BATHUSINGH AND ORS.versusSTATE OF M.P.

                      BA THUSINGH AND ORS.                                 A
                                v.
                          STATE OF M.P.

                           AUGUST 25, 2004
                                                                            B
    [K.G. BALAKRISHNAN AND DR. AR. LAKSHMANAN, JJ.]

     Penal Code, 1860-Sections 3021148, 96 and 99:

     Prosecution for murder-Prosecution case supported by 3 C
eyewitnesses-Corroborated by Medical evidence-Plea of self defence by
accused-Conviction by Courts below-On appeal, held: Accused liable
to be convicted as the offence proved by ocular evidence is corroborated
by medical evidence-Defence version not proved-Even otherwise accused
not entitled to right ofprivate defence as assault was exceedingly vindictive
and maliciously excessive.                                                    D
     Right of Private Defence-Nature of Held : It is not a right of
reprisal or punishment-It is subject to restrictions indicated in
Section 99.
                                                                            E
      Appellants-acr.used, alongwith other accused were alleged to have
caused death of two persons. In the incident two persons also got
injured. There were three eye-witnesses to the incident namely PWs
1, 2 and 3. Medical evidence corroborated the version of eye-witnesses
so far as participation of the appellants were concerned. During trial, F
accused took the plea of self defence. Their version was that the victim
party had set their crops on fire and assaulted them, and they attacked
the victim party as a revenge. They examined five witnesses in support
of their case. Trial Court convicted accused No. 1 and the appellants
u/s. 302/148 IPC and other accused were convicted u/s. 302 r/w. 149
and 148 IPC. High Court confirmed the conviction of the appellants G
and acquitted the other accused.

     In appeal to this Court, appellants contended that they were liable
to be acquitted as they had resorted to the act in self defence and that
the prosecution failed to prove its case beyond reasonable doubt.        H
                                   785
    786                   SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A         Dismissing the appeals, the Court

        HELD : 1. So far as the appellants are concerned, there is
    overwhelming ocular evidence on record duly corroborated by the
    medical evidence and the statement of PW-1, to prove their offence.
B                                                                      [790-E)

         2.1. There is no evidence on record much less to establish the rlefence
    version of acting in self defence, which is a defence which was set up at
    a very late stage. The statements of the defence witnesses are also not
    helpful to the appellants. The appellant have not established their plea
c   of private defence by preponderance 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 Cr.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
D   person by preponderance of probabilities. [790-H; 791-A-C]

          2.2. 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 99
E   IPC which are important as the right itself. In the instant case, the
    assault on both the deceased was exceedingly vindictive and maliciously
    excessive. Under these circumstances the appellants were not entitled
    for right of private defence and two persons were done to death by the
    appellants without there being apy imminent danger to their property
F or lives. [791-C-D)
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
    1295-1296 of 2003.

          From the Judgment and Order dated 19.4.2002 of the Madhya
G Pradesh High Court in Cr!. A. No. 697 of 1995 and Cr!. A. No. 831 of
    1995.

          Vidya Dhar Gaur for the Appellants.

H         Ms. Vibha Datta Makhija for the Respondent.
             BATHUSINGH v. STATE [LAK.SHMANAN, J.]                    787

     The Judgment of the Court was delivered by                             A

     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. B
697 of 1995 by acquitting appellant No. I, Balu Singh, appellant No. 5,
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:-                 c
      The appellants and the deceased persons as well as PW-I, 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 D
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-I, Sardarsingh, was also assaulted when she was E
going to serve water to him. The incident was witnessed by PW- I, Sardar
Singh, PW-2, Jagat Singh, PW-3, Humabai and other witnesses named
Bhagat Singh, Buddhibai Jalam Singh, Pratap Singh and Bhim Singh.

     PW-I, Sardar Singh, informed this incident to village Chaukidar and F
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 G
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- H
    788                   SUPREME COURT REPORTS (2004] SUPP. 3 S.C.R.

A 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
B 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 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
C offences under Section 302/148 I.F.C. against Balu Singh, Bathu Singh,
  Nar Singh and Bhal Singh and sentenced them to life imprisonment and
  fine of Rs. I 000, in default, R.J. 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.
D
         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.

E        The High Cou1t partly allowed Criminal Appeal No. 697 of 1995 by
    acquitting appellant No.I, Balu Singh, appellant No. 5, 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. I
    herein), Nar Singh (appellant No. 2 herein) and Bhal Singh (appellant
F   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
G 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 asudden and the appellants had to reso1t in self
H   defence as their crups in the thrashing field were set on fire and their house
              BATHUSINGH v. STATE [LAKSHMANAN, J.]                          789

was stoned. When the appellants acted in self defence, they sustained A
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 B
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 C
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.        D

      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             E
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 appel !ants were not acting in self defenc.;, they
are not entitfed for acquittal.

      We have gone through the entire record and judgments rendered by
                                                                                   F
both the Comis. As already noted, the prosecution has examined PW-I,
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.I in the High Court) gave a G
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 Bhal Singh (appellant No.4 before the High
Court) gave a lathi blow (Denga) on his head whereas Richhu, Nanbai and H
    790                   SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A 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-I 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.
B
          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
C   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 ofBathu Singh (appellant No. I herein), Nar Singh (appellant
D   No. 2 herein) and Bhat 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.
E
          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-I, Sardar Singh.

F       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 (SOOP 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 Bhat Singh because
  DW-1 has not named any of the deceased or the prosecution witness.
G 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 ofDW-3 which could support the defence version. We cannot
H also draw any inference from the statement of DW-4 who made a vague
             BATHUSINGH v. STATE [LAKSHMANAN, J.]                     791

statement and that no inference can be drawn by this Court that the A
deceased and the witnesses had set fire on the crop. The statement ofDW-
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 B
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 C
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 99 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 D
for right of private defence and two persons were done to death by the
appellants without there being any imminent danger to their property or
lives.

      There is no evidence on record much Jess to establish the defence E
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.
                                                                             F
K.K.T.                                                Appeals dismissed.
                                               •