In CIVIL APPEAL NO. 2606 OF 2012-SC- Act of private defence should be done in good faith and without malice; Extent of violence used by accused for defending himself or his property should be in proportion to injury apprehended: SC Justices B.R.Gavai & Hima Kohli [14-06-2022]

Read Judgment: EX. CT. MAHADEV v. THE DIRECTOR GENERAL, BOARDER SECURITY FORCE & ORS 

Tulip Kanth

New Delhi, June 15, 2022: While observing that apprehending an imminent and real threat to his life, the appellant-accused had fired from his rifle at the intruders in self defence and the deceased who was a part of the group, sustained bullet injuries, the Supreme Court has set the appellant free as he had already suffered incarceration for a period of over eleven years.

Clarifying that the right of private defence is necessarily a defensive right which is available only when the circumstances so justify it, The Division Bench Justice B.R.Gavai and Justice Hima  Kohli asserted, “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.”

In this matter, the appellant-accused, who was serving in the BSF, was tried by the GSFC for committing an offence under Section 46 of the BSF Act i.e. murder punishable under Section 302 of the IPC.  The plea of private defence taken by the appellant was rejected and the GSFC held him guilty of the charge and sentenced him to suffer imprisonment for life besides dismissing him from service. Aggrieved by the said order, the appellant preferred a statutory petition, which was dismissed by the first respondent-Union of India, by an order dated March 19, 2008 that had been upheld by the High Court.

Referring to Section 105 of the Indian Evidence Act, 1872, the Bench opined that  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. On the facts of the case, the Bench observed that the issue of rampant smuggling in the area had not been disputed by either side. A couple of months after the border 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. It was also a matter of record that the deceased used to indulge in smuggling activities and his name was mentioned in the list of smugglers maintained by the BSF.

The version of the appellant was that when he was patrolling in the Rubber plantation, an area he had noticed 6-7 persons crossing over from Bangladesh by cutting across the International border. They were armed with weapons and seeing himself cornered, the appellant started to retreat. Faced with such a precarious situation where the appellant gathered an impression that the intruders were going to attack him any minute, fearing for his life, the appellant fired two rounds in the air. This did not deter the intruders who kept on inching closer to the appellant. 

When one of the intruders,Nandan Deb, tried to attack him by raising his weapon, then apprehending an imminent and perceptible threat to his life, the appellant fired at him due to which he fell on the ground. While the other miscreants fled away to Bangladesh, Nandan Deb collapsed at the spot and was declared dead. According to the Bench, this act was done by the appellant only after he apprehended an imminent and real threat to his life and so, the right of private self defence was available to the appellant keeping in mind preponderance of probabilities that leaned in favour of the appellant. 

The Bench was also 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 was of culpable homicide not amounting to murder under Exception 2 to Section 300 IPC.Thus, considering that the appellant was granted bail by this Court in 2016 and he had already suffered incarceration for a period of over eleven years, the Bench set the appellant free and  discharged the bail bonds.