Prabhu Vs. State of
M.P.  INSC 2081 (3 December 2008)
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 ....
Dr. ARIJIT PASAYAT,
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.
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 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 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.
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.
counsel for the respondent-State on the other hand supported the judgment.
325 deals with punishment for voluntarily causing grievous hurt.
326 deals with offence of voluntarily causing hurt by dangerous weapons or
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.
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'.
hurt" has been defined in Section 320 IPC, which read as follows:
Hurt - The following kinds of hurt only are designated as "grievous"-
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
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 be strictly proved, and the
eighth clause is no exception to the general rule of law that a penal statute
must be construed strictly.
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.
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 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.
above position was highlighted in Mathai v. State of Kerala (2005 (2) JT 365).
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.
appeal is allowed to the aforesaid extent.
(Dr. ARIJIT PASAYAT)