Accused Taking Plea Of Self Defence Need Not Prove It Beyond Reasonable Doubt
Case: Ex. Ct. Mahadev vs Director General, Border Security Force
Coram: Justices BR Gavai and Hima Kohli
Case No.: CA 2606 OF 2012
Court Observation: The doctrine of the right to private defence is founded on the very same instinct of self-preservation that has been duly enshrined in the criminal law. The provisions that deal with the right of private defence have been enumerated in Sections 96 to 106 of the IPC and fall under Chapter IV that deals with General Exceptions. Section 96 IPC states that nothing is an offence which is done in the exercise of the right of private defence. Whether a person has legitimately acted in exercise of the right of defence given a particular set of facts and circumstances, would depend on the nuance of each case. For arriving at any conclusion, the Court would be required to examine all the surrounding circumstances. If the Court finds that the circumstances did warrant a person to exercise the right of private defence, then such a plea can be considered. Section 97 IPC states that every person has a right of defence of person as well as of property. Section 99 IPC refers to the acts against which there is no right of private defence and the extent to which the said right can be exercised. On a perusal of the aforesaid provision, it is apparent that the rights vested under Sections 96 to 98 and 100 to 106 IPC are broadly governed by Section 99 IPC.
Section 100 IPC throws light on the circumstances in which the right of private defence of body can be stretched to the extent of voluntarily causing death. To claim such a right, 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 necessity of averting an impending danger is the core criteria for exercising such a right. Both Sections 100 and 101 IPC define the circumstances in which the right of private defence of the body extends to causing death or causing any harm other than death. Provisions of Sections 102 and 105 IPC stipulate the stage of commencement and continuance of the right of private defence of the body and property respectively and state that the said right commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, though such an offence may not have been committed. The provisions state that it continues as long as such an apprehension or danger to the body continues.
“To sum up, 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. This is not to say that a step to step analysis of the injury that was apprehended and the violence used is required to be undertaken by the Court; nor is it feasible to prescribe specific parameters for determining whether the steps taken by the accused to invoke private self-defence and the extent of force used by him was proper or not. 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 action, etc. The underlying factor should be that such an act of private defence should have been done in good faith and without malice.”
“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. We are therefore 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 is of culpable homicide not amounting to murder under Exception 2 to Section 300 IPC, thereby attracting the provisions of Section 304 IPC”
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