R.C. Patnaik, J.
1. The petitioners, five in number, have been convicted under sections 352 and 504 of the Indian Penal Code. Each has been sentenced to pay fine of Rs. 150/-, in default to undergo rigorous imprisonment for one month on each count.
2. The prosecution case is that on 3. 1. 78 around 'noon while the complainant opposite party was standing in front of the house of one Kampala Rout, the petitioners came in a body armed and dashed against him and abused him in filthy language. The opposite party alleged that had he not restrained himself and the villagers intervened; there would have been breach of the public peace. Despite denial by the petitioners and their plea of alibi,, the courts below have convicted and sentenced them for the offences stated above.
3. The courts below have believed the witnesses as regards the acts of the petitioners constituting an offence under section 352 of the Indian Penal Code. It has been urged that P. W. 3 was a chance witness and his evidence, therefore, should not be relied on. There is no magic in the expression'chance witness'. The Supreme Court had occasion to deal with this aspect in Rana Pratap vs. state of Haryana AIR 1983 SC 680. Chinnappa Reddy, J. observed :
'... If a crime (murder) is committed in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with Suspicion on the ground that they are mere 'chance witnesses'. The expression 'chance witnesses' is borrowed from , countries where every man's home is considered his castle and every one must have an explanation for his presence elsewhere or in another man's castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are chance witnesses', even where crime (murder) is committed in a street, is to abandon good sense and take too shallow a view of the evidence.'
I have interpolated the word 'crime' in place of 'murder' in the above extract. On going through the evidence, I find nothing exceptional which would urge me to upset the concurrent findings of the courts below. I therefore, sustain the conviction under section 352 of the lndian Penal Code and the sentence imposed thereunder.
4. In regard, however, to the offence under section 504,1 regret to observe that the courts below have not kept in mind the requirements which would go to constitute the offence. There is no discussion in the judgments of the courts below of the materials which went to bring home the charge to the petitioners. The section does not punish expression of words which had merely terms of vulgar abuse. 'Insult' means : to treat with offensive disrespect and/or to offer indignity to a person. An insult, even if gross insult-is not an offence in itself under the section. Mere breach of good manners does not constitute an offence under Section 504. Insult may be offered by words or conduct. When the charge is an insult by words, the words must amount to something more than what in English law is called 'mere vulgar abuse'-Beaumont, C. J. in Philip v. Emperor, AIR 1932 Bombay 193.
The following ingredients have to be established in order to bring home a charge under Section 504, I. P.C.;
( a ) intentional insult;
( b ) the insult must be such a to give provocation to the person insulted; and
(c) intention that such provocation should cause or knowledge that such provocation is likely to cause, the person so insulted to break the public peace or to commit any other offence.
The section does not require retaliation by the person so provoked by the insult nor does it require an actual breach of the peace or commission of an offence by the person so insulted. What abusive language would be contrary to Section 504 would depend upon facts and circumstances. Nature of the words, the surrounding and the setting are relevant.
5. Regrettably, there is no finding in the judgments of the courts below if the words were insulting and the petitioners used the words intentionally and the words were such as to give provocation to the opposite party and if the petitioners had the intention that such provocation would cause, or knowledge that such provocation was likely to cause, the person so insulted to break the public peace or to commit any other offence. The courts below have not even referred to the insulting words in the judgments. This is a serious infirmity in the judgments. It goes to indicate non-application of mind.
6. There is also another weakness. It is said that the petitioners in a body arrived at the place and abused the opposite party. Where more than one person are accused of an offence under Section 504 of the Indian Penal Code, it is highly improbable that they utter the abusive words simultaneously as if in a chorus. It is also further unlikely that identical words are uttered by each of them. If that is not the probable human conduct, it has to be scrutinised with care the exact words uttered by each of them, or if all of them uttered uniformly the very same words. It is difficult to believe that each of the five petitioners uttered the identical words as alleged in the complaint petition. It has been noticed by the courts below that the witnesses corroborating the complainant-opposite party admitted that they could not say what words were uttered by the individual petitioners. Each having been indicted for offence under Section 504 of the Indian Penal Code, the charge would stand or fall in respect of each accused on proof or disproof of his own acts. One cannot be vicariously liable for words uttered by another. There is no allegation attracting vicarious liability. The courts below brushed aside this aspect of the matter arising out of the evidence of the witnesses by a shortshrift. If the accused queries : 'when the witnesses cannot say what in fact I did utter, can the charge be said to have been brought home to me'-the answer can only be in the negative.
I, therefore, set aside the conviction of the petitioners under Section 504 of the Indian Penal Code and the sentence imposed thereunder and acquit them of the charge.
7. In the result, the revision is allowed in part.