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High Court Of Himachal Pradesh
KAMLESH SHARMA,K.C.SOOD
DURGA NAND - Appellant
Versus
STATE OF HIMACHAL PRADESH - Respondent
Criminal Appeal Nos. 304 of 1998 and 367 of 1998
Decided On : 09/20/2000
Right of Private Defence - Criminal Law - Section 302, Section 307, Section 323, Section 34 IPC
Fact of the Case:
The case involved a dispute over land ownership and possession between two families. The appellants, along with other accused persons, assaulted the deceased and his family members, resulting in the death of the deceased and injuries to his wife and son. The accused claimed self-defence, alleging that the deceased had fired a gun shot at them.
Finding of the Court:
The court found that the deceased had exercised his right of private defence by firing a gun shot to protect his son from the accused. The court concluded that the accused were the aggressors and responsible for the injuries and death. The court rejected the plea of self-defence by the accused and upheld their conviction under Sections 302, 307, and 323 read with Section 34 IPC.
Issues: The main issue was whether the accused's actions constituted self-defence or aggression in the context of a land dispute.
Ratio Decidendi: The court held that the deceased had the right of private defence to protect his son from the accused, and the accused's claim of self-defence was not established. The court also emphasized that the right of private defence should be exercised in response to imminent danger and not as a means of aggression.
Final Decision: The court dismissed the appeals and upheld the conviction and sentences of the accused.
Ms. Kamlesh Sharma, J.—These two appeals (Criminal Appeals No. 304 of 1998 and 367 of 1998) are being disposed of by a common judgment, as these arise out of the same judgment dated 29.6.1998 passed by the Additional Sessions Judge, Shimla whereby the appellants, namely, Durga Nand and Dharminder in Criminal Appeal No. 304 of 1998 were convicted under Section 302 read with Section 34 IPC for the murder of Laik Ram and sentenced to rigorous imprisonment for life and also to pay a fine of Rs. 5,000 each and in default of payment of fine they were to undergo further rigorous imprisonment for two years. They were also convicted under Section 307 read with Section 34 IPC for attempt to murder Neel Kanth PW-5 son of Laik Ram and sentenced to undergo rigorous imprisonment for seven years and also to pay a fine of Rs. 1,000 each and on their default to pay the fine they were to further undergo rigorous imprisonment for six months. They were further convicted under Section 323 read with Section 34 IPC for causing simple injuries to Gangawati PW 5 wife of Laik Ram and sentenced to undergo rigorous imprisonment for six months and also to pay a fine of Rs. 500 each and on their failure to pay the amount of fine they were to undergo further rigorous imprisonment for two months. All the three sentences were to run concurrently. Out of the amount of fine, if deposited, a sum of Rs. 5,000 each has been ordered to be given as compensation to Gangawati PW 4 and Neel Kanth PW 5, the injured. In their appeal Dvirga Nand and Dharminder have assailed their conviction and sentence. By the impugned judgment Hukmu Devi, Promod Kumar and Padma Ram have been acquitted and feeling aggrieved by their acquittal the state has filed criminal appeal No. 367 of 1998.
2. The prosecution case in brief is that deceased Laik Ram and appellant Durga Nand were real brothers and respondent Padma Ram is their father. When Gangawati PW 4 was 6-7 years old, respondent Padma Ram at the instance of late Ganeshu, the father of Gangawati, started living at village Kelvi Jubber alongwith his entire family. On the death of Ganeshu, respondent Padma Ram started looking after Gangawati and entire estate of her father Ganeshu, which she inherited on her attaining the age of majority. As per the desire of Ganeshu, respondent Padma Ram solemnized marriage of Gangawati with his son Laik Ram. Subsequently, he started pressurising Gangawati as well as Laik Ram to get the appellant Durga Nand also recorded as co-sharer in the land Gangawati inherited from her father to the extent of half share, to which they did not agree. For this reason appellant Durga Nand as well as other members of his family tortured Laik Ram to the extent that he abandoned Gangawati when she was pregnant and started living with one Soda in village Kathog, where he stayed for 20-22 years. Gangawati gave birth to Neel Kanth and brought him up single handedly. During the absence of Laik Ram, respondent Padma Ram by exercising undue influence allured Gangawati and managed to get appellant Durga Nand recorded as tenant over her land measuring 24 9 btghas, of which Durga Nand acquired proprietary rights lateron, constructed a house thereon and started living therein separately alongwith his family.
3. Further case of the prosecution is that in the year 1994 during the Diwali festival Neel Kanth brought his father Laik Rani back to his house for living with him and Gangawati, which gave cause of annoyance to appellant Durga Nand and members of his family, who hatched a conspiracy to do away with the life of Laik Ram, and respondent Padma Ram asked Gangawati and Neel Kanth not to come out from their house on 24.10.1995 because of solar eclipse so that they might not come to rescue Laik Ram, whom they had planned to murder.
4. As per the case of the prosecution on 24.10.1995 Neel Kanth, his wife Kanta PW 14 were present in their house, whereas, Laik Ram had gone to the house of Shiv Lal PW 6. At about 2 p.m. Ganga
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