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PETITIONER: MRS.  VEEDA MENEZES

       Vs.

RESPONDENT: YUSUF KHAN AND ANR.

DATE OF JUDGMENT: 31/03/1966

BENCH: SHAH, J.C. BENCH: SHAH, J.C. WANCHOO, K.N. SIKRI, S.M.

CITATION:  1966 AIR 1773            1966 SCR  123

ACT: Indian  Penal  Code  , s. 95-Harm  caused  whether  must  be accidental to come within General Exception-Physical  injury whether altogether outside purview of section.

HEADNOTE: In the course of an altercation between neighbours the first respondent slapped the appellant’s servant and threw a  file of  papers at the appellant’s husband which missed  him  but hit  the  appellant on the elbow, causing a scratch.   On  a prosecution   being  launched  the   Presidency   Magistrate convicted  the first respondent under s. 323 of  the  Indian Penal Code.  The High Court however held that the  offending act came within the General Exception in s. 95 of the Indian Penal  Code as it was trivial.  In appeal to this Court  the appellant  contended that: (1) Section 95 applies only  when the act of the accused is accidental and not deliberate; (2) the section cannot be invoked if the harm caused consists of physical injury. HELD:(i) It cannot be said that harm caused by doing an  act with  intent to cause harm or with the knowledge  that  harm may  be caused thereby will not fall within the terms of  s. 95.   The  section  applies if the act  causes  harm  or  is intended  to  cause harm or is known to be likely  to  cause harm,  provided  the  harm is so slight that  no  person  of ordinary  sense or temper would complain of such harm.  [125 F] (ii) There  is  nothing in s. 95 to justify  the  contention that  the  word  ’harm’ as used in  that  section  does  not include physical injury.  Section 95 is a general  exception and  that  word  has in many  other  sections  dealing  with general exceptions a wide connotation inclusive of  physical injury.  There is no reason to suppose that the  Legislature intended  to  use  the  expression ’harm’  in  s.  95  in  a restricted sense. [126 A-B] (iii)Whether,  an  offence  is trivial must  depend  on  the nature  of  the  injury, the position of  the  parties,  the knowledge or intention with which the offending act is done, and other related matters.[126 CD]

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JUDGMENT: CRIMINAL     APPELLATE     JURISDICTION:   Appeal No. 209 of 1964. Appeal  by special leave from the Judgment and  order  dated January  31,  1964  of the Bombay  High  Court  in  Criminal Revision Application No. 913 of 1963. J.   C.  Dalal,  E.  E.  Jhirad and  O.  P.  Rana,  for  the appellant. S.   C. Patwardhan B. Dutta, J. B. Dadachanjl, O. C. Mathur and Ravinder Narain, for respondent No. 1. The Judgment of the Court was delivered by Shah, J. The appellant, Mrs. Menezes, is the owner of a 123 124 house in Bombay, and the wife of the first respondent  Yusuf Khan is a tenant of a part of the first floor in that house. On  January 17, 1963 one Robert-a servant of the  appellant, called  the  wife  of  the  first  respondent  a  thief  and ’Halkat’.  On the next day the first respondent slapped  the face  of Robert.  This was followed by a heated exchange  of abusive   words  between  the  first  respondent   and   the appellant’s  husband.  The first respondent was annoyed  and threw  at the appellant’s husband a "file" of  papers.   The file  did  not hit the appellant’s husband, but it  hit  the elbow  of the appellant causing a "scratch".  The  appellant lodged information at the Bandra police station  complaining that  the first respondent had committed house  trespass  in order  to  the  committing of  an  offence  punishable  with imprisonment, had thrown a shoe at her, had slapped the face of  her servant Robert, and had also caused her a  "bleeding incised wound on the forearm".  The version of the appellant was  a gross exaggeration of the incident.  The  Officer  in charge of the police station was persuaded to enter upon  an investigation  on  this information, which by  charging  the respondent  with the offence of trespass was made to  appear as if a cognizable offence was committed.  The Sub-Inspector found that the appellant had suffered a mere scratch on  her elbow.  The appellant and Robert declined to go to a  public hospital  for  examination  or treatment, and  were,  it  is claimed,  examined  by a private medical  practitioner,  who certified  that  the  appellant  bad  suffered  a  "bleeding incised  wound,  skin deep, size 1" in length on  the  right forearm",  and that Robert had "a swelling about 1 1/2 "  in diameter, roundish, soft and tender", but no bruises. The offence was petty, but was given undue importance.   The case  was  transferred  from the  Court  of  the  Presidency Magistrate,   Bandra,  to  the  Court  of   the   Presidency Magistrate VI Court, Mazagaon, Bombay, and was entrusted  to a  special  prosecutor on behalf of the  State.   The  Trial Magistrate held that the story that the first respondent had trespassed into the house of the appellant was false and the charge of trespass was made only with a view to persuade the police  officer to investigate it as a  cognizable  offence. The  story  of the appellant that the first  respondent  had hurled  a  shoe  at her was  also  disbelieved.   The  Trial Magistrate  held that simple injuries were caused to  Robert and  to  the  appellant and for causing  those  injuries  he convicted  the first respondent of the offence under S.  323 I.P. Code and sentenced him to pay a fine of Rs. 10 on  each of  the  two  counts.  Against the order  of  conviction,  a revisional  application was preferred to the High  Court  of Judicature at Bombay.  The appellant was no longer concerned with the proceedings in the High Court, but since there were some negotiations for compounding the offence, the appellant

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was  impleaded as a party to the proceeding before the  High Court.   The High Court was of the view that  the  appellant had grossly exaggerated her story, that the evidence of  the medical  practitioner  who  claimed  to  have  examined  the appellant and Robert and to have                             125 certified  the injuries" did "not inspire confidence",  that the  husband of the appellant had addressed provocative  and insulting  abuses,  and that in a state  of  excitement  the respondent  hurled  a "file of papers"  at  the  appellant’s husband  which  missed  him and caused a  "scratch"  on  the appellant’s  forearm.  The injuries caused to the  appellant and  to Robert were in the view of the High Court  "trivial" and  the  case was one in which the injury  intended  to  be caused  was  so slight that a person of ordinary  sense  and temper  would not complain of the harm caused thereby.   The High   Court  accordingly  set  aside  the  conviction   and acquitted the first respondent. Before  us it was urged that the High Court had no power  to act  under  s.  95  I.P.  Code, since  by  the  act  of  the respondent  bodily  hurt was intentionally caused.   It  was argued that s. 95 applies only in those cases where the  act which  causes harm is actually caused to the complainant  s. 95 cannot be invoked.  In s. 95 I.P. Code includes financial loss, loss of reputation, mental worry or even  apprehension of  injury, but when physical, injury is actually caused  to the complainant s. 95 cannot be invoked.  In’ our view there is no substance in these contentions.  Section 95 provides:               "Nothing  is  and offence by  reason  that  it               causes,  or that it is intended to  cause,  or               that  it is known to be likely to  cause,  any               harm, if that harm is so slight that no person               of ordinary sense and temper would complain of               such harm." It  is true that the object of framing s. 95 was to  exclude from the operation of the Penal Code those cases which  from the  imperfection of language may fall within the letter  of the  law, but are not within its spirit and are  considered, and for the most part dealt with by the Courts, as innocent. It  cannot however be said that harm caused by doing an  act with  intent to cause harm or with the knowledge  that  harm may be caused thereby, will not fall within the terms of  s. 95.   The  argument is belied by the plain terms of  s.  95. The section applies if the act causes harm or is intended to cause harm or is known to be likely to cause harm,  provided the  harm is so slight that no person of ordinary sense  and temper would complain of such harm. The  expression "harm" has not been defined in  the  ’Indian Penal  Code:  in its dictionary meaning  it  connotes  hurt, injury;  damage; impairment, moral wrong or evil.  There  is no  warrant  for the contention raised that  the  expression "harm"  in  s.  95 does not include  physical  injury.   The expression  "harm"  is used in many sections of  the  Indian Penal Code.  In ss. 81, 87, 88, 89, 91, 92, 100, 104 and 106 the  expression can only mean physical injury.  In s. 93  it means  an  injurious mental reaction.  In s.  415  it  means injury  to a person in body, mind, reputation  or  property. In ss. 469 126 and  499  harm,  it is plain from the  context,  is  to  the reputation  of the aggrieved party.  There is nothing in  s. 95 which warrants a restricted meaning which counsel for the appellant  contends  should  be  attributed  to  that  word. Section  95 is a general exception, and if  that  expression has  in  many  other  sections  dealing  with  the   general

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exceptions  a  wide  connotation as  inclusive  of  physical injury,  there is no reason to suppose that the  Legislature intended  to  use  the  expression "harm"  in  s.  95  in  a restricted sense. The  next question is whether, having regard to the  circum- stances, the harm caused to the appellant and to her servant Robert  was so slight that no person of ordinary  sense  and temper would complain of such harm.  Section 95 is  intended to prevent penalisation of negligible wrongs or of  offences of  trivial character.  Whether an act which amounts  to  an offence is trivial would undoubtedly depend upon the  nature of the injury, the position of the parties, the knowledge or intention  with which the offending act is done,  and  other related circumstances.  There can be no absolute standard or degree  of  harm which may be regarded as so slight  that  a person  of ordinary sense and temper would not  complain  of the  harm.   It cannot be judged solely by  the  measure  of physical  or  other  injury  the  act  causes.   A   soldier assaulting   his  colonel,  a,  policeman   assaulting   his Superintendent,  or  a  pupil beating  his  teacher,  commit offences,  the  heniousness of which  cannot  be  determined merely  by the actual injury suffered by the officer or  the teacher, for the assault would be wholly subversive of  dis- cipline.   An assault by one child on another, or even by  a grown-up person on another, which causes injury may still be regarded as so slight, having regard to the way and  station of life of the parties, relation between them, situation  in which  the  parties are placed, and other  circumstances  in which  harm  is caused. that the victim ordinarily  may  not complain of the harm. The complainant’s husband had, it appears, beaten the  first respondent’s  child for some rude behaviour and  Robert  the appellant’s servant was undoubtedly rude to the respondent’s wife and instead of showing contrition he said that he would repeat  his  rude  words.  At the time of  the  incident  in question,  the appellant’s husband and the first  respondent exchanged  vulgar  abuses.  Apparently  the  respondent  was annoyed  and  threw a "file" of papers which caused  a  mere scratch  to  the  appellant.  It is true  that  the  servant Robert was given a slap on the face by the first respondent. But the High Court was of the view that the harm caused both to  the appellant and to Robert was "trivial", and that  the evidence  justified  the conclusion that the injury  was  so slight that a person of ordinary sense and temper placed  in the  circumstances  in which the appellant and  Robert  were placed  may  not reasonably have complained for  that  harm. Even  granting  that a different view may be  taken  of  the evidence, we do not think that we would                             127 justified in an appeal under Art. 136 of the Constitution in discreeing with the order of the High Court. We  therefore maintain the order of acquittal passed by  the High  Court.  This court had at the time when special  leave was  granted  directed that Rs. 1,500 be  deposited  by  the appellant by way of costs of the respondents.  The State  of Maharashtra  has not appeared before us in this appeal.   In the  circumstances,  we direct that Rs. 750 be paid  to  the first  respondent  and  the  balance  be  returned  to   the appellant.                      Appeal dismissed. 128