Supreme Court of India was dealing with the petition challenging the judgement dated 3rd March, 2011 passed by the High Court of Delhi dismissing a writ petition filed by him, wherein he had challenged the order passed by the respondent No.4 herein convicting him to life imprisonment for an offence committed under Section 46 of the Border Security Force Act, 1968.
Brief Facts:
In this case, the appellant, who was serving in the BSF, was tried by the GSFC in the year 2007, for committing an offence under Section 46 of the BSF Act, that is to say murder punishable under Section 302 of the IPC. The appellant did not produce any witness. However, he made an oral statement in his defence. The plea of private defence taken by the appellant was rejected and the GSFC held him guilty of the charge and sentenced him to suffer imprisonment for life besides dismissing him from service. The appellant preferred a statutory petition, which was dismissed by the Union of India that has been upheld by the High Court. The High Court has primarily relied on the testimony of Dr. Ranjit Kumar Das, who had conducted the post-mortem on the body of the deceased and deposed that he had died due to firearm injuries and two bullets had pierced his body.
Appellant’s Contention:
Learned counsel for the appellant submitted that, the High Court has erred in concurring with the findings of the GSFC and discarding the defence taken by the appellant that he was compelled to exercise his right of private defence to save his life when suddenly confronted with intruders who were armed with weapons and had ‘gheraoed’ him. He alluded to the topography of the Rubber plantation where the incident had taken place, which was admittedly uneven with depressions and undulations, to urge that merely because the deceased was found with his legs in a folded position, could not be a ground to indict the appellant having regard to the fact that even as per the version of CT H.
Respondent’s Contention:
Learned Counsel for the respondent submitted that, the High Court cannot be faulted for disbelieving the testimony of PW-1, an eye-witness to the incident who was on duty at the Rubber plantation along with the appellant on the fateful day. She submitted that the testimony of the doctor was a clincher and left no manner of doubt that the appellant had made the deceased to kneel down and thereafter fired two shots directly at him, causing his death.
SC’s Observations:
The question before the SC was whether the appellant is entitled to exercise the right of private defence in the given facts and circumstances of the case?
SC observed that, the doctrine of the right to private defence is founded on the very same instinct of self-preservation that has been duly enshrined in the criminal law. Section 96 IPC states that nothing is an offence which is done in the exercise of the right of private defence. Whether a person has legitimately acted in exercise of the right of defence given a particular set of facts and circumstances, would depend on the nuance of each case. For arriving at any conclusion, the Court would be required to examine all the surrounding circumstances.
SC relied upon the case of Rizan and Another v. State of Chhattisgarh where it has observed that the accused need not prove the existence of private self-defence beyond reasonable doubt and that it would suffice if he could show that the preponderance of probabilities is in favour of his plea, just as in a civil case.
SC stated that, the right of private defence is necessarily a defensive right which is available only when the circumstances so justify it. The circumstances are those that have been elaborated in the IPC. Such a right would be available to the accused when he or his property is faced with a danger and there is little scope of the State machinery coming to his aid. At the same time, the courts must keep in mind that the extent of the violence used by the accused for defending himself or his property should be in proportion to the injury apprehended.
SC noted that, this is not to say that a step-to-step analysis of the injury that was apprehended and the violence used is required to be undertaken by the Court; nor is it feasible to prescribe specific parameters for determining whether the steps taken by the accused to invoke private self-defence and the extent of force used by him was proper or not.
SC further stated that, the Court’s assessment would be guided by several circumstances including the position on the spot at the relevant point in time, the nature of apprehension in the mind of the accused, the kind of situation that the accused was seeking to ward off, the confusion created by the situation that had suddenly cropped up resulting the in-knee jerk reaction of the accused, the nature of the overt acts of the party who had threatened the accused resulting in his resorting to immediate defensive action, etc. The underlying factor should be that such an act of private defence should have been done in good faith and without malice.
SC Held:
After evaluating submissions made by both the parties the SC held that, “the right of private self-defence would be available to the appellant keeping in mind preponderance of probabilities that leans in favour of the appellant. In a fact situation where he was suddenly confronted by a group of intruders, who had come menacingly close to him, were armed with weapons and ready to launch an assault on him, he was left with no other option but to save his life by firing at them from his rifle and in the process two of the shots had pierced through the deceased, causing his death. The appellant ought not to have been convicted for having committed the murder of the deceased. Rather, the offence made out is of culpable homicide not amounting to murder under Exception 2 to Section 300 IPC, thereby attracting the provisions of Section 304 IPC”
Case Title: Ex. Ct. Mahadev v. The Director General, Boarder Security Force & Ors.
Bench: J. B.R. Gavai and J. Hima Kohli
Citation: CIVIL APPEAL NO. 2606 OF 2012
Decided on: 14th June, 2022
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