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Bamboo Sticks Break Bones But Not Section 326: Calcutta HC Downgrades Assault Conviction
In a nuanced ruling that underscores the fine line between and its commission via " ," the has modified the conviction of six men accused of a brutal 2010 street assault. While upholding that they caused a fracture to the victim's elbow—firmly classifying it as under —the court altered their conviction from the harsher Section 326/34 to , slashing sentences to six months' simple imprisonment.
Justice Dr. Ajoy Kumar Mukherjee delivered the judgment in Goutam Saha & Ors. vs. The State of West Bengal & Anr. (CRR 3174 of 2018), partly allowing the petitioners' revision plea against concurrent convictions by trial and appellate courts.
A Night of Grudge-Fueled Violence
The incident unfolded on , around 10 PM on Keshab Chandra Sen Street in Kolkata. Victim Subir Nag alleged that the six accused—Goutam Saha, Sukumar Roy Choudhury, Bablu Sen, Sumit Majumder, Babu Nandy, and Bappa Majumder—harbored a previous grudge. They allegedly dragged him from his mother's house, abused him, and attacked with bamboo sticks and iron rods. His wife, Rani Nag, and mother-in-law, Kunti Das, rushed to his aid but were also assaulted.
Nag suffered a fracture near his right elbow, confirmed by an X-ray in the initial medical report from Medical College and Hospital, along with cuts, abrasions, and tenderness. He underwent surgery days later at Marwari Hospital and was discharged on —over 20 days later. An FIR was lodged promptly at under , upgraded to 326/34 post-investigation.
The trial court convicted them after examining Nag (PW1), Rani (PW2), Kunti (PW3), three doctors, and the investigating officer. Sentences: one year's rigorous imprisonment and Rs 5,000 fine. The sessions court affirmed this.
Petitioners Cry Foul: Probe Lapses and Shaky Evidence
The accused mounted a multi-pronged attack in revision. Their counsel highlighted investigative shortcomings—no scene reconstruction, no local witnesses despite the busy street, no weapon seizures, flawed medical report handling (no seizure list, unproven contents, no X-ray exhibited). They pointed to contradictions: FIR listed 166/H/12 KC Sen Street at 22:15 hrs; testimonies shifted to 125 KC Sen Street at 22:45-11 PM. The story evolved from assault en route to being dragged out.
Crucially, they argued no " " proof—no explicit "fracture" in reports, doctors admitting injuries could stem from falls, PW5 noting a "new injury" eight days later. Bamboo/rod? Not a "dangerous weapon" under Section 326, lacking inherent lethality.
Prosecution's Rock-Solid Eyewitness Chain
The state countered with reliable eyewitnesses: Nag, his wife, and mother-in-law, whose testimonies withstood cross-examination. The FIR named all accused promptly (55 minutes post-incident), medical history echoed the assault details, and Exhibit 4 (injury report) noted the fracture without objection. Minor discrepancies? Natural after years, ruled both lower courts. Medical evidence sealed it: fracture (7th limb of Section 320) plus 20+ days incapacity (8th limb).
Citing , courts applied for in an .
Drawing the Weapon Line: Grievous Yes, Deadly No
Justice Mukherjee refused to upend factual findings—FIR promptness, consistent core testimonies, and medical corroboration trumped minor variances and probe gaps.
"Interference... only in exceptional cases where... observations are found to be perverse,"
he noted, deeming no such grounds.
But the pivot: Section 326 demands
via instruments "likely to cause death" by inherent nature—like guns or poisons—not mere capability for harm.
"The blow with the help of bamboo stick or rod causing grievous injury at right elbow can hardly be said to cause death,"
the court held. Reiterating,
"the instrument by virtue of its very nature should be such that one should reasonably predicate that by its use as
, death would be probable."
Lower courts overlooked this, focusing on injury over instrument lethality.
Key Observations
"From the definition ofunder section 326 it is clear that the instrument of offence must be one... likely to cause death, the instrument uses must be one of which one can predicate that the probable result of its use will be by virtue of its very nature, death."
"Here the grievous injury at right elbow of the victim resulted from a blow with a bamboo stick or rod... cannot be said to be by its very nature an instrument 'likely to cause death' within the purview of that section."
"Therefore, though I am agreeable... that the accused persons/petitioners causedto the victim but suchwas since not caused by dangerous weapon, the conviction... is altered to one under section 325..."
Sentence Surrender: A Lighter Burden Ahead
Conviction downgraded to : six months' simple imprisonment each, Rs 5,000 fine (two months' default). Petitioners must surrender within four weeks, or face arrest.
This clarifies that fractures from blunt, everyday objects like bamboo rods land under Section 325, easing prosecutorial hurdles for Section 326 while safeguarding against overreach. Future cases may hinge on a weapon's innate deadliness, not just outcomes—potentially sparing harsher terms in similar brawls.
