Bathusingh & Ors Vs. State of
M.P  Insc
486 (25 August 2004)
K.G. Balakrishnan & Dr. AR. Lakshmanan 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
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
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
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 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
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
For the foregoing reasons, we are of the opinion that the appeals have no
merits and are, accordingly, dismissed.