# Chabi Nath Revisionist v. State of U.P

- **Citation:** (2023) 11 ILRA 75
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-03
- **Case number:** J. Criminal Revision No. 325 of 1997
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chabi-nath-revisionist-v-state-of-u-p-49403
- **Pages:** 4

## Headnote

Law-The
Indian
Penal
Code,1860-Sections 325 & 326--- Criminal
revision against the judgment and order of
conviction and sentencing under Section 326
I.P.C and was sentenced to three years rigorous
imprisonment--- The accused gnawed the nose
of the informant with his teeth--- The 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
alleged injury caused by the revisionist to the
informant would fall under Section 325 I.P.C
which is meant for the punishment for
voluntarily causing grievous hurt--- Conviction
under Section 326 I.P.C is converted into
Section 325 IPC.

Revision partly allowed. .(E-15)

List of the cases referred-:

## Text

11 All. Chabi Nath Vs. State of U.P.
75
Krishna Kumar v. Union of India, AIR
1990 SC 1782 pages 18 and 19. The Full
Bench having not considered the question
of maintainability of the writ petition at the
stage of notice, the decision rendered by it
cannot be held to be an authority or
binding precedent for holding the writ
petition to be maintainable.

12. In view of the reasons
discussed above the writ petitions are
dismissed on the ground of alternative
remedy."

6. Under the circumstances, no
interference is called for at this stage.

7. Accordingly, this petition fails and
is dismissed.
----------
(2023) 11 ILRA 75
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.11.2023
BEFORE

THE HON'BLE UMESH CHANDRA SHARMA,
J.

Criminal Revision No. 325 of 1997

Chabi Nath ...Revisionist
Versus
State of U.P. ...Opposite Party

Counsel for the Revisionist:
Sri K.N. Pandey, Sri Santosh Kumar Yadav

Counsel for the Opposite Party:
Govt. Advocate

Criminal
Law-The
Indian
Penal
Code,1860-Sections 325 & 326--- Criminal
revision against the judgment and order of
conviction and sentencing under Section 326
I.P.C and was sentenced to three years rigorous
imprisonment--- The accused gnawed the nose
of the informant with his teeth--- The 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
alleged injury caused by the revisionist to the
informant would fall under Section 325 I.P.C
which is meant for the punishment for
voluntarily causing grievous hurt--- Conviction
under Section 326 I.P.C is converted into
Section 325 IPC.

Revision partly allowed. .(E-15)

List of the cases referred-:

1. Shakeel Ahmed Vs State (Nct of Delhi) 2001
0 (Supreme) SC 911

2. Jamil Hassan Vs St. of U.P. 1974 Crl.J. 867

3. Chaurasi Manjhi Vs St. of Bihar, A.I.R 1970
Patna 322

4. Gopal Bhai Chhagan Lal Soni Vs St. of Gujrat,
(1972) 13 Guj L.R 848

5. Jagat Singh & anr. Vs St. of Delhi 1984 SCC
Online Delhi 93

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Sri K.N. Pandey, and
Santosh Kumar Yadav, learned counsel for
the revisionist, learned A.G.A for the State
and perused the record.

2. This criminal revision has been
preferred
by
the
convicted
accusedrevisionist against the judgment and order
of
conviction
and
sentencing
dated
28.08.1992 passed by Judicial Magistrate-I,
Bareilly in Criminal Case No. 884 of 1992
- State Vs. Chhabi Nath & Ors., by which
the
accused-revisionist
was
convicted
under Section 326 I.P.C and was sentenced
to three years rigorous imprisonment
without awarding any amount of fine and
also against the judgment and order passed
by Additional District & Sessions Judge-
76 INDIAN LAW REPORTS ALLAHABAD SERIES
IX, Bareilly in Criminal Appeal No. 86 of
1992-Chhabi Nath Vs. State of U.P., by
which the learned A.S.J. has affirmed the
conviction of the convicted revisionist but
reduced the sentence from 3 years to 1 1⁄2
years rigorous imprisonment and Rs.
1,000/- fine with default stipulation to
undergo
three
months
additional
incarceration in case of non deposition of
fine.

3. In revision the convict-revisionist
has taken ground that the lower court and
the lower
appellate court
have
not
considered
the
statements
of
the
complainant and the witnesses which were
contradictory against the first information
report. The learned trial court has acquitted
the co-accused on the basis of doubtful
statements of complainant and the witnesses,
but the same benefit has not been given to the
revisionist. The conviction of the revisionist
is against the weight of evidence on record,
which is bad in law. The sentence is too
severe, hence the revision be allowed and the
order of conviction, sentencing and fine as
well be set aside.

4. In brief, facts of the case are that on
31.07.1988 at the time of incident, the victim
Tilak Ram was caught hold by both the
convicted accused Chhabi Nath and Dharam
Pal. The accused Chhabi Nath gnawed the
nose of Tilak Ram with his teeth. Another
accused Dharam Pal was exonerated and was
acquitted from the charge. No cross appeal
had been preferred by the State against his
acquittal.

5. During the course of trial following
witnesses were examined.

(I). P.W 1 - Tilak Ram, victim
(informant) has proved the F.I.R version
(Ex.Ka-1) beyond any reasonable doubt.

(ii) P.W 2 - Ram Murti Lal and
P.W. 3 Har Prasad, independent witnesses
have deposed in favour of prosecution and
have also proved the prosecution version.

(iii) P.W 4 - Dr. S.V. Ahmed, who
had examined the injured had proved his
injury report (Ex.Ka-2), and has opined that
the injuries of the informant was grievous in
nature and the nose of the informant has
permanently been disfigured.

(iv) P.W 5 - Aichal Singh, has
proved theChik F.I.R (Ex.Ka-3), Case Kaymi
G.D (Ex.Ka-4), Site Plan (Ex.Ka- 5) and
charge-sheet (Ex.Ka-6).

6. After closure of the evidence,
statements of the accused persons were
recorded under Section 313 Cr.P.C, in
which they denied the prosecution versions,
charge and evidences adduced by the
prosecution, but they refused to produce
any evidence in defence. The appellate
court as well as the trial court had given
concurrent finding regarding the facts of
the case and have concluded that the
convict-revisionist - Chhabi Nath bit the
nose of the informant - Tilak Ram by his
teeth and caused grievous injury to him,
which disfigured his nose and face, which
is covered under Section 326 I.P.C.
Though, no defence evidence was produced
by the convict-revisionist, but it was argued
from the defence side that the alleged
injury would have been caused by falling
on broken piece of glasses and scattered
bamboo, which was not accepted by both
the courts below.

7. During the course of argument only
one point has been argued by the learned
counsel for the revisionist that in several
cases the Hon'ble Apex Court and High
Courts have held that since the teeth of a
human being is not a deadly weapon as
defined under Section 326 I.P.C, hence, if
11 All. Chabi Nath Vs. State of U.P.
77
any injury by teeth biting occurs, the same
would not attract Section 326 I.P.C.

8. In this regard, the learned counsel
for the revisionist relied upon the judgment
in Shakeel Ahmed Vs. State (Nct of Delhi)
2001 0 (Supreme) SC 911, in which the
assailant had bitten the index finger and
had caused the injury. It was observed by
the Hon'ble Apex Court that the teeth of a
human being cannot be considered as
deadly weapons as per the description of
deadly weapons enumerated under Section
326 I.P.C, and the offence cannot escalate
to Section 326 I.P.C, hence the case best
remains only under Section 325 I.P.C.
Therefore, the conviction was converted
into Section 325 read with Section 34 of
the I.P.C and only rigorous imprisonment
for a period of six months besides fine of
Rs.1,000/- was awarded and the sentence
was accordingly modified.

9. Contrary to that the learned A.G.A
for the State relied on the judgement in
Jamil Hassan Vs. State of U.P. 1974 Crl.J.
867 in which it has been held by this Court
that the tooth is an instrument for cutting.

10. In Chaurasi Manjhi Vs. State of
Bihar, A.I.R 1970 Patna 322 Mr. Justice
Untwalia held that the tooth is instrument
for cutting and serves as weapons of
offence and defence. Injury by tooth bite is
offence under Sections 324 or 326 I.P.C
depending upon whether injury is simple or
grievous.

11. In Gopal Bhai Chhagan Lal Soni
Vs. State of Gujrat, (1972) 13 Guj L.R 848
contrary view has been expressed.

12. In Jagat Singh and another Vs.
State of Delhi 1984 SCC Online Delhi 93,
the Division Bench held that "We are of the
view that tooth is an instrument for cutting
within the meaning of Section 324 of the
I.P.C. P.W-10, Dr. Bajaj has described the
injury on the ear to be a grievous injury.
The Doctor opined the injury to be grievous
because it has caused dis-figration of the
face of Lal Chand. We are of the view that
the offence committed by Suresh would fall
under Section 326 of the I.P.C. Suresh is a
young man aged about 22. We feel that it
would serve no useful purpose to send
Suresh Appellant to jail. We, therefore,
direct that in lieu of unexpired period of the
sentence of imprisonment imposed on him
he shall pay a fine of Rs.2,000/- This fine
shall be in addition to the fine of Rs.250/-
imposed on him by the trial judge......... The
fine of Rs. 2,000/- , if realized, shall be
paid to Lal Chand.

13. All the aforesaid pronouncements
referred by the prosecution are pronounced
by the different High Courts. The judgment
Sakeel Ahmed (supra) is pronounced by the
Apex Court, in which the Apex Court has
clearly concluded that the teeth of human
being cannot be considered as deadly
weapon as per the description of deadly
weapon enumerated under Section 326
I.P.C. In such a situation, the alleged injury
caused by the revisionist Chhabi Nath to
the informant Tilak Ram would fall under
Section 325 I.P.C which is meant for the
punishment
for
voluntarily
causing
grievous hurt under which if a person is
found guilty, may be punished for seven
years imprisonment and fine also.

14. This is the case of the year 1988.
Since then more than 35 years have been
elapsed. As per records earlier, during the
course of the trial and appeal, the convict
revisionist has been in jail for two months
and thereafter since 04.01.2023, he is
continuously in jail till date. According to
78 INDIAN LAW REPORTS ALLAHABAD SERIES
this Court, considering the long time
pendency of the case and no any other
criminal antecedent to the credit of the
revisionist, a lenient view with regard to the
sentencing under Section 325 I.P.C would be
better and would also meet the ends of justice.
According to this Court one year's simple
imprisonment and Rs.1,000/- fine would be
sufficient. Thus, the revision is liable to be decided
accordingly.

O R D E R

15. The revision is partly allowed. The
conviction under Section 326 I.P.C is converted
into Section 325 IPC. The convicted-revisionist
Chhabi Nath is awarded one year's simple
imprisonment and Rs.1,000/- fine which has to be
deposited within a month. If the fine is not
deposited, he shall serve one month's additional
incarceration in lieu of non-deposition of fine.

16. A copy of this order be sent immediately
to the Judicial Magistrate Ist Bareilly, for
compliance.

----------
(2023) 11 ILRA 78
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.11.2023
BEFORE

THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Revision No. 715 of 2023

Rajina ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Sanjeev Kumar Shukla, Sri Dinesh
Kumar Rai

Counsel for the Opposite Parties:
G.A.
Criminal
Law-The
Code
of
Criminal
Procedure, 1973-Section 156(3)--- Criminal
Revision against the impugned order whereby
learned court below has rejected the application
filed by the revisionist under Section 156(3)
Cr.P.C--- The Magistrate has discretion in
directing the police to investigate or proceeding
with the case as a complaint case. But this
discretion cannot be exercised arbitrarily and
must be guided by judicial reasoning---Where
not
only
does
the
Magistrate
find
the
commission of a cognizable offence alleged on a
prima facie reading of the complaint but also
such facts are brought to the Magistrate's notice
which clearly indicate the need for police
investigation, the discretion granted in Section
156(3) Cr.P.C. can only be read as it being the
Magistrate's duty to order the police to
investigate. In cases wherein, there is alleged to
be documentary or other evidence in the
physical possession of the accused or other
individuals which the police would be best
placed to investigate and retrieve using its
powers under the Cr.P.C., the matter ought to
be sent to the police for investigation--- Cases
alleging sexual harassment, sexual assault or
any similar criminal allegation wherein the victim
has possibly already been traumatized, the
Courts
should
not
further
burden
the
complainant and should press upon the police to
investigate. Due regard had to the fact that it is
not possible for the complainant to retrieve
important evidence regarding her complaint---
Matter remanded to concerned Judge to decide
application under Section 156(3) afresh.

Revision Allowed. (E-15)

List of the cases referred-:

1. Lalita Kumari Vs Government of U.P.,
reported in 2014 (2) SCC 1.

2. Priyanka Srivastava Vs St. of U.P. reported in
2015 (6) SCC 287

3. XYZ Vs St. of M.P. & ors.reported in 2022
SCC OnLIne SC 1002

(Delivered by Hon'ble Shiv Shanker
Prasad, J.)