OM PRAKASH Vs. STATE OF RAJASTHAN

JUDGEMENT

(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.

(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.