Sheoraj Singh vs State

V.N. Varma, J.—This revision is directed against an order dated 20-9-1973 maintaining the conviction and sentence recorded against the applicant u/s 160 IPC.

It appears that the Pradhan of village Sonta, P.S. Khatauli had drawn a Scheme for night patrolling in the village and in pursuance of that scheme, the applicant was to do patrolling on the night of 10/11-10-1972. On that night at about 12.30, the applicant, instead of doing patrolling work, was seen quarrelling with one Harchand in public place due to which many persons collected there and there was an apprehension of breach of public peace. The Sub-Inspector of the Thana concerned reached the place and arrested the applicant. The applicant was eventually sent up to stand his trial u/s 160 IPC.

The applicant denied the charge and stated that there was no fight between him and Harchand. According to him, they just exchanged hot words and abuses.

The learned Magistrate found the prosecution case proved against the applicant and he, therefore, convicted him u/s 160 IPC and sentenced him to a fine of Rs. 50/-, in default of payment of fine, he was to undergo 10 days simple imprisonment. The applicant went up in appeal to the court of Session and his appeal was dismissed by the Sessions Judge. Aggrieved, he has come up in revision to this Court.

To prove its case against the applicant, the prosecution had examined three witnesses, they were Pheru PW 1, Rampal PW 2 and S.I.L.M. Bharti PW 3. Pheru PW 1 did not support the prosecution case and he was declared hostile. Rampal PW 2 stated that the applicant had just quarrelled with Harchand in loud voice, but there was no actual marpit between them. S.I.L.M. Bharti PW 3 also stated likewise. According to him, there was exchange of abuses between the applicant and Harchand, but no marpit took place between them. The question for consideration is whether in the circumstances any case u/s 160 IPC is made out against the applicant. The word "affray-is defined in Section 159 IPC. It means that when two or more persons, by fighting in a public place, distrub the public peace, they are said to commit an affray, in my opinion, the offence of affray as defined in Section 159 IPC postulates the commission of a definite assault or a breach of the peace. Mere quarrelling or abusing in a public place without exchange of blows is not sufficient to attract the application of Section 160 IPC. The conviction of the applicant u/s 160 IPC was, therefore, bad in law.

In the result, I allow this revision and set aside the conviction and sentence passed against the applicant. Any fine, if paid by him, shall be refunded.