REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1956 OF 2008
(Arising out of S.L.P (Crl.) No. 1418 OF 2008
Prabhu ...Appellant
Versus
State of Madhya Pradesh ....
Respondent
JUDGMENT
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a Division Bench of the
Madhya Pradesh High Court, Jabalpur Bench, holding the appellant guilty
of offence punishable under Section 326 read with Section 34 of the Indian
Penal Code, 1860 (in short the `IPC’). The appellant was sentenced to
undergo rigorous imprisonment for 10 years. By the impugned judgment
three appeals were disposed of being Criminal Appeal No.185 of 1995, 184
of 1995 and 261 of 1993. The appeal filed by accused Nanhe Lal was
dismissed while the appeal filed by the appellant was partly allowed altering
his conviction for offence punishable under Section 302 read with Section
34 IPC to one under Section 326 read with Section 34 IPC. Similar was the
position in respect of co-accused Jagdish.
3. Prosecution version in a nutshell is as follows:
A few months before the incident dated 28.12.1987, Dropadibai,
daughter of Gayaprasad was molested by accused Prabhu about which he
was facing prosecution in the court. Accused Prabhu Dayal was in this
context trying to pressurize deceased Shankar, brother of Dropdibai, to
amicably settle the matter, but finding that he did not budge, the accused
persons who were related started bearing a grudge against Shankar. On
28.12.1987 at about 9.00 in the morning, Shankar had gone out in the
village. At 11 O’ clock Gayaprasad (PW-5) had gone to call his ploughman
followed by Rishiraj (PW-9). No sooner that they reached Soryana
Mohalla, they heard the call of Shanker that he be saved. Both Gayaprasad
and Rishi Raj rushed to the place and they noticed that the three accused
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were beating Gayaprasad. Accused Nanhelal was armed with Katarna (a
sharp instrument for cutting) while the other two were armed with lathis. It
is alleged that all of them administered several blows with their respective
weapons and caused severe injuries and thereafter ran away towards the
jungle.
The report of the incident Ext.P-12 was lodged by Gayaprasad (PW-
5). Fourteen external injuries were found on the body of the deceased. As
per the opinion of the Autopsy Surgeon, the death of the deceased was
caused due to extensive hemorrhage on account of shock due to injury No.8
mainly and injury Nos. 13 and 14 causing hemorrhage. They were incised
wounds. Since accused persons abjured guilt, trial was held. Each of the
accused persons was convicted as noted above. Appeals were filed before
the High Court. So far as the appellant is concerned, it was submitted that
he could not be convicted in terms of Section 302 read with Section 34 IPC
as only accused Nanhe, according to the prosecution, caused incised
wounds. The appellant was holding only a stick. The High Court relied on
the evidence of two eye-witnesses PWs 5 and 9 and held that the appellant
cannot be held guilty of offence punishable under Section 302 read with
Section 34 IPC. It was held that the prosecution has not proved that each of
the participating culprits had the same intention and each one shared the
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intention of the other. The High Court noticed that the accused Prabhu and
Jagdish had caused lacerated wounds and, therefore, the knowledge which
can be inferred from the said acts is that they intended to cause grievous
hurt. Accordingly, the conviction as noted above was altered.
4. Learned counsel for the appellant submitted that the appellant cannot
be convicted in terms of Section 326 read with Section 34 IPC. It was
submitted that none of the injuries were grievous hurts and the sentence in
any way is very harsh.
5. Learned counsel for the respondent-State on the other hand supported
the judgment.
6. Section 325 deals with punishment for voluntarily causing grievous
hurt.
7. Section 326 deals with offence of voluntarily causing hurt by
dangerous weapons or means.
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8. Section 326 provides that 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 corrosive
substance, or by means of any explosive substance, or by means of any
substance which 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 also with a liability to pay a fine.
9. Sections 325 and 326, like the two Sections immediately preceding,
provide the ordinary punishment and punishment under certain aggravating
circumstances of the offences mentioned thereunder. The two latter
Sections apply to the case of causing “grievous hurt” and the immediately
preceding two Sections to the case of `hurt’.
10. “Grievous hurt” has been defined in Section 320 IPC, which read as
follows:
“320 Grievous Hurt – The following kinds of hurt only
are designated as “grievous”-
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First – Emasculation.
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 members 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.”
11. Some hurts which are not like those hurts which are mentioned in the
first seven clauses, are obviously distinguished from a slight hurt, may
nevertheless be more serious. Thus a wound may cause intense pain,
prolonged disease or lasting injury to the victim, although it does not fall
within any of the first seven clauses. Before a conviction for the sentence of
grievous hurt can be passed, one of the injuries defined in Section 320 must
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be strictly proved, and the eighth clause is no exception to the general rule
of law that a penal statute must be construed strictly.
12. The expression “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.
13. The heading of the Section provides some insight into the factors to
be considered. 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 this Court in State of U.P. v. 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 expression “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
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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.
14. The above position was highlighted in Mathai v. State of Kerala
(2005 (2) JT 365).
15. Considering the principles set out above, certainly the appellant was
guilty of offence punishable under Section 326 read with Section 34 IPC.
However, in the peculiar facts of the case, the sentence of 5 years rigorous
imprisonment would meet the ends of justice.
16. The appeal is allowed to the aforesaid extent.
…………………………………..J.
(Dr. ARIJIT PASAYAT)
…………………………………..J.
(Dr. MUKUNDAKAM SHARMA)
New Delhi,
December 3, 2008
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