BHAIYA BAHADUR SINGHversusSTATE OF MADHYA PRADESH

A                          BHAIYA BAHADUR SINGH
                                           v.
                        STATE OF MADHYA PRADESH

                                    JULY 9, 1996

B    [MADAN MOHAN PUNCHHI AND SUJATA V. MANOHAR, JJ.]

          l11dia11 Pe11al Code, l860-Sectlo11s 96 and 97-Right of self defe11cL~
    Exte11t of--011us of proof-Whether on the accused-Degree of
    proof-Whether beyond reasonable doubt.
c
          The case of the prosecution was that the ap11ellant trampled over a
    portion of the field of the victim's party while taking his tractor to his field.
    The victim's party objected to this, on which the appellant lost his temper
    and '"'ent back to his house and brought a single barrel gun. Thereafter,
    appellant used abusive language and fired one shot injuring PW-15 and
D PW-16 and thereafter, reloaded his gun and !ired another shot which killed
    the deceased. The appellant was charged under Sections 302 and 307 of'
    I.P.C. as well as under Section 25(a) of the Arms Act.

          The appellant denied the allegation of the prosecution and con-
E tended that the injuries were caused in exercise of his right to private
    defence of person and property. The appellant's case was that while he was
    going to his field on a tractor, the victim's party, armed with lathis and
    ballam, attacked him and his tractor. He further contended that he got
    down from the tractor and ran away but was chased by the victim's party.
    He claims that the shot was !ired in exercise of his right to defend his
F   person and prorierty. He further alleged that no F .I.R. was lodged by the
    police when he attempted to lodge one.

          The appellant was arrested one day after the incidence and five
    simple injuries \Vere found on his person. No lathi or ballam was recovered
G from the place of occurrence.
          All the courts below rejected the plea of self-defence and convicted
    the appellant. This Crmrt, rejecting the appeal

          HELD I.I. When an accused person sets up a plea of self-defence,
H the onus tu establish that plea lies on him. It is well established that the
                                           310
               BHAIYABAHADURSlNGHv. STATEOFM.P.                          311

  accused is not required to prove that plea beyond reasonable doubt but        A
  has merely to show it as probable. The onus to probabli>e the defence
  version, from the salient facts and circumstances appearing in the
· prosecution case, or otherwise set up by the accused in the form of defence
  evidence, is always on him. [316-E]

      1.2. In the instant case, appellant consciously and deliberately fired    B
the two shots successfully; the second one after re-loading the gun. He fully
intended the consequences of his acts, i.e. the injuries to PWs 15 and 16
and the instant death of the deceased. [318-H]

      1.3. It appears that the appellant consciously and deliberately fired     C
the two shots successfully; the second one arter re-loading the gun. He fully
intended the conse<1uences of his acts, i.e. the injur>es to PWs 15 and 16
and the instant death of the deceased. [318-H]

       2.1. The plea of the appellant that all the live injuries were caused
to him while he was sitting on the tractor and lie had to jump off the tractor D
'vith his gun \\-'here-after \Vhen being follcnved he tired fron1 his gun. This
plea of the appellant ipso facto does not give hhn the right of private
defence of person as \\-'ell as the property. The damage to the ~ractor,
\\'hatever, had been done. It sounds in1probahle that having a gun in his
hands fully loaded, three men even armed Viith lathis and one man armed E
\\ith a spear would dare go chasing close to him, once he was seen in a
charging position preparatory to tiring. [318-B-C]

      2.2. There was no reason for the victim party to be carrying any /athi
and ballam respectively to the fields on the day of occurrence and to such
distance, as there was no reason to apprehend any trouble whatsoever.           F
Both parties had never quarrelled liefore. Neither weapon was found at the
spot when the investigating officer conducted the inquest and further
investigation. [318-D]

      2.3. After the appellant had jumped off the tractor along "ith his
gun, no injury was allegedly caused to him by the victim party. The right G
of private defence, if any, ended the moment the appellant successfully
jumped oft' the tractor and got at a safe distance from the victims. He
hirnself being in a don1inating position, could have had no cause to tire at
the victims causing injuries, dangerous in nature and then to have re·
loaded gun ~ith a po~'erful cartridge containing a bullet, driving it through H
    312                   SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.

A the body of the deceased, from a close range. The deceased could, in no
    event, have dared to go near t.he appellant when already a tire had been
    shot by him hitting PW 15 and PW 16. lie would in the normal circumstan-
    ces be running away from the appellant obeying the instinct of self'-preser-
    vation. He had even exhorted his brother at that juncture to run away, lest
B   they be killed. The defence version therefore, does not probablise or
    preponderate. [318-E-G]

          CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
    46 of 1987.

C        From the Judgment and Order dated 27.1.86 of the Madhya Pradesh
    High Court in Crl.A. No. 1076 of 1984.

          R.L. Kohli and S.K. Sabharwal for the Appellant.

          Uma Nath Singh for the Respondent.
D
          The Judgment of the Court was delivered by

         PUNCHHI, J. The only point arising herein is whether the appellant
    has been successful in establishing his right of self defence, mainly of
    person and to some extent of property, probabilising with his innocence;
E   and assuming in the alternative that he had established such right, did he
    exceed it.

         The sole appellant Bhaiya Bahadur Singh, aged about twenty five,
  was a teacher in a government high school, employed a couple of months
F prior to the occurrence. He was a resident of village Majhigawan whereat
  his family owned agricultural land:;. His agricultural field known as gadva
  field adjoined the agricultural field of the victim's family, known as latha
  field. These were divided by a Mand (demarcation line) which undisputably
  was higher by about 2-1/2 feet or more from the ground level and was by
  itself a strip of 10 to 15 feet wide, as described by the prosecution witnesses
G in hands, used as a passage by the parties. In order to cultivate the gadva
  land, the appellant's side had to bring their tractor from the village on to
  the perpendicular boundary line of the victim's land and then to turn to
  get on to the strip of land afore-referred to and having covered some
  distance thereon, to get to the gadva field. Within the corner of these two
H right-angled boundaries lay the latha field of the victim's party.
        IlHAIYABAHADURSINGJiv.STATEOFM.P.il'UNCHHI . .J.J                  313

       As is the prosecution case, about two weeks prior to the occurrence        A
 the victim party had seeded a portion of that tiled by wheat covering that
 corner, and the seed had sprouted. The appellant's tractor, was stLspected
 on the day of the occurrence to have damaged a portion of that field in
 trampling over a good bit of it alongside the boundaries and in particular
 al the corner. Shortly before the occurrence, i.e., on 22.12.1983 at about
                                                                                  B
 4.30 p.m. the appellant was seen to have brought his driver-driven tractor
 to his gadva field whereat his two labourers were already present one of
 whom was Bashistha, PW 1 and the other the latter's brother Rafaddi. The
 victim's party \Vere present in their filed since morning seeding it with
 wheat. Vishwanath. PW 17, one of the members of the victim's party, while
•carrying on such work invited attention and required of Bashistha PW 1 to        c
 convey to Samay Raj Singh, the father of the appellant, to direct his driver
 not to trample upon the sprouted wheat crop of the victim's party. Hearing
 this, as is the case, the appellant went to his house in the village, which is
 about 1- 1/2 furlong away, and brought back a licensed single barrel gun,
 belonging to a member of his family, whereafter in a quarrelsome mood,
                                                                                  D
 using abusive language he fired and with one shot injured two members of
 the victim's party, namely, Mathura, PW 15 and Ghanshyam, PW 16 and
 with the second shot, killed Gokaran, another member. The prosecution
 thus set up a simple straight case of murder and attempt to murder on two
 counts, besides offence under section 25(1)(a) of the Arms Act. It has been
 successful in pro,ing its case beyond doubt in the courts below. The             E
 appellant has been convicted and suitably sentenced details of which are
 available in the judgment under appeal.

      The plea of the appellant on the other hand was that while he was
coming to his field on his tractor driven by his driver, he was stopped by        F
two members of the victim's party, namely, Vishwanath, PW 17 and his
brother Gokaran, deceased and latter given injuries by means of a lat/ti and
ballam (spear) respectively, whereas two others namely Mathura, PW 15
and Ghanshyam, PW 16 menacingly had aimed lathi blows on him but
could not strike. Thus in order to defend himself he had fired from his gun       G
in exercise of right of private defence of person as well as to stop damage
being done to his tractor, as the victim party had \vith their weapons aimed
blows at the tractor too causing it damage. According to the appellant,
after the occurrence, he went to the police station to lodge first information
report but nobody listened to him there. When arrested on the next day at
about 3 p.m. on 23.12.1983, he was found to be having live simple injuries        H
    314                  SUI' RE ME COURT REPORTS [1996] SUPP. 3 S.C.R.

A   on his person which were verified the following day on medical examination
    at about 2 p.m. on 24.12.1983. The description of injuries is given below ;

            (i) Contusion l" x 1/2 Irregular. Bluish and swollen over the center
            part of the back.

B           (ii) Lacerated wound 3 cm x 1/4 cm x 1/4 cm over left scapdar
            region. Margins were clean cut and well defined.

            (iii) Contusion 2" x 1/2" over the back of scalp. Bluish and swollen.

            (iv) Incised wound 3 cm x 1/4 x 1/4 cm over the back of left leg 3"
c           below the left knee, placed horizontally.

            (v) Two contusions with abrasions 2" x 1" over the front of right
            and left arm.

    The tractor was recovered on 25.12.1983 which bore testimony of some
D   damage done to it in denting a mudguard and breakage of the back light
    glass.

          The point thus for consideration is : Is the defence of the appellant
    probable ? Prior thereto is the question whether the prosecution h~d been
    able to prove guilt of the appellant beyond douht. The court of session as
E   well as the High Court have rejected the plea of self defence. R~ther the
    High Court has gone into that question and demolished it, holding the
    appellant guilty ·or the offence.

         Let us detail the matter. The case set up by the prosecution is that
F the latha field situated in village Majhigawan belonged to three brothers,
  i.e., Vishwanath, Gokaran and Baijnath. They were resident of the adjoin-
  ing village Samre about 2-1/2 kilometers away. The field required wheal
  seed being drilled in the soil. For the purpose, on the morning of the day
  of occurrence, two pairs of bullocks were brought to the field by the
G victim's party. !ludhsen, P.W. 10, and Mathura, PW 15 were there to
  perform the jobs of ploughmen, Ghanshyam, PW 16 tied up with Mathura,
  PW 15 and the deceased Gokaran with Budhsen, PW 10 to drill the seed
  behind the ploughs. Vishwanath, PW 17 was there to supplement the
  supply of seed, \vhenever necessary. In the pre-lunch session, they had
  worked regularly uptii 1.00 pm and after two hours rest had re-commenced
H their operations. The appellant then came to his own gadva field bringing
       81-IAIYAflAl-IADUR SINGH v. STATE OFM.P. [PUNCHIIl.J.J             315

his tractor driven by his driver, Devi Deen. Beforehand his two labourers,      A
i.e., Bashistha, PW 1 and his brother named Rafaddi, PW were already
there working in that field. It is then that Vishwanath, PW 17 talked to
Bashistha PW 1 to convey to Samay Raj Singh, the father of the appellant
that the driver of the tractor when coming to the gadva field should take
care not to trample upon the wheat ne\vly sown by the victi111's party.
                                                                                B
       On hearing such protest, it is said thn the appellant went to his
village to his house and brought a single barrel 12 bore gun at about 4.30
pm and then using wild abusive language, shouted at the victim's party that
who was the person who could stop his tractor. At that time one Avdhesh,
OW 1 of the village of the appellant, was statedly at some distance grazing     C
his cattle. His good offices were solicited by the victims to pacify the
appellant, as avowedly he was a man commanding some respect in his
village. He was in the process of coming forward. The appellant, within the
view of all, fired a gun shot towards Vishwanath, PW 17, but missed him,
hitting MathlJr;" PW 15 and Ghanshyam, PW lE instead, the two engaged           D
al one plough. The pellets hit the chest and belly of the former as well as
latter. On re-loading the gun the appellant fired the second shot, hitting
Gokaran deceased, bullet whereof passed through and through his
shoulder and trunk stopping close to the other arm. Gokaran died at the
spot. The matter was reported at 7.30 pm the same day at police station
Baikunthpur by Vishwanath PW 17.                                                E

       Jaiparkash, Sub Inspector, PW 18 set the investigation into motion.
On reaching the spot he prepared inquest of the dead body of the of the
deceased. He did not recover therefrom or at any place close-by any
weapon much less any ballam. The tractor was recovered by him later on F
25.12.1983 which showed dent on the mudguard and a broken back light.
The appellant was not available in the village. He arrested the appellant
the following day at about 3 p.m. and found on his person five simple
injuries. He was got medically examined from Dr. R.D. Sharma, PW 11,
the following day on 24.12.1983 at 2 pm. As a result of his discovery
statement the weapon of offence was recovered.                             G

       On the basis of the injuries found on the person of the appellant he
set up a plea of right of private defence of person as well as property at
the trial. According to him he had gone lo the police station to have his
version recorded but nobody paid any heed lo him. P.W. 18 denied such           H
    316                   SUPREME COURT REPORTS (1996] SUPP. 3 S.C.R.

A   suggestion. The appellant nn his own did not go to any hospital for medical
    exan1ination in order to establish that he had received injuries at or about
    the same time when the occurrence took place. His plea as set up has
    broadly been referred to earlier. From the prosecution side the statement
    of B2shistha, P\V 1, is lo a certain, extent supportive thereof. This witness
B was the labourer engaged by the appellant and belongs to his village.
    Likewise Avdhesh, DW 1 is supporting his case. This witness too was his
    co-villager and belongs to his own community.

           The High Court rejected the plea of self defence set up by the
    appdlant having come to the conclusion that injuries found on the appcl-
C   !ant were self suffered in order to spin a defence version. Secondly the
    High Court on the basis of the medical evidence came to the conclusion
    that there were fired two shots but the appellant had owned only one,
    keeping the second one unaccounted. The High Court disbelieved the
    evidence of Bashistha, PW 1 and Avdhesh, DW l supporting the defence
D   version. The High Court believed the prosecution version as believed by
    the trial court.

          When an accused person sets up a plea of self defence, the onus to
    establish that plea lies on him. It is well established that the accused is not
E   required to prove that plea beyond reasonable doubt but has merely to
    show it as probable. The onus to probablise the defence version, from the
    salient facts and circun1stances appearing in the prosecution case, or
    othenvise set up by the accused in the form of defence evidence, is always
    on him. Now here the appellant's positive case is that on the day of the
    occurrence his driver driven tractor carrying a cultivator was being taken
F   to the gadva field and he was silting on the wooden plank placed behind
    the driver's seat between the two mudguards of the tractor. His gun was
    hanging alongside on an iron rod fitted on the tractor. He was then stopped
    by Vishwanalh, PW 17, armed with a /athi, and Gokaran, deceased, armed
    with a bu/lam, and blamed for having trampled the wheat field by means
    of the tractor. According tu him ignoring the same he wanted to move
G   ahead and asked his driver to do so, but those people started hitting him
    as well as causing damage to the tractor, with the result that he had to
    jump off the tractor carrying his gun and wanted to run away. Thereafter
    not only the aforesaid two persons followed him but lwo others, i.e.
    Mathura and Ghanshyam armed with sticks also moved towards him
H   menacingly but they could not strike him. It is at this juncture he claims
       BHAIYABAHADURSINGHv.STATEOFM.P.[PUNCHHJ,J.)                         317

that he fired from his gun. He felt shy however in mentioning the number          A
of gun :;hots fired by him. But his silence on that aspect can safely be taken
that he had owned that both the fires were made by him. It is on that basis
that we "can proceed further to examine his defence.

       Dr. R.D. ·Sharma, PW 11 found five injuries on the person of the
                                                                                  B
appellants. In his opinion, Injuries Nos. 1, 3 and 5 were caused by some
hard and blunt object. Injuries Nos. 2 and 4 could be caused by some sharp
cutting weapon. According lo him these injuries were simple in nature and
could be caused within 24 hours of his examination, which took place at
about 2 p.m. on 24.12.1983, putting back the occurrence lo be at about the
same time on 23.12.1983 whereas the occurrence had taken place a day              c
earlier on 22.12.1983 at 4.30. pm. To say the least, the Doctor was extremely
causal in his observation. Later at lhe trial he revisedly opined that those
were caused within 48 hours. On 21.1.1984, when asked, he opined that
such simple injuries could have been self inflicted. When cross-examined
at lhe trial, he stated that he could nol say whether the injuries on the         D
appellant were self-inflicted definitely. He then added that it was likely lhat
somebody may have inflicted those injuries on the person of the appellant.
Again he took a somer-sault to say that looking at the injuries of the
appellant the possibility of self infliction was ruled out. He missed as well
the distinction between a pellet and a bullet. He described the bullet found
close lo lhe exit wound of the deceased to be a pellet instead of bullet and      E
owned that the word pellet had wrongly been written in the post mortem
report. In such state of medical evidence the best that can be derived for
the appellant was that the injuries on his person may not have been self
inflicted but m,;y have been self suffered. Of course the appellant would
have us believe that they were not self suffered even, and suffered during        F
the occurrence for which the prosecution had not rendered any explana-
tion. The superficial nature of the injuries by itself, in our opinion, was the
explanation.

      With regard to the condition of the entrance and exit wounds of the
deceased, Dr. Sharma, PW 11, described that tattoing was present around           G
the entrance wound, and smell of gun powder was obvious on the wound,
which was through and through. The exit wound was found bleeding with
dark smoking blood. This condition was suggestive of the fact that the
appellant had fired at the victim from a very short range. Contrarily no
such tattoing was present on the pellet injuries on Mathura and Ghan-             H
    318                  SUPREME COURT REPORTS \ J<JY6] SUPP. 3 S.C.R.

A   shyam, PWs which showed that these had been fired al from a distance,
    much longer than compared to the deceased.

         The appellant would have us believe that all the live injuries were
  caused to him while he was sitting on the tractor and he had to jump off
B the tractor with his gun whereafter when being followed he fired from his
  gun. Th.is plea of the appellant ipso fac/o does not give him the right of
  private defence of person as well as the property. The damage to the
  tractor, whatever, had been done. It sounds improbable that having a gun
  in his hands fully loaded, three men even armed with /at/tis and one man
  armed with a spear would dare go chasing close lo him, once he was seen
C in a charging position preparatory to firing. The two sticks in the hands of
  Mathura and Ghanshyam, PWs could hardly be called lethal weapon;
  because prosecution witnesses have positively stated that these sticks were
  merely meant to drive the oxen. There was no reason for Vishwanath, PW
  17 and the deceased to be carrying any /athi and ballam respectively to the
D fields on the day of occurrence and lo such distance, as there was no reason
  to apprehend any trouble whatsoever. Both parties had never quarreled
  before. Neither weapon was found at the spot when the investigating officer
  conducted the inquest and further investigation. He was al the spot by the
  night itself. Additionally after the appellant had jumped off the tractor
  along with his gun, no injury was allegedly caused to him by the victim
E party. The right of private defence if any, (but nol holding so) ended the
  moment the appellant succe5'fully jumped off the tractor and got at a safe
  distance from the victims, young and sprightly as he was. He himself being
  in a dominating position, could have had no cause to fire at the victims
  causing injuries, dangerous in nature, to Mathura and Ghanshyam, PWs
F and then to have re-loaded his gun with a powerful cartridge containing a
  bullet, driving it through the body of the deceased, from a close range. The
   deceased could, in no event, have dared to go near the appellant when
   already a fire had been shot him hitting Mathura and Ghanshyam, PWs.
   He would in the normal circumstances be running away from the appellant
   obeying the instinct of self-preservation. As stated he had even exhorted
G his brother at that juncture to run away, lest they be killed. The defence
  version therefore does not probablise or preponderate. The version and
   circumstances pleaded by the prosecution are striking and convincing. It
   appears that the appellant consciously and deliberately fired the two shots
  successfully; the second one after re-loading the gun. He fully intended the
H consequences of his acts, i.e. the injuries to PWs 15 and 16 and the instant
         BHAIYA BAHADURSINGH v. STATE OFM.P. [PUNCHHl,J.]               319

death of the deceased. W c hold so.                                           A
      There was no previous ill-will between the parties of any sort.
Agriculturists having fields cornering path-ways bear the brunt of trampling
of crops by turning vehicles, in its stride. As it is routine to trample corners
so is the routine to lodge protests, not 1nuch meant. The appellant need
not have felt provoked with a small incident like this and lo have gone B
home to bring the gun for mis-use. He had no need to carry it to begin
with, more so \Vhen he \vas not its license holder. Yet his over- bearing
attitude and hot headedness brought about the results he achieved within
minutes. Countermanding death penalty or life sentence with self suffering
some injuries from a friendly hand, was some attempt though, but futile in C
sum. Thus in our view, the appellant has miserably failed in that regard.
The courts below have iriferred that he had taken such step on legal advice.
That may be so, for he made himself scarce for a day after the occurrence.
The prosecution has thus fully proved its case to the hilt. Besides two courts
below have concurrently found the prosecution case reliable and the
defence version not worthy of credence on the test of probabilities. We D
have no reason to differ.

     As a result, this appeal fails and is hereby dismissed.

B.K.M.                                                   Appeal dismissed.