Madras High Court

Duraisamy .. Revision vs State Rep. By on 1 February, 2022

                                                                                Crl.R.C.No.1359 of 2014

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 01.02.2022

                                                         CORAM:

                                  THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI

                                       Criminal Revision Case No.1359 of 2014


                  Duraisamy                                                .. Revision Petitioner

                                                         Versus
                  State rep. By
                  The Inspector of Police,
                  Mathikon Palayam Police Station,
                  Dharmapuri District.
                  Crime No.524 of 2009                                     .. Respondent



                  PRAYER: Criminal Revision Case filed under Sections 397 and 401 of the
                  Code of Criminal Procedure praying to set aside the judgment of the learned
                  Principal Sessions Judge, Dharmapuri, Dharmapuri District made in C.A.No.37
                  of 2013 dated 10.09.2014 confirming the conviction and sentence passed by
                  the learned Judicial Magistrate No.I, Dharmapuri, Dharmapuri made in
                  C.C.No.68 of 2010 by judgment dated 01.10.2013 convicting the petitioner
                  herein under Section 326 IPC and sentencing him to undergo two years RI and
                  to pay a sum of Rs.3,000/- as fine in default to undergo one week SI.

                                        For Petitioner     : Mr.T.R.Ravi

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                                                                                Crl.R.C.No.1359 of 2014



                                         For Respondent     : Mr.L.Baskaran,
                                                              Government Advocate (Crl.side)

                                                        ORDER

The petitioner has come forward with this Criminal Revision Case

challenging the judgment of the learned Principal Sessions Judge, Dharmapuri,

Dharmapuri District made in C.A.No.37 of 2013 dated 10.09.2014 confirming

the conviction and sentence passed by the learned Judicial Magistrate No.I,

Dharmapuri, Dharmapuri made in C.C.No.68 of 2010 by judgment dated

01.10.2013.

2.The revision petitioner is the unsuccessful accused before the Lower

Court, who was convicted for the offences under Section 326 IPC with two

year rigorous imprisonment and fine of Rs.3,000/- passed by the trial Court,

which was confirmed by the 1st appellate Court, against which this Revision is

preferred stating that there was a previous enmity between him and the de-

facto complainant's family, with regard to land dispute and there was a case in

counter in Crime No.525 of 2009, which was registered and the FIR was

lodged in the case in hand in Crime No.524 of 2009. On suppressing the fact

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that the accused also sustained injuries due to the attack made by the defacto-

complainant along with others, and thereby, the prosecution has not proved the

charges beyond reasonable doubt. Both the Courts below, without appreciating

the fact had erroneously convicted the accused under Section 326 IPC and

sentenced him to undergo two years rigorous imprisonment and to pay a sum of

Rs.3,000/- as fine, in default to undergo one week Simple Imprisonment.

Hence he prayed to set aside the conviction passed by the trial Court which

was confirmed by the 1st appellate Court in C.A.No.37 of 2013, before the

learned Principal Sessions Judge, Dharmapuri.

3.The learned counsel for the revision petitioner submitted that there was

a previous enmity between the petitioner family and the de-facto

complainant's family. On the day of the alleged occurrence, the de-facto

complainant along with others, assaulted the accused and thereby, he sustained

injuries and based upon his complaint, counter FIR was lodged against him in

Crime No.525 of 2009.

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4.But the learned Government Advocate (Crl.Side) appearing for the

respondent submitted that the accused had bitten the ear of P.W.1 at the time of

alleged occurrence and the same was proved with the help of Doctor's

evidence, and so, the trial Court rightly charged him under Section 326 IPC,

which was also confirmed by the appellate Court thereby contended that there

is no merit in the revision and prayed for dismissal.

5.On a perusal of the records, it reveals that before the trial Court along

with this accused, another three persons were charged under Section 294(b)

and 326 IPC for A1 and A2 to A4 were charged for the offences under Section

323 IPC and to prove their charge, on the side of the prosecution, P.W.1 to

P.W.8 were examined and documents were marked as Ex.P1 to Ex.P7. As the

charges against A2 to A4 were not proved, they were acquitted and the

petitioner / accused was charged for the offence under Section 326 IPC based

on the evidence of P.W.1 / de-facto complainant / injured and also the

evidence of Doctor P.W.8 along with Wound Certificate-Ex.P.7.

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6.The case of the prosecution is that at the time of alleged occurrence,

this accused went to land belonging to P.W.1 and attacked P.W.1's father. When

it was questioned by P.W.1, the accused bitten his ear and torn with his pitch,

thereby, he sustained grievous injuries on his right ear and immediately he was

admitted in the hospital and a complaint was also given on the same day and

FIR was lodged. As per the evidence of P.W.4 eye-witness, the alleged attack

was made by this accused and thereby, P.W.1's right ear was torn. Furthermore,

the evidence of Doctor-P.W.8 corroborates with the prosecution case and as

per the evidence of P.W.1 he had sustained injuries in his right ear and the skin

of the ear was torn and the same was grievous in nature and wound certificate

was marked as Ex.P.7. About the torn of the ear, the learned trial Judge in his

judgment “ Paragraph.19” elaborately discussed as follows:

“ 19.To have a word about the Anatomy of the Ear, Earlobes average about 2 centimeters long and elongate slightly with age and Earlobes are normally smooth, but occasionally exhibit creases. The Outer ear is called the Pinna and is made of ridged cartilage covered by skin. Auricle, also called Pinna, in human anatomy, the visible portion of the external ear. The auricle in humans is almost rudimentary and generally immobile and lies close to the side of the head. It is

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composed of a thin plate of yellow fibro cartilage covered by a tight-fitting skin. The external ear cartilage is molded into shape and has well defined hollows, furrows, and ridges that form an irregular shallow funnel. The deepest depression in the auricle, called the concha, leads to the external auditory canal or meatus. The one portion of the auricle that has no cartilage is the lobule, the fleshy lower part of the auricle. The auricle has several small basic muscles that connect it to the skull and scalp. Generally non-functional in human beings, they are capable of limited movement in some people. Although the work “ear” may properly refer to the pinna, this portion of the ear is not vital for hearing. But the pinna helps direct sound through the ear canal to the tympanic membrane (eardrum).”

Therefore, the injury and the outer ear though not vital for the hearing, but the

outer ear helps direct sound through the ear tymponic canal membrane ear

canal.

7.Hence, eventhough the hearing was not affected, but the vital portion

of the ear got damaged due to the bite made by the accused at the time of the

occurrence. Hence, the learned trial Judge convicted him under Section 326

IPC as the injuries are grievous in nature. But the arguments advance by the

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revision petitioner that teeth is not a deadly weapon, so the trial Court

erroneously charged the accused under Section 326 IPC which reads as

follows:

“326.Voluntarily causing grievous hurt by dangerous weapons or means:-

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 caused death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it 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 shall also be liable to fine.”

8. It is true that the word 'instrument' has not been defined in the IPC,

but it is a matter of common Knowledge that the 'teeth biting' is either used as a

weapon of attack or to defence. Therefore, the human teeth is an instrument as

contemplated under Section 324 IPC, and with the help of that, the grievous

injuries had been caused to P.W.1 in the present case and hence the accused is

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rightly charged under Section 326 IPC, which warrants no interference by this

Court.

9.The trial Court convicted the accused for two years rigorous

imprisonment. But on seeing the facts, it is seen that already, hearing loss is

caused to him and there was a dispute between two families with regard to

land, and he has no previous case. The Judgment relied on by the learned

counsel for the appellant in Criminal Appeal No.536 of 2021 (Special Leave

Petition (Crl.) No.5985 of 2016) Surendran Vs. Sub-Inspector of Police

dated 30.06.2021, in which, the Hon'ble Supreme Court relied on the

judgment in the case of “Prakash Chandra Agnihotri Versus State of M.P.,

(1990) Supp. SCC 764.” which are supporting his submissions. The relevant

para of the above judgment in Crl.A.No.536 of 2021 is extracted below:

“9.The judgment of this Court in Prakash Chandra Agnihotri (Supra) as relied by learned counsel for the appellant does support his submissions. In the above case, the accused was convicted and sentenced for six months under Section 304A. This Court converted the sentence of imprisonment into fine of Rs.500/-. The Court was of the view that it would be harsh to send the appellant to the jail after 18

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years of the occurrence. Following was observed in paragraph 1 of the judgment:-

“1.The Courts below have maintained the conviction of the appellant under Section 304-A Indian Penal Code. We have gone through the judgments of Courts below and we find no infirmity therein. We uphold the conviction. The occurrence took place on February 18, 1972. The appellant has throughout been on bail. He has been sentenced to six months rigorous imprisonment and a fine of Rs.250. We are of the view that it would be rather harsh to send the appellant to jail after 18 years of the occurrence. The ends of justice would be met if the appellant is asked to pay a fine of Rs.2,000/-.

The sentence is thus converted to a fine of Rs.2,000/-. On realisation the amount shall be paid to the family of the deceased girl. The amount be deposited with the Trial Court within two months from today and the trial Court shall disburse the same to the parents of the girl and in absence of the parents to the next of kin of the girl. In default of the payment of fine the appellant shall undergo imprisonment for six months.”

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10. Considering the nature of the injury, this Court is inclined to impose

compensation instead of the imprisonment. On considering the nature of the

injuries sustained by P.W.1, this Court directs the petitioner /accused to

deposit a sum of Rs.40,000/- before the trial Court, which shall be paid to

P.W.1 as compensation. The conviction and sentence are modified as above.

11. Accordingly, the revision is disposed of.

01.02.2022

Index : Yes / No Speaking order: Yes/No rri

1.The learned Principal Sessions Judge, Dharmapuri, Dharmapuri District.

2.The learned Judicial Magistrate No.I, Dharmapuri.