SMT. HIMA ETC. Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) This is a reference made by the Additional Sessions Judge, Mandi, presumably under Sec. 438 of the Code of Criminal Procedure. A case was instituted against Smt. Hima and two others under Ss. 324 read with 34 of the I.P. Code and the allegation was that they caused injury on the person of the complainant by tooth bite. Accordingly a charge under that Sec. was framed by the Magistrate and the three accused came in revision before the learned Sessions Judge. According to them no charge could be framed under Sec. 324 and rather it could be framed, if at all, under Sec. 323 tooth not being an instrument of cutting. The learned Sessions Judge although agreed that tooth is an instrument of cutting yet held that it was not utilized as such and hence he recommended that charge under Sec. 324 I.P. Code could not be framed and must be quashed.

(2.) As defined in Webster's Third New International Dictionary, "instrument" means "a means whereby something is achieved, performed , or furthered". Although tooth is part of the body, yet there is no difficulty in taking the view that it is a means whereby something is achieved, performed or furthered and, therefore, it can be characterised as an instrument within the meaning of Sec. 324 of the Penal Code as also under Sec. 326, if grievous injury is caused by tooth. The learned Sessions Judge has observed that "Tooth bite itself does not become an instrument for cutting unless cutting is achieved by this method". At the same time he held that tooth mark was present although no bleeding was described. We fail to understand from where the learned Sessions Judge inferred that tooth, an instrument of cutting, was not utilized as such. Bleeding or no bleeding is of no consequence. Where was the pious obligation on the part of the learned Sessions Judge to have gone into the question as to whether tooth bite was effectively utilized and any cutting injury was caused when obviously the mark of injury was there which could be caused by tooth bite. It is for the Court of the Magistrate to assess the evidence and hold as to whether any cutting was effected by tooth bite and if not what are the consequences.

(3.) This apart, it was always safer to frame a charge under Sec. 324 which could easily be converted into a charge under Sec. 323. The learned Sessions Judge has recommended for the quashing of the charge which in other words means the exoneration of the accused even for the offence under Sec. 323 which is not called for.