Ex.Ct. Mahadev vs The Director General Border Security Force and Ors. - (Supreme Court) (14 Jun 2022)

Act of private defence is necessarily a defensive right and should have been done in good faith and without malice

MANU/SC/0776/2022

Criminal

The Appellant is aggrieved by the judgement passed by the Division Bench of the High Court 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, that is to say for murder punishable under Section 302 of the Indian Penal Code, 1860. 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.

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.

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.

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 of IPC, thereby attracting the provisions of Section 304 of 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. Appeal partly allowed.

Tags : PRIVATE DEFENCE CONVICTION LEGALITY