Ram Prasad vs State of C.G.

Sanjay K. Agrawal, J.�Appellant - Ram Prasad @ Ramnath stands convicted for offence - under Section 326 IPC and sentenced to undergo rigorous imprisonment for three years and fine sentence of Rs. 100/-, with default sentence of simple imprisonment for ten days. The judgment and findings have been recorded in Sessions Trial No. 323/2001 by the Additional Sessions Judge, Korba on 14/11/2002. The case of the prosecution in brief is that on 19/05/2001, at about 3.00 p.m., accused/appellant - Ram Prasad @ Ramnath caused grievous injuries by sharp edged deadly weapon i.e. Farsi on the left ear of complainant - Ram Prasad, by which, his auricle (left ear) was cut and separated from the rest of body, then, he became unconscious. He was brought to the Police Station by his son amongst other persons, where the First Information Report (Exhibit-P/2) was lodged and later on, he was admitted to the hospital, where he remained hospitalized for the period from 19/05/2001 to 29/05/2001. After investigation, the Police filed charge sheet before the Court of Judicial Magistrate First Class, Korba for the offence punishable under Sections 324 & 307 IPC against the appellant.

The appellant abjured the guilt and entered into defence by stating that he has been falsely implicated in crime in question.

Statement of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (hereinafter called as ''Cr.P.C.''). After completion of the investigation, charge-sheet was filed under Sections 324 & 307 IPC before the Judicial Magistrate First Class, Korba, who in turn committed the case to the Court of Sessions, Korba, from where learned Additional Sessions Judge, Korba received the case on transfer for trial.

In order to prove the guilt of the appellant, prosecution examined as many as nine witnesses and exhibited ten documents in support of his case, whereas, appellant has examined only one witness in support of his case but brought no document on record.

Against the judgment of conviction and order of sentence, this criminal appeal has been preferred by the appellant herein questioning the same.

Mr. Amiyakant Tiwari, learned counsel appearing for the appellant would submit that the finding of conviction recorded by the Sessions Court holding the appellant guilty of causing grievous hurt by dangerous weapon is clearly perverse in view of the fact that appellant had not suffered permanent privation of the hearing of either ear, as provided in Clause-3 of Section 320 IPC and would alternatively submit that the jail sentence awarded to the appellant is on the higher side, as the appellant have already remained in jail for a period of 20 months and 5 days, therefore, the period already undergone be held to be sufficient, if the order of conviction is maintained.

On the other hand, Mr. Arvind Shukla, Panel Lawyer appearing for the State/respondent would submit that the prosecution has proved the ingredients of offence under Section 326 IPC beyond reasonable doubt and would further submit that the sentence awarded i.e. rigorous imprisonment for 3 years is quite reasonable and fair, which is not required to be interfered with.

I have heard learned counsel appearing for the parties and have also perused the record of the Court below with utmost circumspection.

The following two questions fall for consideration in this criminal appeal:--

(i) Whether the prosecution has proved the aforesaid offence against the appellant beyond reasonable doubt?

(ii) Whether the sentence awarded is just and proper?

Answer to question No. (i):--

Appellant has been convicted for commission of offence under Section 326 IPC. At this stage, it would be necessary to notice Section 326 of the Indian Penal Code, which provides as under:--

"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 installment for shooting, stabbing or cutting, 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."

Thus, in order to prove the offence under Section 326 of the Indian Penal Code, it must be proved that:--

(a) that the accused caused grievous hurt as contemplated in Section 320, IPC;

(b) that the accused caused it voluntarily as envisaged in Section 322, I.P.C.;

(c) that causing of such grievous hurt was made by means of an instrument for shooting, etc., or by means of any instrument, which, used as a weapon of offence, is likely to cause death, or by means of fire, etc., or by means of any poison etc., or by means of any substance which it is deleterious to the human body to inhale, etc., or by means of any animal."

Section 320 of the Indian Penal Code defines the grievous hurt, which states as under:--

"320. Grievous hurt.--The following kinds of hurt only are designated as "grievous":--

First.--Emasculation.

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

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 member of joint.

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

Seventhly.--Fracture or dislocation of a bone or tooth.

Eighthly.--Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."

The permanent privation of the hearing of either ear is also a grievous hurt. According to the injury report (Exhibit-P/4), applicant has suffered incised wound over the cheek ear area (left) measuring 43/4" x 1 1/2" x 2 1/2" and his auricle (left ear) has totally been separated from rest of the body. Dr. B.S. Narbadiya (P.W. 5) conducted medical examination of the complainant and established grievous hurt by stating as under:--

From the perusal of the medical report (Exhibit-P/4) and the evidence of Dr. B.S. Narbadiya (P.W. 5), it appears that by the said injury, complainant had lost his auricle (left ear).

"Permanent disfiguration of the head and face" is a grievous hurt within the clause sixthly of Section 320 IPC. As per Mitra''s Legal & Commercial Dictionary, (Fifth Edition) ''disfigure'' means a change in the outer shape and figure in such a manner that its appearance becomes worse than before and the appearance is rendered less beautiful. As per Black''s Law Dictionary (Eighth Edition) ''disfigurement'' means that which impairs or injures the beauty, symmetry, or appearance of a person or thins; that which renders unsightly, misshapen, or imperfect, or deforms in some manner. Thus, infliction of injury leading to separation of auricle (left ear) from the rest of body is permanent in character and by loss of one auricle (left ear), the face of the complainant-Ram Prasad stands disfigured. Thus, such a loss is permanent in nature, which has changed the face of the complainant-Ram Prasad and, therefore, inflicting of such cut, which separated one auricle (left car) from the body of complainant amounts to "permanent disfiguration of the head and face" within the meaning of clause sixthly of Section 320 IPC.

Now, the next question that arises for consideration is whether the appellant/accused caused the above injury to the complainant?

From the material brought on record, it is clear that the appellant-Ram Prasad @ Ramnath caused grievous injury to the complainant - Ram Prasad, which stand corroborated by the evidence of complainant Ram Prasad (P.W. 3) as well as eye witness, Kumar Singh (P.W. 4), thus, it leaves no manner of doubt that the said grievous hurt was caused by the appellant by Farsi type sharp edged weapon. Consequently, conviction recorded by the Sessions Court for the offence punishable under Section 326 IPC is based on evidence available on record and 1 hereby maintain the conviction awarded by the Sessions Court.

Answer to question No. (ii):

The determination of issue with regard to conviction brings me to consider the reasonability of the sentence awarded by the Sessions Court.

Mr. Amiyakant Tiwari, learned counsel appearing for the appellant referred to the judgment of Neelam Bahal and Another Vs. State of Uttarakhand, , in which, the Supreme Court has held that the period of one year of sentence for offence punishable under Section 326 IPC is sufficient. He would further submit that the appellant remained in jail custody for about 20 months and 5 days, therefore, the sentence awarded be reduced to the period already undergone.

The Sessions Court has sentenced the appellant to rigorous imprisonment for three years and fine sentence of Rs. 100/-, with default sentence of simple imprisonment for 10 days. Keeping in view the fact that the incident was occurred on 19/05/2001 and the complainant suffered grievous injury, and further, considering the fact that the appellant has already faced a prolonged trial and suffered the trauma of uncertainty arising out of his conviction by the Sessions Court. Besides that appellant has no criminal antecedent or involvement in any case and after conviction by the Sessions Judge, he has not misused the liberty granted to him time to time by the Sessions Court and this Court. The appellant remained in jail for a period of 20 months and 5 days. In my considered opinion, the ends of justice would be served if the substantive jail sentence, which the appellant has already undergone is held sufficient. As a fallout and consequence of the aforesaid discussion, the criminal appeal is partly allowed. Conviction part of the impugned judgment is hereby maintained, however, while maintaining the sentence of fine, the substantive jail sentence awarded to the appellant is reduced to the period already undergone by him. It is stated that the appellant is on bail. His bail bonds shall remain in force for a period of six months from today in view of provision contained in Section 437-A of Code of Criminal Procedure, 1973.