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

J U D G M E N T

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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