SHEORAJ SINGH Vs. STATE

JUDGEMENT

(1.) THIS revision is directed against an order dated 20-9-1973 maintaining the conviction and sentence recorded against the applicant under Sec tion 160 I.P.C. It appears that the Pradhan of Village Sonta, P. S. Khatauli had drawn a Sche me 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 even tually sent up to stand his trial under Sec tion 160 I.P.C. 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 appli cant and he, therefore, convicted him under Section 160 I. P. C. 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 Ses sions Judge. Aggrieved, he has come up in revision to this Court. To prove its case against the appli cant, the prosecution had examined three witnesses, they were Pheru (P. W. 1), Rampal (P.W. 2) and S. I. L. M. Bharti (P.W. 3), Pheru (P.W. 1) did not support the prosecution case and he was declared hostile. Rampal (P.W. 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 (P. W. 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 under Section 160 I. P. C. is made out against the applicant. The word "affray is defined in Section 159 I.P.C. It means that when two or more persons, by fighting in a public place disturb the public peace, they are said to commit an affray. In my opinion, the offence of affray as defined in Section 159 I.P.C. postulates the com mission of a definite assault or a breach of the peace. Mere quarrelling or abus ing in a public place without exchange of blows is not sufficient to attract the appli cation of Section 160 I.P.C. The convic tion of the applicant under Section 160 I.P.C. was, therefore, bad in law. In the result, I allow this revision and set aside the conviction and sentence pas sed against the applicant. Any fine, if paid by him, shall be refunded.