Important Points
1. Where victim went to the disputed land, in the possession of accused, to irrigate but accused assaulted with dangerous weapon and caused death, the accused could not claim benefit of right of private defence to property u/s 103 IPC as the victim’s action only amounted to criminal trespass and nothing more.
2. 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.

Headnote:Indian Penal Code, 1860-Section 304 Part I/34 read with Section 103 - Murder - Dispute over property-Deceased and his sons going to land in possession of accused to irrigate land-Accused assaulting with gundasi and causing death of deceased-Plea of private defence rejected by trial Court and sentence of life imprisonment awarded-High Court reducing conviction to one u/s 304 Part I and imposing sentence of 7 years R.I.-Right of private defence of property-On facts of case extended only to causing harm other than death-Victim’s action could only amount to criminal trespass-Accused not entitled to benefit u/s 103-Conviction rendered by High Court does not warrant interference-Sentence, however, reduced to 5 years.
       Held : Where Section 103 is attracted, the right of private defence of property will extend to voluntary causing of death or of causing any other harm to the wrong-doer, subject to the provisions of Section 99 IPC; and the offences committing of which or the attempt to commit which will justify exercise of the right of private defence of the property are as follows: (1) Robbery; (2) House-breaking by night; (3) Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property; (4) Theft, mischief or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised. (Para 5)
       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. (Para 6)
       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. From the facts, it is clear that the action of the deceased and his sons coming to the land in possession of the accused group was to irrigate the land which, on the facts of this case, could only amount to criminal trespass within the meaning of Section 441 IPC. The right of the accused-appellants, therefore, extended only to causing of harm other than death. (Paras 5 & 7)
       A-1 and A-3 on the land were armed with deadly weapons. On the exhortation given by their mother, both of them, one after the other, murderously assaulted the deceased with the weapons with which they were already armed. It was not a case of free fight and it cannot be said that they did not intend to cause the injuries inflicted by them. They intended to cause injuries and did inflict the said injuries which caused the death of Prithvi, the deceased. Therefore, they are not entitled to protection of Section 104, IPC. But for the fact that they exceeded the right of self-defence of property under Section 104 IPC, the offence committed by them would have been one under Section 302 IPC. (Para 10)
       A-1 and A-3 have been rightly convicted under Part-I of Section 304/34, IPC by the High Court. However, having regard to the facts and circumstances of the case, in our view, it would meet the ends of justice if we reduce the sentence from seven years to five years and accordingly we do so. (Para 12)
       (ii) Indian Penal Code, 1860-Section 34-Scope of section-Common intention has to be proved from facts and circumstances of case-If common intention is proved no specific overt act need to be attributed-If participation proved but common intention not proved Section 34 not attracted.
       Held : To apply Section 34, IPC apart from the fact that there should be two or more accused, 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. (Para 11)

Judgment

Quadri, J.-Leave is granted limited to the question of nature of offence committed by the appellants and quantum of sentence therefor.

2. The facts giving rise to this appeal, in brief, are as follows.

3. The gravamen of the charge against appellants Nos. 1 and 3, Jai Bhagwan (A-1) and Sushil (A-3), is that they caused the death, by murderous assault, of their uncle Prithvi (hereinafter referred to as ‘the deceased’) and against appellant No. 2, Anil (A-2), is that he attempted to murder, Wazir Singh (P.W. 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 possession pursuant to partition of the land by the Assistant Collector and the warrant of possession, though the deceased and his sons were found to have been in possession and cultivation of the said land for the last thirty years. The High Court recorded that the occurrence took place in the land in possession of the appellants. The deceased along with his son Wazir Singh (P.W. 6), his daughter-in-law, Smt. Krishna (P.W. 8) and his daughter Smt. Chander (P.W. 5) went to the land to irrigate the same and told A-1 that he would have the turn of water and irrigate the land and that after settlement of the dispute, A-1 could do it. This was objected to by A-1 who stated that he would settle the matter right then. A-1, then, started hurling abuses at the deceased and during the altercation, Smt. Parwari, mother of A-1, exhorted him to give a blow on the vertex to bring them to senses and under control. Then A-1 who was armed with ballam dealt a blow with it on the head of the deceased A-3 dealt a blow with churra (knife) on the face of the deceased. Thereafter, the deceased fell down. While he was lying down, A-2 dealt a blow with gundasi and the others caused several injuries on his body. In the process, P.W. 5, P.W. 8 and P.W. 6 were also injured. A-2 was responsible for injuries on P.W. 6. They were taken by Hawa Singh (P.W. 11) to hospital where they were examined by doctors and Prithvi (deceased) was declared dead. On considering the evidence of the eye-witnesses, P.Ws. 5, 6 and 8, medical evidence of P.Ws. 1, 2 and 7 and post-mortem report Exh. PA, 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 for 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 P.W. 6, injured witness, and the balance of the amount be paid to the widow of the deceased. The appellants preferred appeal against their conviction and sentence in the High Court of Punjab and Haryana. The High Court set aside the conviction and sentence under Section 302/34 IPC and convicted A1 and A3 under Section 304, Part-I read with Section 34, IPC and sentenced them to seven years’ rigorous imprisonment and altered the conviction of A2 to one under Section 326 IPC and sentenced him to rigorous imprisonment for three years; sentence of fine was, however, confirmed by allowing their appeal on January 28, 1998. From that judgment of the High Court this appeal aros

Click Here to Read the rest of this document