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2017 DIGILAW 1912 (RAJ)

Ram Lal v. State of Rajasthan through P. P

2017-08-28

PANKAJ BHANDARI

body2017
JUDGMENT : PANKAJ BHANDARI, J. Petitioner has preferred this revision petition aggrieved by judgment and order dated 28.06.2017 passed by Sessions Judge, Tonk (Rajasthan) & judgment and order dated 14.09.2015 passed by Judicial Magistrate Dooni, Tonk, whereby, petitioner has been convicted for offence under Sections 323, 326, 341 of I.P.C. and has been sentenced to undergo simple imprisonment of one month for offence under Section 341 I.P.C. and fine of Rs. 100/-. On non payment of fine to further undergo simple imprisonment of seven days, sentence of one month simple imprisonment for offence under Section 323 of I.P.C. and fine of Rs. 500/-, in default of payment of fine to further undergo 15 days simple imprisonment and sentence of one year for offence under Section 326 I.P.C. and fine of Rs. 5,000/- and in default of payment of fine to further undergo three months simple imprisonment. 2. It is contended by counsel for the petitioner that the offence pertains to biting of the ear and the same does not fall within purview of Section 326 I.P.C. Counsel for the petitioner has placed reliance on “Shakeel Ahmed v. State, (2004) 10 SCC 103 .” 3. It is also contended that the matter is of the year 2002 and the petitioner has faced agony of trial for last 15 years and the petitioner is aged 62 years. 4. Learned Public Prosecutor has opposed the revision petition. His contention is that biting of teeth has resulted in amputation of part of the teeth and therefore, conviction under Section 326 I.P.C. was justified as terminology used under Section 326 I.P.C. is deadly weapon or means. 5. I have considered the contentions. 6. The Apex Court in the case of “Shakeel Ahmed v. State” (supra) was dealing with a case where the assailant had bitten the index finger. The Apex Court held that teeth of human being cannot be considered as deadly weapon as per the description of deadly weapon enumerated under Section 326 I.P.C. The Apex Court altered the conviction from Sec. 326 I.P.C. to Sec. 325 I.P.C. 7. Since the petitioner is not challenging the judgment of conviction and his prayer is that the offence be altered to Section 325 I.P.C. in place of Section 326 I.P.C. and the petitioner be given benefit of probation or in the alternative the sentence be reduced to the period already undergone. 8. Since the petitioner is not challenging the judgment of conviction and his prayer is that the offence be altered to Section 325 I.P.C. in place of Section 326 I.P.C. and the petitioner be given benefit of probation or in the alternative the sentence be reduced to the period already undergone. 8. Section 326 I.P.C. deals with dangerous weapon and teeth cannot be considered as dangerous weapon as held by the Apex Court in the case of “Shakeel Ahmed v. State” (supra) the conviction of the petitioner under Sec. 326 I.P.C., therefore, deserves to be altered to one under Sec. 325 I.P.C. 9. Considering the fact that the petitioner has already remained in custody for about two and a half months. He is aged 62 years and has faced agony of trial for a period of 15 years. While upholding the conviction under Sections 323, 341 of I.P.C. and altering the conviction to one under Section 325 I.P.C. in lieu of Section 326 I.P.C, I deem it proper to reduce the sentence to sentence already undergone by the petitioner. However, this Court deems it proper to impose a fine of Rs. 15,000/- for offence under Section 325 I.P.C. The remaining fine imposed by the Court under Sections 323, 341 I.P.C. would stand. Since the conviction under Section 326 I.P.C. has been set-aside, petitioner would not be require to pay the fine imposed for offence under Section 326 I.P.C. 10. On deposit of the fine before the Court below, the petitioner be set at liberty forthwith, if not wanted in any other case. Fine so deposited be paid to the complainant. 11. The revision petition is partly allowed. Application for suspension of sentence stands disposed. Record of the Court below be returned forthwith. Revision partly allowed.