9911796707
TMI Blog1999 (2) TMI 725X X X X Extracts X X X X X X X X Extracts X X X X ..... deceased') and against appellant No. 2, Anil [A-2], is that he attempted to murder, Wazir Singh [PW-6] on January 21, 1992 at about 7.30 P.M. The dispute between the accused group on one hand and the deceased and his sons on the other which resulted in this unfortunate event relates to four killas of land. The land was owned by the accused and was so declared by the decree of the Civil court in Suit No. 676 of 1984 dated July 17, 1984. The deceased and his brother, Hawa Singh, challenged the validity of the said decree in Civil Suit No. 692 of 1984 which was dismissed by the learned Sub-Judge, 1st Class, Bhiwani vide judgment, Exhibit DX/4 [Decree Sheet, Exhibit DX/5]. There is record [Exh.DX/6] to show that the accused were put in poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence of PWs. 1, 2 and 7 and post-mortem report Exh.P.A, the trial court negatived the plea of self-defence, found A-1 and A-3 guilty of offence under Section 302/34 IPC and sentenced them to undergo imprisonment for life and to pay fine of Rs. 2,000/- each, in default of payment of fine, to undergo further rigorous imprisonment of one year and convicted A-2 under Section 307 IPC and sentenced him to rigorous imprisonment of seven years and to pay fine of Rs. 2,000/-, in default of fine, he was directed to undergo rigorous imprisonment for one year. It was further directed that out of the fine amount, Rs. 1,000/- be paid to PW-6, injured witness, and the balance of the amount be paid to be widow of the deceased. The appellants preferred app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. The plea of the appellants is one of self-defence of property. Sections 103 and 104 IPC recognise the right of private defence of property. They read as under : 103. When the right of private defence of property extends to causing death - The right of private defence of property extends, under the restrictions mentioned in Section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely : First - Robbery; Secondly - House-breaking by night; Thirdly - Mischief by fire committed on any building tent or vessel, which building ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsion that death or grievous hurt will be the consequence, if such right of private defence is not exercised. On the facts of this case, stated above, there is no scope to invoke Section 103 IPC as none of the aforementioned offences were committed or attempted to be committed by the deceased and his relations. 6. Section 104, IPC will apply if the wrong-doer commits or attempts to commit any of the following offences : (1) theft, (2) mischief or trespass not of the description which is covered under Section 103, subject of course to restrictions mentioned in Section 99 IPC; and in such a case the right of private defence of property would extend only to causing harm other than death to him. 7. Form the facts, it is clear that the act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was fracture of the right side of the mandible and it was in almost two pieces. Teeth were intact. There was also mild appreciable defused swelling of indistinct colour and margins on the right side face, cheek area extending up posterior ear area. On dissection, subcutaneous haemotoma was present and right ear was bleeding. 7. There was a big lacerated wound of size 3.1/2 x 0.8 vertically placed bone deep on the right parietal area of scalp 1 lateral to the mid skull of parietal region was found of the size. 1.1/2 x 1 which was extending linearly to downwards upto front to parietal suture on the right side, subcutaneous haemotoma was present on dissection. On opening of the cranial cavity, there was sub-dural haemotoma on the righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, two factors must be established : (i) common intention and (ii) participation of the accused in the commission of an offence. If common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent, Section 34 cannot be invoked. In every case it is not possible to have direct evidence of common intention. It has to be inferred from the facts and circumstances of each case. 12. From the above discussion, it follows that A-1 and A-3 have been rightly convicted under Part-1 of Section 304/34, IPC by the High Court. However, having regard to the facts and circ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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