Act Of Private Defence Must Be Done In Good Faith And Without Malice - Supreme Court

The Supreme Court, while adjudicating upon the plea of right of private defence, has held that an act of private defence should have been done in good faith and without malice.

The bench of Justice B.R. Gavai and Justice Hima Kohli observed that the right of private defence would be available to the accused when he or his property was faced with a danger and there was little scope of the State machinery coming to his aid.

The Court reiterated that showing that the preponderance of probabilities was in favour of the plea of the accused is enough.

In this case, the appellant who was serving in the Border Security Force (BSF) was tried by the General Security Force Court (GSFC) for allegedly causing the death of a civilian-Nandan Deb. The GSFC held him guilty of committing an offence under Section 46 of the BSF Act, that is to say, murder punishable under Section 302 of the Indian Penal Code. The plea of private defence was rejected and he was sentenced to life imprisonment and dismissed from service.

Aggrieved by this the appellant filed a writ petition before High Court. The Division Bench of the High Court dismissed the writ petition. The appellant then moved the Supreme Court.

Advocate Lalit Kumar appearing on behalf of the appellant submitted that the High Court had erred in concurring with the findings of the GSFC and discarding the defence taken by the appellant that he was compelled to exercise his right of private defence.

He further submitted that villagers in the area used to regularly indulge in smuggling activities. He further submitted that the deceased was apprehended for indulging in smuggling activities and his name was on the list of smugglers maintained by the BSF.

He pointed out that prior to the incident in question, trans-border criminals had attacked BSF personnel seven times and most of the time, they had to use force by opening fire in self-defence and the defence of property.

He further stressed that the appellant had acted in the heat of the moment, purely in his self-defence.

On the contrary, ASG Aishwarya Bhati appearing for respondent-Union of India defended the findings returned by the GSFC and upheld by the High Court. She submitted that the findings of the GSFC were sound and that reliance was rightly been placed on the testimonies of the local villagers, who had stated that the appellant had summoned the deceased and then shot at him twice without any provocation.

The Court observed that the doctrine of the right to private defence was founded on the instinct of self-preservation that was duly enshrined in the criminal law.

The Court also noted that in order to claim the right of private defence of the body to the extent of voluntarily causing death, 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 Court placed reliance on the case of Rizan and Another v. State of Chhattisgarh where the Apex Court had observed that the accused didn't need to prove the existence of private self-defence beyond reasonable doubt and that it would suffice if he could show that the preponderance of probabilities was in favour of his plea, just as in a civil case.

To examine the question- Whether the appellant was entitled to exercise the right of private defence, the court relied on a catena of judgments.

Based on those judgments the Court noted that "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 underlying factor should be that such an act of private defence should have been done in good faith and without malice," the Court noted further.

The Court observed that the deceased used to indulge in smuggling activities and his name was mentioned in the list of smugglers maintained by the BSF.

The Court also noted that the appellant had fired from his rifle at the deceased in self-defence, apprehending an imminent and real threat to his life. And to that end held "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."

The Court opined that the appellant ought not to have been convicted for having committed the murder of the deceased. The Court noted that the offence made out was of culpable homicide not amounting to murder under Exception 2 to Section 300 IPC, thereby attracting the provisions of Section 304 IPC.

"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," the Court held while disposing of the appeal.

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