Important points:
Expression "any instrument which used as a weapon of offence is likely to cause death" has to be gauged taking note of the heading of the Section. What would constitute a 'dangerous weapon' would depend upon the facts of each case and no generalization can be made.”

ORDER :

Application for regular bail under Section 439 Cr.PC.

The applicant is the sole accused in Crime No.35/2021 of Nenmara Police Station, Palakkad District for having allegedly committed offences punishable under Sections 341, 324 and 326 of I.P.C.

2. The prosecution case, in brief, is that on 21.01.2021 at 17.00 hours at Adipperandathara, the applicant due to previous enmity towards the defacto complainant, wrongfully restrained him and assaulted him by hitting with hands and also caused grievous injury by biting off a portion of his left ear. Thus committed the offence and registered the crime.

3. The applicant states that teeth is not a deadly weapon and therefore, the offence under Section 326 IPC is not attracted. He relies on the decision of the in Shakkel Ahammedv State of Delhi (2004 (10) SCC 103) in support of his submissions. The applicant was arrested on 4.2.2021 and his regular bail application filed before the jurisdictional court was dismissed. Hence, he has approached this Court seeking indulgence.

4. Heard the learned counsel for the applicant and the learned Public Prosecutor.

5. The applicant has allegedly bitten off a portion of the left ear of the de facto complainant and the offence under Section 326 IPC is allegedly committed by him. The Apex Court has in Shakkel Ahammed (supra)held that the teeth of a human being cannot be considered as a 'deadly weapon' enumerated under Section 326 of I.P.C. Hence, the offence cannot escalate to Section 326 IPC. It can best remain only under Section 325 IPC, which is a bailable offence. The aforesaid decision was also followed by the Rajasthan High Court in Chandraee v. State of Rajasthan [2011 KHC 572]. In Mathai v. State of Kerala [AIR 2005 SC 710], it was observed thus:

“The expression "any instrument which used as a weapon of offence is likely to cause death" has to be gauged taking note of the heading of the Section. What would constitute a 'dangerous weapon' would depend upon the facts of each case and no generalization can be made.”

In the above cited decision, the Apex Court held that a small stone used as a weapon cannot be a dangerous weapon and hence, offence under Section 326 IPC is not attracted.

6. In the instant case, the grievous hurt was caused by biting with teeth. Human teeth cannot be termed as a dangerous weapon capable of causing death. Hence, offence under Section 326 IPC is not attracted and only an offence under Section 325 IPC would be attracted. That offence is bailable. The applicant cannot, therefore, be detained any longer.

7. In the result, the Bail Application is allowed and the applicant is directed to be released on bail on execution of bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties, each for the like amount to the satisfaction of the jurisdictional court and on the following conditions:

(i) He shall appear before the investigating officer as and when called for.

(ii) He shall not attempt to influence or intimidate the witnesses or tamper with evidence.

(iii) He shall not get involved in similar offences during the currency of the bail.

In case of breach of any of the bail conditions, the prosecution shall be at liberty to apply for cancellation of the bail before the jurisdictional court.