MANU/SN/0037/1943

Equivalent Citation: AIR1944Sindh19

IN THE HIGH COURT OF SIND

Decided On: 05.07.1943

Appellants: Jashnmal Jhamatmal Vs.

Respondent: Brahmanand Sarupanand

Subject: Criminal

JUDGMENT

O'Sullivan, J.

1. This is a revision application raising a point of some interest. The complainant one Jashanmal who lives at Malir filed a complaint against the opponent who is a bawa or mendicant named Brahmanand, alleging that at about 10-30 on the night of 18th May 1942 the opponent suddenly confronted the complainant's wife in the dark at the bottom of the staircase of a building occupied by the complainant, uttered a piercing shout which appeared to sound like 'Haoo,' at the same time extending his arm towards the lady and pointing a pistol at her. It was the complainant's allegation that the opponent who occupies a portion of the same building had a dispute with he landlord who was endeavouring to evict him, that the opponent in retaliation had been trying to get the tenants of the building to leave, and that he, the opponent, set out to frighten the applicant's wife in the manner alleged, with a view to causing her to leave the premises.

2. It was alleged that after this episode the opponent ran away and tried to hide and the lady staggered to where her husband and several other people were sitting in the compound of the house and there collapsed from nervous shock. A doctor was shortly afterwards called in and attended her and it is the case of the prosecution that he found her in a state of hysteria and that she was seriously ill from nervous shock for some considerable time after the episode. It was complainant's case that the accused had committed offences punishable Under Sections 323, 325 and 352, Penal Code. The First Class Magistrate, Karachi, who heard the case came to the conclusion that no offence had been committed. He held that assuming the unfortunate woman had received a mental shock, no hurt had been caused to her as defined in Section 319, Penal Code.

3. He said:

The ingredient of this offence lies in the fact that it must be caused by an act which must be by direct application to the body, i. e., the causing of bodily pain must be caused by direct application of force to the body or the disease or infirmity must be done by some kind of contact.

4. On this view of the law the learned Magistrate found that neither simple nor grievous hurt had been caused to the lady. He was also of opinion that no offence Under Section 352, Penal Code, had been made out, because the evidence that the accused had a pistol in his hand at the time he extended his arm towards the lady was inconclusive. Now we think that the learned Magistrate's view of the law so far as the offence of voluntarily causing hurt or grievous hurt is concerned, is clearly erroneous. Section 319, Penal Code, defines hurt. It lays down that: "Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt." There is nothing in this definition to suggest that the hurt should be caused by direct physical contact between the accused and his victim and we consider it would be unreasonable to interpret the definition in the manner the Magistrate has done. The matter seems to be placed beyond any

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doubt by the remarks of the learned Law Commissioners who drafted Section 319, to the following effect:

Many of the offences which fall under the head of hurt will also fall under the head of assault. A stab, a blow which fractures a limb, the flinging of boiling water over a person, are assaults, and are also acts which cause bodily hurt. 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; a person who conceals a scythe in the grass on which another is in the habit of walking ; a person who digs a pit in a public path, intending that another may fall into it, may cause serious hurt, and may be justly punished for causing such hurt, but they cannot, without extreme violence to language, be said to have committed assaults.

We propose to designate all pain, disease and infirmity by the name of hurt.

5. The examples given by the learned Law Commissioners may, we consider, be extended to cases where serious mental derangement is caused by some voluntary act. It would be ridiculous to say for instance that a person who deliberately set out to cause shock to somebody with a weak heart and succeeded in doing so has not caused hurt; likewise obviously hurt would be likely to be caused to a nervous child, were a person to array himself in a white sheet and suddenly, without warning, spring upon that child on a dark night. Such an act might well cause the victim permanent mental derangement. Being dissatisfied with the Magistrate's decision the complainant applied to the District Magistrate of Karachi for an order for further inquiry, Under Sections 435 and 436, Criminal P.C. The learned District Magistrate came to a correct conclusion as to the law; he found himself unable to agree with the learned Magistrate that in order to constitute hurt there should be any physical contact. He said:

I am unable to accept this argument and consider that hurt cannot be caused by a gesture or action which does not involve the use of force or any physical contact.

6. The learned District Magistrate, however, on another ground came to the conclusion that the case was not one in which further inquiry should be ordered. He pointed out that

no offence can be held to have been committed, unless it can be proved that the accused did an act with the intention of causing hurt or with the knowledge that he was likely to cause hurt.

7. Having come to this conclusion he went on to find that

the most that could be said of his action was that he merely wished to frighten the woman or annoy her so that the complainant might be induced to remove from the compound in which he was living.

8. It is manifest that the learned District Magistrate was correct in his assumption that it was necessary to prove that the accused did the act complained of with the intention of causing hurt or with the knowledge that he was likely to cause hurt, but we consider that assuming the prosecution case to be sustantially true, more than a mere intention to annoy is to be inferred. Obviously if the facts are well-founded, the intention must have been so thoroughly to frighten the woman as to cause her to vacate the premises. If this object was to be served, the scheme of the accused must have been to present himself in the dark before the woman in a sudden and horrifying manner, the inevitable consequence of which would be a sharp shock to the nervous system. It might indeed have appeared to a woman of the mentality, education and standing of the complainant's wife that the apparition she saw was supernatural. Clearly in order to induce the woman to vacate the premises sufficient reaction upon her nervous system was necessary and the intention must have been to induce in her a sufficient state of fright or hysteria to serve the accused's purpose.

9. We think therefore that if the facts are correct and if such was the accused's intention, he

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must be presumed to have intended to cause hurt or to have known it likely that hurt would be caused. The duration of this state of mental infirmity would be immaterial. Infirmity denotes an unsound or unhealthy state of the body or mind and clearly a state of temporary mental impairment or hysteria or terror would constitute infirmity, in our opinion within the meaning of that expression in Section 319, Penal Code. We think therefore if the facts are true, the accused must be deemed to have intended to cause hurt to the woman, and the question whether that hurt was simple or grievous would be dependent on the medical evidence. On going through the order of the learned Magistrate, it appears he did not consider it necessary to discuss the evidence in any detail. He appears to have assumed that the accused suddenly appeared in front of the lady and shouted and frightened her and on this assumption he arrived at the erroneous legal conclusion referred to above. But we do not consider that the matter should rest here; we think that it is a case in which the learned Magistrate should have inquired more carefully into the facts.

10. It was argued before us with some vehemence from the bar that the accused on the night in question was within the part of the premises occupied by himself and that assuming the lady did hear him utter any sound, he was probably engaged in praying or in some other lawful pursuit. It was also contended that there is enmity between the accused and the landlord Zounkiram and that the case has been either invented or grossly exaggerated in complicity with the landlord with a view to getting the accused into trouble. It has also been suggested that the lady was probably of an extremely nervous temperament and was terrified by some involuntary act of the accused. The story is an unusual one and we do think that the evidence should be considered with some care and proper findings of fact arrived at in the light of the observations set forth above as to the law. With regard to an offence Under Section 352, Penal Code, if it is established that the accused did in the circumstances alleged by the prosecution 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, his act would constitute an assault. It would not be necessary to establish that he actually had any particular implement in his hand; but it is clear that questions of fact are involved and the learned Magistrate should have no difficulty in arriving at a conclusion on the facts as to whether any assault in law has been committed. We accordingly set aside the order of discharge and direct the Magistrate to make a further inquiry and to come to a decision in the light of the observations set out above

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