Supreme Court of India in one of its recent judgment partly allowed a plea of right to self defence where the accused was convicted to life imprisonment stating that the onus of proof relies on the person who takes the plea of existence of self defence but need not to prove beyond the reasonable doubt where the probabilities is in favour of his plea in accordance with the material in record.
Observations were made by two judge bench of Justice Hima Kohli and Justice B.R. Gavai.
Brief Facts of the Case
In case of Ex. CT. Mahadev v. The Director General Boarder Security Force & Ors. , the appellant was serving as an officer in BSF and is alleged by the respondents to have committed murder of a civilian while his patrolling duty by shooting the latter from his rifle resulting in latter’s on the spot death. Appellant in his defence averted that while he was on his patrolling duty, some villagers comprising of weapons when stopped by the appellant, came near him with an intent to attack him with those weapons and did stop when the appellant open two shots in air, rather continued coming towards him with rage, against which the appellant had to shoot the villager with his rifle in order to defend his life and presented that the shooting was an act of self defence and also claimed that the alleged villagers were part of smuggling groups and that the deceased was one of them who assaults battalion groups and freely cross borders with smuggling materials.
Subsequently a trail was conducted by GSFC who held the appellant guilty and convicted him for life imprisonment under section 46 of BSF act, and under section 302 of IPC. Aggrieved by the said order and sentence , appellant filed a writ petition before high court of Delhi which was dismissed by the court. Subsequent to which appellant had filed an appeal before the Supreme Court of India .
High Court's Observations:
High court of Delhi while dismissing appellant’s writ petition relied upon the assertion of a doctor (witness) , who conducted the postmortem of the deceased and contended that death was caused due to firearm injuries sustained by the deceased. High court also gave relevance to the deposition of SI who deposed that when the body was founded it had folded legs which concludes that the deceased was mas made to crouch down and was shot.
Counsel’s Submissions:
Ld. Counsel for appellant submitted that high court wrongfully seconded with findings of GSFC and stated that mere folded legs of deceased cannot be a ground to incriminate him. He further submits that the deposition of two witnesses which includes the patrolling statement of appellant where the shot was fired from higher angle could be a justification of the bullet marks on the chest of the deceased ,and the findings of deceased to be a smuggler to be corroborative was overlooked by the high court.
He furthers submits that plea of self defence by appellant must be considered. Ld. Counsel for the respondents submitted that the high court had justly upheld the decision of GISF and could not have overlooked the depositions made by the said two witnesses.
Supreme Court's Observations:
Supreme Court of India while perusing the records focussed on the issue that whether appellant was right to exercise the right of self defence in the present facts and conditions of the case.
Supreme Court further explained the significance of right to self defence given under section 96 to 106 of Indian Penal Code by referring to the cases of Rizan and Another v. State of Chhattisgarh, James Martin Vs. State of Kerala, 2003 Latest Caselaw 639 SC, Salim Zia Vs. State of U.P, 1978 Latest Caselaw 240 SC, Dharam & Ors Vs. State of Haryana, 2006 Latest Caselaw 867 SC,
, Bhanwar Singh and Others v. State of Madhya Pradesh , and Raj Singh v. State of Haryana and Others and also contended that “the rights vested under Sections 96 to 98 and 100 to 106 IPC are broadly governed by Section 99 IPC.”
The court further observed that the rampant smuggling was significant in the area of incident and seconded that the deceased was contended to be a smuggler is a matter of fact and that the testimony of two relevant witnesses cannot be totally discarded as it suggests that if the appellant was at an elevated spot then it justifies the chest bullet injuries of deceased.
The court opined that an accused taken a plea of self defence must prove the existence of sudden threat or danger to his life but may not prove beyond the reasonable doubts when the circumstances and probabilities are in the favour of the plea in accordance with the material records.
The court contended that the plea of self defence of appellant can be taken into consideration and the offence should be made out of culpable homicide not amounting to murder given under
Exception 2 to Section 300 IPC . Court partly allows the appeal with directions to set free the appellant in accordance of the period already undergone by the appellant.
CASE TITLE: Ex. CT. Mahadev v. The Director General Boarder Security Force & Ors.
CASE DETAILS: CIVIL APPEAL NO. 2606 OF 2012
CORAM : Justice Hima Kohli , Justice B.R. Gavai
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