The convict-petitioner (hereinafter called 'accused') through this revision petition challenges judgment dated 4.7.1989 delivered by the Fourth Additional Sessions Judge, Dhar, confirming judgment dated 27.2.1988, delivered by Judicial Magistrate, First Class Dhar, convicting the accused under sections 326 and 323 IPC, and sentencing respectively to one year R.I. and fine of Rs. 500/-, in default one month S.I. on the first count and one month R.I. on the second count; sentences to run consecutively.

Prosecution story is that on 1.10.1982, at village Umariya Darji Bujarj at 2 p.m. complainant Narayan (PW 1) with his son Shrikishan was working in their fields. Due to previous land dispute accused came to the place and dealt stick blows to Narayan, fell him down and bit to part of his nostrils, separating portion of the same from nose. On Shrikishan's intervening, accused dealt him a lathi below. FIR being lodged on the same day at 7.30 p.m., after usual investigation challan was put up against the accused.

At the hearing Shri Ramesh Garg, for the accused-petitioner and Shri G. Desai, Deputy Government Advocate, were heard and record perused.

The contention of Shri Garg that Dr. R.C.Mandlik (P.W. 6) does not identify the injured Narayan as the person whom he had examined for the injuries is not acceptable. Narayan (P.W. 1) says that he had been sent to the hospital. Dr. Mandlik stated that he had examined Narayan S/o Ganpat and there was no cross-examination of the witness on the point. Besides, it was suggested to this witness that injury to Narayan could be caused by fan. Further no such contention was urged before the Sesions Judge. Considering all this accused cannot derive any benefit from the omission in the statement of Dr. Mandlik.

The next contention urged by Shri Garg is that in having regard to probabilities injury on the nose of complainant as observed by the trial Court as seen from deposition of injured Narayan (PW 1) could not have been caused by bit with teeth. There is positive evidence of complainant Narayan (PW 1) himself as also his son Shrikishan (PW 2) on the point. Added to this Dr. R.C. Mandlik (P. W. 6) when asked about injury on the nose pointed out that it was due to (Katne Se) which would mean due to biting. About injuries of this nature, it would be difficult to predict with precision, the nature of injury which may be caused by biting with teeth because it would depend on the nature of teeth, how biting takes place, what is the position of injured and the like. In view of the evidence as aforesaid the accused cannot derive any benefit from the same.

The next contention urged by Shri Garg is that the matter has been pending for last 10 years and the accused had tested imprisonment and inasmuch as he was in jail for about 10 days. Therefore, the substantive sentence of imprisonment may be reduced and sentence of fine may be enhanced.

The accused caused injury by biting i.e. with his teeth which cannot be called an instrument like a knife, a pair of scissors or a sword. The matter has been pending for the last ten years. In Kanhaiyalal v. State of M.P. (1985 Weekly Notes N. 336) where prosecution had been pending for 7 years and accused had suffered 15 days jail, the imprisonment was considered sufficient with fine of Rs. 1,000/- for conviction u/s 326 IPC. In Nayim v. Stale of M.P. (1985 MPWN N. 384) for conviction under S. 326 and 452 IPC where four years had lapsed and accused had already tested jail life, the same was considered sufficient.

Considering the foregoing, while sentence of imprisonment of one year R.I. for conviction under S. 326 IPC is reduced to the period already undergone, the sentence of fine of Rs. 500/- is enhanced to Rs. 3,000/- in default of payment of fine to suffer 1 year R.I. Sentence of one month R.I. under S. 323 IPC is set aside and instead the accused is ordered to pay fine of Rs. 500/- in default to suffer 3 months' R.I. Out of t