2022 Supreme(SC) 525

SUPREME COURT OF INDIA
B.R. GAVAI, HIMA KOHLI, JJ.
Ex. Ct. Mahadev – Appellant
Versus
The Director General, Boarder Security Force & Ors. – Respondents
Civil Appeal No. 2606 of 2012
Decided On : 14-06-2022

IMPORTANT POINTS
(1) Right of private defence – Instinct of self-preservation is embedded in DNA of every person – Doctrine of right to private defence is founded on very same instinct of self-preservation that has been duly enshrined in criminal law.
(2) Right of private defence is necessarily a defensive right which is available only when circumstances so justify it – Underlying factor should be that such an act of private defence should have been done in good faith and without malice.

Headnote:

(A) Indian Penal Code, 1860 – Section 96 to 100 – Indian Evidence Act, 1872 – Section 105 – Right of private defence – Instinct of self-preservation is embedded in DNA of every person – Doctrine of right to private defence is founded on very same instinct of self-preservation that has been duly enshrined in criminal law – Whether a person has legitimately acted in exercise of right of defence given a particular set of facts and circumstances, would depend on nuance of each case – For arriving at any conclusion, Court would be required to examine all surrounding circumstances – If Court finds that circumstances did warrant a person to exercise right of private defence, then such a plea can be considered – Section 100 IPC throws light on circumstances in which right of private defence of body can be stretched to the extent of voluntarily causing death – To claim such a right, accused must be able to demonstrate that circumstances were such that there existed a reasonable ground to apprehend that he would suffer grievous hurt that would even cause death – Necessity of averting an impending danger is core criteria for exercising such a right – It would be for accused to adduce positive evidence or extract necessary information from witnesses produced by prosecution and place any other material on record to establish his plea of private defence. (Paras 10, 11 and 14)

(B) Indian Penal Code, 1860 – Section 96 to 100 – Right of private defence – Right of private defence is necessarily a defensive right which is available only when circumstances so justify it – Circumstances are those that have been elaborated in IPC – Such a right would be available to accused when he or his property is faced with a danger and there is little scope of State machinery coming to his aid – At the same time, courts must keep in mind that extent of violence used by accused for defending himself or his property should be in proportion to injury apprehended – It is not feasible to prescribe specific parameters for determining whether steps taken by accused to invoke private self-defence and extent of force used by him was proper or not – Court’s assessment would be guided by several circumstances including position on the spot at relevant point in time, nature of apprehension in mind of accused, kind of situation that accused was seeking to ward off, confusion created by situation that had suddenly cropped up resulting in knee jerk reaction of accused, nature of overt acts of party who had threatened accused resulting in his resorting to immediate defensive action, etc. – Underlying factor should be that such an act of private defence should have been done in good faith and without malice. (Para 21)

(C) Border Security Force Act, 1968 – Section 46 – Indian Penal Code, 1860 – Section 302 – Murder – Life sentence awarded by General Security Force Court (GSFC) – Border fencing in area in question had been erected just a few months before incident had taken place – Prior to that, many villagers used to freely indulge in smuggling activities by crossing over to Bangladesh side and vice versa – Deceased used to indulge in smuggling activities and his name was mentioned in list of smugglers maintained by the BSF – Apprehending an imminent and real threat to his life, appellant had fired from his rifle at intruders in self-defence and deceased who was a part of group, sustained bullet injuries and had fallen on ground – Trajectory of bullets indicates that firing took place from a higher position vis-à-vis deceased – But that does not necessarily mean that appellant had summoned deceased and made him crouch on the ground before shooting at him, as assumed by High Court – Uneven terrain of Rubber plantation with slopes and undulating surface would offer a plausible alternate explanation for trajectory of bullets fired by appellant at deceased – Appellant ought not to have been convicted for having committed murder of deceased – Rather, 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 – Appellant is held guilty for offence of culpable homicide, not amounting to murder as contemplated under Exception 2 to Section 300 IPC and appellant set free for period already undergone. (Paras 22, 25 and 26)

Facts of the case:

Appellant is aggrieved by the judgement dated 3rd March, 2011 passed by 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 respondent No.4 herein convicting him to life imprisonment for an offence committed under Section 46 of the Border Security Force Act, 1968 , that is to say for murder punishable under Section 302 of the Indian Penal Code, 1860. By 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 General Security Force Court was upheld.

Singular question that requires to be examined in the present appeal is whether the appellant was entitled to exercise right of private defence in the given facts and circumstances of case.

Findings of Court:

On a broad conspectus of the events as they had unfolded, right of private self defence would be available to the appellant keeping in mind preponderance of probabilities that leans in favour of the appellant.

Result : Appeal Partly allowed.