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2008(8) Supreme 366
SUPREME COURT OF INDIA
Arijit Pasayat and Mukundakam Sharma, JJ.
Prabhu — Appellant
versus
State of Madhya Pradesh — Respondent
Criminal Appeal No. 1956 of 2008
Decided on : 03-12-2008
2000 (7) SCC 249 : 2005 (2) JT 365 – Relied upon.
Facts of the Case :
1. Appellant herein in the instant case was prosecuted along with two co-accused persons for causing death of deceased by assaulting him with Katarna and lathis. Trial Court convict4ed accused persons for said offence. On appeal, High Court attered conviction of appellant from section 302 r/w 34 IPC to one u/s 326 r/w 34 IPC.
2. Present appeal has been preferred by appellant against said order of High Court.
Findings of the Court :
The essential ingredients to attract section 326 are voluntarily causing a hurt, hurt caused must be a grievous hurt and the grievous hurt must have been caused by dangerous weapons or means. The facts involved in a particular case, depending upon various factors like size, sharpness would throw light on question whether weapon was a dangerous or deadly weapon or not – That would determine whether in the case section 325 or section 326 would be applicable – In view of said principles held that certainly appellant was guilty of offence punishable u/s 326 r/w 34 IPC. However sentence of 5 years RI held appropriate to meet ends of justice.
Result : Appeal allowed in part.
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 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.
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.
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
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