JUDGMENT
Shiv Kumar Sharma, J.
1. Meddling with the water course followed by a wrangle resulted in death of Net Ram. The appellants Jai Singh and Brahmanand along with their brothers Chet Ram and father Harphool were indicated for having committed murder of Net Ram before the learned Additional Sessions Judge No. 3 Alwar who vide Judgment dated January 20, 1998 did not find the charges proved against Harphool and Chet Ram and acquitted them. However appellants Jai Singh and Brahmanand were found guilty, convicted and sentenced as under:
1. Brahmanand :
Under Section 302 IPC to suffer imprisonment for life and fine of Rs. 1000A in default further suffer six months S.I.
2. Jai Singh :
Under Section 302/34 IPC to suffer imprisonment for life and fine of Rs. 1000/- in default further suffer six months S.I.
2. The prosecution case giving rise to this appeal in nutshell is that the informant Ram Kishore (PW. 3) submitted written report (Ex. P.5) to the SHO Police Station Malakhera on December 27, 1996 with the averments that around 8.00 a.m. on the said day while Net Ram was watering his field, Brahmanand, Jai Singh, Chet Ram, and Harphool armed with spade, farsi and tabbal (sharp edged weapon) came over there and assaulted Netram. Brahmanand inflicted spade blow on his head, Jai Singh gave farsi blow on his foot and Chet Ram caused injuries by tabbal (a sharp edged weapon) on his hand and Harphool gave tabbal blow on his thigh. When Jagdish made attempt to intervene Brahmanand inflicted spade blow on his head and Jai Singh caused injuries on his finger. Jai Singh also gave farsi blow on the finger of Amar Chand. After finding Netram dead the accused fled away. The Police Station Malakhera registered a case under Sections 323, 341, 447 and 307 IPC and investigation commenced. After the death of Netram the case was converted into one under section 302 IPC. On completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions No. 3. Alwar. Charges under Sections 302, 302/34, 447, 323, and 341 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 20 witnesses. In the explanation under section 313 Cr.P.C. the appellants claimed innocence. Four witnesses were examined in defence. On hearing final submissions the learned trial judge convicted and sentenced the appellants as indicated above.
3. Mr. S.R. Bajwa, learned senior counsel although raised various contention to shatter the prosecution case but the main plank of his submission was that the deceased Net Ram deliberately committed mischief by meddling with the water course which was utilized by the appellants at the relevant time as per the condition agreed in the partition. The appellants when made protest, they were assaulted by the complainant party, therefore in exercise of right of private defence, if some blows with spade might have dealt with resulted in death of Net Ram, no offence was committed by the appellants in view of Sections 100 and 103 IPC.
4. On the other hand Mr. S.S. Rathore, learned Public Prosecutor and Mr. S.S. Sunda, learned counsel for the complainant supported the impugned judgment and urged that the threat to the person or property of the appellants was neither real nor immediate thus there was no occasion to exercise the right of private defence. In fact the act of the appellants is covered under clause thirdly of Section 300 IPC and they have been rightly convicted.
5. We have pondered over the rival submissions and carefully scanned the material on record.
6. The prosecution case mainly rests on the testimony of Jagdish (PW. 1); Ram Kishore (PW. 3), and Amar Chand (PW. 8), who are the eye witnesses of the occurrence.
7. Dr. Raj Kumar(PW. 20) conducted autopsy on the dead body of Net Ram vide Ex. P-31 and found three antimortem injuries on his person thus:-
(i) Incised wound: 1″ x 1/4″ x bone deep on left parietal region,
(ii) Incised wound: 2, 1/2″ x 1″ x bone deep on right knee,
(iii) Incised wound: 1″ x 1/6″ on right leg.
The death was caused due to fracture of skull bone, haemorrhage and shock.
8. Amarchand sustained as many as 5 injuries vide Ex. P. 14 whereas Jagdish sustained one abrasion vide Ex. P-32.
9. Let us now scan the credibility of prosecution witnesses. Before adverting to the testimony of Jagdish (PW. 1) it is to be noticed that Harphool and Inder were real brothers. The partition of their ancestral agricultural land had already been taken place and in regard to common well it was decided that water course shall be utilized by them turn by turn Jagdish (PW. 1) is the son of Inder and real brother of deceased Net Ram. In his deposition Jagdish stated that after the turn of Jai Singh to water the field from the common well was over, Net Ram on December 27, 1996 at about 8 AM, went to the well for diverting the water course towards his field. Jai Singh, Brahmanand, Chet Ram and Harphool prevented him and Jai Singh inflicted pharsi blow on the foot of Net Ram while Brahmanand gave a blow with spade on his head. When Amar Chand made attempt to intervene, Brahmanand caused injury on his person also. In his cross examination Jagdish deposed that turn of each party to use the water course used to commenced in the evening and continued till next evening. He further stated that he did not see any blood on the head of Brahmanand.
10. Sukh Ram (PW. 2) deposed that when he reached at the place of incident he had seen blood on the person of Net Ram and Brahmanand, In his cross examination he stated that it was decided long back that water course from the common well would be utilized by each party turn by turn. One party could use the water course continuously for two days and thereafter turn of two days of another party would commence. He further stated that turn of Jai Singh commenced two days back from 9 PM. He admitted to have seen the injuries on the head and another parts of body of Brahmanand. He also admitted that while water was flowing into the field of Jai Singh, it was Net Ram who meddled with the water course.
11. Ram Kishore (PW. 3) who is also the real brother of Net Ram stated that two days in a week were fixed for Inder whereas other, two days were fixed for Harphool to utilize the water course from the common well. On December 27, 1996 while Jai Singh was watering the field, Net Ram diverted the flow of water towards his field as his turn of utilize the water course had commenced. Jai Singh then asked as to why he meddled with the water course when the turn of Jai Singh to use the water course still continued. Some not words were then exchanged between Net Ram, Jai Singh, Chet Ram and Brahmanand and appellants then made assault on Net Ram with spade, pharsi and Tabbal.
12. Supporting the prosecution version, Amar Chand (PW. 8) another brother of Net Ram, stated in the cross examination that while water was flowing to the field of Jai Singh and Brahmanand, it was diverted by them towards their field. He also admitted that cross case was pending against them. Samaydin l.O. (PW. 19) deposed that cross case of the same incident was reported by him.
13. Nand Ram (DW. 1) and Chhote Lal (DW. 2) in their deposition stated that turn to use water course by the accused party had commenced in the evening of December 25, 1996 and it was come to an end in the evening of December 27, 1996. Appellant Jai Singh examined himself as DW. 3. He deposed that their turn to use the water course was continued till the evening of December 27, 1996 but Net Ram diverted the water course and quarrelled with them. FIR of the incident (Ex. D-5) was lodged by them. He himself and Brahmanand sustained injuries in the incident. The police submitted charge sheet against Amar Chand, Ram Kishore and Jagdish. Dr. Balram Singh (DW. 4) stated that he examined injuries sustained by Jai Singh and Brahmanand and drawn injury reports Ex. D-7A and Ex. D-8A. A look at the injury report of Brahmanand (Ex. D-8A) demonstrate that out of four injuries sustained by him, injury No. 2 was incised wound over right parietal region measuring 2.5 x 1/2 cm.
14. The factual situation emerges from the above is as under :-
(i) The appellants had a right to use the water course till the evening of December 27, 1996 but the right was meddled with by Net Ram by diverting the water to his field in the morning of the said day.
(ii) After exchange of hot words accused party and complainant party fought together. Net Ram, Amarchand and Jagdish from the complainant side and Brahmanand and Jai Singh from the accused side sustained injuries. Net Ram succumbed to the injuries received by him.
(iii) Injury on the head of Net Ram caused by spade (an agricultural implement) was attributed to Brahmanand.
(iv) Cross case for committing trespass over the agricultural land belonging to the accused party was registered against the complainant party and charge sheet was filed. Appellant Brahmanand sustained incised wound over his right parietal region.
15. In order to appreciate the submissions advanced before us it will be useful to consider the provisions contained in Section 103 IPC. Under the said section, the right of private defence of property extends under the restriction mentioned in Section 99 to the voluntary causing of death in case of theft or mischief, when such theft or mischief is committed in such circumstances as may reasonable cause an apprehension that death or grievous hurt will be the consequences if such right of private defence is not exercised. Section 103 justifies homicide in case of (1) robbery, (2) house-breaking by night, (3) arson and (4) theft, mischief of house trespass, causing apprehension of death or grievous hurt. This right is however subject to the two limitations contained in section 99 namely, that there is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities and that the right of private defence in no case extends to the infliction of more harm than it is necessary to inflict for the purpose of defence, ft is therefore evident that as regards the right here conferred, two points are essential:-
(i) The right does not commence till there is a reasonable apprehension, and
(ii) That the reasonable apprehension must be of the commission of crimes described in the four clauses.
Fourth clause of Section 103 dealt specifically with cases where the act which caused the exercise of the right of private defence amounted to theft, mischief or house trespass was such as per-se to cause reasonable apprehension that death or grievous hurt would be the result.
16. Section 430 IPC specifies instance of aggravated mischief, that consisting in an act causing a diminution of water-supply. This section prescribes a high penalty for mischievously cutting of one’s water supply used for agricultural purposes. This offence must necessarily involve the mental state of criminality constituting the offence, that is an intent to cause or knowledge that the act is likely to cause wrongful loss or damage to a person.
17. It is well settled that it is for the accused to prove that right of private defence as set up by him by at least preponderance of probabilities available in the case of the prosecution. It is further well established that a person faced with the imminent peril of life and limb of himself or another, is not expected to weigh “in golden scales” the precise force needed to repel the danger. Even if he at the heat of the moment carries his defence a little further than what would be necessary when calculated with the precision and exactitude by a colour and unruffled mind, the law makes due allowance for it (vide Mohd. Ramzani v. State of Delhi (1)).
18. Keeping in view the aforequoted principles when we examine the facts of the instant case we find that the prosecution’s own witness Sukh Ram (PW. 2) admitted that right to use water course on the date of incident existed in favour of the appellants, The right commenced from 9 PM on December 25, 1996 and due to expire at 9 PM on December 27, 1996. Till the said period Net Ram had no authority to divert the water course, but Net Ram mischievously meddled with the water course and cut the water supply used by the appellants for the agricultural purposes. When the appellant Brahmanand raised protest incised wound by a sharp edged weapon was inflicted by Net Ram on his head. We thus find that appellant Brahmanand had a reasonable apprehension that grievous hurt will be the consequence if right of private defence is not exercised, therefore, Brahmanand picked up spade (an agricultural implement) and inflicted blows on the person of Net Ram, out of which one laid on the head proved fatal. The act of appellant Brahmanand is thus protected under clause fourthly of Section 103 and clause secondly of Section 100 IPC. The appellants had no time to have recourse to the protection of the public authorities. The appellant Brahmanand could not be expected in that situation to weight “in golden scale” the precise force needed to repel the danger.
19. In dealing with the right of private defence of appellant Brahmanand the learned trial judge did not properly notice the fact situation of the case and committed illegality in convicting the appellants.
20. As a result of the moregoing discussions, we allow the appeal and set aside the impugned judgment dated January 20, 1998 of the learned Additional Sessions Judge No. 3, Alwar. We acquit the appellants of the charge under Section 302 IPC and Jai Singh of the charge under Section 302/34 IPC. Appellant Jai Singh is on bail, he need not surrender. His bail bonds stand cancelled. Appellant Brahmanand is in jail, he shall be set at liberty forthwith if not required in any other case.