SHIV KUMAR SHARMA, J. - (1.) AS many as four accused were indicted before the learned Additional Judge Malpura (Tonk) for having committed murder of Shri Kishan. Learned Judge vide judgment dated May 28, 1999 convicted and sentenced the accused Om Prakash as under: U/s. 302 IPc to undergo imprisonment for life and fine of Rs. 2000/- in default to further, suffer six months imprisonment. U/s. 341 IPc to suffer one month Imprisonment U/s. 447 IPc to suffer three months Imprisonment. The sentences were directed to run concurrently.
(2.) ACCUSED Om Prakash is the appellant in appeal No. 428/1999. Co-accused Smt. Lada, Smt. Radha and Siya Ram were convicted under Sections 324/34, 447, 341 and 430 IPC and sentenced to the period already undergone by them in confinement. The complainant Badri Lal in Revision No. 539/1999 has assailed the said findings. Put briefly the prosecution case is that on November 14, 1997 informant Badri Lal submitted a written report with the Police Station Diggi stating therein that around 10 AM on the said day informant, his brother Shri Kishan (now deceased) and and uncle Ram Karan had gone to watering their field. Siya Ram came over there and cut the water course with spade. On pursuation of the persons present there Siya Ram went back and Shri Kishan repaired the water course and again started watering the field. When informant and his uncle reached to the field around 1 AM Siya Ram, Om Prakash, Smt. Radha and Smt. Lada again demolished the water course with the spade. Shri Kishan when protested against their acts Siya Ram, Smt. Radha and Smt. Lada caught hold of his hands and Om Prakash inflicted knife-blow on his abdomen. Shri Kishan while taken to the hospital died on the way. Case under sections 341, 447, 430 and 302/34 IPC was registered and investigation commenced. On completion of the investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge Malpura. Charges under sections 302, 302/34, 430, 341 and 447 IPC were framed against the accused, 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 accused claimed innocence. One witness in defence was examined. Learned trial Judge on hearing final submissions convicted and sentenced the accused as indicated above. We have heard the submissions advanced before us and scanned the material on record. In order to establish that the death of Shri Kishan was homicidal the prosecution examined Dr. Anil Meena as PW. 15, who conducted autopsy on the dead body of Shri Kishan. As per Post Mortem Report (Ex. P-24) the deceased sustained following three antimortem injuries:- (i) Stab wound: 1, 1/4" x-1/2" x Horizental fusi from depth is about 5" over mid line sternum above Xiphi sternum. (ii) Stab wound: 1" x 1/4" x muscle deep over posterior fold of axilla left side. (iii) Stab wound: 1/2" x 1/2" x muscle deep over lateral surface of lower part of left upper 2" above to Lt. elbow. The cause of his death was the haemorrhage shock due to injury No. 1 over sternum. The fact situation emerges from the material on record is as under:- (i) The accused party had a right to use the water course after Sawai Gurjar and the turn of complainant party had to commence next as their field situated after the field of accused persons; (ii) The deceased Shri Kishan sustained injuries when he made attempt to use the water course out of turn i. e. prior to watering the field by the accused.
(3.) 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, the 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. It 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 pre-se to cause reasonable apprehension that death or grievous hurt would be the result. 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. 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 vs. State of Delhi (1 ). ;