1. Revisionist/complainant is aggrieved by order dated 1.5.2015, whereby the Court below has exonerated the accused from the charge under section 326/34 of Indian Penal Code (IPC).

2. Shri R.P.Rathi, learned counsel for the revisionist, contends that the revisionist’s daughter Lata and father-in-law Shankar were keeping watch on her agricultural field, which was cultivated by tractor. The accused attacked them with kicks and fists by hitting the scrotum of Shankar (father-in-law), resulting in injury and severe pain. The FIR was registered for the offences under sections 323, 504, 506B and 34 IPC. The police, in turn, submitted the charge sheet. The Sessions Court, Shivpuri added the offence under section 326 IPC. The offence under section 326 was subsequently deleted by order dated 1.5.2015, which is called in question in the present petition.

3. The singular contention of Shri Rathi is that even if it is a blow by kick and fist or by any other body part, which resulted into grievous hurt, section 326 IPC is attracted. By taking this Court to section 326 IPC, it is contended that the word “instrument” is wide enough to include kick, fist or blow by any other body part. The Court must see the gravity of injury. He relied on AIR 1926 Lahore 313 (H. Mansel Pleydell of Simla v. Emperor), to contend that if somebody knowingly kicks a delicate and vulnerable part of human body, such blow may cause death. He also relied on AIR 1970 Patna 322 (Chaurasi Manjhi and another v. State of Bihar) to contend that in the said case, the appellant Jagdish Manjhi rode on the chest of PW1 and bit his lower lip with teeth, causing bleeding injury. The High Court considered the meaning of the word “instrument” and “tooth” as per Webster’s Third New International Dictionary and opined that for simple injury caused by tooth bite, the offender will be guilty under section 324 of Penal Code.

4. The prayer is opposed by Smt. Pachauri, learned Public Prosecutor.

5. I have heard learned counsel for the parties and perused the record.

6. It is apposite to reproduce section 326 IPC. It reads as under:-

“326. Voluntarily causing grievous hurt by dangerous weapons or means.—

Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

7. The main question is whether the expression “any instrument” used in section 326 includes kick, fist or blow by any other body part ?

8. The apex Court considered the expression “any instrument” in relation to section 324 IPC in (2005)10 SCC 581 (Anwarul Haq v. State of U.P.) The apex Court opined that the section prescribes a severe punishment where an offender voluntarily causes hurt by dangerous weapon or other means stated in the section. The expression “any instrument which, used as a weapon of offence, is likely to cause death” when read in the light of marginal note to section 324 means dangerous weapon which if used by the offender is likely to cause death. This para shows that expression “any instrument” is used in relation to a weapon of offence. The authors of IPC observed as under:-

“Bodily hurt may be inflicted by means the use of which generally indicates great malignity. A blow with the fist may cause as much pain, and produce as lasting an injury, as laceration with a knife, or branding with a hot iron. But it will scarecely be disputed that, in the vast majority of cases, the offender who has