JUDGMENT
K. Sreedhar Rao, J.
1. The appeal filed against the judgment of conviction and sentence passed in S.C. No. 52 of 1995 by the III Additional Sessions Judge, Mangalore. The appellant is the accused charge-sheeted for committing offences punishable under Sections 307 and 504 of the IPC. On the basis of the oral and documentary evidence adduced, the accused is convicted for the offence under Sections 504 and 307 of the IPC and sentenced to S.I. for a period of three months for committing an offence under Section 504 of the. 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 under Section 307 of the 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 under Section 428 of the Cr. P.C.
2. The prosecution has examined 10 witnesses. P.W. 1 is the injured and the complainant, P.Ws. 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 takes 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 P.S.I, 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, 7 and 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 under Section 504 of the IPC is a distinct offence which comes under the category of misdemeanors. 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 under Section 504 of the 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 under Section 504 of the 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 under Section 504 of the 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 under Section 504 of the 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 under Section 504 of the IPC convicting the accused and sentenced him with an imprisonment for a period of three months is totally unwarranted.
4. There is sufficient material placed by the prosecution to prove the assault on the victim by the accused. The nature of injuries found in the wound certificate discloses that they are grievous in nature. The evidence of P.W. 7, the doctor does not show that the injuries are dangerous to life. The essential ingredients of an offence punishable under Section 307 of the IPC underlies a fact that the act of assault committed should be capable of causing death. If in the course of an assault, only injuries are caused and the injuries caused are not dangerous to life and cannot have effect of causing death, there cannot be a conviction under Section 307 of the IPC in such a situation. Necessarily the conviction has to be only under Section 326, 324 or 323 of the IPC as the case may be. In the present case, the injuries are said to be grievous in nature, there is fracture of a rib. Therefore, the conviction has to be under Section 326 of the IPC and not under Section 307 of the IPC. In that view the conviction is set aside and the accused is convicted for an offence under Section 326 of the IPC,
5. The Courts have to follow a pragmatic sentencing policy. The long duration of imprisonment may not necessarily realise the deserved philosophical object of sentencing. Imposition of heavy sentence of fine to compensate the victim would equally serve as an effective sentence and a deterrence. Keeping in view the provision of Sub-section (4) of Section 354, I think minimum sentence of three months declared by way of legislative policy could be imposed and heavy sentence of fine could also be imposed. Accordingly, I pass the following:
ORDER
The appellant accused is sentenced to undergo R.I. for a period of three months and shall pay a fine of Rs, 25,000/-, in default to undergo R.I. for further period of one year. Out of the fine amount collected, a sum of Rs. 15,000/- shall be paid as compensation to P.W. 1 and Rs. 10,000/- shall be defrayed by the State towards the prosecution expenses. The benefit of set off shall be granted to the accused under Section 428 of the Cr. P.C.