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Koraga Shetty & Another v. State Of Mysore .
Factual and Procedural Background
The petitioners, accused-1 and 2 along with accused-3 to 5, were prosecuted in the Court of the Additional Munsiff-cum-First Class Magistrate, Udipi, in Criminal Case No. 624 of 1970 for an offence under Section 160 of the Indian Penal Code (IPC). The learned Magistrate convicted all five accused and sentenced each to a fine of Rs. 5, with a default imprisonment of seven days. The petitioners challenged the legality and correctness of their conviction and sentence through this revision petition.
Legal Issues Presented
- Whether the prosecution established the essential ingredients of the offence under Section 160 IPC, specifically that the accused were engaged in a fight in a public place?
- Whether the evidence on record sufficed to prove that the accused committed an affray as defined under Section 159 IPC?
- Whether the failure of the prosecution to examine material witnesses present at the scene affected the validity of the conviction?
- Whether the learned Magistrate erred in drawing adverse inferences and making observations without evidence on record regarding the relationship between the parties?
Arguments of the Parties
Petitioners' Arguments
- The prosecution failed to prove two essential ingredients of the offence under Section 160 IPC: that a fight occurred and that it took place in a public place.
- The evidence only shows quarrelling or scolding, which does not meet the definition of ‘affray’ under Section 159 IPC.
- An adverse inference should be drawn against the prosecution for not examining material witnesses who were present at the time of the occurrence, such as those in the shop opposite the incident.
- The learned Magistrate wrongly made observations about the relationship between the parties without any evidence on record.
- Reliance was placed on the decision in Balakrishna Shetty v. State of Mysore which clarified that mere attempts to escape an attack do not constitute fighting.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Balakrishna Shetty v. State of Mysore | Definition of ‘fight’ and affray under IPC; fighting requires contest or struggle, mere escape from attack is not fighting. | The Court relied on this precedent to distinguish quarrelling from fighting, concluding that the evidence did not establish fighting as required for affray. |
| Jagannath Sah v. Emperor | Difference between ‘affray’ and ‘assault’; affray requires definite assault and breach of peace; mere quarrelling or abusing without exchange of blows is insufficient. | The Court applied this principle to hold that the accused’s conduct amounted only to quarrelling and scolding, not affray. |
Court's Reasoning and Analysis
The Court analyzed the evidence, focusing on the testimony of the sole witness to the occurrence, PW 2 (Police Constable Sheena). PW 2 described the accused as quarrelling and scolding each other in filthy language on a public street but did not use the term ‘fighting’ or indicate any use of violence or force. The Court emphasized the statutory definition of ‘affray’ under Section 159 IPC, which requires two or more persons fighting in a public place and disturbing public peace. The Court distinguished between quarrelling and fighting, noting that mere quarrelling or abusive language does not satisfy the elements of affray.
Additionally, the Court observed that the prosecution failed to examine important witnesses who were admittedly present at the scene, including the shopkeeper and others who had gathered. No explanation was provided for this omission, weakening the prosecution’s case. The Court also found fault with the learned Magistrate’s observations about relationships between parties that were unsupported by evidence.
Legal commentary from Ratanlal's Law of Crimes was cited to reinforce that affray requires a definite assault or breach of peace, not mere quarrelling or abuse. Applying these principles, the Court concluded that the prosecution did not prove the offence under Section 160 IPC.
Holding and Implications
The Court allowed the revision petition, set aside the conviction and sentence passed on accused-1 to 5 in Criminal Case No. 624 of 1970, and acquitted them of the offence under Section 160 IPC. The Court ordered that any fine paid be refunded to the accused.
The decision directly affects the parties by overturning their conviction and releasing them from penalty. The opinion does not set any new precedent beyond clarifying the application of the definition of affray and evidentiary requirements under the IPC.
1. The petitioners before this Court were accused-1 and 2 in the Court of the Additional Munsiff-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 S. 160 IPC. The learned Magistrate found all the five accused guilty of the offence under S. 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 & 2) challenge the legality and correctness of the said conviction and sentence passed on them.
2. Sri P. Vishwanatha 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 S. 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.
3. Mere scolding or quarrelling in a public place would not come within the definition of ‘affray’ as laid down in S. 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(1), 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.
4. The only witness who speaks to the occurrence is PW. 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. PW. 2 has nowhere used the word ‘fighting’ in his deposition.
5. The word ‘affray’ is defined in S. 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.”
6. 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. PW. 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.
7. 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 quarreling 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 with 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.”
8. In Jagannath Sah v. Emperor(2), it is pointed out that there is difference between ‘affray’ and an ‘assault’; the offence of affray as defined in S. 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.
9. 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 PW. 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 Mahahala, 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 those witnesses. For the reasons mentioned above. I am of opinion that the prosecution has failed to prove the charge under S. 160 IPC. against the accused-1 to 5 in C.C 624 of 1970.
10. In the result, I allow this revision petition and set aside the conviction and sentence passed on accused-1 to 5 in CC. 624 of 1970 and acquit them of the offence under S. 160 IPC. The fine, if paid, will be refunded to the accused.
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