Essential ingredients for Section 326 Indian Penal code
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.
As was noted by the Supreme Court in case of State of U.P. vs. Indrajeet Alias Sukhatha, (2000)(7) SCC 249) there is no such thing as a regular or earmarked weapon for committing murder or for that matter a hurt. Whether a particular article can per se cause any serious wound or grievous hurt or injury has to be determined factually. At this juncture, it would be relevant to note that in some provisions e.g. Sections 324 and 326 expressions “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. That would determine whether in the case Section 325 or Section 326 would be applicable.
Definition of Grievous Hurt –
“Grievous hurt” has been defined under section 320 of the Indian Penal Code which reads as under:-
“320 Grievous hurt. – The following kinds of hurt only are designated as “grievous” :-
Secondly – Permanent privation of the sight of either eye.
Thirdly – Permanent privation of the hearing of either ear.
Fourthly – Privation of any member or joint.
Fifthly – Destruction or permanent impairing of the powers of any member or joint.
Sixthly – Permanent disfiguration of the head or face.
Seventhly – Fracture or dislocation of a bone or tooth.
Eighthly – Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits
Definition of Fracture –
It is true that fracture has not been defined in the Penal Code. It is sometimes thought as in the case of Po Yi Maung v. Ma E Tin, AIR 1937 Rangoon 253, that the meaning of the word fracture would imply that there should be a break in the bone and that in the case of a skull bone it is not merely sufficient that there is a crack but that the crack must extend from the outer surface of the skull to the inner surface. In the case of Mutukdhar Singh v. Emperor, AIR 1942 Patna 376, it was observed that if the evidence is merely that a bone has been cut and there is nothing whatever to indicate the extent of the cut, whether a deep one or a mere scratch on the surface of the bone, it will be difficult to infer that the injury is a grievous hurt within the meaning of Section 320 of the Penal Code. In our view, both these assumptions are misleading. It is not necessary that a bone should be cut through and through or that the crack must extend from the outer to the inner surface or that there should be displacement of any fragment of the bone. If there is a break by cutting or splintering of the bone or there is a rupture or fissure in it, it would amount to a fracture within the meaning of clause 7 of Section 320.
Dangerous weapon –
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.
However, we make it clear that whether a particular weapon comes under the category of dangerous weapon or not depends upon various factors and as such as has been observed by the Apex Court in the above said case, it is not possible to generalize as to which weapon would constitute the dangerous weapon and this would depend upon the facts of this case. Therefore, the facts of each case would decide as to whether the case is made out under Section 325 or Section 326 of the Indian Penal Code.