*THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY +Criminal Revision Case No.1126 of 2009 %19-08-2009 #K.Ranganna S/o K.Narasappa, Carvanpet, Adoni, Kurnool District. ….Petitioner A n d $ The State of A.P rep. by Public Prosecutor, High Court of A.P., Hyd. ….Respondent ! Counsel for the petitioner : Sri B.Vijaya Bhaskar Counsel for the respondent : Public Prosecutor <Gist : > Head Note: ? Cases referred: 1. 1996 Crl. L.J 1472 2. 1975 ALT (Vol.34) 332 3. 1989 Crl. L.J 2080 THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Revision Case No.1126 of 2009 ORDER: This revision is directed against the order dated 16.4.2009 passed in S.T.C.No.27 of 2005 on the file of the Special Judicial Magistrate of II Class, Adoni whereby and whereunder the learned Magistrate found the petitioner guilty of the offence under Section 160 IPC, convicted him accordingly and sentenced him to pay a fine of Rs.100/-, in default, to suffer simple imprisonment for 7 days. Background facts of the case in nutshell leading to filing of this revision by the petitioner are: - On 16.11.2004, at M.R.O Office, Adoni, there was a wordly quarrel between `A’ party and `B’ party, with regard to distribution of ration cards to the person identified by each of the group only. After distribution of cards, `A’ party and `B’ party came to the public place near R.D.O’s office, caught hold of each other and beat each other and caused disturbance to the public peace. The petitioner belongs to `A’ party and whereas B.Murthy and B.Ramachander belong to `B’ party. The prosecution examined four witnesses and marked three documents to bring home the guilt of the `A’ party and `B’ party for the offence under Section 160 IPC. Both the parties denied the incident and pleaded not guilty. The learned Magistrate, on considering the material brought on record and on hearing the counsel appearing for the parties, found `A’ party and `B’ party guilty for the offence under Section 160 IPC and convicted them accordingly and sentenced each of them to pay a fine of Rs.100/-, in default, to suffer simple imprisonment for seven days, by judgment dated 16.4.2009. The said judgment is under challenge in this revision by `A’ party. Heard learned counsel for the petitioner-`A’ party and the learned Additional Public Prosecutor appearing for the respondent-State. Learned counsel appearing for the petitioner submits that the essential ingredients of Section 159 IPC, which defines `Affray’ have not been made out by the prosecution, and therefore, the conviction of the petitioner -`A’ party for the offence under Section 160 IPC is not legal and proper and the same is liable to be set aside. A further submission has been made that even if the prosecution version is true, it is only a tussle between the two groups and it does not constitute disturbance to public peace and therefore, the conviction of the petitioner for the offence under Section 160 IPC is liable to be set aside. In support of his submissions, learned counsel placed reliance on the decisions of this Court in C.Subbarayudu v. State of A.P[1], Mangam Chinna Subbarayudu v. State, S.H.O, Nandyal Town P.S[2] and a decision of Orissa High Court in Gadadhar Guru and another v. State of Orissa[3]. In C.Subbarayudu’s case (1 supra), a learned Single Judge of this Court held that the offence of Affray is a fight, i.e., a bilateral act, in which two parties participate and it will not amount to an affray when the party who is assaulted submits to the assault without resistance. Again, there must be a definite disturbance of the public peace due to the fight in the public place to make the offence affray. Mere causing inconvenience to the public is not sufficient. In Mangam Chinna Subbarayudu’s case (2nd supra), it has been held that the expression `Fighting’ in Section 159 IPC is used in its ordinary sense and it means a combat or quarrel involving exchange of some force or violence, if not blows. Mere verbal quarrel or vulgarly abusing sans violence cannot be construed as fighting which contemplates bilateral use of violence by two competing parties. Even if there is no exchange of blows, there should be exchange of some violence between the two contending parties before it can be said that the parties are fighting. If one person uses violence against another and the other person merely remains passive, it cannot be said that there is a fighting, so also, if neither person uses violence against the other but both the persons indulge in verbal abuses, it does not amount to fighting. In Gadadhar Guru ‘s case (3 supra), it has been held by the Orissa High Court that the offence of affray in essence consists of three ingredients, the first being fighting by two or more persons, secondly, the fighting must take place in a public place and thirdly such fighting must also result in disturbance of the public peace. Only if such ingredients are satisfied, an offence of affray can be said to have occasioned for which the persons causing the same would be responsible. In a prosecution under Section 159 IPC, there must be positive evidence of public peace having been disturbed which would mean that by the action of the accused the even tempo of life of the public was disturbed resulting in affecting the peace and tranquillity of the locality. In the instant case, Pws 1 and 4 are the Police Constables and they are independent witnesses. They categorically stated that `A’ group and `B’ group entered in to an altercation and assaulted each other. Learned counsel for the petitioner by referring the evidence of PW-4 contends that mere difficulty caused to the people gathered there does not constitute disturbance to the peace and therefore, the conviction of the petitioner for the offence under Section160 IPC is not legal and proper. PW-1 has categorically stated that because of the free fight between the `A’ group and `B’ group disturbance to the public peace and tranquillity had occurred. Indeed, it is he who intervened and separated two groups and thereafter filed a special report to the C.I., Adoni. Section 159 IPC reads as under: 159. Affray.- When two or more persons, by fighting in a public place, disturb the public peace, they are said to “commit an affray”. The first basic ingredient of Section 159 IPC is fighting between two or more persons. The next ingredient is that the fighting should have been in public place and the last ingredient is that the fighting should have disturbed public peace. PWs.1 and 4 are eyewitnesses to the occurrence. They categorically stated that there was a free fight between `A’ group and `B’ group and both the groups resorted to catch hold of each other. PW-1 further stated that the act of `A’ group and `B’ group resulted in disturbance to the public peace. I do not see any valid ground to disbelieve the evidence of PW-1, who is an independent and disinterest witness. Therefore, the conviction and sentence imposed on the petitioner for the offence under Section 160 IPC is legal and proper and the same is not required to be interfered with in this revision in exercise of powers conferred under Section 397 or 401 Cr.P.C. Accordingly, the Criminal Revision Case is dismissed at the stage of admission. ____________________________ B.SESHASAYANA REDDY, J 19th August 2009 Note:- L.R. Copy to be marked (B/o) RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Revision Case No.1126 of 2009 DATED: 19-08-2009 [1] 1996 Crl.L.J.1472 [2] 1975 ALT (Vol.34) 332 [3] 1989 Crl.L.J 2080