Mahabir Singh vs U.T.Chandigarh

P. K. Jain, J.

This revision is directed against the judgment dated 17.11.1995, passed by the Additional Sessions Judge, Chandigarh, whereby the conviction and sentence of the petitioner for an offence under Section 326, Indian Penal Code, recorded by the Judicial Magistrate, Chandigarh, by judgment/order dated 11.5.1993 has been confirmed. The petitioner has been sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 200/, and in default of payment of fine to further undergo rigorous imprisonment for one month.

The prosecution case lies in a narrow compass. March 19, 1994 was the day of Holi festival. At about 8.30 p.m. the petitioner came to Som Pal complainant and put gulal on his face. While embracing Som Pal, the petitioner gave a tooth bite on the nose of Som Pal, due to which a portion of the nose was taken off. Som Pal was got medically examined. According to the medical examination report, right nasal alac was found missing. Injury was fresh and grievous in nature.

On a chargesheet submitted against the petitioner, a charge under Section 326 of the Indian Penal Code was framed against him which he denied and claimed trial. In support of its case, the prosecution examined six witnesses including the complainant and two doctors. In his examination under Section 313 of the Code of Criminal Procedure the accused denied the allegations of the prosecution and pleaded innocence but did not produce any evidence in defence.

While holding that the case of the prosecution has been proved beyond doubt, the Judicial Magistrate, Chandigarh, convicted and sentenced the petitioner as stated above. Appeal filed by the petitioner against his conviction and sentence did not find favour with the Additional Sessions Judge, Chandigarh. Hence this revision.

Shri O. P. Hoshiarpuri, Advocate, learned counsel for the petitioner has raised two points in this revision i.e. the first regarding the correctness of the conviction under Section 326 of the Indian Penal Code and the second regarding the enormity of the sentence.

As regards the first contention, it has been argued by the learned counsel that the injury caused by the petitioner to the complainant does not fall within any of the eight clauses of Section 320, Indian Penal Code, which defines grievous hurt. Admittedly, the said injury does not fall within the first five clauses or the last two clauses. The question is whether it falls within the ambit of clause sixthly, i.e. permanent disfiguration of the face. According to the testimony of Dr. U. S. Bansal, when he had examined the complainant Som Pal, he found his right nasal alac missing; that the injury was fresh and grievous in nature. The established case of the prosecution is that this injury was caused by the petitioner to the complainant by tooth bite. It cannot be disputed that the tooth is an instrument for cutting and serves as a weapon of offence and consequently any injury caused by tooth bite would be an offence under Section 324 or 326, Indian Penal Code, depending upon whether the injury is simple or grievous. This view finds support from a judgment of the Patna High Court rendered in Chaurasi Manji and another v. State of Bihar, AIR 1970 Patna 322.

Once it is established that the right nasal alac of the complainant was missing, it amounts to permanent disfiguration of the nose. In Kedarmal v. The Crown, A.I.R. 1950 Ajmer 13, it was held that a cut on bridge of nose with sharp weapon amounted to permanent disfiguration. Similarly in Jamil Hasan v. The State, 1974 Cri.L.J. 867, it was held by the Allahabad High Court that biting off the tip of the nose would be an offence under Section 326, I.P.C. I have no reason to differ with the views expressed in these precedents. Therefore, I hold that the injury in question was grievous in nature and was caused by an instrument of cutting and, therefore, the petitioner has been rightly convicted for an offence under Section 326, Indian Penal Code.

Coming to the second plea regarding the quantum of sentence imposed upon the petitioner, the learned counsel for the petitioner has argued that the injury was caused all of a sudden during embracing on account of Holi celebration. It has been further pointed out by the learned counsel that the petitioner is in custody for the last more than two months and that he is a Government servant. It is, thus, argued that the petitioner should be released on probation.

It may be stated that offence under Section 326, Indian Penal Code, is punishable with life imprisonment. The petitioner was 40 years of age on the day of offence. Therefore, the question of releasing him on probation does not arise. I do agree that the injury was caused by the petitioner to the complainant during Holi celebration. This is the only mitigating circumstance in his favour. There is no previous enmity between the parties, nor the petitioner had any other motive to cause the said injury to the complainant. The ends of justice would be met if the sentence imposed upon the petitioner is reduced.

As a result of the above discussion, the conviction of the petitioner under Section 326, Indian Penal Code, is maintained. However, the sentence of imprisonment imposed upon him is hereby reduced to rigorous imprisonment for six months. The fine along with its default clause shall stand. With this modification this revision stands disposed of.