assault,criminal force & grievous hurt

Criminal Notes by Tuan Syakeer bin Tuan Besar 2011/2012

TOPIC 3:

ASSAULT, CRIMINAL FORCE, HURT & GRIEVOUS HURT

1. Introduction to Assault, Criminal Force, Hurt & Grievous Hurt -under English Common Law: Using criminal force is similar to the offence of battery-these are result crimes-known as non-fatal offences against person/body-different with fatal offences such as murder & culpable homicide-Graduation of seriousness of these offences:

Assault Criminal Force Hurt Grievous Hurt

2. Types of non-Fatal Offences

(A.) CRIMINAL FORCE1) The use of force by a person is defined in s. 349 of PC where it says: a) If he causes motion/change of motion/cessation of motion to that other

ORb) If he causes to any SUBSTANCE such motion/change of motion/cessation of

motion as brings that substance into contact with any part of that other’s body/with anything which that other is wearing/carrying/with anything so situated that such contact affects that other’s sense of feeling.

2) Criminal force is defined in s. 350 of PC where it says:

“Whoever intentionally uses force to any person,

W/o that person’s consent,

In order to cause the committing of any offence/intending by the use of such force illegally to cause/knowing it to be likely that by the use of such force he will illegally cause injury/fear/annoyance to the person to whom the force is used”

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3) Examples of Situations against a Person under s. 350: -Causing motion: Causing something to move Illustration (a); A unfastens the moorings & causes the boat (where Z is sitting in) to drift down the stream + Z did not consent + to commit/intend/know it to be likely that force will cause injury/fear/annoyance to Z)

-Change of motion: To cause something that is moving slowly to move faster/slower Illustration (b); A lashes Z’s horse which he was riding in a chariot and causes it to quicken its pace + w/o Z’s consent + intend/know it to be likely to injure/frighten/annoy Z)

-Cessation of motion: To cause something to stop Illustration (c); A intended to rob Z, seizes the horse which Z is riding in a carriage, seizes the horse & stops the carriage + w/o Z’s consent + to commit the offence-robbing Z)

4) Examples of Situations involving any Substance to affect a person -causes such motion to any substance/change of motion/cessation of motion-any part of the other person’s body Illustration (e); throwing of a stone to produce the effect of causing any substance to come into contact with Z/Z’s clothes + w/o Z’s consent + intending to injure/frighten/annoy Z.-anything that he is wearing Illustration (f); A intentionally pulls up a woman’s veil + w/o her consent + intend/know it to be likely to injure/frighten/annoy her

5) Elements to prove the Offence of Criminal Force: a) Actus Reus

i. the use of criminal force to any person, w/o that person’s consent-Causes motion/change of motion/cessation of motion OR

Causing motion/changing of motion/cessation of motion to any substance to bring it into contact

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ii. such motion, etc must be caused by one of the 3 methods specified under s. 349:

1) by his own bodily power (e.g. Illustration (d) – A pushes against Z in the street)

2) by disposing a substance so as to cause motion, etc w/o any further act on the part of either party (e.g. Illustration (a) – pushing Z’s boat to drift down the stream)

3) by inducing any animal to move, etc (e.g. Illustration (b) – A lashes Z’s horse to quicken its pace)

-the Complainant did not consent, if consented to such force then, no offence is committed.

-Legal Maxim: De minimis non curat lex (the law does not take into consideration a trivial matter) In an ordinary conduct of life (riding in a bus with a lot of pessenges)

b) Mens Rea -intention (intentional use of force to any person)-the use of force must be either to commit an offence/intend by the use of such force illegally to cause/knowing it to be likely to cause injury/fear/annoyancee.g. A pushes B in order to commit theft (snatches B’s handbag). A simply pushes B knowing that B would fall & suffer injury and even if B did not fall & suffer injury, A can still be liable for causing fear & annoyance to B.

Case:

Chandrika Sao & Hazari Lal v State of Bihar -Facts: Mr. Singh who is a tax inspector entered a shop to inspect the account book. He took up 2 sets of the account books & started examining them. Later, the Appellant snatch the books away from his hands. This had caused Singh’s hands to jerk.

HELD:-the Appellant’s act of snatching away the books from Mr. Singh’s hands had caused a jerk. Hence, the Appellant is said to have caused motion to Mr. Singh’s hands. And the natural effect of

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snatching away the books by the Appellant would be to affect the sense of feeling of the hands of Mr. Singh.-No doubt that Appellant’s action amounts to the use of force s contemplated by s. 349 of Indian PC-the force applied by the Appellant had been intentionally caused/at least, caused annoyance to Mr. Singh.

(B.) ASSAULT -it is an offence which is defined under s. 351 of PC as:“Whoever makes any gesture/any preparation (the ACTUS REUS), intending or knowing it to be likely that such gesture/preparation will cause any person present to apprehend that he who makes the gesture/preparation is about to use criminal force to that person (the MENS REA)”

-Elements to prove the Offence of Assault:1) Actus Reus

-making any gestures/any preparations (e.g. shake a fist/point a gun)-must be a physical gesture/preparation-threats of future violence are not covered by s. 351-Explanation to s. 351 Mere words do not amount to an assault BUT words accompanied by gestures/preparations may amount to an assault.Cases:

Reid v Coker -Facts: the Complainant was a trespasser & the Accused had threatened that he will break the Complainant’s neck if he did not leave. To add to what he said earlier on, the Accused & his friends rolled up their sleeves.

HELD:-the act of rolling up sleeves is a prima facie an innocent action but if accompanied by words indicating that this was being done in preparation for punching someone in the fact, it would be a sufficient gesture/preparation to satisfy s. 351.

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-The Accused was liable for assault as there were gestures which were accompanied by threatening words.

Tuberville v Savage -Facts: the Accused placed his hand on the hilt of his sword & told his victim, “If it were not assize time, I would not take such language from you”.

HELD:-The Accused act did not amount to an assault because although placing his hands on his sword could be sufficient gesture, the accompanying words indicated that the force was not going to be used.

Logdon v DPP

HELD: It is necessary for the Prosecution to prove that there is apprehension of fear on the part of the Complainant.

2) Mens Rea -the Accused must intend/know that it is likely that his gestures/preparations will cause apprehension of immediate physical force.-Literal Interpretation: No need for the victim to actually apprehend that physical force is about to be used against him (not adopted by Indian courts & writers)-as long as the Accused intends to cause apprehension of fear, it is irrelevant whether he succeeds (e.g. A sharpens his knife in front of B saying, “I’m going to cut your arm”. B is deaf & does not apprehend any physical force. The Accused would be nevertheless, be liable.

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-Cases:

Jashanmal Jhamatmal v Bahramand Sarupanand -Facts: the Accused “put out his hand towards the woman in a menacing manner so as to cause her to apprehend that he was about to use criminal force”

HELD:-the Accused was charged & convicted for assault.

Ram Singh -similar to Jashanmal’s Case HELD:-It was an assault when the Accused “came sufficiently close to the officers to raise in their minds a reasonable apprehension that the actual force as likely to be used.”

Nelson (1983) Drawing o such Indian authorities concludes that the “gist of the offence lies in the effect (apprehension of fear on Complainant) which the threat creates upon the mind of the victim”.

-the English law imposes some requirement that there be a threat of immediate force, but somewhat adopted a flexible attitude as can be seen in the case of Smith v Chief Superintendent, Working Police Station.

Smith v Chief Superintendent, Working Police Station -Facts: A woman was held to be assaulted when she saw the Accused looking through her closed bedsitting room window at 11pm.

HELD:-Although the Accused was outside her room & still had to break the window & climb in before he could inflict violence upon her-the threat of force was sufficiently immediate

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-Under s. 351, he would intend/know that she was likely to apprehend that he was “about to use” criminal force on her.

Distinction between Criminal Force & Assault

CRIMINAL FORCE ASSAULT

1. It requires an application of force by the Accused.

1. It merely talks about gesture/preparation to do the criminal force.

2. The blow must be struck on the victim.

2. Not necessary for the blow to strike the victim. The essence is the apprehension of fear/danger that is felt by the Complainant.

(C.)HURT -the word, “hurt” is defined under s. 319 of the PC as:“Whoever causes bodily pain/disease/infirmity to any person…”

-it is an offence (voluntarily causing hurt) which is defined under s. 321 where it says:“Whoever does any act (the ACTURS REUS-refer to s. 319 for the word, “hurt”) 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 (the MENS REA).”

Elements to prove the Offence of Hurt:

1) Actus Reus -any bodily pain (a physical body pain)-a disease (whatever illness that is inflicted) by the Accused on the Complainant-an infirmity (a hurt a mental & physical impairment

-Problem: A disease involving in a sexual intercourse. -If there is consent & the Accused did not tell the Complainant about his disease, can he still be liable?

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2) Mens Rea -s. 321 of PC the Accused does any act with intention to cause hurt to any person/with knowledge that he is likely to cause hurt to any person & in fact caused hurt to any person.

-Cases:

R v Clarence -Facts: the Husband was prosecuted for causing the wife to suffer gonorrhea. -the husband raised the defence of consent.-the wife argued that her consent was invalid since she had given her consent out of fraud because she did not know that her husband had gonorrhea.

HELD:-Wife’s consent was valid since she did not commit a mistake as to the identity of the person/nature of the act which is the sexual intercourse.-therefore, the husband is held not liable.

Raka v Emperor -A case where the Accused was a prostitute & she inflicted syphilis to her customer.

HELD:-the Accused prostitute was liable under s. 269 of PC – Negligent act likely to spread infection of any disease dangerous to life to another person.

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Jashanmal Jhamatmal v Brahmand Sarupanand -Facts: the Accused was charged with causing hurt to the Complainant’s wife. The Accused was a tenant in a building together with the wife of the Complainant. -The Accused was evicted by land law & was determined that if he can no longer stay there, no one else can.-the Accused confronted Complainant’s wife in the dark at the bottom of a staircase & he uttered a piercing shout ot “Haoo” & extended his arm at the woman, pointing a pistol at her-the woman collapsed due to nervous shock-the Accused argued:

there was no physical contact btw the two of them & he had no intention to scare her & that his intention was

only to get the tenants to leave the building the Complainant’s wife did not suffer any physical pain

HELD:

Not necessary for them to have a physical contact with one another. The Accused can still be liable. E.g. dig a hole in the road & a person fell/put poison in the food & someone eat it.

By virtue of s. 321 of PC, mens rea can also be knowledge & not only intention. The Accused should know that by pointing a gun, it would have scared the victim.

Hurt does not only mean bodily pain. According to s. 319 of PC, hurt also includes disease & infirmity. Nervous shock is considered to be an infirmity which comes within the definition of s. 319.

-the Accused was held liable.

Manzoor Ahmad v State of Allahabad -Facts: the Accused & a 15-year-old victim had an argument. When the boy complained of headache to the Accused, the latter gave him a glass of milk added with some copper sulphate saying that it was an effective medicine for headaches.

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-Shortly afterwards, the boy collapsed then, he vomited & was admitted to the hospital for a stomach-wash.

HELD:-the Accused was convicted of causing hurt to the boy with a poison contrary to s. 328 of PC (causing hurt by means of poison).

Relationship between Assault & Hurt If there is hurt, there is assault & also criminal force

(e.g. Slapping someone in the face) Not always the case though. When there is hurt, there can

be assault of criminal force (e.g. Making a hole to assault someone)

When there is no assault, there can be a criminal force & hurt (e.g. Attacking someone from behind using a stick, no reasonable apprehension of fear on the part of the victim/Complainant)

(D.) GRIEVOUS HURT (GH) -it is an offence under s. 322 of PC where it says:“Whoever voluntarily causes hurt, if the hurt which he intends to cause/knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt…”

-the Actus reus & Mens rea must coincide Intended/knows that it is likely to cause grievous hurt-e.g.1 A intends to break B’s leg, but it is not broken. A is not liable.-e.g.2 A slaps B intended to cause only hurt but, B suffered a broken jaw. A is not liable if he has no knowledge that B was suffering from brittle bones. However, A will be liable if he has the knowledge.

-In Criminal Law, the principle of “Egg-shell skull rule” cannot be accepted totally. The reason being the aim of Criminal Law is to punish the Accused & not to compensate the Complainant.

-Exp to s. 322: A person is guilty for voluntarily causing GH when he both causes grievous hurt & intends/knows himself to be likely to cause GH.

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And he is guilty of causing grievous hurt if, intending/knowing himself to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another kind.

Elements to prove the Offence of GH

1) Actus Reus -the Accused must cause a GH-must prove two things, one actions of Accused caused GH & the hurt caused must be GH (any kind of GH under s. 320)

-s. 320 underlines the kinds of hurt ONLY are designated as “grievous”:a) Emasculation

-deprive a man of his virility/unsexing the man/naturally applies to man; a common practice for Indian women to squeeze a man’s testicles on the slightest provocation.

b) Permanent privation of sight of either eye-Privation Loss/absence-Permanent loss of either eye such as causing blindness (as a result of throwing chemicals at one’s eye/gauge out entire eye)

c) Permanent privation of hearing of either ear-Permanent deafness

d) Privation of any member/joint-Nelson means nothing more than an organ/limb, being a part of a man, capable of performing a distinct office (functions)-e.g. eye, nose, mouth, hands, feet-“Joint” A place where 2/more bones/muscles join (e.g. Lower jaw, shoulder, elbow, wrist, thumb, hip, knee & great-joe)

e) Destruction/Permanent impairing of powers of any member/joint-Any permanent impairment short of privation will suffice-Diminishes usefulness of a member/a joint-No major injury.

f) Permanent disfiguration of head/face

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-same form of external injury which detracts from victim’s personal appearance-Disfiguration need not be substantial as long as it is permanent-any injury leaving a minor scar is included

g) Fracture/Dislocation of a bone-“Fracture means breaking

h) (i) Any hurt which endangers life/ (ii) which causes sufferer to be during the space of 20 days in severe bodily pain/(iii) unable to follow his ordinary pursuits.-this clause has 3 sub-divisions

2) Mens Rea of GH -s. 322 clearly says that the Accused must either intend to cause GH/know himself to be likely to cause GH.-Exp adds: Not necessary for the Accused to cause the same type of GH as intended (can be another type of GH)-the Accused will be liable if intend a permanent disfiguration of head/face or caused a fracture/dislocation of a bone.-may use Manzoor Ahmad’s Case as an authority.

-Cases:

Manzoor Ahmad v State of Bihar --Facts: the Accused & a 15-year-old victim had an argument. When the boy complained of headache to the Accused, the latter gave him a glass of milk added with some copper sulphate saying that it was an effective medicine for headaches.-Shortly afterwards, the boy collapsed then, he vomited & was admitted to the hospital for a stomach-wash.-the Accused was convicted of caushing hurt with a poinson contrary to s. 328 of PC.

HELD:

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-the Accused person of Appellant’s age must be presumed to know that such drug is poisonous/it is likely that he will thereby cause hurt to the Complainant-s. 319 defines hurt as either bodily pain/disease/infirmity may be either permanent/temporary Evidence: Vomiting + unconscious + stomach-wash.-the Appellant must be deemed to have had knowledge that administering a poisonous drug such as copper sulphate was likely to cause hurt to the Complainant.

Veeda Menezes v Yusuf Khan -urged that clear from medical evidence that the Complainant’s condition was normal & there was no risk for his life therefore, the offence will be covered by s. 95 of IPC (act causing slight harm).-Hence, the Appellant has committed no offence

Empress v Sahae Rae -Facts: the Accused intended to inflict injury upon mother but the blow landed on the baby carried by her which caused its death.

HELD:-the language of s. 321 covers even though the Accused intended to inflict injury to the mother & not the child.-doctrine of “transferred malice”.

Ramla v State of Rajasthan -Facts: the Accused was charged & convicted for causing GH. The PP called a witness doctor who treated the Complainant. The doctor was asked whether the injury caused would endanger life. He said that if the carotid artery would be cut, this could be something that could endanger life. Based on this testimony, the Accused was convicted.

HELD:-the judge opined that the Accused had caused an injury that endangers the victim’s life.-the Accused appealed & his appeal was allowed on the ground that a simple injury cannot be called grievous simply because it

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happens to be caused on a vital part of the body (which in this case is the neck) UNLESS, the nature & dimensions of the injury/its effects are such that in the opinion of the doctor it actually endangers the victim’s life.-despite the above dictum, Indian courts been strongly influenced by actual organ injured (e.g. injuries to head & neck virtually raise a presumption of endangering life)

Vasu Dev -Facts: the injury was inflicted by the Accused with a sharp object on the victim’s abdomen. He was charged for causing GH.

HELD: -Whether the injury endangers life depends on the place where the injury was inflicted. Since abdomen is a vital part of a human being thus, it endangers life.

Sahat v Haji Berahim -Facts: the Accused attacked the Complainant when he was walking on the street & fell unconscious. After he regained consciousness, he went home & told his wife of what happened. --He asked his wife to tell the Penghulu but she did not do as instructed. The Accused remained at home for 6 days. -Later, a detective came to the house, checked & the Complainant was hospitalized for more than 20 days. The Accused was charged for causing hurt.

HELD:-the confinement in the hospital for treatment raised a presumption that the sufferer was unable to follow his ordinary pursuit for the duration of his confinement. -However, subsequent to Indian cases have emphasized that there is no longer such presumption. Persons may be easily capable of following their ordinary pursuits but choose to remain in the hospital to convalesce fully/because the standard of care & food there may well be higher than at home.

Long bin Samad

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-Facts: the Accused was charged for the offence of causing hurt by using a dangerous criminal weapon (a parang) under s. 304 (punishment for culpable homicide not amounting to murder). He was convicted & he appealed.

HELD:On Appeal:-there was evidence to show that the victim suffered GH. -the Accused argued that he was wrongly convicted. He was convicted for hurt where it supposed to be GH.-thus, the Magistrates Court did not have the jurisdiction. Therefore this case was null & void,-Ct held that by referring to Art 145 of FC, it is the power of the PP to prosecute under hurt/GH.

Aggravated Form of Causing Hurt & GH-Under s. 324 & s. 326 (voluntarily causing hurt & GH respectively by using dangerous weapons/means)-the Accused had unsed dangerous weapons/means-e.g. “…an instrument for shooting, stabbing & cutting”-e.g. of such instruments: Firearms, arrows, a knife, a chopper, a samurai sword-an instrument which is a weapon per so (instrinsically dangerous)-an instrument which is used…is likely to cause death.”

Sultan Mohamed v R -Facts: the Accused inflicted injury on the victim by using a sharp stick of 36 inches long which is capable of causing death/rationale of s. 326 & 324

HELD:-Look at the generis rule (look at the nature of the instrument): The instrument must be dangerous & likely to endanger life.

Muniandi v PP

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HELD:-the Court criticized the decision in Sultan Muhamad’s case.-the court held that they did not take into consideration the nature of the weapon used but look at how the instrument is being used. -this is a more liberal interpretation-not confined to dangerous instruments/weapons. Anything that can be used as a weapon provided that such use of weapon is likely to cause death.-this includes a part of a human body (a fist/a kick)

Nga Po Yan

HELD:-a set of teeth can be used as a dangerous instrument to inflict injury on the victim.

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