Blow With Bamboo Stick Or Rod At Elbow Can Hardly Be Said To Cause Death: Calcutta High Court Reduces Sentence To Accused Convicted U/S 326 IPC
The Court altered the petitioners' conviction to Section 325 IPC, reducing their sentence to six months of simple imprisonment.
Justice Dr. Ajoy Kumar Mukherjee, Calcutta High Court
The Calcutta High Court has observed that a blow by a bamboo stick or rod directed at a victim's elbow does not inherently constitute an offence under Section 326 of the IPC, as such instruments are not by their very nature "likely to cause death".
It was observed that while the assault resulted in a fracture and required a 23-day hospital stay—qualifying it as grievous hurt under Section 320—the nature of the weapon and the site of the injury did not meet the high threshold of a "dangerous weapon".
The Bench of Justice Ajoy Kumar Mukherjee observed, “Here the grievous injury at right elbow of the victim resulted from a blow with a bamboo stick or rod. The blow with the help of bamboo stick or rod causing grievous injury at right elbow can hardly be said to cause death. To attract section 326 the instrument by virtue of its very nature should be such that one should reasonably predicate that by its use as weapon of offence, death would be probable and it is something inherent in the instrument which rendered death probable.”
Advocate Abhimanyu Banerjee appeared for the Petitioner, while Advocate Anand Keshari appeared for the Respondents.
Factual Background
A petition was filed assailing the judgment and order passed by the Sessions Judge by which the Sessions Court affirmed the judgment and order of conviction for the offence punishable under Section 326 and 34 of the Indian Penal Code,1860.
The Complainant alleged that several individuals, motivated by a prior grudge, had verbally abused and physically assaulted him with bamboo sticks and iron rods. When his wife, Rani, and mother-in-law, Kunti, attempted to intervene, they were also injured. Subir sustained severe injuries and was treated at a Medical College hospital.
Observations of the Court
The Court addressed the liability of the accused, emphasizing that when an unlawful assembly acts with common intention, every member is liable for the resulting injuries, regardless of who struck the specific blow.
It further noted that High Courts should only interfere with the concurrent findings of lower courts in exceptional cases where the judgment is "perverse" or legally unsustainable. Minor discrepancies in the witnesses' testimonies regarding the time or place of the incident were dismissed as immaterial, given the long passage of time between the event and the trial.
The Court dealt with the question of whether the hurt suffered by the victim can be called “grievous hurt” caused by the petitioners in furtherance of a common object.
The Court said, “Now in order to punish the offenders under section 326 IPC, it is not only sufficient to show that the accused persons caused grievous hurt voluntarily with the knowledge that thereby they were likely to cause hurt or grievous hurt to the victim but also the prosecution is required to show that the assailants has caused grievous hurt by means of any of the following. (a) By any instrument of shooting, stabbing or cutting;(b) By any instrument, if used as a weapon of offence likely to cause death; (c) By fire or heated substance; (d) By poisonous or corrosive substance; (e) By explosive substance; (f) By any substance deleterious to the human body to inhale or swallow; (g) By means of any animal.”
Regarding the definition of ‘weapon of offence’, the Court said that the instrument of offence must be one, not which is liable but which is likely to cause death, the instrument used must be one of which one can predicate that the probable result of its use will be, by virtue of its very nature, death. It must be inherent in the nature of the instrument used, the death is likely to ensue.
“That being the true import of the word ‘likely’ used in section 326 the bamboo stick or rod said to have been used for assault of the victim at right elbow in the instant case cannot be said to be by its very nature an instrument “likely to cause death” within the purview of that section. That aspect of the matter has not been taken care of by both the courts below, while they had put the law with the facts and circumstances of the case”, the Court said.
It was concluded that the observation made by the lower courts that the accused persons/petitioners caused grievous hurt to the victim, but such grievous hurt was not caused by a dangerous weapon was agreeable.
Accordingly, the Court disposed of the Petition, and the sentence was reduced to six months of simple imprisonment.
Cause Title: Goutam Saha & Ors. v. The State of West Bengal & Anr. [Neutral Citation: 2026:CHC-AS:359]
Appearances:
Petitioner: Advocates Abhimanyu Banerjee and Arghya Mullick
Respondents: Advocate Anand Keshari and Bikram Mitra