While making a broad and liberal interpretation of the plea of right of self defence, the Apex Court has as recently as on June 14, 2022 in a brief, brilliant, bold and balanced judgment titled Ex. Ct. Mahadev vs Director General Border Security Force in Civil Appeal No. 2606 of 2022 and cited in 2022 LiveLaw (SC) 551 in exercise of its civil appellate jurisdiction minced just no words to observe quite explicitly that, “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. (Para 12).” The accused who was serving in the BSF had allegedly caused the death of a civilian namely Nandan Deb. General Security Force Court rejected his plea of private defence and held him guilty under Section 302 of the Indian Penal Code (murder) and sentenced him to suffer imprisonment for life. The Delhi High Court also dismissed his appeal and therefore he approached the Supreme Court. The Apex Court held that, “We are therefore of the opinion that 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 Apex Court thus freed him as he had already undergone 11 years imprisonment which was considered sufficient punishment for the offence.
At the outset, this extremely laudable, learned, latest and landmark judgment authored by Justice Hima Kohli for a Bench of Apex Court comprising of herself and Justice BR Gavai sets the pitch in motion by first and foremost putting forth in para 1 that, “The appellant is aggrieved by the judgement dated 3rd March, 2011 passed by the Division Bench of the High Court of Delhi dismissing a writ petition filed by him, registered as WP(C)No.6709/2008, wherein he had challenged the order dated 19th March, 2008 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 (for short ‘BSF Act’), that is to say for murder punishable under Section 302 of the Indian Penal Code, 1860 (for short ‘IPC’). By the impugned order, the Division Bench has upheld the order passed by the respondent No.2 – Appellate Authority, whereby the statutory appeal filed by the appellant was dismissed and the order dated 10th March, 2007 passed by the General Security Force Court was upheld (for short ‘GSFC’).”
To put things in perspective, the Bench then envisages in para 2 that, “The brief facts of the case are that 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 and the charges framed against him were as follows :
“The accused No.89131037, Const. Mahadev, of 131 Bn. BSF is charged with:
BSF ACT COMMITTING A CIVIL OFFENCE, THAT IS TO SAY SEC.46 MURDER, PUNISHABLE U/S 302 IPC
In that he,
In a rubber garden located between BP No.2007/S-3 and BP No.2008/MP in AOR of BOP Bamutia, on 05/06/1004 at about 08:15 hrs. by firing shots from his INSAS Rifle bearing Butt No.503, Body No.16397/159 caused the death of a civilian namely Nandan Deb S/o Sh. Atinder Dev R/o VillageRangotia, PS-Sidhal, Distt.-West Tripura and thereby committed murder.””
As it turned out, the Bench then enunciates in para 3 that, “On the appellant pleading not guilty to the charge framed against him, the prosecution proceeded to examine seventeen witnesses. 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 on 10th March, 2007, the GSFC held him guilty of the charge and sentenced him to suffer imprisonment for life besides dismissing him from service. Vide order dated 4th April, 2007, the Convening Officer confirmed the findings and the sentence imposed on the appellant. Aggrieved by the said order, the appellant preferred a statutory petition, which was dismissed by the respondent No.1 – Union of India, vide order dated 19th March, 2008 that has been upheld by the High Court.”
As we see, the Bench then points out in para 4 that, “For arriving at the aforesaid conclusion, the High Court has primarily relied on the testimony of Dr. Ranjit Kumar Das (PW-10), who had conducted the postmortem on the body of the deceased and deposed that he had died due to firearm injuries and two bullets had pierced his body. It was noticed that PW-10 had deposed that having regard to the nature and place of the injuries, the position of the firer as against that of the deceased was such that the one who would have fired the shot, must have been on an elevated position compared to the victim since the direction of the bullets were from above the chest, going downwards and backward. Going by the said testimony read along with the testimony of SI Shanti Bhushan Bhuiya (PW-13), who had deposed that when he saw the dead body, both the legs were in a folded position, the High Court arrived at the conclusion that the appellant had made the deceased to crouch down and thereafter, had fired two shots at him.”
Needless to say, the Bench then states in para 8 that, “We have carefully considered the arguments advanced by learned counsel for the parties and perused the records, particularly, the testimony of the material witnesses and the statement of defence made by the appellant.”
Of course, the Bench then stipulates in para 9 that, “The singular question that requires to be examined in the present appeal is whether the appellant was entitled to exercise the right of private defence in the given facts and circumstances of the case.”
To be sure, the Bench then observes in para 10 that, “We may commence the discussion by first observing that 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. On a perusal of the aforesaid provision, it is apparent that the rights vested under Sections 96 to 98 and 100 to 106 IPC are broadly governed by Section 99 IPC.”
Quite forthrightly, the Bench then minces no words to hold in para 11 that, “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.”
While citing the relevant case law, the Bench then notes in para 12 that, “In Rizan and Another v. State of Chhattisgarh through the Chief Secretary, Government of Chhattisgarh, Raipur, Chhattisgarh (2003) 2 SCC 661, this Court 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.”
While citing yet another relevant case law, the Bench then observes in para 13 that, “In State of M.P. v. Ramesh (2005) 9 SCC 705, it was observed that :
“11. …………A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting…….. To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show that he had a right of private defence which extended to causing of death. Sections 100 and 101 IPC define the limit and extent of right of private defence.””
Furthermore, the Bench then mentions in para 16 that, “In Dharam and Others v. State of Haryana (2007) 15 SCC 241, this Court had the occasion to examine the scope of the right of private defence and had made the following pertinent observations:
“18. Thus, the basic principle underlying the doctrine of the right of private defence is that when an individual or his property is faced with a danger and immediate aid from the State machinery is not readily available, that individual is entitled to protect himself and his property. That being so, the necessary corollary is that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. We may, however, hasten to add that the means and the force a threatened person adopts at the spur of the moment to ward off the danger and to save himself or his property cannot be weighed in golden scales. It is neither possible nor prudent to lay down abstract parameters which can be applied to determine as to whether the means and force adopted by the threatened person was proper or not. Answer to such a question depends upon a host of factors like the prevailing circumstances at the spot, his feelings at the relevant time, the confusion and the excitement depending on the nature of assault on him, etc. Nonetheless, the exercise of the right of private defence can never be vindictive or malicious. It would be repugnant to the very concept of private defence.””
Going ahead, the Bench then states in para 17 that, “In Buta Singh v. State of Punjab (1991) 2 SCC 612, this Court had emphasised that a person who is apprehending death or bodily injury, cannot weigh in golden scales on the spur of the moment and in the heat of circumstances, the number of injuries required to disarm the assailants who were armed with weapons. Referring to the said decision, this Court had made the following observations in James Martin (supra) :
“17. …… In moments of excitement and disturbed mental equilibrium it is often difficult to expect the parties to preserve composure and use exactly only so much force in retaliation commensurate with the danger apprehended to him. Where assault is imminent by use of force, it would be lawful to repel the force in self-defence and the right of private defence commences, as soon as the threat becomes so imminent. Such situations have to be pragmatically viewed and not with high-powered spectacles or microscopes to detect slight or even marginal overstepping. Due weightage has to be given to, and hyper technical approach has to be avoided in considering what happens on the spur of the moment on the spot and keeping in view normal human reaction and conduct, where self-preservation is the paramount consideration. But, if the fact situation shows that in the guise of self-preservation, what really has been done is to assault the original aggressor, even after the cause of reasonable apprehension has disappeared, the plea of right of private defence can legitimately be negatived. The court dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially, as noted above, a finding of fact.
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20. The right of private defence is essentially a defensive right circumscribed by the governing statute i.e. IPC, available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive purpose of offence. It is a right of defence, not of retribution, expected to repel unlawful aggression and not as a retaliatory measure. While providing for exercise of the right, care has been taken in IPC not to provide and has not devised a mechanism whereby an attack may be a pretence for killing. A right to defend does not include a right to launch an offensive, particularly when the need to defend no longer survived.””
Moving on, the Bench then enunciates in para 18 that, “The situation in which the plea of a right to private defence would be available to the accused was discussed by this Court in Bhanwar Singh and Others v. State of Madhya Pradesh (2008) 16 SCC 657 and it was held thus :
“50. The plea of private defence has been brought up by the appellants. For this plea to succeed in totality, it must be proved that there existed a right to private defence in favour of the accused, and that this right extended to causing death. Hence, if the court were to reject this plea, there are two possible ways in which this may be done. On one hand, it may be held that there existed a right to private defence of the body. However, more harm than necessary was caused or, alternatively, this right did not extend to causing death. Such a ruling may result in the application of Section 300 Exception 2, which states that culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. The other situation is where, on appreciation of facts, the right of private defence is held not to exist at all.
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60. To put it pithily, the right of private defence is a defence right. It is neither a right of aggression or of reprisal. There is no right of private defence where there is no apprehension of danger. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger not of self-creation. Necessity must be present, real or apparent.””
Most significantly, the Bench then holds in para 25 that, “On a broad conspectus of the events as they had unfolded, we are of the opinion 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. We are therefore of the opinion that 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.”
As a corollary, the Bench then observes in para 26 that, “In view of the aforesaid discussion, the appeal is partly allowed and 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. Records reveal that by the time the appellant was granted bail by this Court on 4th 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 accordingly set free for the period already undergone and the bail bonds stand discharged.”
To sum up, the Apex Court very rightly extends the benefit of doubt to the accused in a murder case. It is made clear that the accused taking plea of self defence need not prove it beyond reasonable doubt. The appellant who was the accused is thus very rightly set free for the reasons as stated herein aforesaid.
Sanjeev Sirohi