Holding

The appellant is guilty of the offence punishable under s.326 read with s.34 IPC, but the appropriate sentence is five years rigorous imprisonment.

Summary

The accused Prabhu, Jagdish and Nanhe Lal attacked Shankar; Nanhe wielded a sharp katana while Prabhu and Jagdish used lathis. Shankar sustained fourteen injuries, including incised wounds, and died from extensive hemorrhage. The trial court convicted all under s.302 r.w. s.34 IPC, but the Madhya Pradesh High Court altered Prabhu's conviction to s.326 r.w. s.34, sentencing him to ten years rigorous imprisonment. On appeal, the Supreme Court examined whether the lathi could be deemed a "dangerous weapon" and whether the injuries amounted to "grievous hurt" within s.326. It held that the essential ingredients of s.326—voluntary causing of grievous hurt by a dangerous weapon—were satisfied, confirming the conviction under s.326 r.w. s.34. However, the Court found the ten‑year term excessive and reduced the sentence to five years rigorous imprisonment, allowing the appeal in part.

Issues considered

Whether the appellant's use of a lathi constitutes a "dangerous weapon" for the purposes of s.326 IPC.
Whether the injuries inflicted constitute "grievous hurt" under s.320 IPC, thereby attracting s.326.
Whether the conviction should be under s.302 r.w. s.34 or s.326 r.w. s.34.
Whether the ten‑year rigorous imprisonment sentence is appropriate under s.326.

Legislation cited

Indian Penal Code, 1860s. 302, s. 320, s. 324, s. 325, s. 326, s. 34

Subjects

Section 326 IPCdangerous weapongrievous hurtSection 34 IPCsentencingmurderlathiinterpretation of IPCconviction alteration

Judgment

(
[2008] 16 S.C.R. 1095

PRABHU A
_:.
v.
STATE OF MADHYA PRADESH .
(Criminal Appeal No. 1956 of 2008)
DECEMBER 3, 2008
B
[DR. ARIJIT PASAVAT AND DR. MUKUNDAKAM
.., SHARMA, JJ.]

Penal Code, 1860:
c
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.
I
ss.325, 326 - Applicability of- Held: Size and sharpness
of 'weapon decide whether it was dangerous or a deadly E
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 F
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
G
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
1095 H
1096 SUPREME COURT REPORTS [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. ·
B
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~.

C Partly allowing the appeal, the Court

HELD: 1.1. Ss. 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
E 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
F 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
G 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 ·
.f .

each case,and. no.generalization can be made. [Paras 11
H and 12] [1101~8, C, D, E] .
PRABHU v. STATE OF MADHYA PRADESH 1097

1.3. The heading of the Section provides some A
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 B'
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 D
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 E
imprisonment would meet the ends of justice. [Para 15]
[1102-C] .

Case Law Reference:
(2000) 1 sec 249 relied on Para 13 F
(2005) 2 JT 365 relied on Para 14
CRIMINAL APP~LLATE JURISDICTION: Criminal Appeal
No. 1956 of 2008.

From the Judgment and Order dated 3.11.2004 of the High G '
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 H
1098 SUPREME COURT REPORTS
.
[2008]16 S.C.R.

A for the Respondent.
,, ... '
' '

, - The Jud_gm~nt of th~ Cqurt was delivere.d by .

B- , · ·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,
of
holdi.ng· the appellant guilty 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 1Oyears. 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 .
. I '· - .· ~ ~ I. • ~ •

· '. 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 1099
[DR. ARIJIT PASAYAT, J.]
;.(
blows with their respective weapons and caused severe injuries A
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 B
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 c
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 D
., 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 E
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.
F
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 injurieswere
grievous hurts and the sentence in any way is very harsh.

5. Learned counsel for the respondent-State on the other G
.,;.· ..( hand supported the judgment.

6. Section 325 deals with punishment for voluntarily
causing grievous hurt.
H
1100 SUPREME COURT REPORTS [2008) 16 S.C.R.

A 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,
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
C 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 Secti'ons
D 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\
E
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"-
F
First - Emasculation;

Secondly - Permanent privation of the sight of either
eye.·

G 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.
H
PRABHU v. STATE OF MADHYA PRADESH 1101
[DR. ARIJIT PASAYAT, J.]

-t Sixthly - Permanent disfiguration of the head or face. A

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." ~
11. Some 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.

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 E
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 c~using a hurt; (2) hurt caused F.
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 H
l
1102 SUPREME COURT REPORTS [2008) 16 S.C.R.

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.

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

15. Considering 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 16. The appeal is allowed to the aforesaid extent.

D.G. Appeal partly allowed.