M. Santhosh, J.
1. The petitioners before this Court were accused 1 and 2 in the Court of the Additional Munisiff cum First Class Magistrate, Udipi, in C. C. No. 624 of 1970. They, along with accused 3 to 5, were prosecuted for committing an offence Under Section 160. IPC The learned Magistrate found all the five accused guilty of the offence Under Section 160, IPC and convicted and sentenced each of the accused to a fine of Rs. 5/-, in default to undergo S. I. for 7 days. In this revision, the petitioners (accused 1 and 2) challenge the legality and correctness of the said conviction and sentence passed on them.
2. Sri P. Viswanatha Shetty, learned Counsel appearing on behalf of the petitioners, has contended that the prosecution has failed to establish the two essential ingredients of the offence Under Section 160, IPC He argues that there is no evidence on record to show that there was a fight between the petitioners and others and that the fight took place in a public place. Mere scolding or quarrelling in a public place would not come within the definition of 'affray' as laid down in Section 159, IPC
It is contended that an adverse inference should be drawn against the prosecution for not examining material witnesses who were admittedly present at the time of the occurrence, in the shop opposite to which the occurrence took place. It is also argued that the learned Magistrate was wrong in making observations about the relationship between the parties without there being any evidence on record. Strong reliance is placed on a decision of this Court in Balakrishna Shetty v. State of Mysore (1966) 1 Mys LJ 528, wherein it has been laid down that fighting connotes contest or struggle between two or more persons and if a person is attacked in a public place and if he tries to escape it cannot be said that there is any fight between the two.
3. The only witness who speaks to the occurrence is P.W. 2, Police Constable Sheena. His evidence is that when he went to the scene of occurrence, he found the accused quarrelling with one another on the public street in front of the shop of Mahabala. He has further stated that the accused were scolding one another in filthy language and they caused annoyance to the public. In cross-examination he has repeatedly used the words that the accused were 'quarrelling.' The learned Magistrate committed a mistake in thinking that P. W-2 has deposed that he saw the accused fighting with one another in the public street. P.W. 2 has nowhere used the word 'fighting' in his deposition.
4. The word 'affray' is defined in Section 159, IPC as follows:
When two or more persons, by fighting in a public place, disturb the public peace, they are said to commit an affray.
From what has been stated above, it is clear that the prosecution has not let in any evidence to show that the accused were fighting in a public place. Quarrelling in a public place is different from fighting in a public place. Persons may quarrel by abusing each other. There can be a quarrel without fighting. P, W. 2 after using the word 'quarrel' has stated that the accused were scolding one another in filthy language. He has nowhere stated that they assaulted each other or used violence or force to each other. I am therefore, of opinion that the essential ingredient of affray, i.e., that the accused were fighting with each other has not been made out by the prosecution.
5. In Ratanlal's Law of Crimes (21st Edition) at page 392, the learned author observes as follows:
The offence of affray postulates the commission of a definite assault or a breach of the peace, and mere quarrelling or abusing in a street without exchange of blows is not sufficient to attract the application of this section. Where two brothers were found quarrelling and abusing each other on a public road and a large crowd gathered and the traffic was temporarily stopped, but no actual fighting took place, it was held that no affray was committed.
6. In Jagannatha Sah v. Emperor it is pointed out that there is difference between 'affray' and an 'assault'; the offence of affray as defined in Section 159 of the Penal Code postulates the commission of a definite assault and a breach of the peace. Mere quarrelling or abusing in a street without exchange of blows is not sufficient to attract the application of this section.
7. There is also force in the contention of Sri Shetty that the prosecution has failed to examine important witnesses in the case. As already pointed out. P.W. 2, the police constable is the only witness who speaks to the occurrence. P.W. 2 has admitted that when these accused were quarrelling, 15 to 20 persons had collected. He has also admitted that Mahabala, the shop-keeper, in front of whose shop the incident took place, was present in his shop.
The prosecution has failed to examine any of these persons and no explanation is given for not examining any of these witnesses. For the reasons mentioned above, I am of opinion that the prosecution has failed to prove the charge Under Section 160, IPC against the accused 1 to 5 in C. C. 624 of 1970.
8. In the result, I allow this revision petition and set aside the conviction and sentence passed on accused 1 to 5 in C. C. 624 of 1970 and acquit them of the offence Under Section 160, IPC The fine, if paid, will be refunded to the accused.