In Situations Right Of Private Defence Is Defensive Right Says Supreme Court

The Supreme Court Tuesday said that the right of private defence is necessarily a defensive right that is available only when the circumstances so justify it and acquitted an ex-BSF Jawan for the charges of murder of an alleged smuggler on the Indo-Bangladesh border.

The top court said that the underlying factor should be that such an act of private defence should have been done in good faith and without malice.

A bench of Justices BR Gavai and Hima Kohli said that the circumstances under which the right to self-defense is available are elaborated in the Indian Penal Code.

"To sum up, 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", the bench said in its verdict.

It added that at the same time, the courts must keep in mind that the extent of the violence used by the accused of 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,'' it said.

The bench said that the Court's assessment should 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 in the 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 an immediate defensive action, etc.

It added 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".

Justice Kohli, who penned down the verdict on behalf of the bench, said that 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", it said.

Analysing the details of the case, the bench said that the factum of rampant smuggling in the area has not been disputed by either side and 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", the bench noted. It said that the individual used to indulge in smuggling activities and his name was mentioned in the list of smugglers maintained by the BSF, which is also a matter of record.

"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", the bench said, adding that the situation where he (ex-BSF Jawan) 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.

The bench said, "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 bench partly allowed the appeal filed by ex-BSF Jawan Mahadev who was convicted of murder and sentenced to life by the High Court and the General Security Force Court.

"..the impugned judgement 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 July 4, 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", the bench said.

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