or limb of a subject responsible for performance of a
distinct function. It includes eyes, ears, nostrils, mouth, hands, feet, etc.

Disfiguration means doing a man some external injury which cause change in configuration and
personal appearance of the subject, but does not weaken him. Age, sex, occupation of the
subject is immaterial. However, there are judgments of different courts considering these factors.
Moreover, medical officer should not consider these factors while opining about the nature of
injury and it is only court who can take these factors into consideration.

Fracture or dislocation of a bone or tooth causes great pain and suffering to the injured person
and hence it is considered grievous hurt. For application of this clause it is not necessary that a
bone should be fractured through and through or that there should be a displacement of any
fragment of bone. Any break or splintering of the bone, rupture or fissure in it would amount to
fracture. Although fracture has not been defined in sec 320 IPC, but as per Supreme Court
judgment in the case of Hori lal and Anr vs. State of U.P. AIR 1970 SC 1969, incised wound to
the bone is to be consider as fracture, hence, grievous hurt. Before giving opinion, it has to be
proved that, the tooth was not originally loose and injury caused fracture or dislocation of tooth.

An injury can be said to endanger life if it is in itself that it put the life of the injured in danger.
There is thin line between degree of body injury „dangerous to life‟ and „likely to cause death‟.
So, 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.
However, acts neither intended nor likely to cause death may amount to grievous hurt even
though death is caused.

Moreover, in Niranjan Singh V State of Madhya Pradesh 2007, AIR 2007 (7) SCR1017,
2007(10 )SCC459 , the Court observed that the term “endangers life” is much stronger than the
expression “dangerous to life”.
The mere fact that a man has been in hospital for twenty days is not sufficient; it must be proved
that during that time he was unable to follow his ordinary pursuits. A disability for twenty days
constitutes grievous hurt; if it constitutes for a smaller period, then the offence is hurt.

“Ordinary pursuits” means acts which are a daily routine in every human being’s day to day life
like eating food, taking bath, going to toilet, etc. Where there is no intention to cause neither
death nor knowledge that death is likely to be caused from the harm inflicted, and the death is
caused, the accused would be guilty of grievous hurt if the injury caused was of serious nature,
but not of culpable homicide. A person is responsible for voluntarily causing grievous hurt only
when he both causes grievous hurt and intends or having knowledge of causing grievous hurt
(Explanation of section 322). [1] It is immaterial while causing one type of grievous hurt he
actually causes grievous hurt of another type. (Explanation of Section 322) .

Dangerous injury is a variety of grievous injury. Dangerous injuries are those which cause
imminent danger to life, either by involvement of important organs and structures, or extensive
area of the body. If no surgical aid is available, such injuries may prove fatal.

If an opinion regarding the nature of injury cannot be formed at the time of the examination, as
in the case of a head injury where the symptoms are obscure, the injured person must be either
re-examined after 24-48 hours or admitted under observation until a definite opinion can be
formed.

Section 321 to 338 IPC describes 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.

S. 326 IPC: Voluntarily causing grievous hurt by dangerous weapons or means: Whoever,
except in the case provided for by section 335, voluntarily causes grievous 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 explosive substance, or by means of any
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 for life, or with
imprisonment of either description for a term which may extend to ten years, and shall also be
liable to fine.

Comments: The essential ingredients to attract Section 326 are:

(1) voluntarily causing a hurt;

(2) hurt caused must be a grievous hurt; and

(3) the grievous hurt must have been caused by dangerous weapons or means.

Whether a particular article can per se cause any serious wound or grievous hurt or injury has to
be determined factually.

Medical personnel / Forensic Specialist can opine whether the alleged weapon of offence is
“dangerous weapon or mean” or not. However, Court will finally decide whether the assailant
was armed with dangerous weapon or not, depending upon the circumstances of the case and
expert medical opinion.

In Prabhu V State of Madhya Pradesh 2008(15 )SCALE228 , 2008(13 ) JT72 14, the 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. The intention of the accused is gathered from the nature of the weapon used, the
part of the body chosen for assault and other attending circumstances. 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.

In Aniyan Kunju and Others vs. State of Kerala 2004 AIR 2688, 2004(1) SCR 900, 2004
(12) SCC269. 15, the Court held that Medical evidence is a factor which has to be weighed
along with other materials to see whether the prosecution version is reliable, cogent and
trustworthy. When the case of the prosecution is supported by an eyewitness who is found to be
truthful as well, mere non-explanation of the injuries on the accused persons cannot be a
foundation for discarding the prosecution version.
Recently, Supreme Court, in Gurmukh Singh v. State of Haryana [Criminal appeal 1609 of
2009] , enumerated the various factors which are required to be taken into consideration before
awarding appropriate sentence to the accused.

a) Motive or previous enmity;

b) Whether the incident had taken place on the spur of the moment;

c) The intention/knowledge of the accused while inflicting the blow or injury;

d) Whether the death ensued instantaneously or the victim died after several days;

e) The gravity, dimension and nature of injury;

f) The age and general health condition of the accused; whether the injury was caused without
pre- meditation in a sudden fight;

g) The nature and size of weapon used for inflicting the injury and the force with which the
blow was inflicted;

h) The criminal background and adverse history of the accused;

i) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death
but the death was because of shock;

j) Number of other criminal cases pending against the accused;

k) Incident occurred within the family members or close relations; the conduct and behaviour of
the accused after the incident.

l) Whether the accused had taken the injured/the deceased to the hospital immediately to ensure
that he/she gets proper medical treatment? The list of circumstances enumerated above is only
illustrative. Each case has to be seen from its special perspective. In considered view of Supreme
Court, proper and appropriate sentence to the accused is the bounded obligation and duty of the
court.

Right of Private Defence:

In Darshan Singh v State of Punjab [Criminal appeal 1057 of 2002] , Court observed and
held that Right of private defence of person and property is recognized in all free, civilsed,
democratic societies within certain reasonable limits. The citizens, as a general rule, are neither
expected to run away for safety when faced with grave and imminent danger to their person or
property as a result of unlawful aggression, nor are they expected, by use of force, to right the
wrong done to them or to punish the wrong doer of commission of offences. When there is real
apprehension that the aggressor might cause death or grievous hurt, in that event the right of
private defence of the defender could even extend to causing of death. A mere reasonable
apprehension is enough to put the right of self-defence into operation, but it is also settled
position of law that a right of self-defence is only right to defend oneself and not to retaliate. It is
not a right to take revenge.

In State of Haryana V Sher Singh & Ors AIR 2002 3223, , 2002( 9 )SCC 356 [Criminal
appeal 435 of 1994] 18, Supreme Court held that Section 99, I.P.C. lays down the extent to
which the right of private defence is available and "The right of private defence in no case
extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence."

Latest Amendment under the Criminal Law Amendment Act, 2013:

“326A: Whoever causes permanent or partial damage or deformity to, or 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 by administering acid to that person, or by using any other means with the
intention of causing or with the knowledge that he is likely to cause such injury or hurt, shall be
punished with imprisonment of either description for a term which shall not be less than ten
years but which may extend to imprisonment for life and with fine which may extend to ten lakh
rupees” Provided that any fine imposed under this section shall be given to the person on whom
acid was thrown or to whom acid was administered. 326B: Whoever throws or attempts to throw
acid on any person or attempts to administer acid to any person, or attempts to use any other
means, with the intention of causing permanent or partial damage or deformity or burns or
maiming or disfigurement or disability or grievous hurt to that person, shall be punished with
imprisonment of either description for a term which shall not be less than five years but which
may extend to seven years, and shall also be liable to fine.

Explanation 1: For the purposes of section 326A and this section, “acid” includes any substance
which has acidic or corrosive character or burning nature, that is capable of causing bodily injury
leading to scars or disfigurement or temporary or permanent disability.
Explanation 2: “Permanent or partial damage” includes deformity, or maiming, or burning, or
disfiguring, or disabling any part or parts of the body of a person.

Explanation 3: For the purposes of section 326A and this section, permanent or partial damage
or deformity shall not be required to be irreversible.‟

So, after the present amendment, following changes took place:

even disfiguration of any part of the body by throwing or administering acid is also considered as
grievous hurt.

administering of an acid is covered under grievous hurt. Moreover, the damage or deformity
shall not be required to be irreversible.

may extend to ten lakh rupees.

Offences under section 326A and 326B are cognizable and Non-bailable.

Lastly it is the duty of medical personnel to know the law correctly and apply them in their strict
sense. It is finally the Judiciary which will interpret the law and apply according to the fact and
circumstances of each case.

Section 339. Wrongful restraint

Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any
direction in which that person has right to proceed, is said wrongfully to restrain that person.

Wrongful restraint means preventing a person from going to a place where he has a right to go.
In wrongful confinement, a person is kept within certain limits out of which he wishes to go
and has a right to go. In wrongful restraint, a person is prevented from proceeding in some
 particular direction though free to go elsewhere. In wrongful confinement, there is restraint from
proceeding in all directions beyond a certain area. One may even be wrongfully confined in one's
own country where by a threat issued to a person prevents him from leaving the shores of his
land.

Object – The object of this section is to protect the freedom of a person to utilize his right to
pass in his. The slightest unlawful obstruction is deemed as wrongful restraint. Physical
obstruction is not necessary always. Even by mere words constitute offence under this section.
The main ingredient of this section is that when a person obstructs another by causing it to
appear to that other that it is impossible difficult or dangerous to proceeds as well as by causing
it actually to be impossible, difficult or dangerous for that to proceeds.

Ingredients:

1. 1. An obstruction.
2. 2. Obstruction prevented complainant from proceeding in any direction.

Obstruction:-

Obstruction mans physical obstruction, though it may cause by physical force or by the use of
menaces or threats. When such obstruction is wrongful it becomes the wrongful restraint. For a
wrongful restraint it is necessary that one person must obstruct another voluntarily.

In simple word it means keeping a person out of the place where his wishes to, and has a right to
be.

This offence is completed if one's freedom of movement is suspended by an act of another

done voluntarily.

Restraint necessarily implies abridgment of the liberty of a person against his will.

What is requiring under this section is obstruction to free movement of a person, the method
used for such obstruction is immaterial. Use of physical force for causing such obstruction is not
necessary. Normally a verbal prohibition or remonstrance does not amount to obstruction, but
in certain circumstances it may be caused by threat or by mere words. Effect of such word upon
the mind of the person obstructed is more important than the method.
 Obstruction of personal liberty:

Personal liberty of a person must be obstructed. A person means a human being, here the
question arises whether a child of a tender age who cannot walk of his own legs could also be the
subject of restraint was raised in Mahendra Nath Chakarvarty v. Emperor. It was held that
the section is not confined to only such person who can walk on his own legs or can move by
physical means within his own power. It was further said that if only those who can move by
physical means within their own power are to be treated as person who wishes to proceed then
the position would become absurd in case of paralytic or sick who on account of his sickness
cannot move.

Another points that needs our attention here is whether obstruction to vehicle seated with
passengers would amount to wrongful restraint or not.

An interesting judgment of our Bombay High Court in Emperor v. Ramlala : "Where,

therefore a driver of a bus makes his bus stand across a road in such a manner, as to prevent
another bus coming from behind to proceed further, he is guilty of an offence under Sec. 341 of
the Penal Code of wrongfully restraining the driver and passengers of another bus".

"It is absurd to say that because the driver and the passengers of the other bus could have got
down from that bus and walked away in different directions, or even gone in that bus to different
destinations, in reverse directions, there was therefore no wrongful restraint" is the judgment of
our High Court which is applicable to our busmen who suddenly park the buses across the roads
showing their protest on some issues.

Illustrations-

1. I. A was on the roof of a house. B removes the ladder and thereby detains A on the
roof.
2. II. A and B were co-ower of a well. A prevented B from taking out water from the
well .

Section 340. Wrongful confinement.

Whoever wrongfully restrains any person in such a manner as to prevent that person from
proceedings beyond certain circumscribing limits, is said "wrongfully to confine" that person.
 Object – The object of this section is to protect the freedom of a person where his personal
liberty has totally suspended or abolish, by voluntarily act done by another.

Ingredients:

1. I. Wrongful confinement of person.

1. 1. Wrongful restraint of a person

2. 2. Such restraint must prevent that person from proceeding beyond certain limits.

Prevent from proceedings:

Wrongful confinement is a kind of wrongful restraint, in which a person kept within the limits
out which he wishes to go, and has right to go.

There must be total restraint of a personal liberty, and not merely a partial restraint to constitute
confinement.

For wrongful confinement proof of actual physical obstruction is not essential.

Circumscribing Limits:

Wrongful confinement means the notion of restraint within some limits defined by a will or
power exterior to our own.

Moral force: Detention through the excise of moral force, without the accomplishment of
physical force is sufficient to constituted this section.

Base

Section339- Restraint

Section 340-Confinement

Degree of Offense

Wrongful restraint is not a serious offence, and the degree of this offense is comparatively lees
then confinement.
Wrongful confinement is a serious offence, and the degree of this offense is comparatively
intensive then restraint.

Principle element

Voluntarily wrongful obstruction of a person personal liberty, where he wishes to, and he have a
right to.

Voluntarily wrongfully restraint a person where he wishes to, and he has a right to, within a
circumscribing limits.

Personal liberty

It is a partial restraint of the personal liberty of a person. A person is restraint is free to move
anywhere other than to proceed in a partial direction.

it is a absolute or total restraint or obstruction of a personal liberty.

Nature

Confinement implies wrongful restraint.

Wrongful confinement not implies vice-versa.

Necessity

No limits or boundaries are required

Certain circumscribing limits or boundaries requires.

Conclusion — persuasion is not obstruction, physical presence, for obstruction is not necessary,
reasonable apprehension of force is sufficient, restraint implies will and desire are some of the
salient features of such decisions.