IGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinkei‘ Diwaker) Criminal Appeal No. 1219 of 1995 Harichandra APPELLANT VERSUS h REéPONDENT State of Madhya Prades Smt. SavitaTiwari counsel for the appeliant. Shri Vivek Sharma PL for the respondent/State. ‘ kiiiIIINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT ‘ (09.02.201 1) $ ‘ This appeal is directed against the judgment and order dated 17.8.1995 passed by the Additional Sessions JudEe, Dhamtari in Sessions Trial No. 141/1994 convicting the accused/appellant under Sections 324 of the lndian 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. d 2 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 Bisantinbaiin 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 $5 two in which the accused/appellant had bitten the penis of the a complainant with teeth."$n 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. 3. So as to hold the accused/appellant guilty, prosecution has examined O6 witnesses in support of its case. Statement of the H -2— acCused/appellant was also recorded under section 313 of the Code of Criminal Procedure in which he denied the charges levelied against him and pleaded his innocence and faise 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. 4. i After hearing the parties the trial Court has convicted and sentenced the accused/appellant as mentioned above. 5.: Heard counsel for the parties and perused the material available on record including thejudgment impugned. .a‘ 6. Counsel for the accused/appellant submits that even if the entire case of the prosecution is taken as it is no case under Section 3 (1) (x) of the Act is made out against the accused/appellant for the reason that there is no evidence available on record't‘o 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 acoused/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 o law. As regards the charge under Section 324 IPC, counsel for the appellant submitsrthat the penis of the victim was bitten by the accused/appellant with teeth which cannot be‘gtermed as an instrument of cuttingvas mentioned in the said Section. She sUb’mits 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 under Section 323 IPC. Lastly she submits that the ,3 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. 7. On the other hand counsel for the respondent/State supports the judgment impugned and submits that as the accused/appellan has assaulted the complainant knowing fully well that he belonged to f t _3__ he scheduled tribe community, therefore, his conviction under the special provision is just and proper. As regards conviction under Section 324 IPC, he submits that tooth can be very much termed as an instrument of cutting. According to him, the complainant was Iucky enough to have received only simple tooth—bite injuries otherwise it could have proved fatal also. 8. Victim Hiralal (PW—3) has stated in his evidence that on 21.5.1994 when he was comingfrom the house of one Shyamlal, he saw the accused/appellant sleeping in the courtyard of one Bisantin Bat I‘n a drunken state. On the request of Bisantin Bai, this witness asked the accused/appellant as to why he was sleeping there and requested to him leave the place. On this, accusedlappellant 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. ln cross examination also, barring certain minor contradictions, this witness has stated the same thing as in the examination in chief. Manbodh (PW—1) and Shamlal (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 followmg 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) Abra3ion 1” long x 1 c m broad just above left elbow j0int, on dorsal side, skin over the wound is blackened. l) 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 boy. d 41L.“ c t ll .._(’__ 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 aiso at home had raised an objection. MeanWhiIe her husband (appellant herein) also reached there and then the Pa‘nchayat meeting was called. 9. r 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 under Section 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 communlty That belng so appellant’s conVIctIon under Section 3 (1) (x) of the Act is not at all the worth affirmation and it goes accordingly holding accused/appellant acquitted of the said charge. 10. As regards conviction under Section 324 tPC, it appears a necessity for this Court to have a cursory glance of the ingredients of said provision. It reads thus: “324 Voluntarily causmg 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 corroswe substance or by means of any exploswe 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, Q 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. XVlll reads thus: yé‘ln plural the hardxprocesses within the mouth, attached (uSually insockets) in a row to each jaw in most vertebrates excep birds (but also in some extinct birds) having points, edges or grinding surfaces and serving primarily for biting, tearing or triuration of solid ' food and secondarily as weapons of attack or defence, and for other purposes in singular each of the‘se individually.” Though the word “instrument” has not been defined in the lndian Penal Code, as per Webesters’ 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. l 1933 Edition, word “instrument” is a thing with or through which something is doneor effectedta means, a tool, impelement, 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, canaine, 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 o the tooth is thus biting or\ cutting. lt 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 t f coud 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 appellantqthat 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. 11 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 ie “tooth” squarely falls within the provisions of Section 324 of the lndlan Penal Code and that belng so the fndmgs recorded by the Court below conVIctlng him under the said section are stnctly In accordance wrth law. This Court approbates the same. 12. 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 jailfor 11 days, that the incident had taken place about 16 years back and that by now he must have become a drown-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 deposned In the Court below Within this periods the accused/appellant shall be Ilable for Imprisonment for two months 13. Appeal Is thus partly allowed. ¢ ”##H I I . Sd/- r4", Pritinker Diwaker - Judge /