Border Security Force Act, 1968 – s.46 – Penal Code, 1860 – ss.96-100 & s.302, Exception 2 to s.300 and s.304 – Plea of self defence – When available – Appellant, serving in BSF was convicted for an offence committed u/s.46, BSF Act i.e. for murder u/s.302, IPC and was sentenced to life imprisonment – Statutory appeal filed by the appellant was dismissed – Order upheld by High Court – Held: Whether a person has legitimately acted in exercise of the right of defence would depend on the nuance of each case – To claim such a right, the accused must be able to demonstrate that the circumstances were such that there existed a reasonable ground to apprehend that he would suffer grievous hurt that would even cause death – In the present case, the right of private self defence would be available to the appellant keeping in mind preponderance of probabilities that leans in his favour – In a situation where he was suddenly confronted by a group of intruders, who came 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 – In the process two of the shots pierced through the deceased, causing his death – Appellant ought not to have been convicted for the murder of the deceased – Rather, the offence made out is of culpable homicide not amounting to murder u/Exception 2 to s.300 IPC, thereby attracting s.304, IPC – Impugned judgment modified – Further, on facts, period already undergone is sufficient punishment for the offence – Appellant set free. Penal Code, 1860 – ss.96-100 – Right of private defence – Evidence Act, 1872 – s.105 – Burden of proof – Held: s.105 states that the burden of proof rests with the accused who takes up the plea of self defence – It is for the accused to adduce positive evidence or extract necessary information from the witnesses produced by the prosecution and place any other material on record to establish his plea of private defence – Accused need not prove the existence of private self-defence beyond reasonable doubt and it would suffice if he could show that the preponderance of probabilities is in favour of his plea, just as in a civil case. Penal Code, 1860 – ss.96-100 – Plea of right of private defence – When available – Circumstances enumerated to guide assessment by Courts.
Partly allowing the appeal, the Court
HELD: 1.1 The instinct of self-preservation is embedded in the DNA of every person. 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. The provisions that deal with the right of private defence have been enumerated in Sections 96 to 106 of the IPC and fall under Chapter IV that deals with General Exceptions. 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. If the Court finds that the circumstances did warrant a person to exercise the right of private defence, then such a plea can be considered. Section 97 IPC states that every person has a right of defence of person as well as of property. Section 99 IPC refers to the acts against which there is no right of private defence and the extent to which the said right can be exercised. The rights vested under Sections 96 to 98 and
100 to 106 IPC are broadly governed by Section 99 IPC. Section
100 IPC throws light on the circumstances in which the right of private defence of body can be stretched to the extent of voluntarily causing death. To claim such a right, the accused must be able to demonstrate that the circumstances were such that there existed a reasonable ground to apprehend that he would suffer grievous hurt that would even cause death. The necessity of averting an impending danger is the core criteria for exercising such a right. Both Sections 100 and 101 IPC define the circumstances in which the right of private defence of the body extends to causing death or causing any harm other than death. Provisions of Sections 102 and 105 IPC stipulate the stage of commencement and continuance of the right of private defence of the body and property respectively and state that the said right commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, though such an offence may not have been committed. The provisions state that it continues as long as such an apprehension or danger to the body continues. 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. [Paras 10-12][1145-A-G; 1146-A]
Rizan and Another v. State of Chhattisgarh through the Chief Secretary, Government of Chhattisgarh, Raipur, Chhattisgarh (2003) 2 SCC 661 : [2003] 1 SCR 457; State of M.P. v. Ramesh (2005) 9 SCC 705 : [2004]
6 Suppl. SCR 152 -relied on.
1.2 Section 105 of the Indian Evidence Act, 1872 states that the burden of proof rests with the accused who takes up the plea of self defence. In the absence of proof, the Court will not be in a position to assume that there is any truth in the plea of self defence. Thus, it would be for the accused to adduce positive evidence or extract necessary information from the witnesses produced by the prosecution and place any other material on record to establish his plea of private defence. 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. 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. 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. [Paras
14 and 21][1146-E-F; 1152-B-F]
James Martin v. State of Kerala (2004) 2 SCC 203 : [2003] 6 Suppl. SCR 910; Salim Zia v. State of Uttar Pradesh (1979) 2 SCC 648 : [1979] 2 SCR 394;
Dharam and Others v. State of Haryana (2007) 15 SCC
241 : [2006] 10 Suppl. SCR 391; Buta Singh v. State of Punjab (1991) 2 SCC 612; Bhanwar Singh and Others v. State of Madhya Pradesh (2008) 16 SCC 657 : [2008]
9 SCR 1; Raj Singh v. State of Haryana and Others (2015) 6 SCC 268 : [2015] 7 SCR 268 – relied on.
1.3 The factum of rampant smuggling in the area has not been disputed by either side. The records reveal that border fencing in the area in question had been erected just a few months before the incident had taken place. Prior to that, many villagers used to freely indulge in smuggling activities by crossing over to the Bangladesh side and vice versa. A couple of months after the fencing had been fixed along the International border with Bangladesh, there was an incident where smugglers had assaulted one of the members of the Battalion when he was trying to prevent them from crossing the border. That the deceased used to indulge in smuggling activities and his name was mentioned in the list of smugglers maintained by the BSF, is also a matter of record. The testimony of PW-1 cannot be completely discarded, as done by the GSFC. He has deposed that when he and the appellant were patrolling in the area on the relevant date, they had seen three persons crossing the international border from Bangladesh side at 8.00 AM. On noticing the intruders, they had challenged them to stop at a distance of 50 meters. But the intruders ran away in the direction of Bangladesh. At this, PW-1 and the appellant had turned back and while continuing with their patrolling duty, they saw 6-7 persons rushing tow ards them from the side of Bangladesh, carrying weapons like ‘Dah’, ‘Bhala’ and ‘Lathi’ in their hands. They managed to surround the appellant, who was closer to them. Apprehending an imminent and real threat to his life, the appellant had fired from his rifle at the intruders in self defence and the deceased who was a part of the group, sustained bullet injuries and had fallen on the ground. The trajectory of the bullets indicates that the firing took place from a higher position vis-à-vis the deceased. But that does not necessarily mean that the appellant had summoned the deceased and made him crouch on the ground before shooting at him, as assumed by the High Court. The uneven terrain of the Rubber plantation with slopes and undulating surface would offer a plausible alternate explanation for the trajectory of the bullets fired by the appellant at the deceased. If the former was positioned at an elevated spot, then it was inevitable that the bullets would have hit the chest of the deceased who was down below the slope, and made a path downwards in the body. Thus the preponderance of probabilities would swing in favour of the plea of self defence taken by the appellant. 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. The impugned judgment is modified to the extent that the appellant is held guilty for the offence of culpable homicide, not amounting to murder as contemplated under Exception 2 to Section 300 IPC. By the time the appellant was granted bail by this Court on 4 th July, 2016, he had already suffered incarceration for a period of over eleven years, which given the peculiar facts and circumstances of the present case, is considered sufficient punishment for the offence. The appellant is set free for the period already undergone and the bail bonds stand discharged. [Paras 22, 24-26][1152-G-H; 1154-A-H; 1155-A]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.