About this topic
The law of hurt deals with harm caused to the body, and even to the mind, of a person. It is found in Chapter 6 of the B.N.S., which deals with offences affecting the human body. Within that Chapter, under the sub-heading "Of hurt", are Sections 114 to 125.
The topic is best learnt through five problem cases from the casualty ward of a busy district hospital at midnight. For each injured person brought in, the doctor on duty must prepare a medico-legal report for the police. Each case raises a different legal question, and each is answered in the Quick revision at the end.
Five problem cases
- Prince, a night watchman. Two youths, just for fun, crept up behind him wearing masks and blasted a loud siren next to his ear. He collapsed, and he is still trembling. There is not a single scratch on his body.
- Zoya. In a quarrel over a parking space, a man grabbed her hand and bit off the top segment of her finger.
- Farhan, a delivery rider. A motorist flung his car door open into the traffic without looking, and Farhan's collarbone is broken.
- An undertrial prisoner sent from a police lock-up. The soles of his feet are swollen with bruises, and he says he was beaten to make him confess.
- Aadil, a farmer. In a land dispute he was struck on the head with an iron rod. He is now in the intensive care unit with a fractured skull.
The five legal questions these cases raise:
- Can pure fright, with no wound at all, be an offence? (Prince)
- Is a human tooth a dangerous weapon? (Zoya)
- Can a careless person be punished for an injury he never wanted to cause? (Farhan)
- What does the law do to a police officer who tortures? (the undertrial prisoner)
- When a man is beaten close to death, is it grievous hurt, or something more serious? (Aadil)
Scheme of the law: three viewpoints
▶ Watch this part of the lecture (1:22)
Every injury is looked at by three persons. The law of hurt can be studied through their eyes.
| Viewpoint | Question asked | Sections of the B.N.S. |
|---|---|---|
| The doctor | What has happened to the body? | Section 114 (hurt) and Section 116 (grievous hurt): the two definitions |
| The judge | What was going on in the mind of the person who caused it? | Section 115 (voluntarily causing hurt) and Section 117 (voluntarily causing grievous hurt): they add the guilty mind |
| The lawmaker | Which circumstances make the offence graver, and which make it lighter? (decided long before any injury) | Sections 118 to 125: the remaining eight Sections, which are the lawmaker's adjustments |
Sections 114 to 125 = 12 Sections. Two define (114, 116), two add the guilty mind (115, 117), and eight adjust the seriousness (118 to 125).
Hurt (Section 114)
▶ Watch this part of the lecture (1:54)
"Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt."
Hurt = causing bodily pain, disease or infirmity to any person (Section 114).
Three kinds of harm
- Bodily pain is the simplest. Twisting someone's ear until he cries out causes bodily pain, even though the ear is perfectly fine a minute later.
- Disease means making a person sick. Knowingly passing on an infection to someone is one way of doing that.
- Infirmity is the widest of the three words. It refers to a weak or unsound state, which may affect either the body or the mind, and which may be only temporary.
No wound and no touch is required
Two things are missing from the definition, and both omissions matter:
- there is no requirement of a wound; and
- there is no requirement of touch.
A man pours oil on the staircase that his neighbour uses every morning. He never touches the neighbour. But when the neighbour slips and twists his ankle, that pain has been caused by the man all the same.
Nervous shock and infirmity
▶ Watch this part of the lecture (2:46)
Prince, the watchman, suffered no touch, no wound and no bodily pain, only terror. Whether that can be hurt depends on how far the word infirmity reaches. That word was explained more than eighty years ago.
Jashanmal Jhamatmal v. Brahmanand Sarupanand (1943, Sind): the court had to explain the meaning of "infirmity" while applying Section 319 of the IPC (the old definition of hurt).
Held: infirmity has a wide meaning. In the court's words, "infirmity denotes an unsound or unhealthy state of body or mind and clearly a state of temporary mental impairment or hysteria or terror would constitute infirmity".
Principle: courts in India still rely on this passage. They have also read the decision to mean that the duration of the mental infirmity is immaterial, so even a short spell of terror can be infirmity. Hurt can reach the mind as well as the body.
The wording of Section 319 of the IPC has been carried, unchanged, into Section 114 of the B.N.S., so the case remains relevant to the present definition of hurt.
Prince's collapse from terror is infirmity, and so it can be hurt in law, even though there is not a single scratch on his body.
Grievous hurt (Section 116)
▶ Watch this part of the lecture (3:58)
Sometimes the doctor's report must go one step further and say whether the injury is simple or grievous. Here the doctor does not have a free hand. Section 116 begins:
"The following kinds of hurt only are designated as grievous, namely"
The word "only" closes the door. The list in Section 116 is exhaustive. An injury that is not on this list is simple hurt, however much it bled and however ugly it looked.
The eight kinds of grievous hurt
- Clause (a): "Emasculation".
- Clause (b): "Permanent privation of the sight of either eye".
- Clause (c): "Permanent privation of the hearing of either ear".
- Clause (d): "Privation of any member or joint".
- Clause (e): "Destruction or permanent impairing of the powers of any member or joint".
- Clause (f): "Permanent disfiguration of the head or face".
- Clause (g): "Fracture or dislocation of a bone or tooth".
- Clause (h): "Any hurt which endangers life or which causes the sufferer to be during the space of fifteen days in severe bodily pain, or unable to follow his ordinary pursuits."
Meaning of some words
- Emasculation: destroying a man's virility, that is, his sexual power.
- Privation: loss.
- Member: an organ or a limb of the body.
A memory test: look for the word "permanent"
Instead of memorising eight separate items, apply one simple test: look for the word "permanent".
| Group | Clauses | What they protect | Rule |
|---|---|---|---|
| "Permanent" appears | (b), (c), (e), (f) | Sight, hearing, the working power of a limb or joint, and the appearance of the head or face | A temporary loss is not enough |
| "Permanent" does not appear | (a), (d), (g) | Emasculation, loss of a member or joint, fracture or dislocation | No permanence is required |
| Works differently | (h) | Danger to life, or the duration of the effect | Asks how dangerous the hurt was, or how long its effect lasted, not what was lost |
A swollen eye that blurs the vision for a week is not grievous hurt. A blow that leaves one eye blind for life is grievous hurt under clause (b).
Because "permanent" does not appear in clause (g), a fracture is grievous hurt even if it heals perfectly. A cracked rib or a broken nose is grievous hurt even if it heals within a few weeks. Many students get this wrong.
Clause (h): danger to life and the 15-day test
▶ Watch this part of the lecture (5:45)
Clause (h) does not ask what was lost. It asks either:
- how dangerous the hurt was (hurt which endangers life); or
- how long its effect lasted: severe bodily pain, or being unable to follow ordinary pursuits (normal daily activities), during the space of fifteen days.
A tailor's wrist is injured so badly that he cannot work his sewing machine for three weeks. He has been unable to follow his ordinary pursuits for more than fifteen days, so the hurt is grievous under clause (h).
A long stay in hospital does not automatically satisfy clause (h). The prosecution must show, for the full fifteen days, either real severe pain or a real inability to carry on with ordinary life.
The words "hurt which endangers life" also mark the border between hurt and homicide (see "Grievous hurt or culpable homicide?" below).
Voluntarily causing hurt (Section 115)
▶ Watch this part of the lecture (6:24)
The doctor can say what happened to the body, but cannot say what the accused had in mind. Criminal law almost never punishes harm alone, because harm can be caused by pure accident. The mental element is added by Section 115(1):
"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."
Three links in the chain
- An act of the accused: the actus reus, the outward conduct.
- A guilty mind: the mens rea, in the form of intention or knowledge.
- Actual hurt that flows from the act.
| Intention | Knowledge |
|---|---|
| About desire: the accused wanted the hurt to happen. | About awareness: the accused saw that hurt was likely, whether or not he wanted it. |
A man swings a cricket bat wildly through a crowded lane just to scare people. He may say he never wanted to hit anyone. But he knows that someone is likely to be hit, and that is enough.
Prince's case is now complete. The youths may have wanted only a laugh. But anyone who blasts a siren beside a man's ear in the middle of the night knows that a shock is likely. They voluntarily caused hurt.
Punishment: Section 115(2)
- Imprisonment of either description (that is, simple or rigorous) for a term which may extend to one year; or
- fine which may extend to ₹10,000; or
- both.
This applies except in the case of grave and sudden provocation, which is dealt with separately in Section 122.
Voluntarily causing grievous hurt (Section 117)
▶ Watch this part of the lecture (7:58)
For grievous hurt a stricter test applies. Section 117(1) reads:
"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."
The matching rule
Both the mind and the result must reach the grievous level. The Explanation says so directly:
"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."
In a hostel corridor, a young man tosses a tennis ball at his friend's back, only to annoy him. At that very moment the friend turns around, the ball strikes his eye, and the sight of that eye is lost for ever. The result is grievous (clause (b)), but the mind was not: nobody expects a tossed tennis ball to blind a person. If he meant some small hurt, his offence stops at voluntarily causing hurt. The result climbed to the grievous level, but his mind never did.
Grievous hurt of a different kind
Where the mind is grievous and the result is grievous, but of a different kind, the second sentence of the Explanation applies:
"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."
A bouncer throws a punch meant to break a customer's jaw. The jaw holds, but the punch lands on the ear, ruptures the eardrum and leaves him permanently deaf on that side. The bouncer aimed at clause (g) and landed on clause (c). The match still holds, because both the aim and the result are on the grievous list.
The Illustration to the Section makes the same point with a blow meant to disfigure a face, which instead caused severe bodily pain for fifteen days.
| Mind (intention or knowledge) | Result | Offence |
|---|---|---|
| Some small (simple) hurt | Grievous hurt | Voluntarily causing hurt only (tennis ball example) |
| Grievous hurt | Grievous hurt of the same kind | Voluntarily causing grievous hurt |
| Grievous hurt of one kind | Grievous hurt of another kind | Voluntarily causing grievous hurt (bouncer example) |
Matching rule: a person voluntarily causes grievous hurt only when he both causes grievous hurt and intends or knows himself to be likely to cause grievous hurt. The kind of grievous hurt need not be the same.
Punishment: Section 117(2)
Voluntarily causing grievous hurt is punishable with imprisonment of either description for a term which may extend to seven years, and the offender shall also be liable to fine. Again, provocation is dealt with separately, in Section 122.
Heavier forms: permanent disability and group violence
▶ Watch this part of the lecture (10:05)
Section 117(3): permanent disability or persistent vegetative state
"Whoever commits an offence under sub-section (1) and in the course of such commission causes any hurt to a person which causes that person to be in permanent disability or in persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life."
A persistent vegetative state means that the person remains alive, but without any real awareness of the surroundings.
Section 117(4): grievous hurt by a group of five or more
This sub-section targets attacks by a group, driven by who the victim is:
"When a group of five or more persons acting in concert, causes grievous hurt to a person on the ground of his race, caste or community, sex, place of birth, language, personal belief or any other similar ground, each member of such group shall be guilty of the offence of causing grievous hurt, and shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
Section 117(3): permanent disability or persistent vegetative state: rigorous imprisonment of not less than ten years, up to life (the remainder of natural life). Section 117(4): group of five or more, acting in concert, on the ground of race, caste or community, sex, place of birth, language, personal belief or similar ground: each member is guilty; up to seven years and fine.
Grievous hurt or culpable homicide?
▶ Watch this part of the lecture (27:45)
Aadil lies in intensive care with a fractured skull. His injury clearly endangers life. Is it grievous hurt under clause (h) of Section 116, or something more serious? To answer this, Section 100 of the B.N.S. (culpable homicide) must be placed beside clause (h):
"Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
| Point | Grievous hurt (Section 116, clause (h)) | Culpable homicide (Section 100) |
|---|---|---|
| Degree of danger | Enough that the hurt endangers life | The injury must be likely to cause death |
| State of mind | Intention or knowledge of grievous hurt (Section 117) | One of three: intention to cause death; intention to cause such bodily injury as is likely to cause death; knowledge that the act is likely to cause death |
Endangering life is a lower degree of danger than being likely to cause death. That is why the line between grievous hurt and culpable homicide is so thin.
How the court decides
The court does not ask whether the victim died.
- If the victim survives, but the attackers meant to kill him, they can be guilty of attempt to murder under Section 109.
- If their mind matches culpable homicide not amounting to murder, they can be guilty of attempt to commit culpable homicide under Section 110.
- If a victim dies from a blow that was never intended or known to be likely to cause death, the offence may still be only hurt or grievous hurt.
The outcome does not decide the offence. The mind does.
Since no one can look directly into a mind, the court reads it from the evidence. It looks at:
- the weapon;
- the part of the body targeted;
- the force used;
- the number of blows; and
- the medical opinion.
Laxman and Others v. State of Maharashtra
▶ Watch this part of the lecture (29:16)
This is the clearest illustration of reading the mind from the injuries.
Laxman and Others v. State of Maharashtra (Supreme Court, decided on 21 September 1973)
Facts: Sitaram was employed to keep watch over a landowner's fields. Some time earlier, he had complained that one of the accused had cut jowar from those fields. One day he was set upon in the fields with an axe and sticks. A bullock cart took him to a dispensary. There, after a doctor certified that he was fit to make a statement, a Head Constable recorded his dying declaration naming his attackers. He died the same night. The post-mortem counted 34 injuries, 29 of them bruises. Yet ribs were broken; the bones of the upper arm, the forearm and the hand were fractured; and the kidneys and lungs had been damaged. In the doctor's opinion, the injuries were sufficient in the ordinary course of nature to cause death.
Trial and High Court: Five men were tried for murder before the Sessions Judge at Amravati. The Sessions Judge acquitted one and convicted the other four only of voluntarily causing grievous hurt, under Section 325 read with Section 34 of the IPC, with three years of rigorous imprisonment. (Section 34 made each of them liable for acts done in furtherance of their common intention.) On the State's appeal, the High Court convicted the four of murder and sentenced them to imprisonment for life.
Supreme Court: Counsel for the accused questioned an oral dying declaration that Sitaram was said to have made in the bullock cart. The Court found some force in that criticism but held that it did not matter, because the written dying declaration recorded at the dispensary was convincing and reliable. One appellant, Rajeram, was given the benefit of the doubt and acquitted, because the very first account of the attack had not named him. For the other three, the Court turned to the injuries: "The number and the nature of injuries caused to Sitaram were such as showed that the intention of the assailants was to cause his death."
Held: read together with the doctor's opinion, the injuries placed the case in murder, not grievous hurt. The appeals of the three were dismissed.
Principle: the body can reveal what the mind intended. It was not the count of injuries alone, but their number and nature together with the medical evidence.
| Provision applied in Laxman (IPC) | Present counterpart (B.N.S.) |
|---|---|
| Section 325 (voluntarily causing grievous hurt) | Section 117(2) |
| Section 302 (murder) | Section 103(1) |
| Section 34 (common intention) | Section 3(5) |
The lawmaker's adjustments: an overview
Long before any injury happens, the lawmaker has decided that certain circumstances change the seriousness of hurt. They can be grouped under four questions.
| Question | Sections | Effect |
|---|---|---|
| What tool was used? | Section 118 (dangerous weapons or means), Section 123 (poison), Section 124 (acid) | Adds weight |
| What was the motive? | Section 119 (extorting property or forcing an illegal act), Section 120 (extorting confession or restoration of property), Section 121 (deterring a public servant) | Adds weight |
| What was the accused's temper at that moment? | Section 122 (grave and sudden provocation) | Removes weight |
| Was there any aim at all, or only carelessness? | Section 125 (rash or negligent act) | Punishes danger or injury caused without intention or knowledge |
Hurt by dangerous weapons or means (Section 118)
▶ Watch this part of the lecture (10:58)
Section 118 is headed "Voluntarily causing hurt or grievous hurt by dangerous weapons or means." It covers hurt caused by means of:
- any instrument for shooting, stabbing or cutting;
- any instrument which, used as a weapon of offence, is likely to cause death;
- fire or any heated substance;
- any poison or any corrosive substance;
- any explosive substance;
- any substance which it is deleterious (harmful) to the human body to inhale, to swallow, or to receive into the blood; or
- any animal.
Punishment
| Sub-section | Offence | Punishment |
|---|---|---|
| Section 118(1) | Voluntarily causing hurt by these means | Imprisonment of either description up to three years, or fine up to ₹20,000, or both |
| Section 118(2) | Voluntarily causing grievous hurt by these means | Imprisonment for life, or imprisonment of either description of not less than one year which may extend to ten years; and fine |
Both sub-sections give way to Section 122 (provocation).
Ordinary objects as dangerous weapons
The second item in the list, any instrument which, used as a weapon of offence, is likely to cause death, means that ordinary objects can qualify. A spade, a cricket stump or a heavy brick may all become dangerous weapons, depending on how they are used.
Human bites: is a tooth a dangerous weapon?
▶ Watch this part of the lecture (12:05)
Zoya's case raises the question whether a part of the human body itself can be such an instrument. The courts answered it in two stages.
Jamil Hasan v. The State (Allahabad High Court, decided on 21 February 1974): on 25 October 1970, Jamil Hasan used his teeth to sever the tip of his wife Anisa Begum's nose. A magistrate at Hardoi convicted him under Section 326 of the IPC (the old provision on grievous hurt by dangerous weapons or means) and sentenced him to two years of rigorous imprisonment; on appeal the sentence was reduced to one year. Before the High Court he argued that teeth are a part of the body and cannot be called an instrument for cutting.
Held: the argument was rejected. Teeth exist to bite and to cut, and people do use them to attack and to defend themselves. A bite could therefore come under Section 324 or Section 326 of the IPC, depending on how serious the injury was. The conviction stood.
Principle (first stage): teeth were treated as an instrument for cutting.
Shakeel Ahmed v. State (Delhi) (2004, Supreme Court): a bite took off a phalanx (one bony segment) of the victim's index finger. The injury was grievous, and the conviction recorded below was under Section 326 of the IPC.
Held: "The teeth of a human being cannot be considered as a deadly weapon as per the description of a deadly weapon enumerated under Section 326 IPC." The conviction under Section 326 could not stand. The most the accused could be guilty of was voluntarily causing grievous hurt, punishable under Section 325 of the IPC.
Principle (second stage): human teeth are not a dangerous weapon; a bite is punished according to the injury it causes.
Present position
- Article 141 of the Constitution makes the law declared by the Supreme Court binding on every court in India. The later Supreme Court ruling in Shakeel Ahmed therefore prevails over the earlier High Court view in Jamil Hasan.
- Several High Courts have extended the Shakeel Ahmed ruling to bites that cause only simple hurt.
- Section 118 of the B.N.S. repeats the old wording, so nothing has changed.
A bite is punished according to the injury it causes, not as hurt by a dangerous weapon. A simple injury: Section 115. A grievous injury: Section 117. Not Section 118.
The man who bit off the top segment of Zoya's finger caused grievous hurt. After Shakeel Ahmed, he faces Section 117, and not Section 118.
Hurt by poison with intent to commit an offence (Section 123)
▶ Watch this part of the lecture (15:13)
Poison and acid each have a Section of their own. Section 123 is headed "Causing hurt by means of poison, etc., with intent to commit an offence." It reads:
"Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
Ingredients
- Administering to, or causing to be taken by, any person;
- any poison, or any stupefying, intoxicating or unwholesome drug, or other thing;
- with one of these states of mind: intent to cause hurt to that person; or intent to commit, or to facilitate the commission of, an offence; or knowledge that he is likely to cause hurt.
Punishment: imprisonment of either description up to ten years, and fine.
Section 123 does not require that any hurt actually be caused. The offence is complete once the substance is administered with the stated intent or knowledge.
A domestic help mixes sleeping pills into a family's evening tea so that her accomplices can empty the cupboards at night. Even if the family wakes up perfectly well the next morning, she has committed this offence, because her purpose in giving the drug was to make a theft easier.
Acid attacks (Section 124)
▶ Watch this part of the lecture (16:13)
Section 124 is headed "Voluntarily causing grievous hurt by use of acid, etc."
Section 124(1): causing grievous hurt by acid
"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 or causes a person to be in a permanent vegetative state 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."
Punishment: imprisonment of either description of not less than ten years, which may extend to imprisonment for life, and fine.
The fine goes to the victim
This is the only provision in this group where the law says who receives the fine.
- First proviso: "Provided that such fine shall be just and reasonable to meet the medical expenses of the treatment of the victim".
- Second proviso: "Provided further that any fine imposed under this sub-section shall be paid to the victim."
Under Section 124(1), the fine does not simply go to the State. It must be just and reasonable to meet the victim's medical expenses, and it is paid to the victim.
Section 124(2): throwing or attempting to throw acid
"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."
Punishment: imprisonment of either description of not less than five years, which may extend to seven years, and fine. Sub-section (2) reaches even an attempt.
Both sub-sections of Section 124 fix a minimum sentence: ten years under sub-section (1), five years under sub-section (2).
The two Explanations
- Explanation 1: "For the purposes of 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: "For the purposes of this section, permanent or partial damage or deformity or permanent vegetative state shall not be required to be irreversible."
Because of Explanation 2, an attacker cannot escape by pointing out that surgery later repaired part of the damage.
Hurt to extort property or constrain to an illegal act (Section 119)
▶ Watch this part of the lecture (17:53)
From the tool, the law moves to the motive. Three purposes make hurt more serious: extorting property or forcing an illegal act (Section 119), extorting a confession or restoration of property (Section 120), and deterring a public servant (Section 121).
Section 119 is headed "Voluntarily causing hurt or grievous hurt to extort property, or to constrain to an illegal act." The offence is committed when hurt is used as a tool:
- to obtain property or a valuable security, either from the injured person or from someone interested in him; or
- to force either of them to do something illegal, or something which may facilitate the commission of an offence.
A gang twists a truck driver's arm until he agrees to carry smuggled liquor through a check-post.
| Harm caused | Punishment |
|---|---|
| Hurt | Up to ten years, and fine |
| Grievous hurt | Imprisonment for life, or imprisonment of either description up to ten years; and fine |
Hurt to extort confession or compel restoration of property (Section 120)
▶ Watch this part of the lecture (18:49)
Section 120 is headed "Voluntarily causing hurt or grievous hurt to extort confession, or to compel restoration of property." It applies where hurt is used:
- to squeeze out a confession, or information which may lead to the detection of an offence or misconduct; or
- to force someone to restore property or a valuable security, to meet a claim or demand, or to reveal information which may lead to such restoration.
| Harm caused | Maximum punishment |
|---|---|
| Hurt | Seven years, and fine |
| Grievous hurt | Ten years, and fine |
The main target: torture by officials
The Section begins with the word "whoever", so anyone can commit it. But its three Illustrations reveal its main target:
- a police officer tortures someone to obtain a confession to a crime;
- a police officer tortures someone to learn where stolen property is kept;
- a revenue officer tortures someone to recover unpaid revenue.
The undertrial prisoner was beaten on the soles of his feet to get a confession. The officer who did it is exposed to Section 120.
D.K. Basu v. State of West Bengal
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D.K. Basu v. State of West Bengal (Supreme Court, decided on 18 December 1996)
Facts: this landmark began as a letter. D.K. Basu was the Executive Chairman of Legal Aid Services in West Bengal. On 26 August 1986, troubled by several newspaper reports of people dying in police lock-ups, he wrote to the Chief Justice of India, asking the Court to look into custodial deaths and to work out how victims could be compensated. The Court converted his letter into a writ petition. A later letter by Ashok Kumar Johri, about the death of Mahesh Bihari in police custody in Aligarh, was heard along with it.
Issues: (1) How can a person held by the police be protected? (2) What remedy should follow when that protection fails?
Held: custodial torture is a naked violation of human dignity and is forbidden by Article 21 of the Constitution, which guarantees life and personal liberty. The Court recalled that Sections 330 and 331 of the IPC had long made it a crime to cause hurt or grievous hurt for extracting confessions or information, but observed that mere punishment of the offender cannot give much solace to the family of the victim. It therefore recognised money compensation as a public law remedy when the State violates the right to life. To stop the abuse at its source, it issued eleven requirements to be followed whenever a person is arrested or detained.
Principle: custodial torture violates Article 21; the victim's remedy includes compensation in public law, and arrest and detention must follow the requirements laid down by the Court.
Four of the eleven requirements to remember
- The arresting officers must wear accurate, visible identification and name tags.
- An arrest memo must be prepared, witnessed, and countersigned by the person arrested.
- A friend or relative must be told about the arrest.
- A doctor must examine the arrested person every 48 hours while he remains in custody.
The safeguards in present law
The two old offences the Court mentioned (Sections 330 and 331 of the IPC) now sit together in Section 120 of the B.N.S. Many of the D.K. Basu safeguards have moved into the B.N.S.S.:
| B.N.S.S. provision | Safeguard |
|---|---|
| Section 36 | Visible identification of the arresting officer, and a witnessed, countersigned memorandum of arrest |
| Section 38 | The arrested person may meet an advocate of his choice during interrogation, though not throughout it |
| Section 48 | The police must tell a relative or friend about the arrest |
| Section 53 | Medical examination after arrest |
Hurt to deter a public servant from duty (Section 121)
▶ Watch this part of the lecture (23:41)
The last of the three motives concerns people who work for the State. Section 121 is headed "Voluntarily causing hurt or grievous hurt to deter public servant from his duty." It applies in three situations:
- a public servant is hurt while actually performing his duty as a public servant;
- the hurt is meant to stop or frighten him, or any other public servant, from performing that duty;
- the hurt is a reaction to something he did, or tried to do, in the lawful performance of his duty.
A forest guard is beaten by timber smugglers because he seized their logs the week before. This is the third situation.
| Harm caused | Punishment |
|---|---|
| Hurt | Up to five years, or fine, or both |
| Grievous hurt | Imprisonment of either description of not less than one year and up to ten years, and fine |
Hurt on grave and sudden provocation (Section 122)
▶ Watch this part of the lecture (24:32)
Every adjustment so far has added weight. Section 122 removes some. It is headed "Voluntarily causing hurt or grievous hurt on provocation."
Section 122(1): hurt
"Whoever voluntarily causes hurt on grave and sudden provocation, if he neither intends nor knows himself to be likely to cause hurt to any person other than the person who gave the provocation, shall be punished with imprisonment of either description for a term which may extend to one month, or with fine which may extend to five thousand rupees, or with both."
Section 122(2): grievous hurt
The same relief is given where the hurt is grievous, again only if the accused neither intends nor knows that he is likely to cause grievous hurt to anyone except the provoker.
| Sub-section | Harm caused | Punishment |
|---|---|---|
| Section 122(1) | Hurt | Imprisonment of either description up to one month, or fine up to ₹5,000, or both |
| Section 122(2) | Grievous hurt | Imprisonment of either description up to five years, or fine up to ₹10,000, or both |
The relief applies only if the accused neither intends nor knows himself to be likely to hurt anyone other than the person who gave the provocation.
Why the leniency?
A sudden flash of anger that overpowers self-control deserves less blame than a cold, deliberate attack.
A stranger suddenly slaps a man's elderly father in front of him, and the son instantly strikes back. That may be grave and sudden provocation.
Limits on the relief
The relief is not unlimited. The Explanation to Section 122 applies the same proviso that governs Exception 1 of Section 101 (the murder provision). Under that proviso, the relief is lost in three situations:
- where the offender himself sought or voluntarily provoked the provocation as an excuse for killing or doing harm to any person;
- where the provocation came from something done in obedience to the law, or from a public servant in the lawful exercise of his powers;
- where it came from something done in the lawful exercise of the right of private defence.
When a court officer lawfully attaches a man's furniture, the man cannot claim that he was provoked.
Act endangering life or personal safety of others (Section 125)
▶ Watch this part of the lecture (26:26)
Everything above required intention or knowledge. But many injuries are caused by people who never meant to hurt anyone. Section 125 is headed "Act endangering life or personal safety of others." Its opening words are:
"Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others"
| Rash act | Negligent act |
|---|---|
| Done with a conscious disregard of a known risk. The person sees the danger and goes ahead anyway. | A failure to take the care that a reasonable person would take. |
Punishment rises with the damage
| Result of the rash or negligent act | Provision | Punishment |
|---|---|---|
| Danger alone | Section 125 | Imprisonment of either description up to three months, or fine up to ₹2,500, or both |
| Hurt | Section 125, clause (a) | Up to six months, or fine up to ₹5,000, or both |
| Grievous hurt | Section 125, clause (b) | Up to three years, or fine up to ₹10,000, or both |
| Death | Section 106(1) | The case moves out of this chapter to causing death by negligence |
Punishments at a glance
| Section | Offence | Punishment |
|---|---|---|
| 115(2) | Voluntarily causing hurt | Up to 1 year, or fine up to ₹10,000, or both |
| 117(2) | Voluntarily causing grievous hurt | Up to 7 years, and fine |
| 117(3) | Grievous hurt causing permanent disability or persistent vegetative state | Rigorous imprisonment of not less than 10 years, up to life (remainder of natural life) |
| 117(4) | Grievous hurt by a group of five or more on grounds such as race or caste | Each member: up to 7 years, and fine |
| 118(1) / 118(2) | Hurt / grievous hurt by dangerous weapons or means | Up to 3 years, or fine up to ₹20,000, or both / life, or 1 to 10 years, and fine |
| 119 | Hurt / grievous hurt to extort property or constrain to an illegal act | Up to 10 years, and fine / life, or up to 10 years, and fine |
| 120 | Hurt / grievous hurt to extort confession or compel restoration of property | Up to 7 years, and fine / up to 10 years, and fine |
| 121 | Hurt / grievous hurt to deter a public servant from duty | Up to 5 years, or fine, or both / 1 to 10 years, and fine |
| 122(1) / 122(2) | Hurt / grievous hurt on grave and sudden provocation | Up to 1 month, or fine up to ₹5,000, or both / up to 5 years, or fine up to ₹10,000, or both |
| 123 | Administering poison etc. with intent to commit an offence (no hurt need actually be caused) | Up to 10 years, and fine |
| 124(1) | Grievous hurt by acid | Not less than 10 years, up to life, and fine (fine paid to the victim) |
| 124(2) | Throwing or attempting to throw acid | 5 to 7 years, and fine |
| 125 | Rash or negligent act: danger alone / (a) hurt / (b) grievous hurt | Up to 3 months, or fine up to ₹2,500, or both / up to 6 months, or fine up to ₹5,000, or both / up to 3 years, or fine up to ₹10,000, or both |
Quick revision
▶ Watch this part of the lecture (32:24)
- Prince (the watchman): terror and collapse are infirmity, and therefore hurt (Jashanmal Jhamatmal). The youths knew that a shock was likely, so they voluntarily caused hurt under Section 115.
- Zoya: losing the top segment of her finger is grievous hurt. After Shakeel Ahmed, teeth are not a dangerous weapon, so the offence is voluntarily causing grievous hurt under Section 117, not Section 118.
- Farhan (the delivery rider): a fractured collarbone is grievous hurt under clause (g) of Section 116. But the motorist had no intention or knowledge of hurting him; he acted carelessly. The right provision is clause (b) of Section 125.
- The undertrial prisoner: beaten to make him confess. The officer is liable under Section 120, and the case is exactly the kind of abuse that D.K. Basu and the arrest safeguards of the B.N.S.S. were meant to prevent.
- Aadil (the farmer): an iron rod used as a weapon of offence can easily be an instrument likely to cause death. At the very least, it is voluntarily causing grievous hurt by dangerous means under Section 118(2), because anyone who swings an iron rod at a man's head knows that grievous hurt is likely. If the number of blows, the target and the force show an intention to kill, then, as in Laxman, it becomes attempt to murder under Section 109.
- Three persons in every hurt case: the doctor describes the injury (Sections 114 and 116); the judge reads the mind (Sections 115 and 117); and the lawmaker has already fixed what the tool, the motive, the temper or the carelessness will cost (Sections 118 to 125).
