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CASE NO.: Appeal (crl.)  1295-1296 of 2003

PETITIONER: Bathusingh & Ors.                                                              

RESPONDENT: State of M.P.  

DATE OF JUDGMENT: 25/08/2004

BENCH: K.G. Balakrishnan & Dr. AR. Lakshmanan  

JUDGMENT: J U D G M E N T

Dr. AR. Lakshmanan, J.

These appeals are directed against the judgment and order dated  19.4.2002 passed by the High Court of Madhya Pradesh, Bench at Indore in  Criminal appeal Nos.697 and 831 of 1995 whereby the High Court has partly  allowed Criminal Appeal No.697 of 1995 by acquitting appellant No.1, Balu  Singh, appellant No.4, Richhu, appellant No.6, Bhangdibai and appellant No.7,  Nanbai of the offence they were charged and the appeal of appellant No.2,  Bathusingh, appellant No.3, Nar Singh and appellant No.4, Bhal Singh was  dismissed.   

The case of the prosecution, in brief, is as follows:-

The appellants and the deceased persons as well as PW-1, Sardar Singh,  PW-2, Jagat Singh and PW-3, Humabai are related to each other.  On the  fateful day, the deceased Dhan Singh @ Dhania was digging a well in his field  and was storing stones on the embankment of the field for which the accused  persons were having objection.  At that time, all the appellants reached the  place in question having arrow and bow, Denga(lathi) and stones  and started  assaulting the deceased Dhania.  The deceased Bhuru also reached over there  and he too was assaulted by the appellants.  Jhillibai, sister of PW-1,  Sardarsingh, was also assaulted when she was going to serve water to him.    The incident was witnessed by PW-1, Sardar Singh, PW-2, Jagat Singh, PW-3,  Humabai and other witnesses named Bhagat Singh, Buddhibai Jalam Singh,  Pratap Singh and Bhim Singh.   

PW-1, Sardar Singh, informed this incident to village Chaukidar and  thereafter lodged a report Ex.P-1 at the police station at 2.00 p.m.   Both  Dhania and Bhure died on the spot.  Their bodies were sent for post mortem  examination and injured persons Hirabai and Jhillibai were sent for medical  examination.  They were examined by PW-4, Dr. Fateh Singh.  The deceased  Dhania sustained two stab wounds at his stomach caused by pointed sharp  edged weapon and a fracture on left temporal bone caused by hard and blunt  object.  His post mortem report is Ex.P-2.

Dr. Fateh Singh, PW-4, on performing the autopsy on the dead body of  Bhure, found one stab wound at the left chest caused by a sharp pointed object   and a fracture of temporal bone.  His post mortem report is Ex.P-3.  The police  after completing the investigation filed the challan in the Court.  The appellants  denied the allegations of the prosecution and pleaded self defence as appellant,  Baley Singh appeared and examined as DW-5 and stated that his wheat, Bajara  and Urad crops in threshing field near his house were set on fire and thereafter  they started throwing stones at his house.  On coming out from the house,  Bhagat Singh and Jagat Singh shot arrows from bow and in defence, the  appellants also shot arrows and in that process one Bathu Singh sustained

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injury by arrow.  The appellants examined five defence witnesses in their  defence.  Prosecution examined eight prosecution witnesses during trial.  The  trial Court held guilty of offences under Section 302/148 I.P.C. against Balu  Singh, Bathu Singh, Nar Singh and Bhal Singh and sentenced them to life  imprisonment and fine of Rs.1000/-, in default, R.I. for one year and six  months, and Richhu, Bhagndibai and Nanbai were convicted under Sections  302 r/w 149 and 148 I.P.C. and sentenced them to undergo imprisonment for  life and R.I. for one year.  Both the sentences were directed to run  concurrently.

The appellant, being dissatisfied by the judgment and order dated  31.8.1995, filed an appeal before the High Court of Madhya Pradesh against  their conviction and sentence passed by the trial Court.

The High Court partly allowed Criminal Appeal No. 697 of 1995  by   acquitting appellant No.1, Balu Singh, appellant No.4, Richhu, appellant No.6,  Bhangdibai and appellant No.7, Nanbai of the offence they were charged and  the appeal of the appellants Bathu Singh(appellant No.1 herein), Nar  Singh(appellant No.2 herein) and Bhal Singh(appellant No.3) was dismissed.

Being aggrieved by the said judgment, the appellants preferred these  appeals by way of special leave.

We heard Mr. Vidya Dhar Gaur, learned counsel appearing for the  appellants and Ms. Vibha Datta Makhija, learned counsel appearing for the  respondent.   

Learned counsel appearing for the appellants submitted that the incident  occurred all of a sudden and the appellants had to resort in self defence as their  crops in the thrashing field were set on fire and their house was stoned.  When  the appellants acted in self defence, they sustained injuries on their person, so  they immediately went to the police station to seek their assistance.  In the  meantime, complainant party also reached in the police station and the  appellants were detained and put behind the bar.  It was further submitted that  the investigation made by the prosecution is a tainted one because the police  has shown arrest of the appellants after three days of the incident and kept  them in illegal detention since the day of the incident, the police has not  medically examined the appellants for the injuries they sustained during the  incident in spite of their requests.   It was also submitted that the prosecution  has examined all interested and partisan witnesses and has withheld  independent witnesses, though shown to be present on the spot and were  injured.  The injured witnesses have also not been examined in the Court.   Concluding his arguments, learned counsel submitted that the witnesses  examined by the prosecution in the Court are not trustworthy and, therefore,   reliance cannot be placed on them and that the prosecution has failed to prove  their case beyond any reasonable doubt, therefore, the appellants are entitled  for acquittal.

Learned counsel appearing for the respondent, per contra, submitted that  the evidence on record clearly establishes that the appellants, after forming an  unlawful assembly, committed murder of both Dhania and Bhuru and also  caused injuries to two other persons and they were also armed with deadly  weapons and none of the appellants had received any injury during the course  of the incident.  When the material on record is clearly establishing that the  appellants were not acting in self defence, they are not entitled for acquittal.

We have gone through the entire record and judgments rendered by both  the Courts.  As already noted, the prosecution has examined PW-1, Sardar  Singh, PW-2, Jagat Singh and PW-3, Humbai as eye witnesses  of the incident.   According to them, when the deceased Dhania reached at his field for digging  the well and thereafter the deceased Bhuru for watching the mango crop,  Balu  Singh (appellant No.1 in the High Court) gave a lathi blow on the head  resulting into fall of deceased Dhania on the ground.  Thereafter Nar Singh  shot an arrow piercing in his stomach.  Bathu Singh (appellant No.2 before the  High Court) shot an arrow piercing at the chest of the deceased Bhuru and

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Bhal Singh (appellant No.4 before the High Court) gave a lathi blow(Denga)  on his head whereas Richhu, Nanbai and Bhangdibai used the stones in the  incident.  These three eye witnesses have also stated that when they and other  villagers tried to intervene in the incident, the appellants chased them away.   Thereafter PW-1 and PW-2 came to the village and gave information to village  Chaukidar and thereafter reached the spot and found Dhania and Bhuru lying  dead there.   PW-4, Dr. Fateh Singh, had performed the autopsy on the dead bodies of  Dhania and Bhuru.  The doctor witnessed two stab wounds on the stomach and  two fractures of parietal bone of Dhania and one stab injury and fracture of  occipital bone on the person of Bhuru.  According to him, both the deceased  died because of shock and excessive bleeding.  PW-4 has also examined  Jhillibai who too was assaulted by the accused persons during the course of the  incident.  He found two diffused swelling on her person.  Thus it is seen that  the evidence of PW-4, Dr. Fateh Singh, is clearly corroborating the statements  of eye witnesses so far as participation of Bathu Singh (appellant No.1 herein),  Nar Singh (appellant No.2 herein) and Bhal Singh (appellant No.3 herein) is  concerned.  It is significant to note that Dr. Fateh Singh found, in all, four  injuries on the person of deceased Dhania i.e., two stab wounds, one fracture of  left temporal bone and on dissection, he noted one fracture of temporal and  parietal bone.  

So far as the appellants herein are concerned, there is overwhelming  ocular evidence on record duly corroborated by the medical evidence and the  statement of PW-1, Sardar Singh.

Learned counsel appearing for the appellants has also taken us through  the statements of DW-1 (Thumlibai), DW-2(Sukliya), DW-3(Hirasingh), DW- 4(SDOP Rajendrasingh Kushwah) and DW-5(Balusingh) examined as defence  witnesses.  The statements of these DWs are also not helpful to the appellants  Bathu Singh, Nar Singh and Bhal Singh because DW-1 has not named any of  the deceased or the prosecution witness.  DW-2, who is a village chowkidar  has not levelled any allegation against the witnesses and the deceased persons  about setting fire to their crop.  On the contrary, this witness has contradicted  the case of the appellants about setting fire to the wheat crop.  Likewise, there  is absolutely nothing in the statement of DW-3 which could support the  defence version.   We cannot also draw any inference from the statement of  DW-4 who made a vague statement and that no inference can be drawn by this  Court that the deceased and the witnesses had set fire on the crop.  The  statement of DW-5 is also not helpful to the appellants’ case.

The appellants, in our opinion, have not established their plea of private  defence by preponderence of probabilities.  The appellants have not laid any  foundation in cross-examination of the prosecution witnesses as well as in their  statements under Section 313 Crl.P.C. and by pointing out positive  circumstances from the legally proved prosecution evidence which could  establish their case of self defence of property and person by preponderance of  probabilities.  This Court in catena of cases has held that a right of private  defence given by the Penal Code is essentially one of defence or self protection  and not a right of reprisal or punishment.  It is subject to the restrictions  indicated in Section 88 which are so important as the right itself.  In the instant  case, the assault on both the deceased was exceedingly vindictive and  maliciously excessive.  Under these circumstances, we are of the opinion that  the appellants were not entitled for right of private defence and two persons  were done to death by the appellants without their being any imminent danger  to their property or lives.

There is no evidence on record much less to establish the defence  version of acting in self defence, which is a defence which was set up at a very  late stage.   

For the foregoing reasons, we are of the opinion that the appeals have no  merits and are, accordingly, dismissed.      

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