N.N. Sharma, J.
1. This revision is directed against order dated 25.11.1981 by Shri J.P. Singh, learned IV Additional Sessions Judge, Varanasi in Criminal Appeal No. 265 of 1981 by which conviction of revisionist under Sections 325, 323, 504, 506 read with Section 34 of Penal Code were affirmed. The sentences of one year's rigorous imprisonment under Section 325, I.P.C. six months' rigorous imprisonment under Section 323, I.P.C. One month's rigorous imprisonment under Section 504, I.P.C. and two months' rigorous imprisonment under Section 506, I.P.C. were also affirmed.
2. The aforesaid conviction and sentences were recorded by Sri A.K. Dubey, learned Judicial Magistrate 1st Class, Varanasi in Criminal Case No. 438 of 1979 on 26.6.1981.
3. Briefly stated the prosecution version was that Ramesh Prasad Srivastava complainant (P.W. 1) and the revisionist who are cousins, resided in House No. 60/62, Karn Ghanta, Varanasi, while revisionist was aged about 12 years only, his parents expired and he was brought up by the father of complainant and educated and married by him. It was further asserted that complainant asked him to reside in a separate house along with his wife which he refused and this dispute which occurred on 23.4.1979 at about 10.00 P.M. is the sequel of the said demand by complainant. It is alleged that preceding this incident, in the same night at about 7.30 or 8.00 P.M., Rameshwar revisionist put his bucket under the water-pipe forcibly which was resented by the complainant, and an altercation ensued.
4. At about 10.00 P.M., while the complainant was sitting at his platform in front of his house, revisionist along with one unknown person, armed with a rod, arrived there and started hurling abuses upon the complainant. When complainant protested, revisionist and his associate dealt blows on him by rods; Smt. Shyma Devi, mother of complainant, ran to rescue of her son, she was also belaboured, The complainant also used a piece of wood in his self defence. It is further alleged that some abuses were hurled on complainant and he was threatened with dire consequences. Occurrence was witnessed by Mahendra Kumar (P.W. 1), Vinod Singh (P.W. 3), Nagina Yadav and Sheo Nihore.
5. Complainant went to S.S.P.G. Hospital, Varanasi along with his mother and got his injuries examined by Dr. O.P. Dubey in the same night at 11.55 P.M. Seven injuries were detected on his person, injuries Nos. 1 to 6 were simple in nature while injury No. 7, which was on right middle finger., was kept under observation for which X-ray was advised. Since Dr. O.P. Dubey could not be available for deposition, as deposed on oath by Sri Ramji Singh, Pharmacist (P.W. 5), so it was proved by P.W. 5 who was acquainted with his handwriting on injury report Exhibit Ka-3.
6. On 24.4.1979, Dr. B.K. Bhargava (P.W. 4) conducted X-ray examination of the said injury and prepared X-ray plate Ext. I and X-ray report Ext. Ka-1 which disclosed a fracture of proximal phalanx of middle finger of right hand. Thus, the said injury was declared as grievous.
7. In order to bring home the charges, six witnesses were examined by prosecution. P.W. 6 Sachchidanand Verma, Record Keeper is a formal witness who was summoned to produce the application dated 24.4.1979 which was alleged to have been submitted to Senior Superintendent of Police, Varanasi by complainant but could not be available in the office. Ocular testimony consisted of the statements of Mahendra Kumar (P.W. 1), Ramesh complainant (P.W. 2) and Vinod Singh (P.W. 3) who testified in support of the prosecution version.
8. In his statement, revisionist denied the assault as well as the hurling of abuses and alleged his implication to ill-will. In his statement recorded under Section 313 of Criminal P.C., revisionist alleged that witnesses perjured as they were amenable to the influence of complainant. No evidence was adduced in defence.
9. I have heard learned advocates for the parties and carefully perused the record.
10. The first point which was not argued before me on behalf of learned advocates for parties is regarding the conviction and sentence of revisionist under Sections 504 and 506 of Penal Code. On a careful perusal of the record, I find that the aforesaid conviction and sentences are unsustainable.
11. In para 6 of the complaint, it was mentioned that on the protest by complainant, revisionist hurled filthy language abusing his mother and sister; there was no averment to the effect that the complainant was threatened with murder or dire consequences; a look at the charges drawn by learned Magistrate on 11.8.1980, paper No. 32, will go to disclose that the actual words used by revisionist to intentionally insult Ramesh so as to cause provocation to him knowing that such provocation could break public peace so as to attract Section 504 of Penal Code or the actual words constituting an offence under Section 506 of Penal Code were not specified. It is correct that the charge need not be worded with accuracy of a plea but must contain the ingredient of the offence as it is formulation of specific accusation which the accused had to meet.
12. Complainant Ramesh (P.W. 2) testified about his close relationship with Ramesh revisionist who happened to be son of his father's sister; he further testified that while he was silting on the platform, revisionist along with a, stranger, armed with rod, reached there and began to abuse his mother and sister; they further uttered 'SALE MAR KER THIK KAR DENGE' (we will render you right through beating).
13. Mahendra Kumar (P.W. 1) testified that he saw the occurrence while he was returning after reading tuition and found the dispute going on amongst Ramesh, Rameshwar and the stranger who were abusing each other Rameshwar also told Ramesh if he would utter any word, he would be murdered; with this utterance, assault was initiated. He further conceded in cross-examination at page 5 that no other person witnessed the occurrence at that time.
14. Vinod Singh, P.W. 3, testified that he reached the spot while returning at about 10.00 P.M. from the house of his father's sister. He was attracted by the alarm. He went ahead and found revisionist and the stranger dealing blows with rods, on Ramesh. On the alarm of Ramesh, his mother arrived. She was also belaboured; Ramesh also used a rod in self-defence. Thus he did not mention about any threat held out by complainant or the filthy language which might have been uttered by revisionist.
15. Under such circumstances in the absence of original application submitted to Senior Superintendent of Police, Varanasi promptly by complainant, it is not possible to accept the exaggerated version given by the complainant of the occurrence when he was not fully corroborated by his witnesses about the actual words constituting the offence under Sections 504/506 of Penal Code nor were mentioned in the complaint or in the aforesaid charges or in the testimony of independent witnesses. The point is well covered by K.P. Sinha v. Aftabuddin reported in 1955 CriLJ 1382 : AIR 1955 Pat 453 which posited:
It is necessary that the actual words Used or supposed to have been used by the accused which the complainant understood to be words of insult should be mentioned in the complaint. Otherwise the Court would not be in a position to decide whether the words used amounted to intentional insult. In the second place, the words used which amounted to intentional insult should be such as to give provocation for the commission of a breach of the peace.
Where no allegation has been made in the complaint that the intentional insult was such as to give provocation for any breach of the peace, Section 504 has no application at all.
16. I respectfully agree with the said observations. Similarly in Sham Lal Bania v. The King reported in : AIR1952Cal288 , it was observed:
Before a person can be found guilty of an offence punishable under Section 504 for insulting a person by the use of words it must be shown that the accused used those words intending or knowing it to be likely that it would result in such provocation as would cause that person to break the peace etc. In the absence of all mention either in the charge when a charge is framed or in the record of evidence as to what words were used it is not possible for the High Court in revision to decide whether the words used indicated such, intention or knowledge and the conviction cannot be maintained.
17. Under such circumstances, the afore-, said conviction and sentences under Sections 504/506 of Penal Code are set aside.
18. Sri Manoj Prasad, learned advocate for revisionist, argued that the injury report has not been legally proved in this case as Dr. O.P. Dubey, who examined the injured, was not examined and Sri Ramji Singh, Pharmacist (P.W. 5) was not competent to prove injury reports Exts. Ka-2 and Ka-3. This contention is devoid of force for the simple reason that not a single question was put in cross-examination to P.W. 5 to assail his assertion that Dr. O.P. Dubey was not available for deposition and he was well acquainted with the writing of the doctor. So it was duly proved in accordance with the provision of Section 47 of Indian Evidence Act. This report bears the thumb impression of Ramesh who testified about his medical examination. Under such circumstances, it is too late in the day to argue that the said report is not readable in evidence.
19. The next contention was that the X-ray report, Ext. Ka-1 and X-ray plate Ext. I, as proved by Dr. B.K. Bhargava (P.W. 4) are not sufficient to bring home the charge to revisionist under Section 325 of Penal Code and so that conviction and sentence are unsustainable. This contention is permitted to prevail for the following reasons:
20. It appears from the perusal of the charges drawn in this case that the revisionist was not charged under Section 325 read with Section 34 of Penal Code by learned Magistrate. The stranger, who is alleged to have participated in the occurrence and shared common intention to bring home the charge under Section 325 of Penal Code was not put on trial.
21. I have carefully perused the testimony of the injured and two witnesses who did not testify that complainant was the author of the said injury. Under such circumstances possibility of the said injury being caused by the stranger, who is not an accused, cannot be excluded. When during the course of assault, a stranger intervenes and does something which amounts to an offence, his associates cannot be made liable with the help of Section 34 of Penal Code vide 1978 Raj Cri C 129 (133); 1970 CriLJ 114 (115)(Orissa) and : 1970CriLJ363 .
22. Sri Manoj Prasad further, argued that parties have come to terms and so on account of their close relationship, it was essential that the revisionist should be extended benefit of Probation Act or should be let oft with the sentence of about one month imprisonment which he has already undergone. Such composition is not on record. Unless the compromise duly verified by the parties is brought on record, it is unnoticeable. No weight can be attached to such assertion.
23. I have carefully considered over the matter of sentence this contention is unacceptable to me for the simple reason that it was never put forward when the revisionist was heard at the stage of trial and during appeal. Even now, I find that the revisionist indulged in an act which was not simply criminal causing hurt to Ramesh and his mother Smt. Shyama Devi but the act represents the height of ingratitude. Under such circumstances, it is not desirable to acquit the revisionist under Section 323 of Penal Code or to let him off with a sentence of fine or by extending the benefit of Probation Act. So the conviction and sentence of revisionist under Section 323 of Penal Code is affirmed.
24. In the result, the revision is partly allowed. Impugned order regarding conviction and sentence of revisionist under Sections 504/506/325 of Penal Code arc set aside. Conviction and sentence of revisionist under Section 323 of Penal Code are maintained.
25. Revisionist is on bail. Let him surrender to his bonds forthwith and be taken into custody to serve out the sentence.
26. Impugned order is modified accordingly.