JUDGMENT : T. Krishnavalli, J. 1. This Criminal Appeal is directed against the judgment passed by the Special and Sessions Judge, Pudukkottai, in SC No. 112 of 2012, dated 23.09.2014. 2. The case of the prosecution is that on 22.02.2012 when the de-facto complainant was going to attend the Mariamman temple function, due to previous motive the accused abused him by saying his caste name and subsequently, he bite his left ear and thereby caused grievous injury. The Deputy Superintendent of Police attached to Thirumayam Police Station, has filed a final report against the accused examining the witnesses. 3. The trial court, on proper appreciation of the evidence both oral and documentary, found the accused guilty, convicted the appellant for the offence under Sections 294(b), 326 IPC and Section 3(i)(x) of, SC/ST Act and awarded the rigorous imprisonment for 3 months and imposed a fine of Rs.1,000/-, in default to undergo imprisonment for one month for the offence under Section 294(b) IPC and 2 years rigorous imprisonment and imposed a fine of Rs.5,000/-, in default to undergo imprisonment for 6 months for the offence under Section 3(i)(x) of SC/ST Act and 5 years rigorous imprisonment and imposed a fine of Rs.5,000/-, in default to undergo imprisonment for 6 months for the offence under Section 326 IPC and directed to run the sentences concurrently and also directed to pay Rs.15,000/- towards compensation to the de-facto complainant. Aggrieved by the judgment of the trial court, the appellant/accused is before this court. 4. Heard both sides and perused the materials available on record. 5. Aggrieved by the judgment of the trial court, the appellant/accused is before this court. 4. Heard both sides and perused the materials available on record. 5. The first contention raised on the side of the appellant/accused is that for the offence under Section 3(1)(x) of SC/ST (P) Act, the prosecution has to prove that a member of non Scheduled Caste/Scheduled Tribe community has insulted a member of Scheduled Caste/Scheduled Tribe community in public view naturally in public place, but in this case, P.W.1 in his complaint categorically stated that on 22.02.2012 at 6.45 pm, when he stood on the back portion of his house, the accused came and reported about his brother Murugadoss and he requested that only his brother has transaction with him and so asked the accused to contact his brother and due to it, quarrel arose between P.W.1 and the accused and the accused used filthy language calling his caste name and as the occurrence was not taken place in the public place, the offence under Section 294(b) IPC and Section 3(1)(x) of SC/ST (PA) Act, 1986 are not made out and prays that the accused is entitled to acquittal. For that, the learned counsel appearing for the appellant/accused submitted a ruling reported in (2016) 4 MLJ (Crl) 509 (Muruganantham and another Vs. State represented by Inspector of Police, Pollachi Taluk Police Station, Coimbatore District). In that case, it has been held as follows:- "21. For an offence under section 3(1)(x) of SC/ST(PA) Act, prosecution has to prove that a member of a non-scheduled caste/Scheduled Tribe community has insulted a member of Scheduled caste/Scheduled tribe community in public view naturally in a public place.? 6. P.W.1 in his complaint stated that on 22.02.2012, when he was standing on the back portion of his house, the accused came and used filthy language and called his caste name. But during his evidence, he has stated that on 22.02.2012 at 6.45 pm, he stood near Firewood shop, which lies on the back portion of his house. P.W.1 during his cross examination stated as follows:- P.W.1 during his cross examination admitted that he stated the place of occurrence is his back portion of his house. 7. P.W.2 is cited as eye witness. P.W.1 during his cross examination stated as follows:- P.W.1 during his cross examination admitted that he stated the place of occurrence is his back portion of his house. 7. P.W.2 is cited as eye witness. P.W.2 deposed that on 22.02.2012 at 6.45 pm, he heard the sound of P.W.1 quarrelled with the accused and the accused near the firewood workshop, which lies on the back portion of the house of P.W.1. 8. On perusal of the observation mazahar in respect of the place of occurrence, it is stated as follows:- 9. In the rough sketch, the place of occurrence is shown as the mud road proceeding from Illanjavur to V. Kottaiyur, Rayavaram. Hence, in Ex. P2 observation mahazar and Ex. P7 rough sketch, the place of occurrence is shown as the mud rood proceeding from Illanjavur to V. Kottaiyur Rayavaram. But P.W.1 has not stated in his complaint when the occurrence took place while he was standing in the back portion of the house. 10. Further, in his evidence, P.W.1 stated that the occurrence took place, when he stood near his firewood workshop. But in the rough sketch, it was shown that the occurrence took place in the mud road. Ex. P1 is the earliest document. In Ex. P1 as per the version of P.W.1, the place of occurrence is back portion of his house. At this juncture, it is necessary to refer sections 294(b) IPC and 3(1)(x) of SC/ST (PA) Act, 1989, which would run thus:- "294. Obscene acts and songs.? Whoever, to the annoyance of others? (a) does any obscene act in any public place, or (b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.] Section 3(1)(x) in The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989:- (x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view.? 11. On perusal of the ingredients for attracting section 294(b) IPC, the occurrence should take place in or near any public place. 11. On perusal of the ingredients for attracting section 294(b) IPC, the occurrence should take place in or near any public place. Likewise, on perusal of the ingredients for attracting section 3(1)(x) of SC/ST (PA) Act, the member of non Scheduled Caste/Scheduled Tribe community member has insulted a member of Scheduled Caste/Scheduled Tribe community in public view naturally in a public place. Already P.W.1 in his complaint stated that the occurrence took place on the back portion of his house, hence there is no public view. But now P.W.1 exaggerated and stated during his evidence that the occurrence took place in a public road. Further, P.W.1 in his complaint or in his evidence stated that due to obscene words uttered by the accused, the public got annoyed. 12. Further, P.W.1 admitted during his cross examination that his brother already borrowed Rs. 5,000/- from the accused and his brother failed to return the above amount. When the accused demanded the above money, wordy quarrel arose between the accused and P.W.1, The evidence of P.W.1 is not trustworthy and he exaggerated the occurrence and deposed during his evidence that the occurrence took place near the firewood workshop. Hence on careful perusal of Ex. P1, it reveals that the place of occurrence is not a public place. Hence, it is held that the offence under Section 294(b) IPC and 3(1)(x) of SC/ST (PA) Act, 1989 were not made out. 13. In this case, P.W.1 in his evidence and complaint stated that due to quarrel between him and the accused, the accused bite his left ear and after hearing his sound, Kavitha and Shanthi came, then the accused fled away. 14. P.W.2, P.W.3 and P.W.7 are cited as eye witnesses. P.W.2 deposed that on 22.02.2012 at 6.45 pm, she talked with Shanthi in Shanthi's house, at that time P.W.1 and the accused quarrelled with each others and wordy altercation arose between P.W.1 and the accused and the accused bite the left ear of P.W.1 and after hearing the sound of P.W.1, she and Shanthi went and saw that blood oozed from the ear of P.W.1. 15. P.W.2 deposed that after hearing the sound of P.W.1, she went to the firewood workshop and saw that blood oozed from the left ear of P.W.1. Hence, there is no chance for her to see the occurrence. Therefore, her evidence cannot be given much importance. 16. 15. P.W.2 deposed that after hearing the sound of P.W.1, she went to the firewood workshop and saw that blood oozed from the left ear of P.W.1. Hence, there is no chance for her to see the occurrence. Therefore, her evidence cannot be given much importance. 16. P.W.7 is the son of the brother of P.W.1. P.W.7 deposed that he heard the sound from his chicken and then he went to the place of occurrence and he heard that the accused bite the ear of P.W.1. P.W.7 also hearsay witness. Hence much importance cannot be given to the evidence of P.W.7. 17. The Doctor, who gave treatment to P.W.1 was examined as P.W.5. P.W.5 deposed that on 22.02.2012 at 7.45 pm, when he was on duty, P.W.1 was brought by his brother Sivakumar and he found that the back portion of the left ear was found and he opined that the injuries sustained by P.W.1 is grievous in nature. 18. The learned counsel appearing for the appellant/accused argued that as per the prosecution case, the accused bite the lower portion of the ear of P.W.1, but there was no permanent privation of hearing of either ear of P.W.1, hence, the injury is not grievous in nature and P.W.1 during his cross examination stated that now the left ear is in good condition, hence the offence under Section 326 IPC is not made out and only the offence under Section 324 IPC is made out and for that, the learned counsel appearing for the appellant/accused submitted a ruling reported in 2016 (3) MWN (Cr.) 586 (Mariappan Vs. State), wherein it has been held as follows:- "17. Vide Section 320 I.P.C. 'hurt' will become 'grievous' under any one of the following categories: "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 or 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." 18. 'Hurt' is commonly known as 'simple hurt/injury'. 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." 18. 'Hurt' is commonly known as 'simple hurt/injury'. It is punishable under section 323 I.P.C. However, when the said hurt was caused by a dangerous weapon or means then it is punishable under section 324 I.P.C. and if the hurt is grievous as defined in Section 320 I.P.C. then it is punishable under section 325 I.P.C. When such 'grievous' hurt has been caused by a dangerous weapon further higher punishment is provided in section 326 I.P.C. 19. From the above, what emerges is that whether the injury/hurt is 'simple' or 'grievous' does not depends on the Doctor's evidence, medical opinion. But it is based on the nature of the injury, as given in section 319, 320 I.P.C., as the case may be. However, in this respect, medical evidence assists the Court to classify the injury. Thus, nature of injury in the legal sense and the nature of the injury in the medical sense are different. What the Court has to do in a hurt case is to classify the hurt as simple or grievous as defined in section 319 or in Section 320 I.P.C. ......... 21. In a hurt case, for the purpose of deciding the severity or gravity of the offence committed, the nature/type of weapon also assumes signal importance. If it is an ordinary, simple weapon, it is different. If the weapon is dangerous, lethal, then the punishment will be more. Therefore, the prosecution has to establish the nature of the injury, type of weapon used, whether it is blunt weapon, etc. then only the Court can give higher punishment based on the nature of weapon used. 19. In this case, P.W.1 stated that due to the quarrel between him and the accused, the accused bite his lower portion of the ear. But during his cross examination, P.W.1 stated that now his left ear is in good condition. For attracting section 320 IPC, the hurt is grievous when any permanent privation of hearing of either ear. But in this case, there is no permanent privation of the hearing of either ear of P.W.1. But during his cross examination, P.W.1 stated that now his left ear is in good condition. For attracting section 320 IPC, the hurt is grievous when any permanent privation of hearing of either ear. But in this case, there is no permanent privation of the hearing of either ear of P.W.1. For punishable under section 326 IPC, there was grievous hurt caused by a dangerous weapon. Whether the injury is simple or grievous does not depend upon the medical evidence. But it is based on the nature of injury. It is the duty of the Court to clarify the hurt - whether it is simple or grievous as defined under Sections 319 or 320 IPC. 20. In this case, the accused bite the left ear of P.W.1. There was no permanent privation of hearing of either ear of P.W.1. Hence, the injury cannot be treated as grievous in nature. But it can be treated only as simple in nature. Hence, the offence under Section 326 IPC is not made out. But only the offence under Section 324 IPC is made out. 21. The learned counsel appearing for the appellant/accused argued that the occurrence was taken place on 22.02.2012. But the complaint was registered only on 23.02.2012 at 5.30 am and no proper explanation was given for the delay in giving the complaint and registering the case and hence, it is fatal to the prosecution. 22. P.W.1 during his evidence stated that due to the bite of his ear by the accused, he was taken to Thirumangalam Government Hospital and information was given to Thirumangalam police station and the police came registered his statement. There was blood oozed from the ear of P.W.1, then at first he went to the Hospital for taking treatment and after treatment only steps were taken to record the statement from P.W.1. Hence, proper explanation was given on the side of the prosecution for the delay in giving the complaint to the police. Hence, it is held that it is not fatal to the prosecution. 23. For all the reasons stated above, this court is of the considered view that the appellant/accused is found guilty only under Section 324 IPC. 24. In the result, this appeal is partly allowed. The appellant/accused is found guilty under Section 324 IPC and he is convicted for the said offence and sentenced him to undergo one year RI. 23. For all the reasons stated above, this court is of the considered view that the appellant/accused is found guilty only under Section 324 IPC. 24. In the result, this appeal is partly allowed. The appellant/accused is found guilty under Section 324 IPC and he is convicted for the said offence and sentenced him to undergo one year RI. In respect of fine amount, the findings of the Courts below are confirmed. The period of sentence, if any, already undergone by the appellant/Accused shall be given set off under Section 428 of Cr.P.C.