Bahadur Singh Vs. State of Madhya Pradesh  INSC 786 (9 July 1996)
M.M. Punchhi, M.M. Manohar Sujata V. (J) Punchhi. J
1996 SCC (5) 174 JT 1996 (6) 182 1996 SCALE (5)68
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; and assuming in the alternative
that he had established such right, did he exceed it.
appellant Bhaiya Bahadur Singh, aged about twenty five, was a teacher in a
government high school, employed a couple of months prior to the occurrence. He
was a resident of village Majhigawan whereat his family owned agricultural
lands, 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- l/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 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 right-angled boundaries lay the latha
field of the victim's party.
the prosecution case, about two weeks prior to the occurrence the victim party
had seeded a portion of that field by wheat covering that corner, and the seed
had sprouted. The appellant's tractor, was suspected 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 at the corner. Shortly before
the occurrence, i.e., on 22-12-1983 at about 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 were present in their field 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 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 wood, 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 proving its case
beyond doubt in the courts below. The appellant has been convicted and suitably
sentenced details of which are available in the judgment under appeal.
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 two members of the
victim's party, namely, Vishwanath, PW 17 and his brother Gokaran, deceased and
latter given injuries by means of a lathi 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 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 with
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 five simple injuries on
his person which were verified the following day on medical examination et
about 2 p.m. on 24- 12-1983. The description of injuries is given below:
Contusion 1" x 1/2" Irregular. Bluish and swollen over the center
part of the back.
Lacerated wound 3 cm x 1/4 cm x 1/4 cm over left scapular region. Margins were
clean cut and well defined.
Contusion 2" x 1/2" over the back of scalp. Bluish and swollen.
Incised wound 3 cm x 1/4 x 1/4 cm over the back of left leg 3" below the
left knee, placed horizontally.
Two contusions with abrasions 2" x 1" over the front of right and
tractor was recovered on 25-12-1?83 which bore testimony Of some
damage done to it in denting a mudguard and breakage of the back light glass.
point thus for consideration is : Is the defence of the appellant probable?
Prior thereto is the question whether the prosecution has been able to prove
guilt of the appellant beyond doubt. The court of session as well as the High
Court have rejected the plea of self defence. Rather the High Court has gone
into that question and demolished it, holding the appellant guilty of the
detail the matter. The case set up by the prosecution is that the latha field
situated in village Majhigawan belonged to three brothers, i.e., Vishwanath, Gokaran
and Baijnath. They were resident of the adjoining village Samre about 2-1/2
kilometers away. The field required wheat 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 victim's party.
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, whenever necessary.
pre-lunch session, they had worked regularly uptil 1.00 pm and after two hours rest had recommenced their operations.
The appellant then came to his own gadva field bringing his tractor driven by
his driver, Devi Deen.
his two labourers, 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 newly sown by the victim's party.
hearing such protest, it is said that 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, DW.1 of the village of
the appellant, was statedly at some distance grazing 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 Mathura, PW 15 and Ghanshyam, PW 16
instead, the two engaged at 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.
Sub Inspector, PW 18 set the investigation into motion. On reaching the spot he
prepared inquest of the dead body 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 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.
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 to the police station to have his version recorded but
nobody paid any heed to him . P.W.18 dented such suggestion. The appellant on
his own did not go to any hospital for medical examination 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 Bashistha, PW.1, is to a certain,
extent supportive thereof. This witness 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.
High Court rejected the plea of self defence set up by the appellant having
come to the conclusion that the injuries found on the appellant 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.1
supporting the defence version. The High Court believed the prosecution version
as believed by the trial court.
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 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
circumstances appearing in the prosecution case, or otherwise 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 to the gadva field and he
was sitting on the wooden plank placed behind the driver's seat between the two
mudguards of the tractor. His sun was hanging alongside on an iron rod fitted
on the tractor. He was then stopped by Vishwanath, PW 17, armed with a lathi,
and Gokaran, deceased, armed with a ballam, and blamed for having trampled the
wheat field by means of the tractor. According to him ignoring the same he
wanted to move 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 two others, i.e. Mathura and Ghanshyam armed with sticks
also moved towards him menacingly but they could not strike him. It is at this
juncture he claims that he fired from his gun. He felt shy however in
mentioning the number of gun shots 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.
R.D. Sharma, PW.11 found five injuries on the person of the appellant. 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.
to 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 to be
at about the same time on 23-12-1983
whereas the occurrence had taken place a day earlier on 22- 12-1983 at 4.30 pm. To say
the least, the Doctor was extremely casual in his observation. Later at the
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 the trial, he stated
that he could not say whether the injuries on the appellant were self-inflicted
definitely. He then added that it was likely that 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.
missed as well the distinction between a pellet and a bullet. He described the
bullet found close to the exit wound of the deceased to be a pellet instead of
bullet and 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 not may have been self
inflicted but may have been self suffered. Of course the appellant would have
us believe that they were not self suffered even, and suffered during the
occurrence for which the prosecution had not rendered any explanation. The
superficial nature of the injuries by itself, in our opinion, was the
regard to the condition of the entrance and exit wounds of the deceased, Dr.
Sharma, PW 11, described that tattoing was present around 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
no such tattoing was present on the pellet injuries on Mathura and Ghanshyam, PW which showed that
these had been fired at from a distances much longer than compared to the
appellant would have us believe that all the five injuries were caused to him
while he was sitting on the tractor and he had to jump off the tractor with his
gun whereafter when being followed he fired from his gun. This plea of the
appellant ipso facto does not give him the right of private defence of person
as well as the property. The damage to the tractors whatever, had been done. It
sounds improbable that having a gun in his hands fully loaded, three men even
armed with lathis and one man armed with a spear would dare go chasing close to
him once he was seen in a charging position preparatory to firing. The two
sticks in the hands of Mathura and Ghanshyam, PWs could hardly be
called lethal weapons 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 lathi 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. Both parties had never quarreled before.
weapon was found at the spot when the investigating officer conducted the
inquest and further investigation. He was at 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 party. The right of private
defence, if any, (but not holding so) ended the moment the appellant
successfully 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 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 by 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 no had even exhorted his brother at that juncture
to run away, lest they be killed.
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
consequences of his acts, i.e. the injuries to PWs 15 and 16 and the instant
death of the deceased. We hold so.
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 much meant. The appellant need not have felt provoked
with a small incident like this and to have gone home to bring the gun for mis-use.
He had no need to carry it to begin with, more so when he was 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 sum. Thus in our view, the appellant has
miserably failed in that regard. The courts below have inferred 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 have no reason to differ.
result this appeal fails and is hereby dismissed.