Ct. Mahadev v. Director General, Border Security Force, CA 2606 OF 2012
The Supreme Court while hearing partially accepting an appeal held that an accused who takes up the plea of self-defence need not prove it beyond reasonable doubt and showing preponderance of probabilities would suffice. The present appeal arises from a decision by the General Security Force Court (“GSFC”) wherein the court convicted the appellant for an offence committed under Section 46 of the Border Security Force Act, 1968 i.e.,murder punishable under Section 302 of the Indian Penal Code, 1860.
The accused, a BSF personnel at that time of the incident, had allegedly murdered a civilian named Nandan Deb by shooting the latter with his Rifle. The accused took the plea of self-defence stating that he was compelled to exercise his right of private defence to save his life when suddenly confronted by intruders who were armed with weapons and had ‘gheraoed’ him. Further, this has been substantiated by the statements of the prosecutor’s witnesses. Firstly, the area where the accused was patrolling has had incidents of smugglers entering from the Bangladesh border and attacking BSF personnel prior to the incident. Secondly, the eyewitness of the incident who was patrolling with the accused at that time, confirmed that the intruders, who were carrying weapons like Dah, Bhala and Lathi in their hands, managed to surround the accused. However, the plea of self-defence was rejected by GSFC and later by the High Court.
Therefore, the main issue 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.
Referring to the doctrine of the right to private defence the court noted that the same is founded on the instinct of self-preservation which is embedded in the DNA of every person and has been duly enshrined in the criminal law. The court further relied on Rizan and Another v. State of Chhattisgarh (2003) 2 SCC 661, wherein the court observed that the accused need not prove the existence of private self-defence beyond reasonable doubt and that it would suffice if he could show that the preponderance of probabilities is in favour of his plea, just as in a civil case. The court analysed the right of self-defence in the light of Section 99 of the IPC and various judgments to note that the right of self-defence would be available to the accused when he or his property is faced with danger provided that the extent of the violence used by the accused is in proportion with the injury apprehended. The court noted that in this case,
“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 an 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.”
With regards to the case of the appellant, the court observed that in circumstances he was suddenly confronted by a group of intruders, who had come menacingly close to him and were armed with weapons, 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.
Based on this and other facts on record supporting the appellant’s plea, the court held that the appellant ought not to have been convicted for having murdered 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. Since the accused had already suffered incarceration for eleven years during the time of the proceedings, the court decided to set him free considering the punishment of eleven years sufficient for the crime under Section 304.
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