Prabhu v. State of Madhya Pradesh .

Judgment

[2008] 16 S.C.R. 1095 PRABHU STATE OF MADHYA PRADESH . (Criminal Appeal No. 1956 of 2008) DECEMBER 3, 2008 [DR. ARIJIT PASA VAT AND DR. MUKUNDAKAM SHARMA, JJ.] Penal Code, 1860: s.326 r.w. s.34-Accused assaulted the victim with sharp weapons and appellant administered lathi blows on him - As a result victim died - Conviction under s.302 r. w. s.34 by trial Court - High Court altered conviction of appellant to s.326 r. w. s. 34 and sentenced him to undergo rigorous imprisonment D for 10 years·- Correctness of - Held: Correct - However in peculiar facts of the case, sentence of 5 years rigorous imprisonment would meet ends of justice - Sentence. I ss.325, 326 - Applicability of- Held: Size and sharpness of 'weapon decide whether it was dangerous or a deadly weapon - That detetmines the applicability of s.325 or s.326. Prosecution case was that the accused persons bore grudge against the deceased. On the fateful day, the father of the deceased and PW-9 heard cries of. the deceased.

They rushed to the place and found that the 1 three accused were beating him. The accused 'N' was armed with a sharp weapon while the appellant and the other accused were armed with lathis. All of them administered several blows with their respective weapons and caused several injuries on the deceased and thereafter ran away towards the jungle. The trial Court convicted all the accused under s.302 r.w. s.34 IPC. The appeal filed by accused. 'N' was [2008] 16 S.C:R. A dismissed while the appeal filed by the appellant and the other accused was partly allowed altering his conviction ·for offence punishable· under s.302 ·read with s.34 IPC to one under s:326· read. With s.34 IPC, and ·sentenced to undergo rig6rous imprisonment for 10 years. In the ,ins~a.nt. appeal, it w~s .c~ntendetl for the appellant that he canhot be convicted . under s.326 · read with .s.34 IPC, and that none of the injuries were grievous hurt, and that the sentence was very hars~.

Partly allowing the appeal, the Court HELD: 1.

1Ss. 325 a11d 326 IPC, like the tWC> Sections immediately preceding, .provide the ordinary punishment and punishment under certain aggravating 0 circumstances ofthe offences mentioned thereunder. fhe two latter Sections apply to the case of causing "grievous hurt" and the immediately preceding two Sections to the case of'hurt'. [Paras 9] [1100-D] 1.2; Some hurts which are not like those hurts which are mentioned in ·the first seven·clauses of s.320 IPC, are obviously distin·guished from a slight hurt, may nevertheless be more serious. Thus a wound may cause intense. pa!n,' P,rolonged·· dis.ease or. lasti.ng 'injury to the victim~ although 'it :dQe~ -_nQt' tail. within any of the first seven . clauses: ·aefore a co·nviction 'for the sentence. of grievo~s .hurt· c~ri · be._pass~'ct·,· o·ne -~f the in]uiies defined 1 I ;, 1 in s.320 rpusi· be stric~ly .Proved, and the eighth clause is no eX'ceptiOn :to· ~h~- 9.enerar rule of iaw that a penal statUte inust be' construed strictly. The expression "any instrument w~ich,:us~d··as a 'weapon of offence, is likely to ·cau$e'' death" has. ~o be gauged taking note of the heading of the·'.section. ·what would consfitu'te a. 'dangerous weappn' would< depend upon· the fa.cts of · each case,and. no.generalization can be made. [Paras 11 and 12] [1101~8, C, D, E] PRABHU v. STATE OF MADHYA PRADESH 1.

3The heading of the Section provides some insight into the factors to be considered. the essential ingredients to attract s.326 are : (1) voluntarily causing a hurt; (2) hurt caused must be a grlevou~ hurt; and (3) the grievous hurt must have been caused by dangerous weapons or means. There is no such thing as a regular or earmarked weapon for committing murder ot 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. The facts involved in a particular case, depending upon various factors like size, c 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 s.325 or s. 326 would be applicable. [Para 13] [1101-E, F, G; 1102"'.A-B] State of !J.P. v. lndrajeet Alias Sukhatha (2000) 7 SCC 249 and Mathai v. State of Kera/a (2005) 2 JT 365, relied on. 2.

The appellant was guilty of offence punishable under s.326 read with s.34 ll'C. However, in the peculiar facts of the case, the sentence of 5 years rigorous imprisonment would meet the ends of justice. [Para 15] [1102-C] Case Law Reference: (2000) 1 sec 249 (2005) 2 JT 365 relied on relied on Para 13 Para 14 CRIMINAL APP~LLATE JURISDICTION: Criminal Appeal No. 1956 of 2008. From the Judgment and Order dated 3.11.2004 of the High Court of Madhya Pradesh at Jabalpur in Criminal Appeal No. 261 of 1993. Manoj Prasad for the Appellant. Siddhartha Dave, Jentiben AO and Vibha Datta Makhija [2008]16 S.C.R. . A for the Respondent. , - The Jud_gm~nt of th~ Cqurt was delivere.d by . , · ·t Challenge in this· a~peal is'to the judgment of a Divis,Jon B~nch ·o-r the 'Madhya Pradesh High Court, Jabalp·ur Bench, holdi.ng· the appellant guilty of offence punish.able under Section 326 read with Section 34 -of the Indian Penal Code, 1860 (in short the· 'IPC').

The a·ppellant was ·sentenced to undergo c rigorous imprisonment for 1 O years. By the impugned judgment three.appeals were disposed ofbeing Criminal Appeal No.185 q_(1995;·184.of 1995 and 261 of1993. The appeal filed by accused Nanhe Lal was dismissed while the appeal filed by the app,ellant was partly· allowed altering his conviction for 0 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 nutsh~ll is as follows: E ... A .few m,cmths 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 Dayalwas in this context trying to pressurize d!3ceased Shankar, broth~r of Dropdibai, to amicably settle the F matter, but finding that.he did not budge: the accu$ed 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 G thatthey reached Soryana Mahalia, they heard the call of Sha.nker that he be saved. Both Gayaprasad and Rishi Raj rushed-to the place and they noticed that the three accused were beating· Shanker. Accused Nanhelal was armed with· Katarna. (a sharp instrument for cutting) while the.either-two were armed H _with_ lathis. It is aJleged that all of them· administered several PRABHU V.'STATE OF MADHYA PRADESH [DR. ARIJIT PASAYAT, J.] 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 arid 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.

4Learned 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 injurieswere grievous hurts and the sentence in any way is very harsh.

5Learned counsel for the respondent-State on the other hand supported the judgment.

6Section 325 deals with punishment for voluntarily causing grievous hurt.

7Section 326 deals with offence of voluntarily causing hurt by dangerous weapons or means.

8Section 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, 8 or any instrument which, used as a weapon of offence, is likeiy . to.cause death, or .by· mearis of fire or arw gorrosive substance, r · or· by means of any explosive substance, or by means of any substance which is deleterious to the human body to inh.~1~1 f9 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.

9Sections 325 and 326, like the two Secti'ons immediately preceding, provide the ord.!nary punishment and . punishment 1.mder certain aggravating circumstances of th~ 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"- First - Emasculation; Secondly - Permanent eye.· privation of the sight of either 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. PRABHU v. STATE OF MADHYA PRADESH [DR. ARIJIT PASAYAT, J.] Sixthly - Permanent disfiguration of the head or face. Seventhly - Fracture or dislocation of a bone or tooth . . Eighthly -Any hurt which endangers life orwhich causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."

11Some hurts which are not like those hurts which are mentioned in t~e first seven clauses, are obviously distinguished from a slight hurt, may nevertheless be more serigµs .. Thu~ a wound may cause intense pain, prolonged c g\sease 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 o statute must be construed strictly.

12The 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 E case and no generalization can be made.

13The heading of the Section provides some insight Into the factors to be considered. The essential ingredients to attract Section 326 are : (1) voluntarily c~using 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. lndrajeet Alias Sukhatha (2000(7) sec 249) there is no such thing as ·a regular or earmarked weapon for committing murder or for that matter a . G 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 l A expression used is ''deadly weapon" (e.g. Sections 397 and _,JI. 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 B Section 325 or Section 326 would be applicable.

14The above position was highlighted in Mathai v. State of Kera/a (2005 (2) JT 365).

15Considering the principles set out above, certainly the C 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. 0

16The appeal is allowed to the aforesaid extent. D.G. Appeal partly allowed.