Judgment K.S.Garewal, J. 1. Ish Kumar and his brother Gulshan Kumar were tried by the learned Additional Sessions Judge, Jalandhar for an offence under Section 307/323/34 I.P.C. for an attempt on the life of Mangal Singh and for causing injuries to his wife Shanti Devi and Harnam Singh and Section 27 Arms Act. Vide judgment dated July 22, 1993 Ish Kumar was held guilty under Sections 307/323/34 I.P.C. while Gulshan Kumar was held guilty under Sections 323/307 read with 34 I.P.C. Both were sentenced to undergo rigorous imprisonment for 7 years and six months under Sections 307 and 323/34 IPC respectively, pay a fine of Rs. 5,000/- and in default of payment of fine to further undergo rigorous imprisonment for six months. The sentences were directed to run concurrently. The appellants have filed the present appeal to challenge their conviction and sentence. 2. Mangal Singh and three others had also faced trial for injuries inflicted on Ish Kumar. The learned Additional Sessions Judge vide judgment dated July 22, 1993 acquitted Mangal Singh and others. The case against Ish Kumar and Gulshan Kumar was that their house adjoined the house of Mangal Singh (PW-2) and while Mangal Singh was away to work, Ish Kumar placed a lintel on his house which rested on a wall of Mangal Singhs house. On October 14, 1986 when Ish Kumar started raising a wall on the wall of Mangal Singhs house, a dispute arose between him and Mangal Singh over the raising of the wall. The matter was referred to two Arbitrators, namely, Shori Tailor and Iqbal Singh, Advocate. 3. October 16, 1987 was fixed for the Arbitrators to visit the site but when they did not turn up, Mangal Singh (PW-2) came in front of the house of Ish Kumar and started raising lalkaras. Harnam Singh (PW-4), who was also present at the spot, stepped forward and Gulshan Kumar hit him on his left hand with a stick. Mangal Singh tried to save himself but Ish Kumar fired a shot through a window of the upper story of the house (chaubara) which hit Mangal Singh on his right thigh. When Mangal Singhs wife Shanti Devi (PW-3) came to rescue her husband, Ish Kumar fired a second short which hit Shanti Devis big toe. On hearing the commotion, Mangal Singhs son Inderpal Singh also reached at the spot and evacuated the injured to the hospital. When Mangal Singhs wife Shanti Devi (PW-3) came to rescue her husband, Ish Kumar fired a second short which hit Shanti Devis big toe. On hearing the commotion, Mangal Singhs son Inderpal Singh also reached at the spot and evacuated the injured to the hospital. The injured were medico- legally examined by Dr. Iqbal Singh (PW-6) on October 16, 1987 at Civil Hospital, Jalandhar. Mangal Singh was found to have following injury :- "1) Lacerated wound cum punctured measuring 3cm x 1cm on the inner and middle of the right thigh. There was a corresponding hole on the kachhehra and the pant worn by the patient, which was marked and signed and handed over to the police. Injury was kept under the opinion of the orthopaedic Surgeons and the probable duration for the injury was within six hours." Shanti Devi (PW-3) was medico-legally examined at 9.50 P.M. And found to have the following injuries : "1) Lacerated wound with crushing of the left big toe. The muscle and the bones crushed and distal piece hanging loosely". 4. Harnam Singh (PW-4) was medico-legally examined at 9.40 P.M. and found to have the following injury on his person :- "1. Lecerated wound 3 cm lenier on the posterior of the left thumb. Advised Ex-Ray." 5. A wireless message was sent, whereupon Sub-Inspector Harbhajan Singh (PW-9) reached the Civil Hospital, Jalandhar and tried to record the statement of Mangal Singh and Shanti Devi. They were declared unfit to speak. Mangal Singh was declared fit to speak on October 17, 1987, whereupon his statement was recorded and on its basis case was registered at Police Station Division No. 4, Jalandhar under Sections 307/326/323 I.P.C. 6. The Investigating Officer reached the spot and prepared a rough site plan of the place of occurrence, took into possession two empties of .32 revolver. A bullet was recovered from the wound suffered by Mangal Singh, which had been handed over to the Investigating Officer by the Medical Officer and was taken into possession. Mangal Singhs pants and underwear were also handed over to the Investigating Officer by the Medical Officer. Dr. H.S. Kahlon (PW-5) treated Shanti Devis wound and her left great toe was amputated. 7. On October 18, 1987 Ish Kumar was arrested and his revolver was recovered from his possession. Mangal Singhs pants and underwear were also handed over to the Investigating Officer by the Medical Officer. Dr. H.S. Kahlon (PW-5) treated Shanti Devis wound and her left great toe was amputated. 7. On October 18, 1987 Ish Kumar was arrested and his revolver was recovered from his possession. At that time the revolver was loaded, upon being unloaded five cartridges were recovered, which were separately sealed. Gulshan Kumar was also arrested. Both brothers were sent up for trial. At the trial charge was framed against the accused to which they pleaded not guilty and claimed to be tried. The main witnesses examined by the prosecution were Mangal Singh (PW-2), Shanti Devi (PW-3), Harnam Singh (PW-4), Dr. H.S. Kahlon (PW-5) Dr. Iqbal Singh (PW-6) and S.I. Harbhajan Singh (PW-9). 8. When the accused were examined without oath under Section 313 Cr.P.C. they both admitted that Mangal Singh was their neighbour but denied that they had placed a lintel on the wall of Mangal Singhs house. The appointment of the two Arbitrators was admitted but the version given at the trial was denied. Ish Kumar gave the following counter version of the occurrence :- "I am innocent. On the day of occurrence at about 8.15 P.M. Mangal Singh accompanied by Inder Pal, Harjinder Singh, Manjit Singh and Harnam Singh came in front of my house and started hurling brick bats towards my house and broke the window panes of the drawing room and bath room as well as of outer gate of my house. Out of fear, I did not come out of the house. Some of these persons then came over the roof of the first floor of my house through the roof of the house of Mangal Singh and from there also they started throwing brick bats towards my court-yard where I and other family members were present. When those persons tried to come into the court-yard through the stair case of my house, I apprehending danger to my and property fired two shots in the street with intend to scare them away. No injury was received by Smt. Shanti Devi by bullet. Similarly Harnam Singh had not received any injury in this occurrence. My brother Gulshan Kumar was also not present at that time. We have been falsely involved in this case." 9. No injury was received by Smt. Shanti Devi by bullet. Similarly Harnam Singh had not received any injury in this occurrence. My brother Gulshan Kumar was also not present at that time. We have been falsely involved in this case." 9. When the accused were called upon to enter defence, they tendered in evidence certified copies of plaint dated October 27, 1987 in a suit for permanent injunction filed by Mangal Singh against Gulshan Kumar and two others including Ish Kumar, certified copy of the order dated May 13, 1988 dismissing the suit as not pressed, certified copy of plaint dated February 8, 1988 in a suit for mandatory injunction filed by Mangal Singh against Moti Ram and three others including Gulshan Kumar and Ish Kumar and the order dated February 4, 1988 dismissing the suit under Order 9, Rule 8 C.P.C. The accused did not examine any witness in support of their case. 10. The learned counsel for the appellants argued that the houses of Mangal Singh and appellants adjoined each other in such a way that their backs were common. This meant that the gates of the houses faced opposite directions. Mangal Singh and Shanti Devi had been injured when they were just outside the main door of the house of the appellants. Reference was also made to cross- examination of Mangal Singh to show the respective locations of the houses and also to establish that there was no reason for Mangal Singh and others to pass by the house of the appellants. If Mangal Singh was actually going to Iqbal Singhs house was on a different street and was about 250 feet from the house of the appellants. 11. In appeal, the appellants have reiterated their right of self-defence pleaded by Ish Kumar whereas Gulshan Kumars plea before the trial Court had been a complete denial. Therefore, reference was made to the cross-examination of Mangal Singh where the witness had admitted that he along with Inderpal, Harjinder Singh, Manjit Singh and Harnam Singh were being prosecuted in the cross-case. As mentioned earlier, this case had led to the acquittal of Mangal Singh and others. The witness had obviously denied the defence suggestion put to him regarding the throwing of bricks and breaking the window panes of the appellants house. 12. As mentioned earlier, this case had led to the acquittal of Mangal Singh and others. The witness had obviously denied the defence suggestion put to him regarding the throwing of bricks and breaking the window panes of the appellants house. 12. Learned counsel for the appellants has also referred to the site plan of the houses of the parties. The house of Mangal Singh was indeed at the back of the house of the appellants. The Investigating Officer had recorded during the spot inspection on October 17, 1987, the spots where the wire gauze of the door and ventilators had been broken and also places where brick bats were lying. The question that is required to be determined is whether the appellants acted in bona fide right of private defence of body and property. According to Ish Kumars statement, Mangal Singh and others had come in front of his house at 8.15 P.M. and starting throwing brick bats, they broke the window panes of the drawing room and the bath room as well as the outer gate of the house. Some persons also came to the roof of the first floor of the house through the roof of Mangal Singh and from there as well bricks were thrown towards the Court-yard of Ish Kumars house. Ish Kumar apprehended danger to his life and to his property. He fired two shots to scare every one away. According to Ish Kumar no injury had been received by Shanti Devi or by Harnam Singh. Ish Kumar had accepted that the shot fired by him had hit Mangal Singh. 13. Very often an awkward situation develops in ones life, it would be folly to be a silent spectator when one is expected to be courageous and brave. If a persons house is under attack, people have gathered outside and have started throwing bricks damaging the property, all kinds of frightening thoughts flash through the mind. Law provides that every one has a right to defend his body and his property. Section 97 I.P.C. gives this right and lays down that, subject to the restrictions contained in Section 99, every person has a right to defend his own body against any offence affecting his body and his property against robbery, mischief, criminal trespass or an attempt to commit these offences. 14. However, the right is not an unlimited one. Section 99 provides certain limitations. 14. However, the right is not an unlimited one. Section 99 provides certain limitations. Thereunder it is not self-defence if the person exercising the right has time to have recourse to protection of the public authorities. The right of private defence does not extend to inflicting more harm than is necessary for the purpose of defence. Right of private defence of the body extends even to causing death under circumstances enumerated in Section 100 I.P.C. However, in cases which are not covered by Section 100 I.P.C., the right of private defence of the body does extend to voluntary causing any harm other than death. The right commences as soon as reasonable apprehension of danger to the body arises and continues as long as such apprehension continues. 15. Coming to the right of private defence of property, the right extends, in certain circumstances to causing of death. These circumstances are mentioned in Section 103 I.P.C. Under Fourthly, such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if the right of private defence is not exercised then the defender can even cause death. Under other circumstances he can cause any harm other than death. 16. In the present case, it is a combination of factors, which have to be considered in assessing whether Ish Kumar possessed the right of self-defence to fire at Mangal Singh. The appellants had a serious dispute with Mangal Singh on the question of placing the lintel on the wall of Mangal Singhs house which must have caused weakness to the structure since it was not capable withstanding the load. This matter had been referred to Arbitrators for settlement. The Arbitrators were to resolve the dispute at the time when the occurrence took place. Mangal Singh and others may have gone to fetch the Arbitrators but they had no reason to come to the appellants house since that was not on their way. The Investigating Officer had seen sufficient evidence of brickbatting, broken window panes and broken wire gauze in the house of the appellant. He had also collected brick bats from the appellants court-yard and roof top. Two empty cartridges had also been picked up from the upper room of Ish Kumars house. 17. Therefore, the reasons given for rejecting the plea put forward by Ish Kumar are untenable. He had also collected brick bats from the appellants court-yard and roof top. Two empty cartridges had also been picked up from the upper room of Ish Kumars house. 17. Therefore, the reasons given for rejecting the plea put forward by Ish Kumar are untenable. The learned trial Judge should have seen the case from Ist Kumars angle. The learned trial Judge stated that the defence did not put a suggestion to the witnesses as to when and at what particular point Ish Kumar apprehended danger to his life and property. The learned Judge was also swayed by the fact that a woman had been injured in a public street when Ish Kumar had fired from an upper room of his house which was clearly a protected place. He was influenced by the fact that the injured persons were unarmed and empty-handed whereas Ish Kumar received no injury. However, the learned trial Judge omitted to appreciate that when D.S.P. Rajinder Kumar Sharda (PW-7) was cross-examined and asked about the inspection of the spot by him, the witness had admitted that the wire gauze of the front door as well as the glass window panes of the house opening towards the street had been found to be smashed. The learned Judge felt that when the inspection of the spot conducted by Inspector Harbhajan Singh (PW-9) had revealed presence of broken pieces of glass and brick bats, the accused developed the theory of exercise of right of private self-defence. According to the learned Judge the accused had been arrested after two days and during this period he had created such a situation which would give the impression that he had been attacked with bricks bats. The learned Judge also considered that the shot was fired by Ist Kumar from a distance of 15 feet when he was in the upper portion of the house and therefore, the right of self-defence was not available to him. 18. It has been specifically laid down in Sections 96 to 102 I.P.C. that the right of private self-defence commences as soon as a reasonable apprehension of danger to the body arises and continues as long as the said apprehension continues. Similarly, Section 106 I.P.C. provides the commencement and continuation of right of private defence of property but this right does not relate to any apprehended danger to property, only to real danger to property. Similarly, Section 106 I.P.C. provides the commencement and continuation of right of private defence of property but this right does not relate to any apprehended danger to property, only to real danger to property. Therefore, as far as the right of private self-defence of body is concerned, it is what the accused subjecting apprehends as danger which is important. The present is a case where it has to be determined whether the accused possessed either the right of self-defence of body or the right of self-defence of property or both. At 8.30 P.M. at night when it is dark and there is tension between neighbours, if the opposite party comes to ones house and starts throwing bricks and stones, causing damage to window panes then the accused could well have a reasonable apprehension in his mind that he may come under physical attack as well. Mangal Singh and others had not entered the house but had started attacking it with bricks and stones. Therefore, it was this act on their part that caused apprehension in the mind of Ish Kumar that he and members of his family would come under attack. Ish Kumar possessed a licensed revolver and fired two shots from it towards Mangal Singh. Ish Kumar had legally and justifiably exercised the right of private self-defence. Ish Kumar had committed no offence. In view of the above discussion, this appeal is accepted and the appellants are by acquitted of the charge.