BABY KUMAR ALIAS JANARDHANA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THE appeal filed against the judgment of conviction and sentence passed in S. C. No. 52/95 by the III Additional Sessions Judge, Mangalore. The appellant is the accused charge sheeted for committing offences punishable u/ss. 307 and 504, IPC. On the basis of the oral and documentary evidence adduced, the accused is convicted for the offence u/ss. 504 and 307, IPC and sentenced S. I. for a period of three months for committing an offence u/s. 504, IPC. The accused is further sentenced to pay a fine of Rs. 15,000/- and to undergo R. I. for a period of five years for commission of offence punishable u/s. 307, IPC. In default of payment of fine, the accused should undergo R. I. for a period of two years. The sentences are directed to run concurrently. The accused is in Judicial Custody between 22-1-1995 to 9-2-1995 and from 1-7-1998 to 10-7-1998. The said period is given set off u/s. 428, Cr. P. C.

(2.) THE prosecution has examined 10 witnesses. P. W. 1 is the injured and the complainant, P. W. 2 to 4 are the eye-witnesses, they have turned hostile and they have not supported the prosecution version, P. W. 5 is the brother of P. W. 1 and he took P. W. 1 to the hospital after being informed of the incident by P. W. 2, P. W. 6 is a panch witness, P. W. 7 is the doctor who has treated P. W. 1, P. W. 8 is the P. S. I. who registered the FIR and did the part of investigation, P. W. 9 is panch witness for the seizure under mahazar Ex. P. 11. He has supported the prosecution version, P. W. 10 is the PSI who concluded the investigation and filed the charge sheet.

(3.) ON going through the evidence of P. W. 1 corroborated by the evidence of P. Ws. 5 and 7 and P. W. 9, the prosecution successfully established the guilt of the accused. Although the independent eye-witnesses P. Ws. 2 to 4 have turned hostile, nothing is elicited in the cross-examination of P. W. 1 to disbelieve his veracity. The medical evidence fully corroborates the version of P. W. 1. In that view, I find no merit in the appeal to interfere with the conviction. It is pertinent to note that the trial Court should have acted more wisely in framing the charge. The offence punishable u/s. 504, IPC is a distinct offence which comes under the category of misdemeanours. It is a non-cognizable offence. Using foul and provocative language against any person which has a tendency of provoking the person to commit an offence made is punishable u/s. 504, IPC. In the natural course of events when any heinous offence is committed by assault, it is but natural that the offender uses filthy and abusive language and technically such abusive words may attract the ingredients of offence u/s. 504, IPC by overlapping. However such act of use of abusive words should not be construed as a distinct offence. It has to be read and understood as a part of the higher offence committed by the accused and it does not warrant framing of a charge u/s. 504, IPC. Therefore, whenever higher offences are committed and in the course of the commission of an offence filthy and abusive language is used, which has the tendency of provocating the victim to indulge in retaliatory acts. No charge u/s. 504, IPC need be framed. The said conduct is to be construed as a part of the higher heinous offence. In the instant case, I find framing a charge u/s. 504, IPC convicting the accused and sentenced him with an imprisonment for a period of three months is totally unwarranted.