Harichandra vs State of Madhya Pradesh

Pritinker Diwakar, J.—This appeal is directed against the judgment and order dated 17-8-1995 passed by the Additional Sessions Judge, Dhamtari in Sessions Trial No. 141/1994 convicting the accused/appellant under Sections 324 of the Indian Penal Code & 3(1)(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (for short the "Act") and sentencing him to undergo rigorous imprisonment for six months u/s. 324 IPC and rigorous imprisonment for six months with fine of Rs. 300 u/s. 3(1)(x) of the Act plus default stipulations. Case of the prosecution in brief is that on 21-1-1994 at about 12 noon complainant Hiralal-the ex Sarpanch of the village was going to his house and when he reached near the house of one Bisantinbai, he saw the accused/ appellant sleeping in the courtyard of said Bisantinbai in a drunken condition. It is alleged that the complainant had asked the accused/appellant to leave the said place on account of which some altercation took place between the two in which the accused/appellant had bitten the penis of the complainant with teeth. On the basis of entry made in Rojnamcha Sanha investigation was done and on 27-7-1994 the challan was filed by the police for the offences under Sections 324 of the Indian Penal Code & 3(1)(x) of the Act.

So as to hold the accused/appellant guilty, prosecution has examined 6 witnesses in support of its case. Statement of the accused/appellant was also recorded u/s 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. This apart one witness namely Mina Bai (DW-1) has also been examined by the defence in support of its case.

After hearing the parties the trial Court has convicted and sentenced the accused/appellant as mentioned above.

Heard counsel for the parties and perused the material available on record including the judgment impugned.

Counsel for the accused/appellant submits that even if the entire case of the prosecution is taken as it is no case u/s 3(1) (x) of the Act is made out against the accused/appellant for the reason that there is no evidence available on record to show that the accused/appellant committed the act alleged against him with an intention to insult, intimidate or humiliate the complainant simply because his being a member of Scheduled Caste or Scheduled Tribe community. According to the counsel for the accused/appellant the prosecution has failed to bring on record any document showing that the complainant was belonging to Scheduled Caste or Scheduled Tribe community and on this count as well the conviction of the appellant under this special provision is not sustainable in the eye of law. As regards the charge u/s 324 IPC, counsel for the appellant submits that the penis of the victim was bitten by the accused/appellant with teeth which cannot be termed as an instrument of cutting as mentioned in the said Section, She submits that the injuries sustained by the victim were simple in nature and in this view of the matter at the most the act of the appellant in doing so would fall u/s 323 IPC. Lastly she submits that the accused/appellant has already remained in jail for 11 days and if at all his conviction u/s. 324 IPC is maintained, sentence imposed on him may be reduced to the period already undergone by him.

On the other hand counsel for the respondent/State supports the judgment impugned and submits that as the accused/appellant has assaulted the complainant knowing fully well that he belonged to the Scheduled Tribe community, therefore, his conviction under the special provision is just and proper. As regards conviction u/s 324 IPC, he submits that tooth can be very much termed as an instrument of cutting. According to him, the complainant was lucky enough to have received only simple tooth-bite injuries otherwise it could have proved fatal also.

Victim Hiralal (PW-3) has stated in his evidence that on 21-5-1994 when he was coming from the house of one Shyam Lal, he saw the accused/appellant sleeping in the courtyard of one Bisantin Bai in a drunken state. On the request of Bisantin Bai, this witness asked the accused/appellant as to why he was sleeping there and requested him to leave the place. On this, accused/appellant started using filthy language and gave a push to him as a result of which he fell down. Thereafter, the accused/appellant mounted on him and bit his penis with teeth and then on hearing his cries two persons Manbodh and Shyamlal came there and by pressing the mouth of the accused/appellant enabled him to take out his penis. In cross examination also, barring certain minor contradictions, this witness has stated the same thing as in the examination in chief. Manbodh (PW-1) and Shyamlal (PW-2)-the two eyewitnesses to the incident have duly supported the case of the prosecution. Head Constable Jaikaran Singh. (PW-4) is the witness who had made entry in the Rojnamcha Sanha Ex. P3C. Head Constable Siyaram (PW-5) is the witness who had done part of the investigation. Dr. Abdul Raseed (PW-6) is the witness who had medically examined the victim and given his report Ex. P-7. This witness had noticed following injuries on the person of the victim:

i) Two small abrasions in penis in semi lunar shape close to each other, looking like tooth bite.

ii) Abrasion 1" long x 1 cm. broad just above left elbow joint, on dorsal side, skin over the wound is blackened.

iii) Swelling over right wrist joint extending to palm on dorsal side.

Injury No. 1 has been opined to be due to human tooth bite.

On x-ray being done, no fracture was found on his body.

Mina Bai (DW-1) wife of the accused / appellant has stated that on the date of incident the victim had come to her house and when she was serving food to him he caught hold of her hand to which her father-in-law who was also at home had raised an objection. Meanwhile her husband (appellant herein) also reached there and then the Panchayat meeting was called.

After going through the material available on record including the evidence of the witnesses, this Court is of the view that there is absolutely no evidence on record on the basis of which conviction of the accused /appellant u/s 3(1)(x) of the Act could be left undisturbed. Prosecution has not brought on record any document showing that the complainant was belonging to Scheduled Caste or Scheduled Tribe community and that the accused/ appellant had an intention to insult, humiliate or intimidate the complainant just because he is a member of said community. That being so, appellant''s conviction u/s 3(1)(x) of the Act is not at all worth affirmation and it goes accordingly holding the accused / appellant acquitted of the said charge.

As regards conviction u/s 324 IPC, it appears a necessity for this Court to have a cursory glance of the ingredients of said provision. It reads thus:

Voluntarily causing hurt by dangerous weapons or means.-- Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause 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 of either description for a term which may extend to three years, or with fine, or with both.

Now leaning back to the facts of the case in hand it comes to the fore the victim suffered tooth-bite injury on his penis. According to the New International Webesters'' comprehensive dictionary "tooth" means one of the hard, dense structures in the mouth of a vertebrate, used for seizing and chewing food, as offensive and defensive weapons, etc. It consists chiefly of dentine or ivory, invested on the outer surface and crown with enamel, and a root embedded in the gum, with a small opening leading into a pulp cavity richly supplied with blood vessels and nerves.

The description of tooth in The Oxford English Dictionary Second Edition Vol. XVIII reads thus:

In plural the hard processes within the mouth, attached (usually in sockets) in a row to each jaw in most vertebrates except birds (but also in some extinct birds) having points, edges or grinding surfaces and serving primarily for biting, tearing or trituration of solid food and secondarily as weapons of attack or defence, and for other purposes in singular each of these individually.

Though the word "instrument" has not been defined in the Indian Penal Code, as per Websters'' New International Dictionary, 1926 Edition, speaks of instrument as the means by which any work is performed or result is effected: one that is made a means, or is caused to serve a purpose, a medium, means or agent. According to the meaning conveyed in The Shorter Oxford English Dictionary Vol. I 1933 Edition, word "instrument" is a thing with or through which something is done or effected: a means, a tool, implement, weapon, a part of the body having special function. Thus primarily an instrument has been defined as something by which something is done. Now, undoubtedly, the primary function of human teeth is to bite food, to cut it by the incisors, canine, the premolar and the molar and to reduce it into pieces and to render it into pulp, masticate and then let the system swallow it for easy digestion. The purpose of the tooth is thus biting or cutting. It cannot be denied that human teeth can be and are used as a weapon of attack or defence. In sum and substance the instrument does not mean only some mechanical device wholly apart from the human anatomy. Human hands and legs can also be used as an instrument for causing grievous hurt. Having thus had a comprehensive meaning of word "instrument", this court sees no reason in not including the "human tooth" in the category of instrument. In other words, holding the tooth as an instrument for cutting and serving as weapon of offence and/or defence the contention of the counsel for the appellant that the accused/appellant has not caused any injury with an instrument is repelled. Causing tooth-bite injury is very much an offence under Sections 324 or 326 of the Indian Penal Code depending upon the nature of injury-simple or grievous, received by the victim.

Thus the act of the accused/appellant in voluntarily causing tooth-bite injury on the delicate part of his body i.e. "penis" with an instrument of cutting i.e. "tooth" squarely falls within the provisions of Section 324 of the Indian Penal Code and that being so the findings recorded by the Court below convicting him under the said section are strictly in accordance with law. This Court approbates the same.

As regards sentence part of the judgment impugned, Section 324 IPC does not speak about the jail sentence as mandatory. Moreover, keeping in mind the fact that the accused/appellant herein has already remained in jail for 11 days, that the incident had taken place about 16 years back and that by now he must have become a grown-up man of 44 years reeling under the family responsibilities, this Court deems it proper to reduce the sentence to the period already undergone by him by awarding some reasonable compensation in terms of Section 357 of the Code of Criminal procedure. Accordingly, as the appellant has already remained in detention for 11 days, his jail sentence is reduced to the period already undergone by him. He however shall deposit Rs. 4000 in the Court below to be paid to the victim as compensation within a period of seven months. If the said amount is not deposited in the Court below within this period, the accused/appellant shall be liable for imprisonment for two months. Appeal is thus partly allowed.