ORDER

The petitioner has come forward with this Criminal Revision Case challenging the judgment of the learned Principal Sessions Judge, Dharmapuri, Dharmapuri District made in C.A.No.37 of 2013 dated 10.09.2014 confirming the conviction and sentence passed by the learned Judicial Magistrate No.I, Dharmapuri, Dharmapuri made in C.C.No.68 of

2010 by judgment dated 01.10.2013.

2.The revision petitioner is the unsuccessful accused before the Lower Court, who was convicted for the offences under Section 326 IPC with two year rigorous imprisonment and fine of Rs.3,000/- passed by the trial Court, which was confirmed by the 1st appellate Court, against which this Revision is preferred stating that there was a previous enmity between him and the de-facto complainant's family, with regard to land dispute and there was a case in counter in Crime No.525 of 2009, which was registered and the FIR was lodged in the case in hand in Crime No.524 of 2009. On suppressing the fact that the accused also sustained injuries due to the attack made by the defacto-complainant along with others, and thereby, the prosecution has not proved the charges beyond reasonable doubt. Both the Courts below, without appreciating the fact had erroneously convicted the accused under Section 326 IPC and sentenced him to undergo two years rigorous imprisonment and to pay a sum of Rs.3,000/- as fine, in default to undergo one week Simple Imprisonment. Hence he prayed to set aside the conviction passed by the trial Court which was confirmed by the 1st appellate Court in C.A.No.37 of 2013, before the learned Principal Sessions Judge, Dharmapuri.

3.The learned counsel for the revision petitioner submitted that there was a previous enmity between the petitioner family and the de-facto complainant's family. On the day of the alleged occurrence, the de-facto complainant along with others, assaulted the accused and thereby, he sustained injuries and based upon his complaint, counter FIR was lodged against him in Crime No.525 of 2009.

4.But the learned Government Advocate (Crl.Side) appearing for the respondent submitted that the accused had bitten the ear of P.W.1 at the time of alleged occurrence and the same was proved with the help of Doctor's evidence, and so, the trial Court rightly charged him under Section 326 IPC, which was also confirmed by the appellate Court thereby contended that there is no merit in the revision and prayed for dismissal.

5.On a perusal of the records, it reveals that before the trial Court along with this accused, another three persons were charged under Section 294(b) and 326 IPC for A1 and A2 to A4 were charged for the offences under Section 323 IPC and to prove their charge, on the side of the prosecution, P.W.1 to P.W.8 were examined and documents were marked as Ex.P1 to Ex.P7. As the charges against A2 to A4 were not proved, they were acquitted and the petitioner / accused was charged for the offence under Section 326 IPC based on the evidence of P.W.1 / de-facto complainant / injured and also the evidence of Doctor P.W.8 along with Wound Certificate-Ex.P.7.

6.The case of the prosecution is that at the time of alleged occurrence, this accused went to land belonging to P.W.1 and attacked P.W.1's father. When it was questioned by P.W.1, the accused bitten his ear and torn with his pitch, thereby, he sustained grievous injuries on his right ear and immediately he was admitted in the hospital and a complaint was also given on the same day and FIR was lodged. As per the evidence of P.W.4 eye-witness, the alleged attack was made by this accused and thereby, P.W.1's right ear was torn. Furthermore, the evidence of Doctor-P.W.8 corroborates with the prosecution case and as per the evidence of P.W.1 he had sustained injuries in his right ear and the skin of the ear was torn and the same was grievous in nature and wound certificate was marked as Ex.P.7. About the torn of the ear, the learned trial Judge in his judgment “ Paragraph.19” elaborately discusse